Maybe, kind-a, sort of … not always … but sometimes.
(1) Was the police helicopter in compliance with applicable FAA regulations?
(2) What was the altitude at which the helicopter was flying?
(3) What was the frequency or rarity of helicopter flights at that altitude?
(4) Did the helicopter interfere with the normal use of his home or its curtilage?
Consequently, because Mr. Jordan failed to prove that the aerial surveillance in this case was even a “search” within the meaning of the Fourth Amendment, the trial court erred by granting Mr. Jordan’s motion to suppress evidence
State v. Jordan
2022 – Ohio – 1992
Third District Appellate Court
Union County, Ohio
June 13, 2022
On Tuesday September 8, 2020, law enforcement officers from the Union County Sheriff’s Department and the Ohio Bureau of Criminal Investigation participated in a countywide marijuana eradication operation. The operation involved a police helicopter and a trained spotter who would look for marijuana plants from his position in the helicopter. Whenever the spotter located a suspected marijuana grow on the ground below, ground-based officers would respond to the helicopter’s location and remove the suspected marijuana.
As the eradication operation moved throughout Union County, the police helicopter eventually came to Mr. Seth Jordan’s rural property in Richwood, Ohio. From his position in the airspace above Mr. Jordan’s property, the spotter observed what he suspected to be marijuana plants growing near Mr. Jordan’s residence. The ground- based officers were notified of the spotter’s sighting and they responded in force. On their arrival at Mr. Jordan’s property – now identified as 33040 Dutton Love Road, Richwood, Ohio, the ground-based officers encountered Mr. Jordan’s girlfriend, Ms. Patricia Ralstad, and told her that marijuana had been observed growing on Mr. Jordan’s property. The officers then obtained Ms. Ralstad’s written consent to search the property. In all, eight suspected marijuana plants were seized from the area immediately surrounding Mr. Jordan’s residence.
Mr. Jordan’s property where he was growing marijuana was located at 33040 Dutton Love Road, Richwood, Ohio.
Indictment
On May 28, 2021, the Union County Grand Jury returned an indictment charging Mr. Jordan with one count of illegal cultivation of marihuana in violation of O.R.C. § 2925.04(A), a third-degree felony, and one count of possession of marihuana in violation of O.R.C. § 2925.11(A), a third-degree felony. On June 23, 2021, Mr. Jordan appeared for arraignment and pleaded not guilty to the counts of the indictment.
Motion to Suppress Filed
On September 1, 2021, Mr. Jordan was granted leave to file a motion to suppress evidence. Mr. Jordan then filed his suppression motion on September 7, 2021. In his motion, Mr. Jordan sought to exclude all evidence obtained through the search of his property and the subsequent investigation. He argued that the warrantless observation of the curtilage of his home from the police helicopter constituted an unreasonable search that violated his rights under the Fourth Amendment to the United States Constitution. Although Mr. Jordan acknowledged that Ms. Ralstad had consented to the search of his property that ultimately led to the seizure of the suspected marijuana plants, he maintained that Ms. Ralstad’s consent was constitutionally invalid because of its temporal proximity to the illegal aerial observation and the arrival of the ground-based officers.
A suppression hearing was held on October 5, 2021. On October 14, 2021, the trial court granted Mr. Jordan’s suppression motion. At the heart of the trial court’s ruling was the following brief analysis:
From the exhibits and testimony, the Court finds [Mr. Jordan] had a reasonable expectation of privacy. His home was located well off the road. No passer-by could view the plants growing in the curtilage of the property. The Court finds from the testimony that the helicopter was extremely low. From the testimony, it appeared to be less than 300 feet. But for this violation of [Mr. Jordan’s] reasonable expectation of privacy, the subsequent investigation would not have occurred.
Motion to Suppress is Granted
Consequently, the trial court suppressed the suspected marijuana seized from Mr. Jordan’s property. In doing so, the trial court did not consider the validity of Ms. Ralstad’s consent, instead erroneously indicating in its judgment entry that the “defense chose not to pursue the voluntariness of the Consent to Search.”
Analysis
What is Curtilage?
