We find the trial court did not err in finding the warrantless flyover by the drone in this case did not violate the Fourth Amendment.

 

State v. Stevens

2023 – Ohio – 889

Fifth District Appellate Court

Coshocton County, Ohio

March 17, 2023

Hit Skip Vehicle Accident with Life Threatening Injuries

On Saturday March 27, 2021, a motor vehicle accident occurred on State Route 751 in Coshocton County, near the intersection with Township Road 250. The victims were traveling northbound on State Route 751 when they were struck by a dark-colored sedan travelling southbound, which crossed the center line of travel. The victims suffered life-threatening injuries. The dark-colored sedan fled the scene of the accident.

Black 2016-2018 Nissan Altima

Police officers investigating the accident collected debris from the scene. After examining the paint transfer from the vehicles involved in the crash, they determined the dark-colored sedan was a black 2016-2018 Nissan Altima.

7705 Euga Road, Newcomerstown, Ohio

A data base search of the Coshocton County Sheriff’s Department revealed deputies had contact with a 2016-2018 Nissan Altima about a month prior to the accident. Ms. Melannis Stevens was the registered owner of the vehicle. Coshocton County Sheriff’s Detective Seth Andrews learned Ms. Stevens lived at 7705 Euga Road in Guernsey County, near the scene of the accident.

A Clear Sunny Day and a Drone

Det. Andrews decided to fly a drone over the property encompassing 7705 Euga Road out of concern the Nissan was being scrapped at the location in order to hide evidence. On March 30, 2021, Det. Andrews traveled to a location adjacent to the 7705 Euga Road address, approximately 200 yards north of the primary driveway to the property. The day was clear and sunny.

Coshocton County Sheriff’s Department Detective Seth Andrews flew a drone over this property at 7705 Euga Road and found the car used by Ms. Stevens who had hit-skipped a motorcycle with two people who were injured.  Did Det. Andrews require a search warrant to fly the drone over this property?

Class G Airspace

Det. Andrews launched a DJI Mavic 2 Enterprise drone in an effort to find the black Nissan. The detective had two days of training and had logged approximately 1,600 minutes of flight time with the specific drone used on March 30. The drone had a camera similar to the type of camera found on a cell phone. The maximum altitude for the drone is 400 feet, or Class G airspace, as designated by the Federal Aviation Administration [FAA].

Suspect Vehicle is Discovered and a Search Warrant Obtained

Det. Andrews preset the drone to a maximum altitude of 396 feet. He operated the drone over the property at altitudes between 300 and 396 feet, taking pictures of the property. The pictures showed several acres of property, partially wooded, with two driveways. The property included a two-story house, a garage, and a number of vehicles in various stages of disrepair near a fire pit. The photos showed a black Nissan Altima in the wooded area behind the home and behind the fire pit, approximately 280 feet from the residence and 80 feet from a neighboring parcel of real estate. A closeup shot of the vehicle showed it was missing a door, and other parts were on the ground near the vehicle and near a burn pile. The vehicle was not covered, and the trees were defoliated because it was still winter, providing no coverage for the vehicle from the air. The information obtained from the drone search was used to obtain a search warrant for the property.

Indicted

Ms. Stevens was indicted by the Coshocton County Grand Jury on two counts of failure to stop at the scene of an accident, two counts of vehicular assault, and one count of tampering with evidence. The two charges of failure to stop at the scene of an accident were indicted as felonies rather than misdemeanors because the indictment included additional allegations the accident resulted in “serious physical harm to a person.”

Motion to Suppress is Overruled Based on the Open Fields Doctrine

Ms. Stevens filed a motion to suppress, arguing the warrantless drone search of the property was unconstitutional. Following a hearing, the trial court overruled the motion, finding the vehicle was not within the curtilage of the home and was therefore subject to the “open fields” doctrine, in which Ms. Stevens did not have a reasonable expectation of privacy. The trial court held even if the open fields doctrine did not apply in this case, the search was not unconstitutional because the officer was operating the drone in public navigable airspace in a nonintrusive manner, which does not violate the Fourth Amendment.

