Appeals judge: Cops needed warrant to search from the air

Posted at: 01/20/2014 10:39 PM
By: Caleb James, KOB Eyewitness News 4

An appeals court judge says pot plants spotted by police from the air on private property outside of Taos a few years ago cannot be used as evidence.

The decision from the state Court of Appeals could a big win for marijuana growers in New Mexico.

Cops saw the plants from an aircraft on property owned by Norman Davis in 2006, and that's how they knew to conduct a ground search.

Even though Davis consented to the search, cops didn't have a warrant to search from the sky, so all evidence after that was thrown out on appeal.

"They should pay a little more attention to the processes they're using," said Stella Kemper, an Albuquerque resident who weighed in on the issue Monday.

Kemper said she thinks an appeals judge was right to throw out the evidence.

Police found what they were looking for during a ground search consented to by Davis after the pot was spotted from the air, but now a judge says it can't be used as evidence.

"I'm sure glad somebody in the judiciary stepped up and said, 'This is nuts.'" said state senator Gerald Ortiz y Pino (D - Albuquerque).

Ortiz y Pino isn't shy about supporting marijuana legalization. He's introduced an amendment to do just that and it will be voted on by lawmakers this legislative session.

"If they had had a court order it would be different. But without a court order, we're just on a fishing expedition," he said.

The opinion by Appellate Judge Cynthia Fry cites the New Mexico state constitution. It says searches can't be conducted without a specific warrant.

"It sounds like it emphasized the New Mexico Constitution's strong protections against unwarranted seizure and surveillance, even," said Ortiz y Pino.

Back on the street, Kemper says she hopes it sets a precedent.

"I think that that sends a message to law enforcement that they need to really pay attention to the validity of their information gathering techniques," she said.

KOB Eyewitness News 4 contacted the New Mexico State Police about the case to ask if the opinion from the appeals court will change the way aircraft are used to fight crime on private property.

The agency has not responded.