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Electronically Filed Supreme Court SCWC-13-0004085 21-NOV-2017 09:59 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---O0O---
STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee,
vs.
BENJAMIN M. QUIDAY, Respondent/Defendant-Appellant.
SCWC-13-0004085
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0004085; CR. NO. 12-1-1644)
NOVEMBER 21, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
I. INTRODUCTION
The issue presented in this case is whether the use of
three helicopter flyovers of Respondent/Defendant-Appellant
Benjamin M. Quiday’s (Quiday) residence, whereby a police officer
observed two rows of potted marijuana plants growing in the
curtilage of Quiday’s house with the naked eye, was a “search” *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
within the meaning of article I, section 7 of the Hawai#i
Constitution. For the reasons stated below, we hold that aerial
surveillance of the curtilage of a private residence conducted
for the purposes of detecting criminal activity thereupon
qualifies as a “search” in the constitutional sense. As such,
the aerial surveillance conducted by the police in this case
constituted unconstitutional, warrantless searches. Therefore,
the evidence seized pursuant to the search warrant that was based
upon the police officer’s observations during the flyovers was
the fruit of the poisonous tree, and Quiday’s motion to suppress
evidence should have been granted.
Accordingly, we affirm the Intermediate Court of
Appeals’ (ICA) July 20, 2016 judgment on appeal filed pursuant to
its June 21, 2016 opinion, which vacated the Circuit Court of the
First Circuit’s (circuit court) August 19, 2013 findings of fact,
conclusions of law, and order denying Quiday’s motion to suppress
evidence and remanded the case for further proceedings, but on
different grounds.
II. BACKGROUND
On October 9, 2012, Officer Joseph Hanawahine (Officer
Hanawahine) of the Honolulu Police Department (HPD) was “assigned
a narcotic complaint, complaint number 12443, which related that
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there were pakalolo[1] plants being grown at 94-325 Kahualena
Street” in Waipahu, Hawai#i (Waipahu Residence). After receiving
the anonymous tip, Officer Hanawahine used Google Earth2 to
verify and confirm the location of the address.
On October 22, 2012, Officer Hanawahine conducted
aerial reconnaissance of the Waipahu Residence by helicopter,
flying at an estimated height of 420 feet. Officer Hanawahine
attested that “based on [his] training and experience, [he]
observed about twenty to twenty five (20-25) plants with the
color and structure resembling that of marijuana plants[.]” The
plants were placed in two rows of black pots located directly
along a wall on the west side of the residence. The plants were
not stored in a greenhouse or shed, nor were they covered by the
eaves of the rooftop. They also were not covered by any tarp or
cloth.
Later on October 22, 2012, Officer Hanawahine conducted
a medicinal marijuana check with the State of Hawai#i Narcotics
Enforcement Division (NED) to determine if the Waipahu Residence
was a location that was authorized to cultivate medicinal
1 In Hawaiian, “pakalolo” means marijuana. See Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary at 304 (2d ed. 1986).
2 Google Earth is an online platform that allows users to view map and terrain data, imagery, business listings, traffic, reviews, and other related information by Google, its licensors, and users. Google Maps/Google Earth Additional Terms of Service, Google, https://www.google.com/intl/en-US_US/help/terms_maps.html (last visited Oct. 13, 2017).
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marijuana, or if anyone associated with the Waipahu Residence
held a medicinal marijuana permit.
That same day, Officer Hanawahine also conducted ground
reconnaissance of the Waipahu Residence. He attested that the
residence he investigated on foot was the same residence that he
had observed from the helicopter. Officer Hanawahine was unable
to see any plants resembling marijuana from the street; the
Waipahu Residence was surrounded by gates, walls, and fences,
such that the backyard, where he had observed the marijuana
plants while he was in helicopter, was not visible at ground-
level.
On October 23, 2012, Officer Hanawahine conducted
further aerial reconnaissance of the Waipahu Residence by flying
approximately 420 feet above the ground in a helicopter. He
again observed the same marijuana plants on the west side of the
house and noted no changes from his observations from the
previous day. On the same day, NED informed Officer Hanawahine
that the Waipahu Residence was not an authorized location to
cultivate medicinal marijuana, nor were any of the names
associated with the Waipahu Residence registered medicinal
marijuana patients with a valid medicinal marijuana permit.
