An Air National Guard helicopter flying around Bradford County, Florida (about an hour southwest of Jacksonville, Florida) spotted a marijuana plant growing in the backyard of a Starke, Florida resident, according to an article on News4Jax.com. Local police officers subsequently searched the property including the house and found marijuana and guns. This investigation was part of a special effort in Bradford County and Union County to target illegal drug dealers and drug users.
One question in a drug case like this is whether the homeowner’s rights were violated when law enforcement observed the marijuana plant in his backyard and then searched his house and property. All individuals have very strong privacy rights in their homes and their adjacent property. As criminal defense attorneys, we have handled cases where police officers have gone into the backyards of people without search warrants and found illegal drugs only to have those cases thrown out because that kind of search is a Fourth Amendment violation. The analysis is different when the initial observation is done by a helicopter in the air space over a house. Whether the initial search of the property and observation of the marijuana is legal depends on several factors, such as whether the helicopter pilot had a right to be where he was and whether he had to use any special equipment to see one marijuana plant in the yard from a helicopter.
Any time the police or someone acting on behalf of the police observe suspected illegal drugs or suspected illegal activity in or near someone’s home without a search warrant, there is the potential for a Fourth Amendment violation that needs to be investigated. If there is such a Fourth Amendment violation, evidence of illegal drugs or other illegal activity should be thrown out..