A unanimous Hawaii Supreme Court ruled last week that the Honolulu Police Department conducted an illegal search when, acting on an anonymous tip, it made several helicopter flights in October 2012 over a Waipahu home and spotted a number of marijuana plants growing alongside the house.

It’s a significant legal ruling that further extends Hawaii’s constitutional protection of personal privacy.

Based on the aerial surveillance, a search warrant was issued and the residence searched. One resident, Benjamin Quiday, was charged with commercial promotion of marijuana in the second degree, and one count of unlawful use of drug paraphernalia after the search found drug-related equipment and “twenty plants resembling marijuana plants.”

In pretrial motions, Quiday’s attorneys argued the search was illegal because the helicopter surveillance violated his right to personal privacy under the state constitution. The trial court disagreed, and the criminal case has been on hold since mid-2013 as that ruling slowly made its way up through the judicial system.

Last week’s Supreme Court’s decision upheld a June 2016 ruling by the state’s Intermediate Court of Appeals. That court found the state constitution protects “an individual from targeted aerial surveillance of the individual’s residence and its curtilage,” a legal term referring to the area immediately surrounding a dwelling. The high court agreed, although it relied on slightly different grounds in reaching its conclusion.

Prosecutors had argued that Quiday’s rights were not an issue because “his backyard was in ‘open view,’” and not concealed from above.

‘A Much Greater Privacy Right Here’

That view is consistent with prior rulings by the U.S. Supreme Court. Under the “open view” doctrine, federal courts have allowed warrantless aerial surveillance where the area is not protected or covered to block the view from above.

However, dating back to the era of William Richardson, who served as the state Supreme Court’s chief justice from 1966 to 1982, Hawaii courts held that the state constitution is more protective of privacy rights than the U.S. Constitution, according to Daniel Foley, a retired Intermediate Court of Appeals judge who authored that court’s decision in the Quiday case.

There is now “a real divergence” between the privacy protections provided by the U.S. Constitution, and the stronger protections granted by the state constitution and recognized by our courts, Foley said in a telephone interview Wednesday.

“Definitely, we have a much greater privacy right here than under the federal constitution,” Foley said.

There is now “a real divergence” between the privacy protections provided by the U.S. Constitution and the stronger protections granted by the state constitution.

The Hawaii Supreme Court started its analysis with a two-part test to determine whether Quiday had a “reasonable expectation of privacy.”

First, the court said, “one must exhibit an actual, subjective expectation of privacy.” Then, in addition, “that expectation must be one that society would recognize as objectively reasonable.”

The court found the plants in Quiday’s backyard had been placed where they could not be seen from ground level, showing that he intended to avoid public scrutiny. The plants were not covered by a tarp or grown within a structure,  but that “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,” the court held.

To support its position, the court cited prior cases where a reasonable expectation of privacy was found to exist even in the absence of absolute physical privacy.

In one such case, police observations through a small gap in a curtain drawn across the window of a home were found to violate the rights of those inside. In a second case, “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.”

The court then turned to the second part of the test — whether Quiday’s subjective expectation of privacy was objectively reasonable. The court described this as a “critical issue of first impression,” meaning that this precise issue had not previously been decided by the Hawaii Supreme Court.

Adopting California’s Model

Here the court relied on a 1985 decision by the California Supreme Court in the case of People v. Cook, which had also been key to the earlier ICA decision. The Cook case involved a defendant who was growing marijuana in a publicly inaccessible area, which was also protected from view at ground level by an 8-foot-tall fence. Acting on a tip, police flew overhead and were able to photograph the plants, and then to obtain a search warrant. The plants were found during the subsequent search.

In the California case, as in the Quiday case, prosecutors said there couldn’t be a reasonable expectation of privacy because “the yard was open to routine observation from any private, commercial or government flight across airspace above his property.”

The California court rejected that argument, instead holding that the fact that although a location might open to some degree of casual observations “does not necessarily preclude reasonable claims of privacy from intensive spying by police looking for evidence of crime.”

The California court further found “the Constitution does not provide that one is open to governmental inspection by any and all means he has failed to forestall.”

“An individual has a reasonable expectation of privacy from governmental aerial surveillance of his or her curtilage and residence.” — Hawaii Supreme Court ruling

Our Supreme Court, following the California court, held such a rule would “impose upon private citizens the ‘virtually impossible’ task of ‘shielding private activities in presumptively private areas from all possible observation.’”

“Accordingly,” the court concluded, “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.”

The high court overturned a Circuit Court’s earlier findings and remanded the case for further proceedings consistent with its decision, but without the evidence disallowed by the court, the charges will almost certainly have to be dismissed.

The unanimous Supreme Court decision was authored by Associate Justice Paula Nakayama.  Oral arguments in the case took place in January 2017.  Quiday’s case was argued at the Supreme Court by Susan L. Arnett, while the prosecution’s case was presented by Stephen K. Tsushima.

Foley, the former ICA judge, said the decision, while significant, will not have any impact on federal drug prosecutions in Hawaii.

“If you have a federal overflight, and they go to federal court, they’re not constrained by our state constitution or by this opinion,” Foley said.  “But if somehow that information is given to state actors and gets into state court, our state constitutional protections could kick in.”