Officer Hanawahine conducted a third round of aerial
reconnaissance on October 23, 2012, again by flying approximately
420 feet above the ground in a helicopter. His observations were
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identical to the ones he had made in his prior two aerial
reconnaissance trips.
On October 26, 2012, the District Court of the First
Circuit approved a search warrant, S.W. 2012-261, permitting a
search of the Waipahu Residence for marijuana plants, related
drug paraphernalia, and other evidence of narcotics transactions.
The warrant was supported by Officer Hanawahine’s affidavit,
wherein he recounted his observations from his aerial and ground
surveillance operations.
On October 28, 2012, Sergeant Gregory Obara (Sergeant
Obara) conducted ground reconnaissance of the Waipahu Residence
by driving around the premises in an unmarked vehicle. While
traveling towards Koko Head on Kahualena Street, he observed a
male who appeared to be watering plants on the front western
corner of the property. A short time later, while traveling west
on Kahualena Street, Sergeant Obara saw the same man appearing to
spray water on plants located on the west side of the residence.
HPD executed the search warrant on October 29, 2012.
During the search, HPD found Quiday in possession of marijuana
and drug-related paraphernalia. HPD recovered twenty plants
resembling marijuana plants from the area where Sergeant Obara
had observed Quiday watering plants the day before. Sergeant
Obara identified Quiday as the same person whom he had observed
watering plants. Based on the evidence found during the search
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of the Waipahu Residence, Quiday was arrested.
On November 1, 2012, Petitioner/Plaintiff-Appellee
State of Hawai#i (the State) charged Quiday with one count of
commercial promotion of marijuana in the second degree, in
violation of Hawai#i Revised Statutes (HRS) § 712-1249.5(1)(a),3
and one count of unlawful use of drug paraphernalia, in violation
of HRS § 329-43.5(a).4
A. Circuit Court Proceedings
Quiday filed a motion to suppress evidence on April 8,
2013. He sought to “suppress any and all evidence seized from
his home, as a result of the execution of Search Warrant S.W.
2012-261” because, inter alia, “Officer Hanawahine’s resulting
illegal aerial search violated Mr. Quiday’s reasonable
3 HRS § 712-1249.5(1)(a) (1993) provides:
(1) A person commits the offense of commercial promotion of marijuana in the second degree if the person knowingly:
(a) Possesses marijuana having an aggregate weight of two pounds or more[.]
4 HRS § 329-43.5(a) (2010) provides:
It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.
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expectation of privacy[.]” The State filed a memorandum in
opposition to Quiday’s motion to suppress evidence on April 26,
2013, and filed a supplemental memorandum in opposition to
Quiday’s motion to suppress evidence on May 15, 2013.
At a hearing held on July 24, 2013, the circuit court5
orally denied Quiday’s motion to suppress evidence. The circuit
court subsequently filed its written findings of fact,
conclusions of law, and order denying Quiday’s motion to suppress
evidence on August 19, 2013.
Regarding whether Quiday’s reasonable expectation of
privacy had been violated due to the aerial surveillance, the
circuit court found that while the “plants in Defendant’s
backyard were shielded from street view by gates, walls, and
fences surrounding the residential property,” Quiday’s marijuana
plants “were clearly visible from aerial observation. They were
not stored in a greenhouse or shed, nor under the eaves of the
rooftop, nor covered by any sort of tarp or shade cloth.” Thus,
the circuit court ruled that: Defendant has not expressed any subjective expectation of privacy from aerial observation in his backyard. The walls enclosing his backyard indicate Defendant’s expectation of privacy from street level observers. However, the situation and location of the plants do not support such a claim as to view from the air. The view from overhead was unhindered by any sort of storage structure or visual obstruction.
5 The Honorable Colette Y. Garibaldi presided.
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Additionally, the circuit court found that: Defendant has not presented any evidence to support a claim that society is prepared to recognize an expectation of privacy from aerial observation as to the fully exposed contents in a walled backyard. On the contrary, Hawaii courts have expressly accepted the use of helicopters flown at reasonable heights in police investigations.
On August 26, 2013, Quiday sought permission from the
circuit court to file an interlocutory appeal, which was granted
on September 6, 2013.
