State of Alaska v. John William Mckelvey III

   Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
   Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
   303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
   corrections@akcourts.gov.


            THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA,                                )
                                                )   Supreme Court No. S-17910
                     Petitioner,                )   Court of Appeals No. A-12419
                                                )
    v.                                          )   Superior Court No. 4FA-14-00040 CR
                                                )
JOHN WILLIAM MCKELVEY III,                      )   OPINION
                                                )
                     Respondent.                )   No. 7690 – March 8, 2024
                                                )

           Petition for Hearing from the Court of Appeals of the State
           of Alaska, on appeal from the Superior Court of the State of
           Alaska, Fourth Judicial District, Fairbanks, Bethany
           Harbison, Judge.

           Appearances: Michal Stryszak, Assistant Attorney General,
           Anchorage, and Treg R. Taylor, Attorney General, Juneau,
           for Petitioner. Robert John, Law Office of Robert John,
           Fairbanks, for Respondent. Renee McFarland, Assistant
           Public Defender, and Samantha Cherot, Public Defender,
           Anchorage, for Amicus Curiae Alaska Public Defender
           Agency.

           Before: Winfree, Chief Justice, and Maassen, Carney,
           Borghesan, and Henderson, Justices.

           BORGHESAN, Justice.
           MAASSEN, Justice, with whom CARNEY, Justice, joins,
           concurring.
I.     INTRODUCTION
              Do the police have to get a warrant before taking pictures of your yard
with a zoom lens while flying in an airplane? The State argues that because small
airplane travel is so common in Alaska, and because any passenger might peer into your
yard and snap a picture of you, law enforcement officials may do the same. We
disagree. The Alaska Constitution protects the right to be free of unreasonable searches.
The fact that a random person might catch a glimpse of your yard while flying from one
place to another does not make it reasonable for law enforcement officials to take to the
skies and train high-powered optics on the private space right outside your home
without a warrant. Unregulated aerial surveillance of the home with high-powered
optics is the kind of police practice that is “inconsistent with the aims of a free and open
society.”1 The Alaska Constitution does not allow it.
II.    FACTS AND PROCEEDINGS 2
       A.     Facts
              When this case began in 2012, John William McKelvey III lived on a
property in a sparsely populated area just north of Fairbanks. The property was heavily
wooded, with a single driveway leading to a clearing. In the clearing was a house and
a translucent greenhouse. Surrounding trees blocked ground-level view of the house
and greenhouse from outside the clearing. A gate blocked cars from entering the
driveway, and numerous signs warned potential visitors that they were not welcome.
              The Alaska State Troopers received a tip from a confidential informant
that McKelvey was growing marijuana on the property. The informant described seeing




       1
              Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).
       2
             The oral argument in this case took place before an audience of students
and teachers at Lathrop High School in Fairbanks as part of the “Supreme Court Live”
community outreach program.

                                            -2-                                       7690
around thirty marijuana plants in five-gallon buckets and claimed that McKelvey took
the plants into the greenhouse at night.
              To confirm the informant’s report, two troopers flew past McKelvey’s
property in an airplane.       The troopers flew in a straight line past McKelvey’s
residence — at their closest point the troopers were roughly a quarter mile to a half mile
south of the house at an altitude of roughly 600 feet. The troopers photographed the
property using a camera with a high-powered zoom lens, which allowed them to
magnify the image roughly nine times compared to the naked eye. The photographs
revealed five-gallon buckets containing unidentifiable plants inside the greenhouse.
              Based on the tip and observations from the flight, the troopers obtained a
search warrant for McKelvey’s house and property. Upon searching the house officers
found marijuana plants, methamphetamine, scales, plastic bags for packaging, a loaded
AK-47 rifle, and a large amount of cash. McKelvey was charged with criminal offenses
based upon the evidence discovered during the search.
       B.     Superior Court Proceedings
              McKelvey moved to suppress this evidence.            He argued that the
information supporting the search warrant came from an illegal search: the warrantless
observation of his home with a telephoto lens during a flight.
              The superior court held an evidentiary hearing. The troopers who flew
over McKelvey’s property testified about their flight and observations. McKelvey also
testified, describing his property and his observations of the troopers’ flight. He stated
that the flight was unusual. First, while there was an airstrip roughly a mile from his
residence, McKelvey stated that airplanes from that airstrip never flew over his
property. Second, he described the troopers’ airplane as flying unusually low: He
estimated they were roughly 100 to 200 feet above the tree line surrounding his property
and stated that he could see a face looking out of the airplane’s window as it flew by.
The superior court rejected McKelvey’s estimate and found that the airplane maintained
an altitude of at least 600 feet the entire flight.

                                              -3-                                   7690
             The superior court denied McKelvey’s motion to suppress. The court
found that the greenhouse was within McKelvey’s curtilage — the area immediately
adjacent to the home “to which extends the intimate activity associated with the
‘sanctity of a [person’s] home and the privacies of life.’ ”3 It then applied the two-
pronged test established in Katz v. United States to determine whether an illegal search
occurred.4 It first found that McKelvey had a subjective expectation of privacy in the
contents of the greenhouse. But it then concluded that McKelvey’s expectation of
privacy in the greenhouse was objectively unreasonable. Because the greenhouse was
visible to anyone flying overhead, the court decided it was objectively unreasonable for
McKelvey to believe the greenhouse’s contents would remain private. In support of
this conclusion, the superior court noted the substantial amount of air travel in Alaska
and the close proximity of an airstrip to McKelvey’s home. The superior court therefore
concluded that the troopers did not need a warrant to fly near McKelvey’s property and
peer into his greenhouse with a telephoto lens.
             The parties then agreed to a bench trial on stipulated facts. 5 McKelvey
was convicted of one count of third-degree misconduct involving a controlled substance
(possession of methamphetamine) and one count of second-degree weapons
misconduct (possessing a gun in connection with a drug crime).



      3
              Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United
States, 116 U.S. 616, 630 (1886)).
      4
                See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring) (contending government action only rises to the level of a search if it
violates a subjective expectation of privacy that is objectively reasonable); State v.
Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d 793, 797
(Alaska 1973)) (recognizing Alaska’s adoption of the two-part expectation-of-privacy
test first set forth in Justice Harlan’s concurrence in Katz).
      5
              In cases in which parties disagree about what the law requires, but do not
disagree about what happened, they sometimes agree to streamline the case by agreeing
(or stipulating) to what happened and having a trial in front of a judge instead of a jury.

                                           -4-                                       7690
      C.     Court Of Appeals’ Decision
             McKelvey appealed his conviction to the court of appeals, arguing that the
superior court erred when it denied his motion to suppress. 6 The court of appeals
reversed the superior court, holding that under the Alaska Constitution the troopers were
required to obtain a warrant before observing McKelvey’s property from the air using
a telephoto lens.7
             The court first analyzed McKelvey’s expectation of privacy under the
Fourth Amendment to the United States Constitution. After reviewing the United States
Supreme Court decisions relating to aerial surveillance and sense-enhancing
technology — California v. Ciraolo, Florida v. Riley, and Kyllo v. United States8 — the
court concluded that the Supreme Court has not directly considered the issue of
warrantless aerial surveillance enhanced by a telephoto lens. 9 The court of appeals
determined that the Supreme Court’s decisions on overflight observations made it
“unlikely” that the flight and photographs violated the Fourth Amendment but declined
to reach a definitive answer.10
             The court then turned to McKelvey’s expectation of privacy under the
Alaska Constitution. It first considered the privacy implications of aerial surveillance
in general. The court began by noting that Alaskans have a heightened privacy interest



      6
             McKelvey v. State, 474 P.3d 16, 19-21 (Alaska App. 2020).
      7
             Id. at 19.
      8
              California v. Ciraolo, 476 U.S. 207 (1986) (holding that photography of
curtilage with 35-mm camera during flight of 1,000 feet over home did not require
warrant); Florida v. Riley, 488 U.S. 445 (1989) (holding that naked eye observation of
curtilage during helicopter flight at altitude of 400 feet did not require warrant); Kyllo
v. United States, 533 U.S. 27 (2001) (holding that the use of non-commercially available
thermal-imaging device to see inside home required warrant).
      9
             McKelvey, 474 P.3d at 22-26.
      10
             Id. at 25-26.

