Does the state constitution’s explicit recognition and protection of personal privacy require police to get a valid search warrant before sending surveillance flights over a suspected drug dealer’s home?

That’s the key issue to be decided in the case of a Waipahu man, Benjamin Quiday, now pending before the Hawaii Supreme Court.

The high court will have to decide whether a ruling last year by the Intermediate Court of Appeals that Hawaii residents have a reasonable expectation of privacy from “targeted” police surveillance without a warrant will be allowed to stand.

The appeals court ruling extended the right to privacy and, if upheld on appeal, will cast Hawaii into a leading role nationally in protecting against government surveillance.

Cory Lum/Civil Beat

Soon after the Honolulu Police Department received an anonymous tip in October 2012 that “pakalolo plants were being grown” at Quiday’s Kahualena Street home, an officer assigned to the HPD’s marijuana eradication team arranged for a helicopter “reconnaissance flight” over Quiday’s residence.

The officer said that because of his specialized training and experience, he was able to identify 20 to 25 marijuana plants in the area next to Quiday’s house while flying at more than 420 feet above the ground.

Later the same day, the officer drove past the house but couldn’t see beyond an 8- to 10-foot fence. Unable to find any vantage point on the ground that allowed him to see into the yard, the officer made two more helicopter flights over the next several days for additional observations of Quiday’s yard, court records show.

Then, based on the anonymous tip along with sightings from the helicopter flyovers, police obtained a search warrant. During the resulting search of Quiday’s residence, police seized marijuana plants, along with equipment and supplies for growing and processing the crop.

Quiday was charged with two felonies, including “commercial promotion of marijuana,” after his arrest in October 2012.

An Illegal Search?

Hawaii is one of 10 states with specific constitutional provisions clearly recognizing a right to privacy.

Article I, Section 6 was approved by voters and added to the Hawaii State Constitution in 1978 : “The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.”

And at the same time, voters amended the separate section on searches and seizures paralleling the Fourth Amendment to the U.S. Constitution by adding an explicit privacy provision: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated.”

Hawaii courts have long recognized that our constitution may provide more robust protection for personal privacy than the federal constitution, but just how far those state protections may extend remains unsettled.

During pretrial proceedings, prosecutors and Quiday’s defense attorney clashed over the validity of the search warrant.

The defense argued police failed to provide any information to show the anonymous tip was credible or reliable, as legally required when applying for a search warrant.

“Targeted aerial surveillance of a property is at odds with Hawaii’s constitutional protections of individual privacy.” Hawaii Intermediate Court of Appeals

Further, the defense argued that if the tip was not credible, then the three helicopter flights made before a warrant was obtained amounted to a violation of Quiday’s right to privacy while in his home. Finally, Quiday’s lawyer argued the officer’s opinion was questionable because another judge had found his testimony about what could be identified from a moving helicopter hundreds of feet in the air less than credible.

Prosecutors countered by pointing to a string of local and national court cases which, they argued, established a straight-forward rule of thumb — if illegal activity is conducted in an open area where it can be seen from above, then police are free to observe from a helicopter and collect visible evidence without first obtaining a warrant.

They argue that it was legal and reasonable for the police helicopter to be present in the area above Quiday’s home. The surveillance wasn’t prolonged, the flights were at a legal altitude and officers didn’t rely on sophisticated electronic equipment to make their observations.

If the “open view” doctrine applies, prosecutors argued, then evidence from the surveillance could be freely used to support the search warrant, and the case could proceed.

Circuit Court Judge Colette Garibaldi sided with prosecutors, upheld the validity of the search warrant, and refused to exclude the evidence gathered.

Quiday’s attorney immediately appealed the decision to the Intermediate Court of Appeals, putting the pending trial on hold.

The Appeals Court Decision

In a landmark but relatively unnoticed decision in June, Hawaii’s Intermediate Court of Appeals overturned Garibaldi’s decision, holding that Quiday had a “reasonable expectation of privacy in the area surrounding his house from aerial surveillance,” and that the search was therefore illegal. As a result, the court ruled, the evidence seized during the search could not be used to prosecute Quiday.

The court found that HPD’s surveillance flights were legal “within the meaning of the Fourth Amendment.”

“However, Hawaii courts ‘are free to give broader privacy protection than that given by the federal constitution.’”

The court reviewed several prior decisions allowing aerial surveillance, but noted those decisions dated from 1980 or before and had not explicitly considered the privacy rights deriving from the state constitution.

Cory Lum/Civil Beat

One of several factors to be weighed, the court ruled, is “the targeted and prolonged nature of the aerial surveillance.” Prior rulings had approved such flights if they were not “prolonged” or continuing over hours or days.

However, in the Quiday case, the court found the flights were “targeted and prolonged” because the officer made “three targeted flights in fewer than four days.”

Not only was the surveillance prolonged, the court found, but the marijuana plants “were located in the curtilage of (Quiday’s) home, and should be less susceptible to warrantless ‘open view’ searches.” The term “curtilage” refers to “the grounds and buildings immediately surrounding a home that is used in the daily activities of domestic life.”

The court then enunciated what appears to be a clear new rule: “Targeted aerial surveillance of a property is at odds with Hawaii’s constitutional protections of individual privacy.”

Accordingly, the court ruled that although Quiday’s marijuana plants could be seen from the passing helicopter, HPD’s “targeted” surveillance violated his “reasonable expectation of privacy in the area surrounding his residence” and was therefore unconstitutional.

The decision drew support this week from the American Civil Liberties Union of Hawaii.

“The Intermediate Court of Appeals reached the correct conclusion in State v. Quiday when it held that the Hawai‘i Constitution protects individuals from targeted aerial surveillance of their home and enclosed surrounding areas,” Legal Director Mateo Caballero said in a statement Monday. “This comports with most people’s expectations of privacy in their homes, patios, and gardens. We are glad that Hawaiʻi courts continue to both recognize the special place of privacy rights in the Hawaiʻi Constitution and to protect such rights in light of increasing technological advances in police surveillance.”

But Honolulu Prosecuting Attorney Keith Kaneshiro, representing the State of Hawaii, appealed the ruling, asking the Hawaii Supreme Court to reject this expansion of privacy. The appeal urges the justices to reaffirm the more traditional “open view” approach and agree that since Quiday’s home and yard were in open view from above, they were not constitutionally protected from warrantless surveillance.

The case is scheduled for oral arguments before the Supreme Court at 11:15 a.m. on Jan. 19