B. ICA Proceedings
One of the primary6 issues on appeal was whether
Officer Hanawahine’s aerial surveillance constituted
unconstitutional searches that violated Quiday’s rights under
the Fourth Amendment to the United States Constitution and
article I, section 7 of the Hawai#i Constitution. Quiday argued
that he had a reasonable expectation of privacy from aerial
observation of his backyard, such that Officer Hanawahine’s
6 On appeal, the parties also discussed whether the anonymous tip that Officer Hanawahine had acted upon was sufficient to support the issuance of the search warrant. On this point, the State conceded that the anonymous tip could not have established probable cause on its own. The parties also discussed whether Officer Hanawahine had omitted material information that he was legally obligated to include in his affidavit. However, the ICA did not reach or rule on this issue because the ICA vacated the circuit court’s findings of fact, conclusions of law, and order denying Quiday’s motion to suppress based on its holding that the aerial surveillance violated his rights under the Hawai#i Constitution. See State v. Quiday, 138 Hawai#i 124, 127-31, 377 P.3d 65, 68-72 (App. 2016). Because the State did not present any questions as to these issues in its application for writ of certiorari, and Quiday did not file a response to raise the issues, we do not consider or address these matters. See Hawai#i Rules of Appellate Procedure Rule 40.1(d)(1) (2011) (providing that an application for a writ of certiorari must contain “a short and concise statement of the questions presented for decision, set forth in the most general terms possible” and that “[q]uestions not presented in accordance with this paragraph will be disregarded”).
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flyovers in the helicopter were unconstitutional, warrantless
searches. He emphasized that the marijuana plants were shielded
from view at ground-level by fences and walls, that there was no
evidence to support that HPD had a legal right to fly over the
Waipahu Residence, and that there was no evidence to support
that overflight by helicopters or other aircraft was a common
occurrence in the area within which the Waipahu Residence was
located.
The State countered that Quiday did not have a
reasonable expectation of privacy in his backyard from aerial
observation. The State highlighted that the marijuana plants
were not concealed from aerial view by any type of tarp or other
structural cover, that HPD did not violate any Federal Aviation
Administration Regulations in conducting the flights, that the
flights were neither prolonged nor harassing, and that Quiday
did not proffer any evidence to support his contention that
aerial flyovers were so uncommon as to create a reasonable
expectation of privacy from aerial observation.
On June 21, 2016, the ICA issued an opinion vacating
the circuit court’s findings of fact, conclusions of law, and
order denying Quiday’s motion to suppress evidence. State v.
Quiday, 138 Hawai#i 124, 131, 377 P.3d 65, 72 (App. 2016). The
ICA first held that Quiday’s rights had not been violated under
the federal Constitution. Id. at 128-29, 377 P.3d at 69-70.
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Referring to the United States Supreme Court’s decisions in
California v. Ciraolo, 476 U.S. 207 (1986), and Florida v.
Riley, 488 U.S. 445 (1989), the ICA noted that “[t]he United
States Supreme Court has twice held that aerial surveillance of
private homes and surrounding areas does not constitute a search
where the area is not covered from aerial view.” Id. at 129,
377 P.3d at 70. Thus, the ICA concluded that “under federal
law, Officer Hanawahine’s aerial observation of Quiday’s
property was not a ‘search’ within the meaning of the Fourth
Amendment.” Id.
The ICA then considered whether Officer Hanawahine’s
aerial observation was a “search” within the meaning of article
I, section 7 of the Hawai#i Constitution, noting that “Hawai#i
courts ‘are free to give broader privacy protection than that
given by the federal constitution.’” Id. (quoting State v.
Detroy, 102 Hawai#i 13, 22, 72 P.3d 485, 494 (2003)).
The ICA acknowledged that this court has addressed the
constitutionality of aerial surveillance in two cases: State v.
Stachler, 58 Haw. 412, 570 P.2d 1323 (1977), and State v.
Knight, 63 Haw. 90, 621 P.2d 370 (1980). Id. at 129-130, 377
P.3d at 70-71. Based on its reading of Stachler and Knight, the
ICA held that the following five factors must be considered in
evaluating the constitutionality of aerial surveillance
practices under the Hawai#i Constitution: “(1) compliance with
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state and federal flight regulations; (2) the targeted and
prolonged nature of the aerial surveillance; (3) the use of
highly sophisticated viewing devices; (4) the frequency of other
vehicles over the area; and (5) the remote nature of and the
vegetation surrounding the observed property.” Id. at 130, 377
P.3d at 71. The ICA held that these five factors were to be
“balanced with principles underlying the exclusionary rule: (1)
to protect individual privacy; (2) to deter illegal police
conduct; and (3) to preserve the integrity of the judiciary.”