                                           -5-                                      7690
in being left undisturbed in their homes, which includes the curtilage. 11 It recognized
that preventing aerial surveillance of the home and curtilage requires “extraordinary
measures” that would interfere with regular enjoyment of the home and would not be
feasible for most people to implement. 12 It reasoned that the privacy intrusion from a
typical civilian overflight is minimal — allowing only “fleeting, anonymous, and
nondiscriminating” views of the curtilage.13 By contrast, the court emphasized that the
troopers purposefully targeted McKelvey’s home, concluding that these purposeful
observations were “qualitatively different” than a typical overflight because they are
more likely to allow for detailed and intrusive observations. 14 Accordingly the court
concluded that McKelvey’s failure to protect his curtilage against aerial observation did
not mean that he lacked a reasonable expectation of privacy in his curtilage.15 In
reaching this conclusion, the court relied heavily upon the dissents from Ciraolo and
Riley and extensively cited decisions from the courts of Vermont, California, and
Hawai’i which held that the constitutions of those states prohibited aerial observation
of a home’s curtilage in certain circumstances. 16
              Yet after extensively discussing the implications of aerial surveillance
generally, the court declined to decide whether to adopt the “same broad rule” as those


       11
              Id. at 27.
       12
              Id. at 31.
       13
              Id. at 28 (quoting Ciraolo, 476 U.S. at 223 (Powell, J., dissenting)).
       14
             Id. at 28 n.63 (noting that the use of the term “purposeful” was only “a
means to explain how the police conduct — low-altitude surveillance targeted at a
specific location — was qualitatively different . . . from the conduct (i.e., passing
glimpses) of commercial air travelers” (emphasis in original)).
       15
              Id. at 28-29.
       16
                See id. (discussing Ciraolo dissent); id. at 30 (discussing Riley dissent);
id. at 29 (citing State v. Bryant, 950 A.2d 467, 475 (Vt. 2008)); id. at 31-32 (first citing
People v. Cook, 710 P.2d 299, 305-08 (Cal. 1985); and then citing State v. Quiday, 405
P.3d 552, 562 (Haw. 2017)).

                                            -6-                                        7690
other state courts. 17 The court of appeals focused on the use of a telephoto lens, which
allowed the troopers to obtain a more detailed view than their naked eyes would permit
from the same aerial vantage point. 18 It held that this combination turned the officers’
observations of McKelvey’s curtilage into a search that required a warrant. 19
             The State of Alaska petitioned for hearing, 20 arguing that the flight and
use of a telephoto lens did not constitute a search requiring a warrant under either
federal or state law. We granted the petition and ordered full briefing. 21
III.   DISCUSSION
       A.    The Alaska Constitution Strongly Protects Against Unreasonable
             Searches And Seizures.
             Article I, section 14 of the Alaska Constitution protects the “right of the
people to be secure in their persons, houses and other property, papers, and effects,
against unreasonable searches and seizures.”22 “[A] search without a warrant is per se



       17
             Id. at 32.
       18
             Id.
       19
              Id. at 33 (“[W]hen an individual has taken reasonable steps to protect their
house and curtilage from ground-level observation, that individual has a reasonable
expectation that law enforcement officers will not use a telephoto lens or other visual
enhancement technology to engage in aerial surveillance of the individual’s residential
property for the purpose of investigating criminal activity.”).
       20
              Alaska R. App. P. 302 (authorizing this court’s discretionary review of
final decisions of the court of appeals); Alaska R. App. P. 304 (establishing criteria for
exercise of discretionary review).
       21
              We invited the Public Defender Agency to file an amicus curiae brief.
“Amicus curiae” is Latin for “friend of the court.” When people or organizations have
special expertise or an important stake in an issue that a court is deciding, the court may
invite them to file a brief to help the court understand the issue and inform its decision.
We thank the Agency for its helpful briefing in this matter.
       22
             Alaska Const. art. I, § 14. Because we conclude that the search was
unlawful under the Alaska Constitution, we need not decide whether it was unlawful
under the federal constitution.

                                           -7-                                       7690
unreasonable unless it clearly falls within one of the narrowly defined exceptions to the
warrant requirement.”23 But not all attempts to observe by government officials amount
to a “search.” For example, “the mere observation of items which are in plain view or
which are open and apparent[] is not a search.” 24 Police do not need to get a warrant to
observe things that are in plain view.
             To determine whether government conduct is a “search,” we use the test
the Supreme Court adopted in Katz v. United States when interpreting the analogous
Fourth Amendment to the U.S. Constitution.25 Under the Katz test, government
conduct amounts to a search if it violates a defendant’s subjective expectation of privacy
and that expectation is objectively reasonable. 26 The State concedes that McKelvey
had a subjective expectation of privacy in the contents of the greenhouse. The only
issue for us to decide is whether his expectation of privacy was objectively reasonable.
Whether a subjective expectation of privacy was objectively reasonable is a question of
constitutional law that we review using our independent judgment, adopting the rule
that is most persuasive in light of precedent, reason, and policy.27
             The underlying purpose of the Katz test is the same for both the U.S.
Constitution and the Alaska Constitution. We do not seek “to shield criminals nor to
make the home a safe haven for illegal activities.” 28 Instead we seek “to safeguard the
privacy and security of individuals against arbitrary invasions by governmental



      23
             Erickson v. State, 507 P.2d 508, 514 (Alaska 1973).
      24
             Klockenbrink v. State, 472 P.2d 958, 961 (Alaska 1970).
      25
             See State v. Glass, 583 P.2d 872, 875 (Alaska 1978).
      26
             See California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)); Glass, 583 P.2d at 875.
      27
             Beltz v. State, 221 P.3d 328, 332 (Alaska 2009).
      28
              Smith v. State, 510 P.2d 793, 800 (Alaska 1973) (Rabinowitz, C.J.,
dissenting) (quoting McDonald v. United States, 335 U.S. 451, 455-56 (1948)).

                                           -8-                                      7690
officials.” 29 Yet our approach to interpreting the Alaska Constitution is qualitatively
different than federal courts’ approach to interpreting the U.S. Constitution.
              The federal approach to determining whether people have an objectively
reasonable expectation of privacy in a particular situation essentially treats this inquiry
as a question of fact, focusing on what is commonly practiced. 30 For example, in Riley
Justice Brennan’s dissent criticized the plurality’s31 approach for functionally turning
the question whether a person has a reasonable expectation of privacy against aerial
surveillance into a factual question: whether “a single member of the public could
conceivably position herself to see into the area in question without doing anything
illegal.” 32 Likewise, in Kyllo the Court held that whether a technologically enhanced
observation of the home was a search turned on whether the device the police used (a
thermal-imaging device) was “in general public use” — another inherently factual
question. 33 And in Smith v. Maryland, the Court held that individuals had no reasonable
expectation of privacy in the digits they dialed because telephone companies must keep
records of the numbers dialed for billing purposes, and the company may share these
records with others.34 Justice Marshall’s dissent criticized this approach as unduly




      29
             Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 528 (1967).
      30
             See, e.g., 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(d), at 603-11
(6th ed. 2020) (noting and criticizing federal courts’ approach).
      31
              In order to be binding law, an opinion must generally be joined by a
majority of voting judges. If no opinion is joined by a majority of voting judges, then
the opinion that receives the most votes is referred to as the “plurality.” This opinion
is generally not binding but it is viewed as highly persuasive.
      32
             Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J., dissenting).
      33
             Kyllo v. United States, 533 U.S. 27, 34 (2001).
      34
             442 U.S. 735, 743 (1979).