Convicted and Sentenced to Eighty-Four Months or Seven Years

Ms. Stevens entered pleas of no contest to all five counts of the indictment, and was convicted. The trial court sentenced Ms. Stevens to an aggregate term of incarceration of eighty-four months. It is from the May 24, 2022 judgment of the trial court Ms. Stevens prosecutes her appeal, assigning as error:

Ms. Stevens filed two motions to suppress both were denied.  Only one of the motions will be evaluated in this article.

[T]he warrantless search of the property by the drone did not fall within any recognized exception to the requirement of a warrant.

In her second assignment of error, Ms. Stevens argues the trial court erred in overruling her motion to suppress. He argues the warrantless search of the property by the drone did not fall within any recognized exception to the requirement of a warrant, and he further argues Det. Andrews was not federally licensed to fly the drone. 

Ms. Stevens Failed to Raise a Claim at Trial So It Cannot be Raised in Appeal

Ms. Stevens did not raise the issue of Det. Andrew’s lack of a license to fly the drone in her motion to suppress, nor did the trial court consider the issue. “It is well-settled law that issues not raised in the trial court may not be raised for the first time on appeal because such issues are deemed waived.”  

No Warrant Required

Ms. Stevens also argues contra to the trial court’s findings, the warrantless search by the drone did not fall into any recognized exception to the requirement of a warrant. The trial court found the car was not located within the curtilage of the house, and thus the “open fields” doctrine applied; therefore, Ms. Stevens did not have a reasonable expectation of privacy in the area where the car was found. Accordingly, police were not required to have a warrant to search the wooded area where the car was located, whether such search was by drone or on foot.

What is Curtilage?

“The curtilage is an area around a person’s home upon which he or she may reasonably expect the sanctity and privacy of the home. For Fourth purposes, the curtilage is considered part of the home itself.” Oliver v. United States, 466 U.S. 170, 180 (1984)

“The extent of a home’s curtilage is resolved by considering four main factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken to protect the area from observation by passersby.” State v. Doyle, 2016 – Ohio – 5742

No Warrant Required for Law Enforcement to Search the Open Fields

However, in Hester v. United States, 265 U.S. 57 (1924), the United States Supreme Court found even though there had been a trespass by police officers, no illegal search or seizure occurred because the Fourth Amendment protection afforded to people in their “persons, homes, papers, and effects” is not extended to “open fields.” 

Ms. Stevens had No Reasonable Expectation of Privacy

In the case sub judice, we find the trial court did not err in finding the area where the vehicle was located was not within the curtilage of the house. The vehicle was located approximately 280 feet from the house and 80 feet from neighboring property. There was no fencing on the property. The photographs show a burn pit and junk vehicles located behind the house, and the vehicle in question located even farther from the house, in a wooded area. Because the vehicle was not located in the curtilage of the home, we find Ms. Stevens did not have a reasonable expectation of privacy in the area based on the open fields doctrine, and officers therefore could search the area without a warrant.

Air Surveillance Does not Require a Warrant

Ms. Stevens appears to argue the use of the drone is more intrusive than a search on foot, and is in violation of the Fourth Amendment even in an open field where the officer could have lawfully entered and searched on foot without a warrant. We disagree. This Court has previously recognized air surveillance generally does not require a warrant. State v. Little, 2009 – Ohio – 4403.

Likewise, the United States Supreme Court has found no violation of the Fourth Amendment in several cases involving the use of air surveillance. In Dow Chemical Company v. United States, 476 U.S. 227 (1986), the court held aerial photographs of Dow’s plant complex from an aircraft lawfully in public navigable airspace was not a search prohibited by the Fourth Amendment. The EPA did not use a unique sensory device not available to the public, but rather used a conventional, albeit precise, commercial camera commonly used in mapmaking, and the photographs were not so revealing of intimate details as to raise constitutional concerns.

Similarly, in California v. Ciraolo, 476 U.S. 207 (1986), officers used an airplane flying at an altitude of 1,000 feet over the defendant’s home after receiving a tip he was growing marijuana in his backyard. The area was fenced, but from the air officers were able to observe marijuana with the naked eye. Despite the fact the plants were in the curtilage of the home, the court held the warrantless air surveillance did not require a warrant because anyone happening to fly over the defendant’s home could glance down and see the marijuana plants growing. The court specifically noted the search took place within public navigable airspace, in a physically nonintrusive manner.