Id.
Applying these factors, the ICA determined that the
record lacked evidence tending to support that Officer
Hanawahine did not comply with applicable flight regulations,
and that the record did not indicate that Officer Hanawahine
used sophisticated viewing equipment to observe the marijuana
plants in Quiday’s backyard. Id. The ICA also observed that
there was no evidence regarding the frequency of aircraft in the
area where the Waipahu Residence was located. Id.
However, the ICA determined that “Officer Hanawahine’s
flights were targeted and prolonged because he made three
targeted flights in fewer than four days” and that “[t]argeted
aerial surveillance of a property is at odds with Hawai#i’s
constitutional protections of individual privacy.” Id. The ICA
further noted that “the marijuana plants were located in the
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curtilage of [Quiday’s] home, and should be less susceptible to
warrantless ‘open view’ searches.” Id. Drawing upon the
California Supreme Court’s opinion in People v. Cook, 710 P.2d
299 (Cal. 1985), the ICA held that “article I, section 7 of the
Hawai#i Constitution . . . protect[s] an individual from
targeted aerial surveillance of the individual’s residence and
its curtilage.” Id. at 131, 377 P.3d at 72. Accordingly, the
ICA concluded that “[t]he circuit court erred in concluding that
Quiday did not have a reasonable expectation of privacy in the
area surrounding his house from aerial surveillance.” Id.
C. Application for Writ of Certiorari
The State filed an application for writ of certiorari
on September 16, 2016. In its application, the State presented
two questions for review: Did the ICA majority gravely err: (1) in vacating the circuit court’s August 19, 2013 “Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Motion to Suppress Evidence,” and (2) in interpreting article I, section 7 of the Hawai#i Constitution to protect an individual from targeted aerial surveillance of the individual’s residence and its curtilage?
Quiday did not respond. This court accepted the State’s
application on October 31, 2016.
III. STANDARDS OF REVIEW
A. Constitutional Questions
“We answer questions of constitutional law by
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exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” State v.
Pratt, 127 Hawai#i 206, 212, 277 P.3d 300, 306 (2012) (quoting
State v. Hanapi, 89 Hawai#i 177, 182, 970 P.2d 485, 490 (1998)).
B. Pretrial Findings of Fact and Conclusions of Law
Pretrial findings of fact are reviewed under the
clearly erroneous standard. State v. Locquiao, 100 Hawai#i 195,
203, 58 P.3d 1242, 1250 (2002). “A finding of fact is clearly
erroneous when (1) the record lacks substantial evidence to
support the finding, or (2) despite substantial evidence in
support of the finding, the appellate court is nonetheless left
with a definite and firm conviction that a mistake has been
made.” State v. Eleneki, 92 Hawai#i 562, 564, 993 P.2d 1191,
1193 (2000) (quoting State v. Wilson, 92 Hawai#i 45, 48, 987
P.2d 268, 271 (1999)). Substantial evidence is “credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion.”
State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)
(citing State v. Eastman, 81 Hawai#i 131, 135, 913 P.2d 57, 61
(1996)).
Pretrial conclusions of law are reviewed de novo.
Locquiao, 100 Hawai#i at 203, 58 P.3d at 1250. “A conclusion of
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law that is supported by the trial court’s findings of fact and
that reflects an application of the correct rule of law will not
be overturned.” Dan v. State, 76 Hawai#i 423, 428, 879 P.2d
528, 533 (1994) (citing Amfac, Inc. v. Waikiki Beachcomber Inv.
Co., 74 Haw. 85, 119, 839 P.2d 10, 29 (1992)).
IV. DISCUSSION
At issue on certiorari is whether the three helicopter
flyover reconnaissance missions, whereby Officer Hanawahine flew
over the Waipahu Residence at a height of approximately 420 feet
to observe the marijuana plants growing in its curtilage with
the naked eye, constituted unconstitutional, warrantless
searches, which violated Quiday’s rights under article I,
section 7 of the Hawai#i Constitution. We agree with the ICA,
albeit on different grounds, that the aerial surveillance
conducted in the present case were unconstitutional searches
that violated Quiday’s reasonable expectation of privacy.
