State v. Nakhiengchahn

"[A] police officer’s unaided observation, purposive or not, from a lawful vantage point is not a search under Article I, section 9, of the Oregon Constitution.” State v. Ainsworth, 310 Or 613, 621 (1990).

Defendant appeals a conviction for unlawful manufacture of marijuana. Defendant assigned error  to the trial court for failing to suppress evidence on the ground that the police conducted an unlawful search when they conducted a warrantless aerial surveillance of her private property. The Oregon Supreme Court has held that “a police officer’s unaided observation, purposive or not, from a lawful vantage point is not a search under Article I, section 9, of the Oregon Constitution.” State v. Ainsworth, 310 Or 613, 621 (1990). Consequently, an aerial surveillance conducted from a lawful altitude is not a search so long as the officer “positively identified the marijuana plants on defendant’s property with no visual aids.” State v. Rodal, 161 Or App 232, 237, 985 P2d 863 (1999). The court reviewed the evidence and concluded that the marijuana was not in plain sight of the officer and that the camera footage could show features of the items in the greenhouse only by using a zoom function. Thus, because of the technology, the officer was able to observe materially different information than what he could observe with the naked eye at the altitude of 3,500 feet. Because the detection of marijuana plants from that vantage point could not be accomplished without the visual aid, the court concluded the search was unlawful and that the trial court erred in denying the defendant’s motion to suppress. Reversed and remanded.