Oregon’s Court of Appeals chided the state’s police force on Wednesday for using warrantless “technologically-enhanced surveillance” to bust an illegal marijuana operation, sending the court’s clearest message yet about how law enforcement may use the increasingly popular, but controversial technology.
The case, captured in an eight-page ruling from a three-judge panel, centers on a June 2021 multi-county investigation involving the Polk County Sheriff’s Office and Oregon State Police. The defendant, 54-year-old Sengdara Nakhiengchahn, was not the target of the investigation, but Oregon State Police Sergeant Tyler Bechtel, a leading officer on the case, noticed “what looked to be a massive agricultural operation” that “was likely a marijuana grow,” while flying in a surveillance plane nearly 5,000 feet in the air, according to the ruling.
The defendant was charged in August 2021 with two felonies for possession and manufacturing of marijuana. She pled guilty in a conditional deal that allowed her to get the possession charge dropped by serving two years of probation, court records show. But she maintained her right to appeal the charges, arguing the evidence gathered from aerial surveillance constitutes a warrantless and unlawful search and should not have been admissible.
The appeals court agreed with Nakhiengchahn, returning the case back to the trial court where she can withdraw her guilty plea. Bechtel did not respond to an email seeking comment.
“While the trial court didn’t agree with us, we’re grateful the appellate court did,” said Luke Miller, Nakhiengchahn’s trial attorney, in a statement. “It’s important for Oregonians to maintain the right to privacy, and be free from government intrusion absent legal justification for such intrusion.”
Jenny Hansson, a spokeswoman for the Oregon Department of Justice, said officials were still reviewing the decision and could decide to appeal the court’s ruling in the coming weeks.
Jolene Kelly, a spokeswoman for the Oregon State Police, declined to comment on the ruling or its findings, but said in an email the agency “remains committed to following applicable laws and court directives.”
The ruling was lauded by civil rights advocates and privacy watchdogs who were fresh off of a fight in the Oregon Legislature over Senate Bill 238, which would have extended unprecedented power to police to use unmanned aerial surveillance devices like drones when responding to 911 calls, executing a warrant or responding to “exigent circumstances.” The bill ultimately died in the House Rules Committee without a vote.
The ACLU of Oregon opposed the bill, warning in a news release that it was unnecessary and “undermines basic rights including privacy and free speech.”
Kelly Simon, legal director of the ACLU of Oregon, said Wednesday’s ruling marks an “important decision to ensure that as police technology advances, we are maintaining the integrity of our warrant requirements under the Oregon Constitution.”
“We’re beginning to see in the surveillance tech industry all sorts of high-powered enhancements,” she told the Capital Chronicle. “It is important that our courts maintain the integrity of our warrant requirements by making sure that if law enforcement wants to use those enhancements, they go to court first, they present the evidence they have against a person and they get permission to do that.”
In the ruling, Justice Scott A. Shorr wrote that state police saw “materially different information” through a camera attached to their aircraft than what could’ve been seen with a naked eye, striking down a decision by Polk County Circuit Judge Rafael A. Caso to allow evidence tied to the camera footage to be admitted at trial.
“We have never upheld as constitutionally permissible an officer’s technologically enhanced surveillance to see what was otherwise indiscernible. We decline to do so here,” Shorr said. “In this case, the officer used technology to obtain information from inside defendant’s private structures that was undetectable from his vantage point in public airspace.”
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