Article I, section 7 of the Hawai#i Constitution
protects the right of the people to be free from “unreasonable
searches, seizures and invasions of privacy.” Haw. Const. art.
I, § 7. The basic purpose of article I, section 7 “is to
safeguard the privacy and security of individuals against
arbitrary invasions by government officials.” State v. Wallace,
80 Hawai#i 382, 392, 910 P.2d 695, 705 (1996) (quoting State v.
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Bonnell, 75 Haw. 124, 136, 856 P.2d 1265, 1272 (1993)). If an
action taken by the government intrudes on an individual’s
reasonable expectation of privacy, such an intrusion is a
“search” in a constitutional sense, and must be supported by a
warrant, or an applicable exception to the warrant requirement,
and probable cause in order to be constitutional. Bonnell, 75
Haw. at 137, 856 P.2d at 1273 (“It is well settled that an area
in which an individual has a reasonable expectation of privacy
is protected by article I, section 7 of the Hawaii Constitution
and cannot be searched without a warrant.”).
We have previously recognized that “[c]urtilage is
usually defined as a small piece of land, not necessarily
enclosed, around a dwelling house and generally includes
buildings used for domestic purposes in the conduct of family
affairs.” State v. Kender, 60 Haw. 301, 304, 588 P.2d 447, 449
(1978). “[O]ne’s back yard may be part of one’s curtilage[.]”
Id. An individual’s curtilage is protected by article I,
section 7 of the Hawai#i Constitution when he or she has a
reasonable expectation of privacy therein. See id., 588 P.2d at
499-50.
This court has adopted the two-part test that Justice
Harlan articulated in his concurring opinion in Katz v. United
States, 389 U.S. 347 (1967), to determine whether an individual
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has a reasonable expectation of privacy. Bonnell, 75 Haw. at
139, 856 P.2d at 1273-74. Under this test: “First, one must
exhibit an actual, subjective expectation of privacy. Second,
that expectation must be one that society would recognize as
objectively reasonable.” Id., 856 P.2d at 1274 (quoting State
v. Biggar, 68 Haw. 404, 407, 716 P.2d 493, 495 (1986)). We now
apply this test to the facts before us.
A. Quiday exhibited a subjective expectation of privacy.
We believe that Quiday exhibited an actual, subjective
expectation of privacy in his backyard where the marijuana
plants were located. Quiday’s placement of the plants in his
backyard, the activities in which were not capable of
observation by members of the public at ground-level, was
“indicative of [his] subjective intent to avoid the public gaze”
into the curtilage of his home. State v. Kaaheena, 59 Haw. 23,
29, 575 P.2d 462, 467 (1978) (holding that the defendants’ drawn
curtains and closed venetian blinds were indicative of their
subjective expectation of privacy); see also Biggar, 68 Haw. at
407, 716 P.2d at 495 (determining that the defendant exhibited a
subjective expectation of privacy by closing the door to a
toilet stall, and the fact that the door did not close
completely did not eliminate this expectation). That Quiday did
not cover the marijuana plants with a tarp or other structure to
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preclude their visibility from above does not alter the fact
that Quiday exhibited a subjective intent to keep the marijuana
plants out of view from the public eye, and therefore, evinced a
subjective expectation of privacy. State v. Davis, 360 P.3d
1161, 1180 (N.M. 2015) (Chavez, J., concurring) (reasoning that
“an individual’s subjective expectation of privacy from ground-
level surveillance is coextensive with his or her subjective
expectation of privacy from aerial surveillance” because “[i]f
an individual has taken steps to ward off inspection from the
ground, the individual has also manifested an expectation that
the visibility of his or her property that he or she sought to
block off from the ground should also be private when seen from
the air,” due to the fact that “members of the general public
generally do not intently scrutinize other peoples’ curtilages,
even when they do fly over private property”).
Having concluded that the first part of the two-part
test has been met in this case, we now analyze whether Quiday’s
expectation of privacy was objectively reasonable.
B. Quiday’s expectation of privacy was objectively reasonable.
The ICA held that the circuit court erred in ruling
that Quiday did not have a reasonable expectation of privacy in
the area where the marijuana plants were located because, on
balance, the five factors discussed in Stachler and Knight
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supported that Quiday’s expectation of privacy was reasonable.