                                           -9-                                       7690
focused on the factual question of what telephone companies actually do, rather than
“on the risks [one] should be forced to assume in a free and open society.” 35
              By contrast, whether a particular expectation of privacy is objectively
reasonable under the Alaska Constitution “entails ‘a value judgment . . . whether, if the
particular form of surveillance practiced by the police is permitted to go unregulated by
constitutional restraints, the amount of privacy and freedom remaining to citizens would
be diminished to a [degree] inconsistent with the aims of a free and open society.’ ”36
This judgment is influenced by the fact that the Alaska Constitution, unlike the federal
constitution, explicitly recognizes and protects the right to privacy. 37 We therefore
“give section 14’s protection against unreasonable searches and seizures ‘a liberal
interpretation’ ”38 that “increases the likelihood that a person’s expectation of privacy
. . . can be deemed objectively reasonable.” 39
       B.     We Decline To Extend The “Open View” Doctrine To Aerial
              Surveillance From Public Airspace.
              The State’s argument for why its officers did not need a warrant to observe
McKelvey’s greenhouse from the air is straightforward. The State argues that, because
any member of the public can observe a person’s curtilage from a low-flying aircraft
using a zoom lens, a person has no reasonable expectation that items or activities in the
curtilage are private.




       35
              Id. at 750 (Marshall, J., dissenting).
       36
            Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (alterations in original)
(quoting 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(d), at 393 (3d ed. 1996)).
       37
              Alaska Const. art. I, § 22 (“The right of the people to privacy is recognized
and shall not be infringed.”).
       38
            State v. Gibson, 267 P.3d 645, 659 (Alaska 2012) (quoting Municipality
of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993)).
       39
              Beltz v. State, 221 P.3d 328, 334 (Alaska 2009).

                                           -10-                                      7690
              The State relies on our decisions applying the “open view” doctrine:
“Activities that are open to public observation are not generally protected by the Fourth
Amendment” or article I, section 14 of the Alaska Constitution.40 In particular the State
argues that the court of appeals erred by overlooking our decision in Cowles v. State,
which held that authorities did not have to get a warrant before using a hidden overhead
camera to record suspected criminal activity in a workplace that was visible to the
public. 41 The State argues that the troopers’ actions in this case were similar. They
placed themselves where any member of the public could be, and used a fairly common
type of camera to observe what any member of the public could see. As further support
for its argument, the State emphasizes that we have held that officers’ use of binoculars
or flashlights to better see does not turn an observation into a search. 42
              Relatedly, the State faults the court of appeals’ reliance on dissents in
Supreme Court decisions addressing aerial observation. The State acknowledges that
the Alaska Constitution is generally more protective than the federal constitution. But
it argues that our decision in Cowles is more consistent with the majority opinions in




       40
              Cowles, 23 P.3d at 1171; accord Pistro v. State, 590 P.2d 884, 887 (Alaska
1979) (holding there was no search when officers walked down private driveway
“impliedly open to the public” and observed defendant in his garage); Daygee v. State,
514 P.2d 1159, 1162 (Alaska 1973) (holding that observation of “that which is in the
plain view of an officer who is rightfully in a position to have that view” is not a search).
See also Anderson v. State, 444 P.3d 239, 243 (Alaska App. 2019) (discussing this
doctrine — which is often described as plain view — and describing why it is better
conceived as “open view”).
       41
              23 P.3d at 1175.
       42
                Daygee, 514 P.2d at 1162 (holding that the officer did not perform a search
when he shone a flashlight into the back of the car); see also Anderson v. State, 555
P.2d 251, 257 n.29 (Alaska 1976) (“As with flashlight observations, courts have had
little difficulty sustaining the warrantless seizure of items observed in plain view with
the assistance of binoculars.”).

                                            -11-                                       7690
those Supreme Court cases, which concluded that police did not have to get a warrant
to observe the curtilage from an aircraft flying in public airspace.
              These arguments require us to decide whether the “open view” doctrine
applies to airborne views as well as to views from the ground. When confronting novel
constitutional questions, “sound analysis requires that we look to the various federal
precedents that have interpreted provisions of the federal constitution that parallel
Alaska’s constitution.” 43
              The Supreme Court has held that naked-eye aerial surveillance of the
curtilage is not a search that requires a warrant. In California v. Ciraolo the Court held
that warrantless “naked-eye observation of the curtilage by police from an aircraft
lawfully operating at an altitude of 1,000 feet” did not violate the Fourth Amendment. 44
The Court essentially applied the rules for ground-level observation of the curtilage to
aerial observation. 45 According to this logic, if the public could lawfully make the same
observations that the police did, then no search occurred.
              In Florida v. Riley a fractured majority held that police did not require a
warrant when they flew a helicopter over the defendant’s property at 400 feet and
observed marijuana growing in his greenhouse with their naked eyes. 46 The plurality
held that this issue was controlled by Ciraolo: The observation was from a helicopter
flying in public airspace, meaning that “[a]ny member of the public could legally have
been flying over Riley’s property . . . and could have observed Riley’s greenhouse” in




       43
              Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972).
       44
              476 U.S. 207, 213 (1986).
       45
             Id. (“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.”).
       46
              488 U.S. 445, 451-52 (1989).

                                           -12-                                     7690
the manner that the officers did. 47      Justice O’Connor concurred but expressed
dissatisfaction with the plurality’s framing of the issue. She wrote that “[t]he fact that
a helicopter could conceivably observe the curtilage at virtually any altitude or angle,
without violating Federal Aviation Administration regulations, does not in itself mean
that an individual has no reasonable expectation of privacy from such observation.”48
In her view the analysis should be “whether the helicopter was in the public airways at
an altitude at which members of the public travel with sufficient regularity” that the
defendant’s expectation of privacy was objectively unreasonable. 49 Justice O’Connor
concluded that the defendant bore the burden of proof for this question but failed to
meet it. 50 Thus, no warrant was required.
             The Supreme Court has not directly considered the use of vision-
enhancing technology to observe the curtilage during aerial observation. The Court was
careful to note in Ciraolo that “[a]erial observation of curtilage may become invasive,
either due to physical intrusiveness or through modern technology which discloses to
the senses those intimate associations, objects or activities otherwise imperceptible to
police or fellow citizens.”51 But the Court has not provided further guidance. In the
related context of ground-level observations, the Court explicitly approved the use of
binoculars and generally approved the use of commercially available technology to
attempt to peer inside the home. 52 Likewise, the Court has approved the use of


      47
             Id. at 451.
      48
             Id. at 454 (O’Connor, J., concurring).
      49
             Id.
      50
             Id. at 455.
      51
             California v. Ciraolo, 476 U.S. 207, 215 n.3 (1986) (alteration in original).
      52
               See On Lee v. United States, 343 U.S. 747, 754 (1952) (“The use of
bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not
a forbidden search or seizure, even if they focus without his knowledge or consent upon


