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Henderson v. People, 879 P.2d 383

Facts

In July 1989, Officer Greg Bohlen received anonymous tips alleging that Bernard Henderson was cultivating and selling marijuana from his residence. After several days of surveillance without observing illegal activity, Bohlen arranged for a helicopter flyover with KUSA Channel 9 to take photographs of Henderson's property. During the flyover, Bohlen observed what he believed to be marijuana plants growing in a shed. Following the flyover, a no-knock search warrant was obtained, leading to the seizure of marijuana and related evidence from Henderson's property.

In July, 1989, Officer Greg Bohlen, an undercover narcotics investigator for the South Metro Task Force, received an anonymous telephone call.

Issue

Did the helicopter flyover constitute a search under the Fourth Amendment or Colorado Constitution, and was the search warrant supported by probable cause?

The court of appeals held that the fly-over by the KUSA helicopter did not constitute a search under the Fourth Amendment to the United States Constitution and did not violate article II, section 7 of the Colorado Constitution.

Rule

A search occurs when the government intrudes on an area where a person has a constitutionally protected reasonable expectation of privacy. Observations made from public navigable airspace do not constitute a search if the observed items are in plain view.

A search occurs when the government intrudes on an area where a person has a 'constitutionally protected reasonable expectation of privacy.'

Analysis

The court determined that the helicopter's flyover did not constitute a search because it was conducted at an altitude of 500 to 700 feet, which is permissible under FAA regulations. The marijuana plants were in plain view, and the observations made by the officers were not intrusive. The court also found that the anonymous tips corroborated by the observations provided sufficient probable cause for the issuance of the search warrant.

The critical aspect of this analysis is not the number of times the helicopter passed over the residence, … rather, it is the fact that the marijuana was in plain view to anyone legally viewing the shed from the helicopter.

Conclusion

The court affirmed the court of appeals' decision, concluding that the flyover did not constitute a search, the search warrant was valid, and the helicopter pilot was entitled to statutory newsperson's immunity.

Accordingly, we affirm the judgment of the court of appeals.

Who won?

The State prevailed in the case, as the court upheld the convictions and affirmed the validity of the search warrant based on the lack of a reasonable expectation of privacy.

The State prevailed in the case, as the court upheld the convictions and affirmed the validity of the search warrant based on the lack of a reasonable expectation of privacy.

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