“At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U.S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Oliver v. United States, 466 U.S. 170, 180 (1984)
California v. Ciraolo, 476 U.S. 207 (1986) Curtilage Test
On two previous occasions, the Supreme Court of the United States has applied the reasonable-expectation-of-privacy test to aerial surveillance of the curtilage of a private residence. In the first of these cases, California v. Ciraolo, 476 U.S. 207 (1986) law enforcement officers received a tip that marijuana was growing in Mr. Ciraolo’s backyard, which was shielded from view at ground level by two fences. The officers secured a private plane and flew over Mr. Ciraolo’s property, where, at an altitude of 1,000 feet, marijuana was observed growing in a garden plot in the yard. On the basis of the naked-eye observation, a search warrant was obtained and marijuana plants were seized from Mr. Ciraolo’s property. From these facts, the U.S. Supreme Court accepted that the marijuana was observed in the curtilage of Mr. Ciraolo’s home and acknowledged Mr. Ciraolo’s heightened expectations of privacy in his yard, but nevertheless observed:
That [an] area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible … “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” The court found that the marijuana was observed from a position “within public navigable airspace … in a physically nonintrusive manner” and that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that [the] officers observed.” Accordingly, the court concluded that the aerial observation from an altitude of 1,000 feet did not violate the Fourth Amendment because, “[i]n an age where private and commercial flight in the public airways is routine,” Mr. Ciraolo’s “expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.”.
A year after the Ciraolo case the U.S. Supreme Court established four factors to consider when determining Curtilage:
- Proximity of the area claimed to be curtilage to the home.
- Whether the area is included within an enclosure surrounding the home.
- The nature of the uses to which the area is put; and
- The steps taken by the resident to protect the area from observation by the people passing by.
United States v. Dunn, 480 U.S. 294 (1987)
For more information on Curtilage see:
August 17, 2020
September 14, 2020
April 29, 2022
Florida v. Riley, 488 U.S. 445 (1989) Four Part Objectively Reasonable Test
In assessing the objective reasonableness of Mr. Jordan’s expectation of privacy, we follow the analysis of Florida v. Riley, 488 U.S. 445 (1989) and focus on the evidence in the record relating to the following:
(1) Was the police helicopter’s compliance with applicable FAA regulations?
(2) What was the altitude at which the helicopter was flying?
(3) What was the frequency or rarity of helicopter flights at that altitude?
(4) The extent to which the helicopter interfered with Mr. Jordan’s normal use of his home or its curtilage, which involves a consideration of whether the occupants of the helicopter observed “intimate details connected with the use of the home or curtilage” and whether the helicopter created wind, dust, threat of injury, or undue noise.
Florida v. Riley, 488 U.S. at 451 at 454-455 (O’Connor, J., concurring).
The Third District Appellate Court applied the four-part Riley test to evaluate the admissibility of Mr. Jordan’s hippie lettuce.
(1) Was the police helicopter’s compliance with applicable FAA regulations.
Yes!
First, there is no indication from the evidence presented at the suppression hearing that the police helicopter was operating in violation of FAA altitude, route, or safety regulations at the time the marijuana was observed in the curtilage of Mr. Jordan’s home. In the proceedings below, Mr. Jordan did not challenge the helicopter’s compliance with FAA regulations, and he does not assert such a claim in this appeal. Therefore, on this record, it appears the occupants of the police helicopter viewed the marijuana on Mr. Jordan’s property from a lawful vantage point.
(2) The altitude at which the helicopter was flying.
Secondly, from the record and from the trial court’s judgment entry, it is unclear exactly how high the helicopter was flying when the marijuana was observed. At the suppression hearing, varying testimony was presented concerning the helicopter’s altitude. The State’s only witness, Detective Seth McDowell of the Union County Sheriff’s Department, he testified that the helicopter was flying above “tree line” level and that, from the ground, he never observed the helicopter ascend or descend from the altitude at which it was flying throughout Union County. According to Detective McDowell, he observed the helicopter flying at this altitude when he arrived at Mr. Jordan’s property. However, Detective McDowell acknowledged he lost visual contact with the helicopter as it flew toward Mr. Jordan’s property and that he did not know “what was going on” with the helicopter at the “very moment” the marijuana was spotted.