Quiday, 138 Hawai#i at 130-31, 377 P.3d at 71-72. The ICA went
a step further, and utilized the public policy considerations
discussed in the California Supreme Court’s decision in Cook to
establish a rule whereby targeted aerial surveillance of a
person’s residence and curtilage is, per se, a “search” under
article I, section 7 of the Hawai#i Constitution. Id.
We disagree with the ICA in two respects. First,
although the ICA aptly observed that this court has previously
considered the constitutionality of aerial surveillance
practices twice before in Stachler and Knight, the facts of
these cases are significantly distinguishable from those in the
present case. Therefore, Stachler and Knight are not
controlling here.
In Stachler, the police conducted general surveillance
for criminal activity via a helicopter flying approximately 300
feet above the ground. 58 Haw. at 413-14, 570 P.2d at 1325. As
the police helicopter flew over the defendant’s property, one of
the officers, using binoculars, observed a patch of marijuana
about nine feet by twelve feet containing three rows, each with
approximately four plants that were about eight to ten feet
tall. Id. There was no determination that the patch, located
roughly fifteen feet south of the defendant’s house, was within
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the curtilage of the defendant’s home. Id. at 414, 570 P.2d at
1325. The defendant’s land was in a sparsely populated,
relatively remote agricultural area, surrounded by abandoned
farms and wild trees. Id. at 413, 570 P.2d at 1325. The
defendant’s property could not be seen from the nearest public
road, nor from the neighboring property. Id. To get to the
defendant’s house, one had to pass through a locked gate and
travel up an unimproved road. Id.
In Knight, police were conducting general helicopter
surveillance in search of marijuana plants. 63 Haw. at 91, 621
P.2d at 372. Flying at an altitude of approximately 400-500
feet, the police observed a greenhouse about sixty feet by
ninety feet in dimension approximately forty-five feet away from
the defendants’ home. Id. The greenhouse was not shown to be
within the curtilage of the defendants’ residence. See id. The
top of the greenhouse was covered by an opaque plastic roof, and
the sides were wrapped with 80% shade cloth of black fiber glass
material. Id. While the police could not discern what was
inside the greenhouse due to the opaque roof, they still
photographed the greenhouse’s exterior during their aerial
surveillance. Id.
In short, the premises that the police observed from
an aerial vantage point in Stachler and Knight were not shown to
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be located in the curtilage of either of the defendants’ homes.
Stachler, 58 Haw. at 414, 570 P.2d at 1325, Knight, 63 Haw. at
91, 621 P.2d at 372. Additionally, the defendants in Stachler
and Knight did not shield the observed premises from the public
eye; neither the marijuana patch nor the greenhouse were
concealed from view by any type of fencing or other barrier.
See Stachler, 58 Haw. at 413-14, 570 P.2d at 1325, Knight, 63
Haw. at 91, 621 P.2d at 372.
By contrast, in this case, the marijuana plants that
Officer Hanawahine observed via helicopter were tucked in the
curtilage of Quiday’s home; the plants were lined up in two
rows, directly along the west side of the Waipahu Residence.
Accordingly, Stachler and Knight are inapposite insofar as this
court, in both cases, did not render any decision with regard to
whether the observed locations were within the curtilage, and
concluded that the defendants did not have a reasonable
expectation of privacy in the observed areas based upon other
facts. See Stachler, 58 Haw. at 418-20, 570 P.2d at 1327-28;
Knight, 63 Haw. at 93, 621 P.2d at 373.
Second, we disagree with the ICA to the extent that it
interpreted Stachler and Knight to create a five-factor
balancing framework for analyzing the constitutionality of
aerial surveillance practices. This court has established that
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whether an individual has an expectation of privacy that is
objectively reasonable is subject to a case by case analysis,
based on the totality of the circumstances in each case.
Kender, 60 Haw. at 304, 588 P.2d at 449-50 (agreeing with the
California Supreme Court that whether an individual has a
reasonable expectation of privacy in a certain place will depend
upon “[a] number of factors” that will “arise on a case by case
basis”); State v. Ward, 62 Haw. 509, 515, 617 P.2d 571-72 (1980)
(holding that the reasonable expectation of privacy test
requires courts to consider “all factors on a case-by-case
basis”).
