Was aerial search by police illegal?

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Police need a search warrant to enter and search your home without your permission.

What about searching your property from up above, repeatedly, and without a search warrant – is that legal?

A 2012 case that’s been on hold pending the outcome of an appeal sought to answer that question.

It all has to do with a case from October 2012.

Honolulu police got a tip that someone was illegally growing marijuana at a house in Waipahu.

An officer went up in a helicopter to investigate, and according to court documents, the officer found what looked like 20 to 25 marijuana plants in pots on the side of the house.

The man living there was arrested but made a challenge in court saying what police did was illegal.

They did not have a search warrant and what they did violated his rights.

“What the guy said was wait a minute, that search warrant was illegal because you had no right to be flying over my back yard looking down in my yard when I had an expectation of privacy by building all this stuff around my yard,” said UH Law Professor Ken Lawson.

The Supreme Court agreed.

“What the supreme court is saying is before police can take a helicopter and fly over the backyard of this person’s residence, they needed to get a search warrant,” explained Lawson.

But that’s when they’re searching a specific location.

The courts ruling does not affect things like operation Green Harvest where police are randomly scanning a wide area without a specific target.

Now because the Waipahu resident won his appeal the evidence will have to be thrown out.

“It’s called the fruit of the poisonous tree. Since your search was poison, any fruit that came from that can’t be used as evidence. (which means they have no case.) They have no case,” said Lawson.

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