Finally, in Florida v. Riley, 488 U.S. 445 (1989), police received an anonymous tip marijuana was being grown on the defendant’s property. The investigating officer discovered he could not observe the contents of a greenhouse on the property from ground level. The greenhouse was enclosed on two sides and obscured from view on the other sides by trees, shrubs, and a residence. The officer then circled twice over the property in a helicopter at an altitude of 400 feet and made naked-eye observations of marijuana plants through openings in the greenhouse roof. The court found no violation of Riley’s Fourth Amendment rights despite the fact he had taken precautions to shield the greenhouse from view at ground level. The court concluded the helicopter was flying within navigable airspace pursuant to FAA regulations for helicopters, there was no evidence the helicopter interfered with Riley’s use of the greenhouse or other parts of the curtilage of the residence or intimate details were observed, and there was no evidence of undue noise, dust, wind, or threat of injury. 

Drones are Currently an Underdeveloped Area of the Law

While the use of drones as a tool for criminal investigations is currently an undeveloped area of the law, we find no reason to distinguish the use of the drone in this case from other air surveillance. Nothing in the record suggests the drone in the instance case, flying at an altitude of 300-396 feet, is more intrusive than the helicopter flying at 400 feet in Rileysupra. The vehicle was not located in the curtilage of the home, and no steps were taken to hide the vehicle from view, either at ground level or by air. The camera attached to the drone was similar to a cell phone or I-pad camera, both of which were readily available to the public, and the drone itself was a model readily available to the public. The drone was flying in Class G airspace within FAA regulations. We find the trial court did not err in finding the warrantless flyover by the drone in this case did not violate the Fourth Amendment.

The second assignment of error is overruled.

Ms. Stevens was sentenced to seven years in prison: https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/W109260

Information for this article was obtained from State v. Stevens, 2023 – Ohio – 889 and a news article: https://www.coshoctontribune.com/story/news/2021/04/01/two-charged-tampering-evidence-hit-and-run-crash/4840685001/

State v. Stevens, 2023 – Ohio – 889 was issued by the Fifth District Appellate Court on March 17, 2024 and is 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:

  1. Class G Airspace – This is the first case in Ohio that I have found that addresses drones in criminal investigations. The Third District Appellate Court utilized the [FAA] Class G airspace as a foundation for Fourth Amendment parameters. Class G airspace starts at the surface of the earth and extends to the floor of Class E airspace or 700 feet.  Information extracted from faa.gov and boldmethod.com May 30, 2024.
  2. Open Fields or Curtilage? In this case Det. Seth Andrews of the Coshocton County Sheriff’s Office flew the drone within Class G airspace and therefore it comported with the Fourth Amendment protection against unreasonable searches.  Additionally, the drone was flown over Ms. Stevens property that is considered the Open Fields and not the curtilage of Ms. Stevens home.  So what exactly is curtilage?  Let’s begin with a case law excerpt from 1984 “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).  In United States v. Dunn, 480 U.S. 294 (1987) J. White provided four factors to consider in determining Curtilage: (1) Proximity of the are claimed to be curtilage to the home.  (2) Whether the area is included within an enclosure surrounding the home. (3) The nature of the uses to which the area is put; and (4) The steps taken by the resident to protect the area from observation by the people passing by.   For more on curtilage see: https://www.objectivelyreasonable.com/category/curtilage/
  3. Search Warrant – Prior to searching the property and collecting evidence the deputies obtained a search warrant. The search warrant was based upon the drone video; however, the collection of evidence followed the search warrant.
  4. Underdeveloped Area of Law – Law enforcement agencies and drone operators should remain current on case law as the Third District Appellate Court opined in this case that drone law is an underdeveloped area of law.
  5. Pre-Sent Arms! Coshocton County Sheriff’s Detective Seth Andrews and all of the unnamed deputies who worked in concert in this investigation should be highly commended. Well done!

Does your agency train on Drone Usage?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.