Rather than creating a new analytical framework, the
Stachler and Knight courts applied the foregoing totality-of-
the-circumstances analysis in determining that the helicopter
flyovers therein were not “searches” in the constitutional
sense. In Stachler, this court held that the defendant did not
have a reasonable expectation of privacy in his marijuana patch
based on the following facts: (1) the police helicopter was
flying at a lawful and reasonable height based on state law and
Civil Aeronautics Board regulations; (2) there was no aerial
harassment or prolonged aerial surveillance stretching out over
hours or days; (3) no highly sophisticated viewing devices had
been employed; (4) the defendant did not demonstrate that
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helicopter flights were rare occurrences in the area; and (5)
the defendant’s expectation of privacy in his marijuana plants
was “inconsistent with the ‘common habits of persons engaged in
agriculture.’” 58 Haw. at 418-20, 570 P.2d at 1327-28.
The Knight court, faced with facts comparable to those
in Stachler, similarly held that naked-eye observations of the
defendants’ greenhouse did not constitute a search. Knight, 63
Haw. at 93, 621 P.2d at 373. Though this court’s analysis in
Knight concerning the constitutionality of the police’s aerial
surveillance was sparse, it appears that this court relied upon
similar factors that the Stachler court utilized to the extent
that both cases presented the same issue in the context of
analogous fact patterns. See id.
When the two cases are examined collectively, it
appears that this court held that the defendants in Stachler and
Knight did not have a reasonable expectation of privacy in their
marijuana patch and greenhouse, respectively, based on the
totality of the circumstances presented in those cases. This
court did not, in either case, establish a rigid analytical
framework which requires courts to consider a specific set of
factors when evaluating the constitutionality of aerial
surveillance practices.
Therefore, we disagree with the ICA with respect to
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its interpretation of our decisions in Stachler and Knight and
its application of these cases to the distinguishable facts in
the present case. However, notwithstanding the foregoing
differences in opinion, we agree with the ICA to the extent that
we also believe that the California Supreme Court’s opinion in
Cook is applicable to the present case, inasmuch as Cook
provides us with persuasive guidance as to how to resolve the
crucial issue of first impression before us: whether Quiday had
a reasonable expectation of privacy from aerial surveillance of
the curtilage of his home, which was hidden from view at ground-
In Cook, police officers received an anonymous tip
that the defendant was growing marijuana at his residence, which
was located in a semi-rural area. 710 P.2d at 302. An officer
went to the defendant’s property, but was unable to verify the
tip because a high wooden fence surrounded the defendant’s
property, and there was no other publicly-accessible location
from which to make further observations. Id. Two days later,
the officer, by plane, flew over the defendant’s property at an
altitude of about 1,600 feet. Id. During the fly-over, the
officer observed and photographed what he believed to be
marijuana plants growing in an enclosed area behind the
defendant’s house. Id.
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The officer procured a search warrant based upon his
observations and the photographs. Id. After conducting a
search pursuant thereto, police found marijuana plants growing
behind the defendant’s house in an area that was surrounded on
three sides by solid wood fence that was eight feet tall; the
house itself provided a barrier on the fourth side. Id. The
fence was covered on the top with wood beams and chicken wire.
Id. A second six-foot high fence surrounded the entire house,
including the enclosure where the marijuana plants were being
grown. Id.
The Cook defendant was charged with unlawfully
cultivating marijuana. Id. He moved to suppress the evidence
obtained during the search of his home, arguing that the search
warrant was invalid because the warrant was obtained as a result
of an unlawful search. Id. The trial court ruled that the fly-
over did not constitute a search because the defendant did not
have a reasonable expectation of privacy in his backyard. Id.
On appeal, the government argued that the defendant
did not have a reasonable expectation of privacy in his backyard
because although the fence blocked his backyard from view at
ground-level, “the yard was open to routine observation from any
private, commercial, or government flight across the airspace
above his property.” Id. at 304. The government further
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asserted that “the surveillance here was not unduly intrusive,
since it took place from a height of some 1,600 feet.” Id.
