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The Alaska Court of Appeals has ruled law enforcement officers cannot use cameras and drones for aerial searches of property without a warrant.

The court acknowledged police have a legal right to fly over property, but the use of observational technology violates the right to privacy guaranteed in the Alaska Constitution, KTVF-TV reported  Monday.

“An officer’s use of vision-enhancing technology should be deemed a ’search’ if the technology allows the officer to make observations that are significantly more detailed than what an unaided human eye would be able to see at the same distance,” the ruling said.

Maria Bahr, a spokesperson for the Alaska Department of Law, said in an email the state is deciding whether to seek a review by the Alaska Supreme Court. She noted the Supreme Court is not obligated to accept any possible petition for review of the case.

The Fairbanks Police Department uses drones, but it said the ruling is unlikely to affect their work.

“Our policy has always been, if you think you need a search warrant we should probably get one, especially if we are already going to be somewhere with the intent of looking into private property,” said Officer Jason Pace, who flies the department’s drones.

The ruling stems from a 2012 case in which Alaska State Troopers received a tip about marijuana being grown on a property near Fairbanks.

Troopers could not confirm the report because of thick trees obscuring the view. But then they used a helicopter to take photos with a telephoto camera lens.

Troopers used the images to apply for a search warrant and arrest John William McKelvey.

McKelvey’s attorney, Robert John, filed a motion to suppress evidence, claiming that taking photos from the air to obtain a warrant invaded his client’s right to privacy.

The trial court rejected the argument, and McKelvey was found guilty on two charges. The case was heard by the Alaska Court of Appeals in 2018.

John said the appeal ruling confirmed police in the air “can only investigate with their naked eye. They cannot employ technology. They cannot employ drones.”


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