One of Mr. Jordan’s witnesses, his next-door neighbor Ms. Megan Respaldo, testified the helicopter “wasn’t high up” and that “it was pretty low.” She stated the helicopter had flown “right over” certain trees on or near Mr. Jordan’s property and, using these trees as a reference point, estimated that the helicopter was hovering approximately 60 feet above the ground. But on cross-examination, Ms. Respaldo testified that the horizontal distance between Mr. Jordan’s house and a stand of trees behind the house, a space of 250-300 feet, was approximately equal to the height at which the helicopter was flying over Mr. Jordan’s property. Finally, Mr. Jordan elicited testimony from Ms. Ralstad, who stated that the helicopter was flying “super low.” In Ms. Ralstad’s estimation, the helicopter was flying “higher than [the] roof,” but no more than two times the height of Mr. Jordan’s house and low enough that someone could have “jumped out of the helicopter onto the ground” or hit the helicopter with a baseball with “maybe two” throws. Of course the baseball comparison is not a legal standard of measurement.
(3) The frequency or rarity of helicopter flights at that altitude.
In its judgment entry, the trial court noted the conflict in the evidence concerning the police helicopter’s altitude. Nevertheless, it did not clearly resolve this conflict. Rather than finding that the helicopter was flying at or below 60 feet or that the helicopter was hovering 250-300 feet off the ground, either of which would have been supported by the evidence presented at the suppression hearing, the trial court found only that the helicopter was “extremely low” and that “it appeared to be less than 300 feet.” Although these fairly equivocal findings are supported by evidence in the record, they are not dispositive of whether Mr. Jordan had an objectively reasonable expectation of privacy. The fact that a police helicopter was operated at or below 300 feet does not alone support a conclusion that the defendant had an objectively reasonable expectation of privacy that was invaded by the government’s aerial surveillance.
With respect to the next consideration—the frequency or rarity of air travel at the altitude flown by the helicopter in this case—we conclude that, whatever the helicopter’s exact altitude, Mr. Jordan failed to establish that flights below 300 feet are “so rare as to make aerial surveillance at that level unreasonable.” United States v. Boyster, 436 F.3d 986, 992 (8th Cir.2006). In reaching this conclusion, we acknowledge that Ms. Respaldo and Ms. Ralstad both testified at the suppression hearing that they had never before observed an aircraft flying that low over the area surrounding Mr. Jordan’s house. However, in Riley, both the four-Justice plurality and Justice O’Connor appeared to frame the inquiry in terms of the general frequency of public use of airspace at a particular altitude, not the regularity of air traffic at that altitude over the defendant’s property specifically. See Riley, 488 U.S. at 451 (“[T]here is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country”) (O’Connor, J., concurring) (“[I]f the public can generally be expected to travel over residential backyards at an altitude of 400 feet, Riley cannot reasonably expect his curtilage to be free from such aerial observation.”). Even if fully credited, Ms. Respaldo’s and Ms. Ralstad’s testimonies concern only the frequency of low-altitude air travel over their residences and are thus of scant value in answering the relevant question of how regularly the general public can be expected to travel over residential backyards at the altitude flown by the police helicopter in this case.
(4) The extent to which the helicopter interfered with Mr. Jordan’s normal use of his home or its curtilage, which involves a consideration of whether the occupants of the helicopter observed “intimate details connected with the use of the home or curtilage” and whether the helicopter created wind, dust, threat of injury, or undue noise.
Lastly, while testimony elicited by Mr. Jordan at the suppression hearing showed that the police helicopter caused some ground-level disruptions at and around Mr. Jordan’s property, these disruptions appear to have been relatively minor and of short duration. On this point, the trial court’s judgment entry includes only a few relevant findings of fact. Specifically, the trial court noted little more from Ms. Respaldo’s testimony than “it sounded like a war” outside and that the helicopter “would wake someone up.” However, in addition to the testimony referenced by the trial court in its journal entry, Ms. Respaldo testified that the helicopter caused her animals to “freak out,” that her children were scared, that she did not leave her house, and that she would not have felt comfortable taking her children into her backyard while the helicopter was flying overhead. She further stated that her walls were shaking “not like extreme, but … a little bit.”.