For several reasons, the California Supreme Court
rejected the government’s argument. Id. The Cook court first
observed that “the fact that government officials or members of
the civilian public might be expected, for one reason or
another, to enter a place or see or hear the activities within,
does not necessarily preclude reasonable claims of privacy from
intensive spying by police officers looking for evidence of
crime.” Id. Accordingly, the Cook court reasoned that although
“[o]ne’s yard may unavoidably be exposed to casual glances from
passing aircraft, . . . [a person] may still reasonably assume
that it will not be intently examined by government agents who
are flying over it for that specific purpose.” Id.
The California Supreme Court further determined that
the government’s argument could not stand because “the
Constitution does not provide that one is open to governmental
inspection by any and all means he has failed to forestall.”
Id. at 305. To the Cook court, “[s]uch a rule would encourage
the transformation of our open society into a garrison state,”
and would impose upon private citizens the “virtually
impossible” task of “shielding private activities in
presumptively private areas from all possible observation.” Id.
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Acknowledging that its primary goal was to engage in
the “delicate balancing of societal and privacy interests which
underlies constitutional protections against ‘unreasonable’
searches and seizures,” the California Supreme Court held: “We
must conclude that an individual has a reasonable expectation of
privacy from purposeful police surveillance of his back yard
from the air. We can conceive of no societal or law enforcement
interest strong enough to justify such unfettered intrusions on
the sanctity of private residences.” Id. The court concluded
that “the warrantless aerial scrutiny of defendant’s yard, for
the purpose of detecting criminal activity by the occupants of
the property, was forbidden by article I, section 13 of the
California Constitution.” Id. at 307.
The facts in the present case are nearly identical to
those in Cook. Here, as in Cook, Officer Hanawahine received an
anonymous tip that marijuana plants were being grown at Quiday’s
residence. Subsequently, as was the case in Cook, Officer
Hanawahine was unable to verify the tip at ground-level because
Quiday’s residence was surrounded by gates and fences, and
conducted several aerial fly-overs to bypass the physical
boundaries that concealed Quiday’s backyard from ground-view,
for the specific purpose of detecting criminal activity in
Quiday’s backyard. In support of its position that Quiday did
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not have a reasonable expectation of privacy from aerial
surveillance of his backyard, the State advances an argument
nearly identical to the government’s argument in Cook.
Specifically, the State contends that the police did not run
afoul of Quiday’s constitutional rights because his backyard was
in “open view,” insofar as his backyard was not concealed from
aerial observation by any physical coverings.
In our view, the State’s argument is unpersuasive. We
agree with the California Supreme Court in that we also believe
that although Quiday’s yard “may unavoidably be exposed to
casual glances from passing aircraft,” Quiday was still entitled
to “reasonably assume” that his backyard would “not be intently
examined by government agents who are flying over it for” the
specific purpose of detecting criminal activity therein. Cook,
710 P.2d at 304. In other words, we agree 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 thereby foregoes 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--an area where the private domestic activities normally
conducted within the sanctity of the home itself can be expected
to extend. Id.
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Accordingly, we hereby adopt the rule established by
the California Supreme Court in Cook, and hold that an
individual has a reasonable expectation of privacy from
governmental aerial surveillance of his or her curtilage and
residence, when such aerial surveillance is conducted with the
purpose of detecting criminal activity therein. Such purposeful
aerial surveillance of an individual’s residence and curtilage
qualifies as a “search” under article I, section 7 of the
Hawai#i Constitution.
Therefore, when Officer Hanawahine conducted three
aerial reconnaissance missions over two days, during which he
flew over Quiday’s home at a height of 420 feet in order to
observe the marijuana plants growing in the curtilage of
Quiday’s home, Officer Hanawahine conducted unconstitutional,
warrantless searches in contravention of Quiday’s rights under
article I, section 7 of the Hawai#i Constitution. As a result,
the evidence obtained during the execution of the search
warrant, which was based on Officer Hanawahine’s observations
during his aerial reconnaissance missions, was the fruit of the
poisonous tree. Consequently, we agree with the ICA, though on
different grounds, that the circuit court erred in denying
Quiday’s motion to suppress evidence.
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V. CONCLUSION
For the foregoing reasons, we affirm the ICA’s
July 20, 2016 judgment on appeal filed pursuant to its June 21,
2016 opinion, which vacated the circuit court’s August 19, 2013
findings of fact, conclusions of law, and order denying Quiday’s
motion to suppress evidence and remanded the case for further
proceedings, but on different grounds.
Stephen K. Tsushima /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Susan L. Arnett for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson