State v. Quiday.

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-13-0004085
21-NOV-2017
09:59 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---O0O---

STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellee,

vs.

BENJAMIN M. QUIDAY,
Respondent/Defendant-Appellant.

SCWC-13-0004085

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0004085; CR. NO. 12-1-1644)

NOVEMBER 21, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

I. INTRODUCTION

The issue presented in this case is whether the use of

three helicopter flyovers of Respondent/Defendant-Appellant

Benjamin M. Quiday’s (Quiday) residence, whereby a police officer

observed two rows of potted marijuana plants growing in the

curtilage of Quiday’s house with the naked eye, was a “search”
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

within the meaning of article I, section 7 of the Hawai#i

Constitution. For the reasons stated below, we hold that aerial

surveillance of the curtilage of a private residence conducted

for the purposes of detecting criminal activity thereupon

qualifies as a “search” in the constitutional sense. As such,

the aerial surveillance conducted by the police in this case

constituted unconstitutional, warrantless searches. Therefore,

the evidence seized pursuant to the search warrant that was based

upon the police officer’s observations during the flyovers was

the fruit of the poisonous tree, and Quiday’s motion to suppress

evidence should have been granted.

Accordingly, we affirm the Intermediate Court of

Appeals’ (ICA) July 20, 2016 judgment on appeal filed pursuant to

its June 21, 2016 opinion, which vacated the Circuit Court of the

First Circuit’s (circuit court) August 19, 2013 findings of fact,

conclusions of law, and order denying Quiday’s motion to suppress

evidence and remanded the case for further proceedings, but on

different grounds.

II. BACKGROUND

On October 9, 2012, Officer Joseph Hanawahine (Officer

Hanawahine) of the Honolulu Police Department (HPD) was “assigned

a narcotic complaint, complaint number 12443, which related that

2
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

there were pakalolo[1] plants being grown at 94-325 Kahualena

Street” in Waipahu, Hawai#i (Waipahu Residence). After receiving

the anonymous tip, Officer Hanawahine used Google Earth2 to

verify and confirm the location of the address.

On October 22, 2012, Officer Hanawahine conducted

aerial reconnaissance of the Waipahu Residence by helicopter,

flying at an estimated height of 420 feet. Officer Hanawahine

attested that “based on [his] training and experience, [he]

observed about twenty to twenty five (20-25) plants with the

color and structure resembling that of marijuana plants[.]” The

plants were placed in two rows of black pots located directly

along a wall on the west side of the residence. The plants were

not stored in a greenhouse or shed, nor were they covered by the

eaves of the rooftop. They also were not covered by any tarp or

cloth.

Later on October 22, 2012, Officer Hanawahine conducted

a medicinal marijuana check with the State of Hawai#i Narcotics

Enforcement Division (NED) to determine if the Waipahu Residence

was a location that was authorized to cultivate medicinal

1
In Hawaiian, “pakalolo” means marijuana. See Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary at 304 (2d ed. 1986).

2
Google Earth is an online platform that allows users to view map and
terrain data, imagery, business listings, traffic, reviews, and other related
information by Google, its licensors, and users. Google Maps/Google Earth
Additional Terms of Service, Google,
https://www.google.com/intl/en-US_US/help/terms_maps.html (last visited
Oct. 13, 2017).

3
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

marijuana, or if anyone associated with the Waipahu Residence

held a medicinal marijuana permit.

That same day, Officer Hanawahine also conducted ground

reconnaissance of the Waipahu Residence. He attested that the

residence he investigated on foot was the same residence that he

had observed from the helicopter. Officer Hanawahine was unable

to see any plants resembling marijuana from the street; the

Waipahu Residence was surrounded by gates, walls, and fences,

such that the backyard, where he had observed the marijuana

plants while he was in helicopter, was not visible at ground-

level.

On October 23, 2012, Officer Hanawahine conducted

further aerial reconnaissance of the Waipahu Residence by flying

approximately 420 feet above the ground in a helicopter. He

again observed the same marijuana plants on the west side of the

house and noted no changes from his observations from the

previous day. On the same day, NED informed Officer Hanawahine

that the Waipahu Residence was not an authorized location to

cultivate medicinal marijuana, nor were any of the names

associated with the Waipahu Residence registered medicinal

marijuana patients with a valid medicinal marijuana permit.