Ms. Ralstad’s testimony was similar to Ms. Respaldo’s insofar as Ms. Ralstad testified that the helicopter was “pretty loud,” that she did not go into Mr. Jordan’s backyard while the helicopter was circling above, and that she would not have felt comfortable using Mr. Jordan’s backyard with the helicopter flying at that height. Importantly, Ms. Ralstad also said that the noise from the helicopter did “[n]ot really” reverberate or cause any changes in Mr. Jordan’s house and that while she “felt the vibration, … nothing moved.”. Similarly, Ms. Respaldo testified that she did not “notice any dust or anything being kicked up from the helicopter blades.” Ms. Ralstad confirmed that the helicopter did not “move any trees or debris” and that it did not “affect [Mr. Jordan’s] yard in any way.”.
Accepting Ms. Respaldo’s and Ms. Ralstad’s testimonies as true, there is no indication that the police helicopter interfered significantly with Mr. Jordan’s normal use of his property. There is no evidence in the record suggesting that the occupants of the helicopter observed any intimate details connected with Mr. Jordan’s use of his home or curtilage. Furthermore, although Ms. Respaldo’s and Ms. Ralstad’s testimonies establish that the helicopter caused loud noise, their testimonies also demonstrate that the helicopter was operated in a way that did not imperil the safety of those on the ground below. The helicopter caused negligible vibration inside of Ms. Respaldo’s home and Mr. Jordan’s home, and it did not destroy any property, throw around debris, or kick up dust.
Analysis Summary
In summary, it was Mr. Jordan’s burden to prove that he had an objectively reasonable expectation that the curtilage of his home would be protected from observation by aircraft traveling at the altitude at which the police helicopter was flying in this case. There is nothing in the record to show that the helicopter was not in compliance with relevant FAA regulations or that the occupants of the helicopter observed the curtilage of Mr. Jordan’s home from an unlawful vantage point. Although these facts do not alone validate the aerial surveillance, Mr. Jordan failed to produce evidence showing that the general public rarely uses airspace at the altitude flown by the helicopter in this case. In addition, the evidence introduced by Mr. Jordan at the suppression hearing showed that, at most, the helicopter interfered minimally with the normal use of his property.
Conclusion
Therefore, considering all of these factors together, we conclude that Mr. Jordan did not carry his burden of proving that he had an objectively reasonable expectation of privacy as against the aerial surveillance in this case. Consequently, because Mr. Jordan failed to prove that the aerial surveillance in this case was even a “search” within the meaning of the Fourth Amendment, the trial court erred by granting Mr. Jordan’s motion to suppress evidence
Information for this article was obtained from State v. Jordan, 2022 – Ohio – 1992.
This case was issued by the Third District Appellate Court and is only binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned:
- Utilization of helicopters is uncommon in law enforcement. However, when utilizing a helicopter to search, identify and prosecute cultivators, officers should be meticulous about recording the height at which the contraband is observed.
- When law enforcement obtains consent to search, it is always best to utilize a body camera or cruiser camera to record the consent, in addition to the suspect’s written waiver. The consent of Ms. Patricia Ralstad was not raised as an issue in this case. However, anytime law enforcement requests consent to search a person, car or building, it is best practice to have that exchange recorded on video.
- Curtilage was a center issue in this case. In short, curtilage is a protected area where the Fourth Amendment protections from inside the home extend to some areas outside the home. However, this court did well to explain that not all curtilage is protected from law enforcement observation. The court opined “That [an] area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.”. In this case the officers in the helicopter observed the marijuana from a ‘public vantage point’.
- Seth McDowell, his Union County Sheriff’s Office teammates and the Union County Assistant Prosecutor Andy Biggler should all be highly commended from working in concert to charge and convict Mr. Jordan. The trial court judge was incorrect to sustain the Motion to Suppress the marijuana and fortunately the Third District Appellate Court overturned the trial judge in a three to zero decision. Well done Union County!
Postscript: Det. Seth McDowell is the son of fallen Officer Terry McDowell, who served with the Whitehall Police Department. He was shot and killed in the line of duty on August 24, 2001. We honor Det. McDowell for carrying on his father’s legacy in law enforcement!
https://www.odmp.org/officer/15754-police-officer-terry-mcdowell
Does your agency train on Curtilage?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!