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Supreme Court says cops can't use telephoto from air without a warrant

Fairbanks attorney Robert John argues in the McKelvey case as part of the Supreme Court Live presentation at Lathrop High School, Nov. 22, 2022.
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Fairbanks attorney Robert John argues in the McKelvey case as part of the Supreme Court Live presentation at Lathrop High School, Nov. 22, 2022.

Law enforcement officers can’t use binoculars or telephoto lenses when flying over Alaskans’ property unless they have a warrant -- according to a ruling by the Supreme Court on Friday.

The case involved a Fairbanks man who was arrested after Troopers photographed his yard from the air. The case starts in 2012, when Toopers got a tip that John William McKelvey was then illegally growing marijuana on his property.
After flying over the property and taking pictures with a telephoto lens, the Troopers obtained a search warrant. The validity of that search warrant is central to the case, but moreso, whether the Troopers’ use of aerial photography violates either the Fourth Amendment of the United States Constitution or the Alaska Constitution’s rights to privacy clause.

  “It should have a significant impact on law enforcement going out and just roaming around looking at people's properties without a reason.  It's going to require that they first present to a judge the evidence they have to go out there, and obtain a warrant,” said Robert John, the Fairbanks attorney who argued the case for McKelvey. He was reached at his law office on Friday.

The case was featured on the Supreme Court Livedemonstration at a public assembly at Lathrop High School in November, 2022. The Supreme Court has heard cases in front of high school students 15 times since 2010.

Justice Dario Borgesan wrote the main decision for the court, saying Alaskans have a reasonable expectation that authorities will not examine their homes from aircraft with high-powered optics.

The opinion focused on using technology, but John says there was more.

“The opinion leaves open the question of whether flying over people's property and trying to look at things with your naked eye,” he said.

Two justices, Chief Justice Peter Maassen and Justice Susan Carney concurred with Borgeson, but wrote a separate decision, saying the court should have gone further, and that warrants should be required for any kind of looking from above. John says that likely includes drones.

“It’s actually kind of paving the way with protections right now before we get to the point that you'd have to make a decision about drones. It's basically said, we are not going to make our rights subservient to technology. Our rights prevail” John said.

The Alaska Beacon reported that Department of Public Safety communications director, Austin McDaniel wrote in an email message that the department doesn’t believe the ruling will impact its operations:

“DPS has had a small drone program in place for nearly 5 years and since day 1, we have operated under the same confines as the Supreme Court ruling outlined.”

The ruling states the Alaska Constitution requires law enforcement to get a warrant before taking pictures of private property from the sky.

Robyne began her career in public media news at KUAC, coiling cables in the TV studio and loading reel-to-reel tape machines for the radio station.