                                          -13-                                      7690
advanced cameras and lenses to photograph an industrial site from the air, but that
opinion was careful to note that its holding did not extend to homes. 53
             The State correctly points out that our decision in Cowles endorsed, to
some extent, the majority opinion in Ciraolo and Justice O’Connor’s concurring
opinion in Riley. In Cowles we ruled that a public employer did not need a warrant to
install a hidden camera in the ceiling above an employee’s desk when the desk was
visible to the public, albeit from a different vantage point. 54 We began with the “open
view” doctrine: “Activities that are open to public observation are not generally
protected . . . .” 55 We rejected the argument that placing a video camera in “an
especially good position” made the observation a “search” when the area being
observed could be seen by the public. 56 Citing Ciraolo and Justice O’Connor’s
concurring opinion in Riley, we also rejected the argument that the purpose of the
surveillance — detecting criminal activity — was relevant to the employee’s reasonable
expectation of privacy. 57 We approvingly cited Justice O’Connor’s concurrence in
Riley for the proposition that if a person’s activities can be observed from a vantage




what one supposes to be private indiscretions.”); cf. Kyllo v. United States, 533 U.S. 27,
40 (2001) (holding that obtaining information about constitutionally protected area
using sense-enhancing technology constitutes search when that technology is not in
general public use).
      53
             Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (holding
government’s use of sophisticated cameras and zoom lenses to photograph industrial
site was not a search); id. at 237 n.4 (noting, for purposes of its analysis, that “it [is]
important that this is not an area immediately adjacent to a private home, where privacy
expectations are most heightened” (emphasis in original)).
      54
             Cowles v. State, 23 P.3d 1168, 1170-71 (Alaska 2001).
      55
             Id. at 1171.
      56
             Id. at 1172.
      57
             Id. at 1172-73.

                                           -14-                                      7690
point generally used by the public, that person cannot reasonably expect privacy from
observation by police. 58
                The State argues that this logic should govern here. Because the troopers
observed what any person flying in the air might observe, McKelvey had no reasonable
expectation that his curtilage would be free from aerial observation with vision-
enhancing technology. And although Cowles did not involve observation of the home,
the State points out that we have applied the open view doctrine to hold that police do
not engage in a search by looking inside the home when standing in a public place. 59
                The court of appeals did not expressly reconcile Cowles or our other “open
view” decisions with its conclusion that the Alaska Constitution does not permit
authorities to observe curtilage that is visible from public airspace. 60 Yet the court of
appeals’ reasoning implicitly recognized that the assumptions underlying the open view
doctrine do not apply with the same force to airborne views, at least when the home is
concerned. 61
                “If there is any area of human activity to which a right to privacy pertains
more than any other, it is the home.”62          Protection of the home extends to the



      58
            Id. at 1173 n.21 (citing Florida v. Riley, 488 U.S. 445, 453 (1989)
(O’Connor, J., concurring)).
      59
             Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979); Daygee v. State, 514
P.2d 1159, 1162 (Alaska 1973).
      60
               See McKelvey v. State, 474 P.3d 16, 28 n.63 (Alaska App. 2020)
(addressing Cowles only to explain that authorities’ subjective purpose of detecting
criminal activity did not affect analysis of whether conduct amounted to search). That
is not to fault the court of appeals. The State did not emphasize Cowles and our other
open view decisions in its briefing to that court.
      61
                See id. at 31 (describing difficulty of protecting curtilage from aerial
observation).
      62
            Ravin v. State, 537 P.2d 494, 503 (Alaska 1975); accord Lum v. Koles,
426 P.3d 1103, 1112-13 (Alaska 2018).

                                            -15-                                      7690
curtilage — the area outside the walls of a home into which the “privacies of life” may
extend.63 Although a person’s home is a place where the person expects privacy, it is
generally true that objects, activities, or statements “expose[d] to the ‘plain view’ of
outsiders are not ‘protected’ because no intention to keep them [private] has been
exhibited.”64 When a person has taken no steps to protect the area immediately outside
the person’s home from view, that person cannot reasonably expect items or activities
in this area will remain private or protected from the eyes of passersby — or police.65
But this framework breaks down when applied to aerial observations.
             An unstated premise of the ground-level open view doctrine is that people
can protect their privacy through reasonable steps, such as building fences, planting
trees, or closing blinds. 66 Or they can choose, like McKelvey, to live in a home in the


      63
             Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United
States, 116 U.S. 616, 630 (1886)); see also Fraiman v. State, Dep’t of Admin., Div. of
Motor Vehicles, 49 P.3d 241, 245 n.21 (Alaska 2002); Kelley v. State, 347 P.3d 1012,
1013-14 (Alaska App. 2015).
      64
             Smith v. State, 510 P.2d 793, 797 (Alaska 1973) (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
      65
                Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (“Activities that are
open to public observation are not generally protected by the Fourth Amendment [or
article I, section 14].”); Pistro v. State, 590 P.2d 884, 887 (Alaska 1979) (holding there
was no search when officers walked down private driveway “impliedly open to the
public” and observed defendant in his garage); Daygee v. State, 514 P.2d 1159, 1162
(Alaska 1973) (holding that there was no search when police “observe[d] that which is
in the plain view of an officer who [was] rightfully in a position to have that view”);
see also California v. Ciraolo, 476 U.S. 207, 213 (1986) (“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.”).
      66
             See Lorenzana v. Superior Ct., 511 P.2d 33, 36, 44 (Cal. 1973) (holding
plain view did not apply when officer walked within six inches of house and peered
through a two-inch gap between drawn blinds and windowsill); State v. Morrow, 291
N.W.2d 298, 299 (Wis. App. 1980) (holding implicitly that plain view did not apply
when officer assumed prone position on floor of hotel hallway to look under door into


                                          -16-                                      7690
middle of the woods that is not visible to outsiders. By doing so people may control
how much outsiders see of their private lives. Failing to do so makes it unreasonable
to expect privacy. But a person cannot easily protect against aerial observation. By
going airborne a person can see the home or curtilage from “virtually any altitude or
angle.” 67 “[E]ven individuals who have taken effective precautions to ensure against
ground-level observations cannot block off all conceivable aerial views of their outdoor
patios and yards without entirely giving up their enjoyment of those areas.” 68
             Extending the open view doctrine from the ground to the air would
conflict with Katz’s maxim that “what [one] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.”69 For example, the
constitutional protection against unreasonable search and seizure applies to boxes
carried in public, letters sent in the mail, and even phone calls made in public telephone
booths.70 Determining whether a constitutional protection survives exposure to a



room); State v. Adams, 378 So. 2d 72, 74 (Fla. App. 1979) (holding plain view did not
apply when police looked in defendant’s room in a rooming house by going onto the
porch and then standing on a chair to peer through a window above eye level); cf. State
v. Johnson, 580 S.W.2d 254, 257 (Mo. 1979) (holding plain view applied when window
had no curtains or blinds and officers could “readily” see inside); United States v.
Llanes, 398 F.2d 880, 884 (2d Cir. 1968) (holding plain view applied when officers
overheard defendant’s conversation, which was “quite audible,” while standing in
apartment hallway); United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997) (holding
plain view applied when police looked through “plainly visible five- to six-inch gap” in
blinds).
      67
             Florida v. Riley, 488 U.S. 445, 454 (1989) (O’Connor, J., concurring).
      68
             Id.
      69
             Katz v. United States, 389 U.S. 347, 351 (1967).
      70
              Rios v. United States, 364 U.S. 253, 254, 261-62 (1960) (holding owner
of box taken into public had reasonable expectation of privacy in its contents); Ex parte
Jackson, 96 U.S. 727, 733 (1877) (“Letters and sealed packages . . . in the mail are as
fully guarded from examination and inspection, except as to their outward form and


                                          -17-                                      7690
publicly accessible area is, at base, an inquiry into reasonableness.71 Boxing up an item,
sealing an envelope, or closing a telephone booth door do not create impenetrable
privacy barriers. But taking those steps is enough to create a reasonable expectation of
privacy, which is all that the constitution requires. Likewise, building fences, planting
trees, or living in a home in the middle of the woods that is not visible to outsiders does
not completely shield one’s curtilage from view, especially from aerial surveillance.
But to require more would force people to give up the privacy of their yards just because
it is not feasible to block aerial surveillance. This rule would be unreasonable and
“inconsistent with the aims of a free and open society.” 72 The open view doctrine
therefore is not a good fit for aerial observations.
              Our conclusion draws support from the Supreme Court’s more recent
approach to the Fourth Amendment. In Carpenter v. United States the Court declined
to apply the established “third-party doctrine” to cellphone location records because of
their “unique nature.”73 This doctrine holds that “a person has no legitimate expectation
of privacy in information he voluntarily turns over to third parties.” 74 The records at
issue indicated when a cellphone connected to a specific cell site, showing where the



weight, as if they were retained by the parties forwarding them in their own
domiciles.”); Katz, 389 U.S. at 352 (holding individuals maintain reasonable
expectation of privacy in contents of phone calls made in public telephone booths).
       71
              Anchorage v. Cook, 598 P.2d 939, 941 (Alaska 1979) (“The touchstone of
our analysis under [article I, section 14 and] the Fourth Amendment is always ‘the
reasonableness in all the circumstances of the particular governmental invasion of a
citizen’s personal security.’ ” (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977) (internal quotation marks omitted))).
       72
              Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).
       73
              See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (declining
to apply the third-party doctrine to cell site location information because of “the unique
nature of cell phone location records”).
       74
              Id. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743-744 (1979)).

                                           -18-                                      7690
phone was located at that time. 75 Collecting these records allows police to reconstruct
a person’s movements over time. Because this information is shared with a cellphone
service provider, lower federal courts had held that the government could acquire this
information without a warrant under the third-party doctrine.76 The Supreme Court
rejected that approach. It reasoned that the third-party doctrine was designed for
substantially less intrusive records — copies of “canceled checks, deposit slips, and
monthly statements” — not the “all-encompassing record of the holder’s whereabouts”
that cell site location data provides. 77 Because of these differences, applying the third-
party doctrine to cell site location information would have been “a significant
extension” of this doctrine — not, as the government claimed, “a straightforward
application” of it. 78 The Supreme Court declined to extend it. 79
             Carpenter’s holding is not directly applicable to this case. Aircraft and
cameras with zoom lenses are not new technology, and Carpenter expressly stated that
it was not “call[ing] into question conventional surveillance techniques and tools.”80
But aspects of the Court’s reasoning support our decision not to extend the “open view”
doctrine to aerial views. First, the Court refused to “mechanically” apply its existing
doctrines to a “qualitatively different” kind of technology.81 Second, it relied on the




      75
             Id. at 2211-12.
      76
             See, e.g., United States v. Davis, 785 F.3d 498, 509-11 (11th Cir. 2015);
United States v. Graham, 824 F.3d 421, 425-26 (4th Cir. 2016).
      77
             Carpenter, 138 S. Ct. at 2216-17.
      78
             Id. at 2219.
      79
             Id. at 2223.
      80
             Id. at 2220.
      81
             Id. at 2216, 2219.

                                           -19-                                      7690
practical impossibility of protecting oneself from collection of cell site location data.82
The same points support our decision not to mechanically extend the open view doctrine
to airborne surveillance. 83
       C.     Alaskans Have A Reasonable Expectation That Authorities Will Not
              Examine The Curtilage Of Their Homes From Aircraft With High-
              Powered Optics.
              Because the open view doctrine does not control our decision in this case,
we consider directly whether allowing the government to view the curtilage of a
person’s home from an aircraft, using a camera equipped with zoom lens, without first
getting a warrant, is consistent with the aims of a free and open society. 84 “Whether an
expectation of privacy is justified ‘must . . . be answered by assessing the nature of a
particular practice and the likely extent of its impact on the individual’s sense of
security balanced against the utility of the conduct as a technique of law
enforcement.’ ”85
              The most important point in this analysis is the degree to which a type of
police surveillance can reveal intimate details of life that a person may wish to keep
private. In Glass v. State we held that to allow warrantless recordings of telephone calls
risked chilling “public and private expression on the great issues of our day, as well as



       82
               Id. at 2220 (rejecting rationale of “voluntary exposure” because “cell
phones and the services they provide are ‘such a pervasive and insistent part of daily
life’ that carrying one is indispensable to participation in modern society’ ” (quoting
Riley v. California, 573 U.S. 373, 385 (2014))).
       83
            Because we conclude that the open view doctrine does not govern the
circumstances of this case, we decline the Public Defender Agency’s invitation to revisit
whether Cowles was correctly decided.
       84
             See Weltz v. State, 431 P.2d 502, 506 (Alaska 1967) (noting there is “no
exact formula for the determination of reasonableness in connection with a search and
seizure and so each case must be decided on its own facts and circumstances”).
       85
             Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (alterations in original)
(quoting United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J., dissenting)).

                                           -20-                                      7690
private discussion about the mundane, the trivial, and the banal,” turning our “once free
society” into “a nation of ‘hagridden and furtive’ people.” 86 Although people regularly
make “thoughtless comments about sex, religion, politics, acquaintances, personal
finances and even one’s innermost thoughts” to their friends, 87 “[f]ew of us would ever
speak freely if we knew that all our words were being captured by machines for later
release before an unknown and potentially hostile audience.”88 “Faced with the choice
of silence or the risk that comments will be ‘etched in stone,’ a speaker may choose the
former alternative, to the manifest diminution of the spontaneity which marks our daily
discourse.”89 The chilling effect would not be limited to those engaged in illegal
activity: “If . . . law enforcement officials may lawfully cause participants secretly to
record and transcribe private conversations, nothing prevents monitoring of those
persons not engaged in illegal activity, who have incurred displeasure, have not
conformed or have espoused unpopular causes.” 90
             In Beltz v. State we held that the constitution prohibits indiscriminate
searches of people’s garbage.91 We reasoned that people’s expectation that their
garbage will remain private is somewhat diminished because they put it in a public place
for collection, where it is exposed to “potential intrusions by intermeddling humans
(even garbage collectors).”92 But we concluded that because a person’s garbage can


      86
             State v. Glass, 583 P.2d 872, 877 (Alaska 1978) (quoting Holmes v. Burr,
486 F.2d 55, 65 (9th Cir. 1973) (Hufstedler, J., dissenting)).
      87
             Id. at 878.
      88
             Id. at 877 (quoting Holmes, 486 F.2d at 72 (Hufstedler, J., dissenting)).
      89
             Id. at 878.
      90
             Id.
      91
             Beltz v. State, 221 P.3d 328, 335 (Alaska 2009).
      92
             Id. at 336. But see id. at 340-42 (Winfree, J., dissenting) (arguing that the
“comprehensive regulation of the storage and presentation of garbage for collection”
undercuts notion that acceptance of this risk is voluntary).

                                          -21-                                      7690
reveal so much “highly personal information” — such as the type of medication the
person is using — allowing unfettered searches of garbage would violate Alaskan’s
sense of security and privacy. 93 Accordingly we held that police may search garbage
set out for public collection only if they have reasonable suspicion that a crime had been
committed. 94
                Peering into people’s yards with a high-powered lens when flying
overhead has a similar potential to reveal intimate details that a person may wish, and
expect, to keep private. Aerial observation with the aid of a zoom lens might capture,
for example, an unflattering photo of a person in a swimsuit, images of a person
practicing a silly dance with their children, or expressions of religious devotion that one
might not wish others to see. The mere knowledge that the government could make
these kinds of detailed observations without a warrant may discourage Alaskans from
using their curtilage to live their private lives. 95
                One could reasonably wonder just how chilling the specter of warrantless
aerial observation of the home would be. Aviation gas is expensive, officers are busy,
and the likelihood of detecting criminal activity with indiscriminate surveillance flights
is low. Consequently, aerial surveillance of people’s curtilage by law enforcement may
be infrequent. But as the court of appeals astutely observed, the rise of drones has the


       93
                Id. at 335-36 (majority opinion).
       94
              Id. at 336. Probable cause exists “when reliable information is set forth in
sufficient detail to warrant a reasonably prudent man in believing that a criminal offense
has been or was being committed.” Harrelson v. State, 516 P.2d 390, 396 (Alaska
1973). Reasonable suspicion is a lower standard that exists when “the totality of the
circumstances indicates that there is a substantial possibility that conduct giving rise to
a public danger has occurred, is occurring, or is about to occur.” Beltz, 221 P.3d at 337
(emphasis in original).
       95
              See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984) (“[S]ecretly
televising people (or taking still or moving pictures of them) while they are in what they
think is a private place is an even greater intrusion on privacy than secretly recording
their conversations.”).

                                              -22-                                   7690
potential to change that equation.96 The State responds that this case does not involve
drones, that drone use by law enforcement officials is currently limited by statute, 97 and
that there may be reasons to distinguish the use of drones from the use of manned
aircraft for law enforcement purposes. All those things are true. But the legal status of
drones could change. And it would not be wise for us to ignore, when assessing the
risk that warrantless aerial surveillance poses to Alaskans’ sense of security and
freedom, the likelihood that advances in technology will make aerial surveillance
cheaper and more feasible in the coming years and decades.
              The State argues that, considering the totality of the circumstances
surrounding the troopers’ observation of McKelvey, allowing this kind of observation
without a warrant would not be unduly chilling. The State emphasizes several factors:
(1) the ubiquity of small-aircraft travel in Alaska; (2) the unobtrusiveness of the
troopers’ flight; (3) the troopers’ use of a camera and lens that any person could buy;
(4) the relatively low level of detail in the photos taken; (5) the availability of satellite
images of McKelvey’s (and everyone’s) property on the internet; and (6) the utility of
warrantless aerial surveillance to law enforcement.98 The State also invites us to follow




       96
              See McKelvey v. State, 474 P.3d 16, 30 (Alaska App. 2020) (reasoning
that “in light of [drone] technology, an approach that focuses on the amount of
disruption or disturbance caused by the police surveillance is fundamentally inadequate
to protect the rights guaranteed to Alaska’s citizens by our constitution”).
       97
              AS 18.65.900-.902.
       98
              The State argues that we should consider McKelvey’s failure to protect
his greenhouse and marijuana plants from aerial observation as a factor weighing
against his reasonable expectation of privacy. As we explained in the preceding section,
because it is not practical to protect one’s curtilage from aerial observation without
virtually destroying the ability to use and enjoy it, the failure to do so does not diminish
one’s reasonable expectation of privacy. If a person failed to protect their curtilage
from ground-level view, then the person would not have a reasonable expectation of
privacy in the curtilage from the air or the ground.

                                            -23-                                       7690
the lead of other state courts that have held that aerial observation by police does not
require a warrant. We address each argument in turn.
              1.     Ubiquity of small-aircraft travel in Alaska
              The State argues that because flights on small aircraft are so common
everywhere in Alaska, Alaskans cannot reasonably expect privacy in the curtilage of
their homes. Pointing to the superior court’s findings, the State asserts passengers in
these aircraft fly relatively close to the ground, at low speeds, and regularly use
binoculars and high-powered cameras to view the ground below. We accept the State’s
assertion that there is more air travel per capita in Alaska than the average state and that
the small aircraft so common here fly at slower speeds and lower altitudes than the big
aircraft that predominate Outside. But there is no support for the State’s suggestion that
pilots and passengers regularly examine the curtilage of people’s homes with high-
powered optics. People train their cameras and binoculars on Alaska’s majestic scenery
and wildlife. There is no reason to think they are focused on the bleached garden boxes,
tangled fishing nets, and parted-out snowmachines lying next to people’s homes. The
fact that it is common for small aircraft to fly overhead does not make it unreasonable
for Alaskans to think that what they do in the outdoor space of their homes that they
have tried to keep private will remain private.
              2.     Obtrusiveness of the troopers’ flight
              The State asserts that the troopers’ flight was particularly unobtrusive
because they did not fly directly over McKelvey’s property.               Obtrusive aerial
surveillance — like a helicopter hovering directly above one’s home for 10 minutes —
would certainly be chilling. But the knowledge that police may discreetly surveil you
from the air without your even noticing it is equally chilling to one’s sense of privacy.
The wiretaps in Glass were not obtrusive. But that is why they were so insidious and




                                           -24-                                       7690
corrosive to Alaskans’ sense of security.99 If the surveillance technique cannot be
detected, then one can never fully protect against being surveilled.
                3.      Use of a commercially available camera and zoom lens
                As a threshold matter the State asserts that distinguishing between naked-
eye observation and observation aided by technology is inconsistent with our case law.
To be sure, we have held that it is not a search to use vision-enhancing technology to
view what is already within open view from the ground. 100 But we have already
explained why we decline to mechanically extend our precedent on ground-level
surveillance.        And it is just common sense to acknowledge that using aircraft
exponentially increases the power of vision-enhancing tools to produce detailed
glimpses of a person’s yard. This case does not require us to decide whether aerial
observation of the curtilage without vision-enhancing technology requires a warrant.101
What we do recognize is that the combination of flight and high-powered optics gives



      99
               State v. Glass, 583 P.2d 872, 877 (Alaska 1978) (noting that mere
possibility of widespread covert recording “pose[d] ‘a grave danger of chilling all
private, free, and unconstrained communication’ ” (quoting Lopez v. United States, 373
U.S. 427, 452 (1963) (Brennan, J., dissenting))).
      100
              See Anderson v. State, 555 P.2d 251, 257 (Alaska 1976) (holding officer’s
use of flashlight to aid observation was not a search).
      101
               The concurrence states that we should decide this issue nonetheless and
hold that any “targeted” aerial surveillance of the curtilage from the air requires a
warrant, regardless of whether vision-enhancing technology is used. Although the
concurrence suggests that our rejecting the open view doctrine compels a rule against
all targeted aerial surveillance of the curtilage, that conclusion does not follow
automatically. Our precedent requires us to “assess[] the nature of a particular practice
and the likely extent of its impact on the individual’s sense of security balanced against
the utility of the conduct as a technique of law enforcement.” Cowles v. State, 23 P.3d
1168, 1171 (Alaska 2001) (emphasis added). There is “no exact formula for the
determination of reasonableness in connection with a search and seizure and so each
case must be decided on its own facts and circumstances.” Weltz v. State, 23 P.3d 1168,
1172 (Alaska 2001) (alterations in original). For those reasons, we decline to go beyond
the facts of this case.

                                            -25-                                    7690
law enforcement officials the power to see enough detail of a person’s private life just
outside the home to corrode Alaskans’ sense of security. It is therefore a search that
requires a warrant.
             The State also argues that the specific observations did not violate any
reasonable expectation of privacy because they were made with commercially
available, commonly used equipment that did not allow for detailed observations of
McKelvey’s home. This point is not persuasive.
             The commercial availability of a piece of technology is not an appropriate
measure of whether the technology’s use by the government to surveil violates a
reasonable expectation of privacy.      If it is not a search when the police make
observations using technology that is commercially available, then the constitutional
protection against unreasonable searches will shrink as technology advances. That may
be the trajectory of the Fourth Amendment under the Supreme Court’s seemingly fact-
based approach to determining reasonable expectations of privacy. 102 As the Seventh
Circuit recently observed, that approach creates a “precarious circularity.”103 Adoption
of new technologies means “society’s expectations of privacy will change as citizens
increasingly rely on and expect these new technologies.” 104 And “[o]nce a technology
is widespread, the Constitution may no longer serve as a backstop preventing the
government from using that technology to access . . . previously inaccessible private




      102
             See Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding whether police
action amounted to search turned, in large part, on whether they used a commercially
available device).
      103
             United States v. Tuggle, 4 F.4th 505, 527 (7th Cir. 2021), cert. denied, 142
S. Ct. 1107 (2022).
      104
             Id.

                                          -26-                                     7690
information because doing so will no longer breach society’s newly minted
expectations.” 105
              What’s worse, new technologies often become embedded in society
without full consideration of their privacy implications. Few of us likely understood
the degree to which we were exposing our personal lives to data mining by technology
firms when we signed up for social media. Few of us likely anticipated, when we began
shopping for things online, that we would receive advertisements for car seats and burp
cloths before telling anyone there was a baby on the way.106
              The Alaska Constitution’s protection against unreasonable searches is not
yoked to the march of technology in the same way. Instead it requires a “value
judgment” as to whether the government’s unregulated use of technology to observe is
consistent with Alaskans’ expectation of a free society. 107 Aircraft and zoom lenses are
not new technologies, of course. Yet we decline to hold that it is automatically
reasonable for the government to use these tools to observe the private area outside
Alaskans’ homes just because these tools are widely available for purchase by the
general public.
              4.     Level of detail captured by particular photos
              As for the State’s invitation to determine whether aerial observation
amounts to a search based on the precise level of detail captured in particular
photographs (or through the binocular lenses), this approach is impractical. The level
of detail captured in aerial photographs can vary greatly due to small differences in


       105
             Id. (calling on Supreme Court or Congress to change approach to
determining reasonable expectation of privacy under Fourth Amendment).
       106
            Kashmir Hill, How Target Figured Out A Teen Girl Was Pregnant Before
Her Father Did, FORBES (Feb. 16, 2012), https://www.forbes.com/sites/kashmirhill/
2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/?sh
=489835e26668.
       107
              Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).

                                          -27-                                     7690
flight path, altitude, and lens power. Courts would have a hard time articulating a
standard based on such “[s]ubtle distinctions,” and law enforcement officials would
have a hard time following it. 108
              Moreover, the level of detail captured in a particular observation is not a
perfect proxy for how intrusive the act of observing was. As the Supreme Court noted
in Kyllo, “there is no necessary connection between the sophistication of the
surveillance equipment and the ‘intimacy’ of the details that it observes.” 109 Although
most aerial observations by police would likely not reveal anything particularly
embarrassing, that is not the point. “A search is a search, even if it happens to disclose
nothing but the bottom of a turntable.” 110 We measure a search by its potential for
intrusion, rather than what it actually reveals. Even relatively unsophisticated cameras,
when used from an aircraft, can show an uncomfortably detailed image of a person
lounging in a swimsuit.
              5.     Availability of satellite images on the internet
              The fact that other images of McKelvey’s curtilage are available online
does not make his expectation of privacy in the curtilage unreasonable. These overhead
images capture only a single moment in time, from a single vantage point, and are not
frequently updated. The troopers spent the time and money to fly past McKelvey’s
home because doing so could give them far more information about what he did in his
curtilage than searching online images. The existence of these online images does not




       108
             Ferguson v. State, 488 P.2d 1032, 1035 (Alaska 1971) (“[T]he law of
search and seizure should be written with a view to[wards] those whose conduct it is
meant to control. Subtle distinctions, which even lawyers find hard of application,
should be avoided.”).
       109
              Kyllo v. United States, 533 U.S. 27, 38 (2001).
       110
              Arizona v. Hicks, 480 U.S. 321, 325 (1987) (lifting up stereo “a few
inches” to look at its serial numbers was search for Fourth Amendment purposes).

                                          -28-                                      7690
make it unreasonable for people to expect privacy from aerial surveillance by the police
with high-powered optics.
             6.     Utility of warrantless aerial surveillance of the curtilage
             Determining whether a police practice is consistent with the Alaska
Constitution’s protection against unreasonable searches requires considering “the utility
of the conduct as a technique of law enforcement.” 111 Catching unlicensed growing
operations is an important part of Alaska’s regulatory framework for marijuana,112 but
the State has not explained why other police practices are ineffective in catching and
deterring these operations. The State also raises the specter of child abduction, implying
that without visually enhanced aerial observations police will struggle to locate missing
children. But under the “exigent circumstances” exception to the warrant requirement,
police do not need a warrant to search a property if there is a real risk a child will be
injured without immediate police action.113 And if police have reason to suspect that
the child is being kept in a particular home and there are no exigent circumstances, then
they may seek a warrant to search that home, including from the air. It is also worth


      111
            Cowles, 23 P.3d at 1171 (quoting United States v. White, 401 U.S. 745,
787 (1971) (Harlan, J., dissenting)).
      112
              See former AS 11.71.040(a)(3)(G), (2013) (possessing 25 or more
marijuana plants is a class C felony); AS 17.38.070(b) (creating exception from usual
criminal penalties for licensed commercial marijuana cultivators); AS 17.38.020(2)
(creating exception from usual criminal penalties for individuals who cultivate six or
fewer plants for personal use); 3 Alaska Administrative Code (AAC) 306.400(a)
(prohibiting cultivation of marijuana that is not for personal use and not licensed); 3
AAC 306.840 (allowing up to $50,000 in fines for violations of marijuana regulations).
      113
              See Schultz v. State, 593 P.2d 640, 642 (Alaska 1979) (noting warrantless
searches are permissible in “those instances where there is a ‘compelling need for
official action and no time to secure a warrant’ ” (quoting Michigan v. Tyler, 436 U.S.
499, 509 (1978))); accord Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“Numerous
state and federal cases have recognized that the Fourth Amendment does not bar police
officers from making warrantless entries and searches when they reasonably believe
that a person within is in need of immediate aid.” (footnotes omitted)).

                                          -29-                                      7690
noting that most land in Alaska is not curtilage of the home, where the right to privacy
is strongest. Therefore authorities are not necessarily restricted from using aircraft and
vision-enhancing technology to surveil those areas. We are not persuaded that the need
to investigate the curtilage of the home using aircraft paired with high-powered optics
outweighs the corrosive impact of this practice on Alaskans’ sense of privacy. 114
              7.     Decisions by other courts
              Finally, the State points to a number of other jurisdictions that have
approved the use of telephoto lenses to peer into homes, including some that have
approved the use of telephoto lenses during flights.115 McKelvey counters with a
number of jurisdictions that bar intrusive warrantless aerial observations of curtilage.116



       114
              This case does not present, and therefore we decline to decide, the
constitutionality of other kinds of aerial observation, like wildlife surveys, that may
result in occasional observation of the curtilage by government officials using zoom
lenses or binoculars. We note only that the chilling effect and relative societal benefit
of these activities, which typically are announced to the public and conducted for
discrete periods of time, may be different.
       115
              See, e.g., State v. Vogel, 428 N.W.2d 272, 274-77 (S.D. 1988) (holding
that police could use camera with telephoto lens to photograph marijuana plants inside
residence during aerial observation because there was “no showing that the cameras and
lenses used . . . were ‘sophisticated visual aids’ or ‘special equipment not generally in
use’ ” and “Vogel made no effort to shield his marijuana plants from either an aerial or
ground-level observation” (quoting United States v. Kim, 415 F. Supp. 1252, 1255-56
(D. Haw. 1976))); State v. Rogers, 673 P.2d 142, 144 (N.M. App. 1983) (holding that
use of binoculars to “verify” naked-eye observation of marijuana did not violate Fourth
Amendment); State v. Lange, 463 N.W.2d 390, 395 (Wis. App. 1990) (permitting aerial
observation of marijuana within defendant’s curtilage using “standard binoculars and
cameras equipped with generally available standard and zoom lenses” so long as
“overflights were not rare and the pilot was within navigable airspace specified by
law”).
       116
             See People v. Cook, 710 P.2d 299, 305 (Cal. 1985) (holding “an individual
has a reasonable expectation of privacy from purposeful police surveillance of his back
yard from the air”); State v. Quiday, 405 P.3d 552, 561-62 (Haw. 2017) (holding that


                                           -30-                                      7690
The opinions of other courts interpreting other states’ constitutions are helpful because
they illuminate the issues we must consider and the different ways competing
considerations may be balanced. But our analysis of what the Alaska Constitution
requires is driven primarily by our own precedent, our own heightened guarantee of
privacy, and our own social conditions.
                Having considered those factors, we hold that the Alaska Constitution
requires law enforcement officials to obtain a warrant before using aircraft and vision-
enhancing technology (such as a camera with zoom lens or binoculars) to observe the
curtilage of a person’s home that is protected from ground-level observation. Because
the troopers did not get a warrant before taking aerial photos of McKelvey’s curtilage,
it was error to deny McKelvey’s motion to suppress evidence obtained as a result of
those photos.
IV.   CONCLUSION
                For the foregoing reasons, the court of appeals’ decision is AFFIRMED.




“purposeful aerial surveillance of an individual’s residence and curtilage qualifies as a
‘search’ under article I, section 7 of the Hawai’i Constitution” even though these
residences and curtilage “may unavoidably be exposed to casual glances from passing
aircraft” (quoting Cook, 710 P.2d at 304)); see also State v. Bryant, 950 A.2d 467, 475-
782, 482 (Vt. 2008) (holding police violated state constitution when they hovered over
defendant’s property at a low-altitude for fifteen to thirty minutes to observe his
marijuana plants).

                                          -31-                                     7690
MAASSEN, Justice, with whom CARNEY, Justice, joins, concurring.
             I concur in today’s opinion and write separately only because I believe it
is narrower than the constitutional right of privacy demands. I agree, of course, with
the court’s starting point: that the Alaska Constitution requires us to interpret liberally
its protection against unreasonable searches and seizures, thus making us more inclined
than other courts might be to find that a citizen’s expectation of privacy is objectively
reasonable.1 I also agree with the court’s conclusion that the “open view” doctrine
applicable to ground-view observation cannot be “mechanically extend[ed] . . . to
airborne surveillance”;2 citizens who can protect themselves from prying eyes at ground
level by building tall fences cannot get the same protection from the air unless they
cover all their outdoor living spaces — something a reasonable society does not demand
of them. My only disagreement with the court’s analysis is that it stops short of its
inevitable conclusion.
             The court decides that an aerial search requires a warrant when conducted
with a “combination of flight and high-powered optics,” because in those circumstances
law enforcement officers have “the power to see enough detail of a person’s private life
just outside the home to corrode Alaskans’ sense of security.”3 Because the aerial
surveillance at issue here had this technological enhancement, the court declines “to
decide whether aerial observation of the curtilage without vision-enhancing technology
requires a warrant.”4 But I see no reason to leave this question unanswered.
             As the court notes, while other courts are not unanimous in their treatment
of this issue, some have come down decidedly in favor of a more expansive view of the




      1
             Opinion at 10.
      2
             Opinion at 20.
      3
             Opinion at 25-26.
      4
             Opinion at 25 (emphasis in original).

                                           -32-                                      7690
privacy right.5 The U.S. Supreme Court held in California v. Ciraolo that the Fourth
Amendment does not protect citizens from aerial surveillance because “[a]ny member
of the public flying in this airspace who glanced down could have seen everything that
[the] officers observed”; thus any expectation of protection from aerial observation —
even in a backyard protected by a 10-foot fence — was unreasonable.6 But four
members of the Court joined in a dissent written by Justice Powell, who highlighted the
difference between air travelers’ “fleeting, anonymous, and nondiscriminating glimpse
of the landscape and buildings over which they pass” and targeted aerial surveillance
by law enforcement officers intent on finding evidence of crime.7 In the first instance
“the actual risk to privacy . . . is virtually nonexistent,” whereas in the second the risk
is obvious. 8 Justice Powell concluded:
              Here, police conducted an overflight at low altitude solely
              for the purpose of discovering evidence of crime within a
              private enclave into which they were constitutionally
              forbidden to intrude at ground level without a warrant. It is
              not easy to believe that our society is prepared to force
              individuals to bear the risk of this type of warrantless police
              intrusion into their residential areas.[9]
The supreme courts of California and Hawai’i have reached the same conclusion.10


       5
              Opinion at 30-31 n.116.
       6
              476 U.S. 207, 209, 213-15 (1986) (5-4 decision).
       7
              Id. at 223-25 (Powell, J., dissenting).
       8
              Id.
       9
              Id. at 224-25.
       10
               People v. Cook, 710 P.2d 299, 305 (Cal. 1985) (“Striking that balance [of
societal and privacy interests], we must conclude that an individual has a reasonable
expectation of privacy from purposeful police surveillance of his back yard from the
air.”); State v. Quiday, 405 P.3d 552, 562 (Haw. 2017) (following Cook to hold that
“while a private citizen may tolerate casual glances by a passerby on a private,
commercial, or government flight, this does not necessarily mean that an individual


                                           -33-                                      7690
                These courts, and our court today, persuasively explain why a citizen’s
home and curtilage that are plainly visible from the sky may nonetheless be subject to
a reasonable expectation of privacy, making the “open view” doctrine that applies at
ground level inapplicable. That is enough of a basis on which to decide this case. If
the open view doctrine does not apply to airspace, then the usual corollary that allows
law enforcement officers to enhance that open view with commonly available
technology11 does not apply either; a warrant is required.12 I would hold simply that
Alaskans’ reasonable expectation of privacy in the home and curtilage protects them
from targeted surveillance from the air, and law enforcement officers must therefore
obtain a warrant before conducting such a search with or without technological
enhancements. Our constitutional privacy right should lead us to that rule eventually
in any event.


thereby for[]goes his or her reasonable expectation of privacy from ‘intensive spying
by police officers looking for evidence of crime’ in the curtilage of his or her home”);
see also State v. Bryant, 950 A.2d 467, 481-82 (Vt. 2008) (holding that “targeted, low-
level helicopter surveillance by the police of activities in an enclosed backyard is not
consistent with [the landowner’s legitimate expectation of privacy] — not without a
warrant”).
       11
               See Cowles v. State, 23 P.3d 1168, 1170-72 (Alaska 2001) (holding that
when employee’s desk was open to public view, surveillance of it by hidden video
camera did not violate employee’s reasonable expectation of privacy); Daygee v. State,
514 P.2d 1159, 1162 (Alaska 1973) (“That the officer’s view in this case was aided by
a flashlight is irrelevant. The flashlight beam merely illuminated that which would have
been visible in the light of day.”); Elson v. State, 633 P.2d 292, 295-96 (Alaska App.
1981) (holding that officer’s act of raising “cocaine snifter” vial to streetlight to better
inspect its contents did not remove it from “plain view” analysis).
       12
              See Cowles, 23 P.3d at 1170 (noting that “placing a hidden video camera
in a house in order to record activities there without a warrant is prohibited just as is a
warrantless entry to search for evidence”); State v. Glass, 583 P.2d 872, 881 (Alaska
1978) (“In the absence of limited exceptions, a search warrant should be obtained from
an impartial magistrate, based on probable cause to believe that criminal activity will
be discovered, before electronic monitoring of conversations should be allowed.”),
modified in part on reh’g, 596 P.2d 10 (Alaska 1979).

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