Officer Hanawahine conducted a third round of aerial

reconnaissance on October 23, 2012, again by flying approximately

420 feet above the ground in a helicopter. His observations were

4
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

identical to the ones he had made in his prior two aerial

reconnaissance trips.

On October 26, 2012, the District Court of the First

Circuit approved a search warrant, S.W. 2012-261, permitting a

search of the Waipahu Residence for marijuana plants, related

drug paraphernalia, and other evidence of narcotics transactions.

The warrant was supported by Officer Hanawahine’s affidavit,

wherein he recounted his observations from his aerial and ground

surveillance operations.

On October 28, 2012, Sergeant Gregory Obara (Sergeant

Obara) conducted ground reconnaissance of the Waipahu Residence

by driving around the premises in an unmarked vehicle. While

traveling towards Koko Head on Kahualena Street, he observed a

male who appeared to be watering plants on the front western

corner of the property. A short time later, while traveling west

on Kahualena Street, Sergeant Obara saw the same man appearing to

spray water on plants located on the west side of the residence.

HPD executed the search warrant on October 29, 2012.

During the search, HPD found Quiday in possession of marijuana

and drug-related paraphernalia. HPD recovered twenty plants

resembling marijuana plants from the area where Sergeant Obara

had observed Quiday watering plants the day before. Sergeant

Obara identified Quiday as the same person whom he had observed

watering plants. Based on the evidence found during the search

5
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

of the Waipahu Residence, Quiday was arrested.

On November 1, 2012, Petitioner/Plaintiff-Appellee

State of Hawai#i (the State) charged Quiday with one count of

commercial promotion of marijuana in the second degree, in

violation of Hawai#i Revised Statutes (HRS) § 712-1249.5(1)(a),3

and one count of unlawful use of drug paraphernalia, in violation

of HRS § 329-43.5(a).4

A. Circuit Court Proceedings

Quiday filed a motion to suppress evidence on April 8,

2013. He sought to “suppress any and all evidence seized from

his home, as a result of the execution of Search Warrant S.W.

2012-261” because, inter alia, “Officer Hanawahine’s resulting

illegal aerial search violated Mr. Quiday’s reasonable

3
HRS § 712-1249.5(1)(a) (1993) provides:

(1) A person commits the offense of commercial
promotion of marijuana in the second degree if the
person knowingly:

(a) Possesses marijuana having an aggregate
weight of two pounds or more[.]

4
HRS § 329-43.5(a) (2010) provides:

It is unlawful for any person to use, or to possess
with intent to use, drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal,
inject, ingest, inhale, or otherwise introduce into
the human body a controlled substance in violation of
this chapter. Any person who violates this section is
guilty of a class C felony and upon conviction may be
imprisoned pursuant to section 706-660 and, if
appropriate as provided in section 706-641, fined
pursuant to section 706-640.

6
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

expectation of privacy[.]” The State filed a memorandum in

opposition to Quiday’s motion to suppress evidence on April 26,

2013, and filed a supplemental memorandum in opposition to

Quiday’s motion to suppress evidence on May 15, 2013.

At a hearing held on July 24, 2013, the circuit court5

orally denied Quiday’s motion to suppress evidence. The circuit

court subsequently filed its written findings of fact,

conclusions of law, and order denying Quiday’s motion to suppress

evidence on August 19, 2013.

Regarding whether Quiday’s reasonable expectation of

privacy had been violated due to the aerial surveillance, the

circuit court found that while the “plants in Defendant’s

backyard were shielded from street view by gates, walls, and

fences surrounding the residential property,” Quiday’s marijuana

plants “were clearly visible from aerial observation. They were

not stored in a greenhouse or shed, nor under the eaves of the

rooftop, nor covered by any sort of tarp or shade cloth.” Thus,

the circuit court ruled that:
Defendant has not expressed any subjective
expectation of privacy from aerial observation in his
backyard. The walls enclosing his backyard indicate
Defendant’s expectation of privacy from street level
observers. However, the situation and location of the
plants do not support such a claim as to view from the
air. The view from overhead was unhindered by any
sort of storage structure or visual obstruction.

5
The Honorable Colette Y. Garibaldi presided.

7
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Additionally, the circuit court found that:
Defendant has not presented any evidence to support a
claim that society is prepared to recognize an
expectation of privacy from aerial observation as to
the fully exposed contents in a walled backyard. On
the contrary, Hawaii courts have expressly accepted
the use of helicopters flown at reasonable heights in
police investigations.

On August 26, 2013, Quiday sought permission from the

circuit court to file an interlocutory appeal, which was granted

on September 6, 2013.

B. ICA Proceedings

One of the primary6 issues on appeal was whether

Officer Hanawahine’s aerial surveillance constituted

unconstitutional searches that violated Quiday’s rights under

the Fourth Amendment to the United States Constitution and

article I, section 7 of the Hawai#i Constitution. Quiday argued

that he had a reasonable expectation of privacy from aerial

observation of his backyard, such that Officer Hanawahine’s

6
On appeal, the parties also discussed whether the anonymous tip that
Officer Hanawahine had acted upon was sufficient to support the issuance of
the search warrant. On this point, the State conceded that the anonymous tip
could not have established probable cause on its own. The parties also
discussed whether Officer Hanawahine had omitted material information that he
was legally obligated to include in his affidavit. However, the ICA did not
reach or rule on this issue because the ICA vacated the circuit court’s
findings of fact, conclusions of law, and order denying Quiday’s motion to
suppress based on its holding that the aerial surveillance violated his rights
under the Hawai#i Constitution. See State v. Quiday, 138 Hawai#i 124, 127-31,
377 P.3d 65, 68-72 (App. 2016). Because the State did not present any
questions as to these issues in its application for writ of certiorari, and
Quiday did not file a response to raise the issues, we do not consider or
address these matters. See Hawai#i Rules of Appellate Procedure Rule
40.1(d)(1) (2011) (providing that an application for a writ of certiorari must
contain “a short and concise statement of the questions presented for
decision, set forth in the most general terms possible” and that “[q]uestions
not presented in accordance with this paragraph will be disregarded”).

8
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

flyovers in the helicopter were unconstitutional, warrantless

searches. He emphasized that the marijuana plants were shielded

from view at ground-level by fences and walls, that there was no

evidence to support that HPD had a legal right to fly over the

Waipahu Residence, and that there was no evidence to support

that overflight by helicopters or other aircraft was a common

occurrence in the area within which the Waipahu Residence was

located.

The State countered that Quiday did not have a

reasonable expectation of privacy in his backyard from aerial

observation. The State highlighted that the marijuana plants

were not concealed from aerial view by any type of tarp or other

structural cover, that HPD did not violate any Federal Aviation

Administration Regulations in conducting the flights, that the

flights were neither prolonged nor harassing, and that Quiday

did not proffer any evidence to support his contention that

aerial flyovers were so uncommon as to create a reasonable

expectation of privacy from aerial observation.

On June 21, 2016, the ICA issued an opinion vacating

the circuit court’s findings of fact, conclusions of law, and

order denying Quiday’s motion to suppress evidence. State v.

Quiday, 138 Hawai#i 124, 131, 377 P.3d 65, 72 (App. 2016). The

ICA first held that Quiday’s rights had not been violated under

the federal Constitution. Id. at 128-29, 377 P.3d at 69-70.

9
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Referring to the United States Supreme Court’s decisions in

California v. Ciraolo, 476 U.S. 207 (1986), and Florida v.

Riley, 488 U.S. 445 (1989), the ICA noted that “[t]he United

States Supreme Court has twice held that aerial surveillance of

private homes and surrounding areas does not constitute a search

where the area is not covered from aerial view.” Id. at 129,

377 P.3d at 70. Thus, the ICA concluded that “under federal

law, Officer Hanawahine’s aerial observation of Quiday’s

property was not a ‘search’ within the meaning of the Fourth

Amendment.” Id.

The ICA then considered whether Officer Hanawahine’s

aerial observation was a “search” within the meaning of article

I, section 7 of the Hawai#i Constitution, noting that “Hawai#i

courts ‘are free to give broader privacy protection than that

given by the federal constitution.’” Id. (quoting State v.

Detroy, 102 Hawai#i 13, 22, 72 P.3d 485, 494 (2003)).

The ICA acknowledged that this court has addressed the

constitutionality of aerial surveillance in two cases: State v.

Stachler, 58 Haw. 412, 570 P.2d 1323 (1977), and State v.

Knight, 63 Haw. 90, 621 P.2d 370 (1980). Id. at 129-130, 377

P.3d at 70-71. Based on its reading of Stachler and Knight, the

ICA held that the following five factors must be considered in

evaluating the constitutionality of aerial surveillance

practices under the Hawai#i Constitution: “(1) compliance with

10
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

state and federal flight regulations; (2) the targeted and

prolonged nature of the aerial surveillance; (3) the use of

highly sophisticated viewing devices; (4) the frequency of other

vehicles over the area; and (5) the remote nature of and the

vegetation surrounding the observed property.” Id. at 130, 377

P.3d at 71. The ICA held that these five factors were to be

“balanced with principles underlying the exclusionary rule: (1)

to protect individual privacy; (2) to deter illegal police

conduct; and (3) to preserve the integrity of the judiciary.”

Id.

Applying these factors, the ICA determined that the

record lacked evidence tending to support that Officer

Hanawahine did not comply with applicable flight regulations,

and that the record did not indicate that Officer Hanawahine

used sophisticated viewing equipment to observe the marijuana

plants in Quiday’s backyard. Id. The ICA also observed that

there was no evidence regarding the frequency of aircraft in the

area where the Waipahu Residence was located. Id.

However, the ICA determined that “Officer Hanawahine’s

flights were targeted and prolonged because he made three

targeted flights in fewer than four days” and that “[t]argeted

aerial surveillance of a property is at odds with Hawai#i’s

constitutional protections of individual privacy.” Id. The ICA

further noted that “the marijuana plants were located in the

11
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

curtilage of [Quiday’s] home, and should be less susceptible to

warrantless ‘open view’ searches.” Id. Drawing upon the

California Supreme Court’s opinion in People v. Cook, 710 P.2d

299 (Cal. 1985), the ICA held that “article I, section 7 of the

Hawai#i Constitution . . . protect[s] an individual from

targeted aerial surveillance of the individual’s residence and

its curtilage.” Id. at 131, 377 P.3d at 72. Accordingly, the

ICA concluded that “[t]he circuit court erred in concluding that

Quiday did not have a reasonable expectation of privacy in the

area surrounding his house from aerial surveillance.” Id.

C. Application for Writ of Certiorari

The State filed an application for writ of certiorari

on September 16, 2016. In its application, the State presented

two questions for review:
Did the ICA majority gravely err: (1) in vacating the
circuit court’s August 19, 2013 “Findings of Fact,
Conclusions of Law, and Order Denying Defendant’s
Motion to Suppress Evidence,” and (2) in interpreting
article I, section 7 of the Hawai#i Constitution to
protect an individual from targeted aerial
surveillance of the individual’s residence and its
curtilage?

Quiday did not respond. This court accepted the State’s

application on October 31, 2016.

III. STANDARDS OF REVIEW

A. Constitutional Questions

“We answer questions of constitutional law by

12
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

exercising our own independent constitutional judgment based on

the facts of the case. Thus, we review questions of

constitutional law under the right/wrong standard.” State v.

Pratt, 127 Hawai#i 206, 212, 277 P.3d 300, 306 (2012) (quoting

State v. Hanapi, 89 Hawai#i 177, 182, 970 P.2d 485, 490 (1998)).

B. Pretrial Findings of Fact and Conclusions of Law

Pretrial findings of fact are reviewed under the

clearly erroneous standard. State v. Locquiao, 100 Hawai#i 195,

203, 58 P.3d 1242, 1250 (2002). “A finding of fact is clearly

erroneous when (1) the record lacks substantial evidence to

support the finding, or (2) despite substantial evidence in

support of the finding, the appellate court is nonetheless left

with a definite and firm conviction that a mistake has been

made.” State v. Eleneki, 92 Hawai#i 562, 564, 993 P.2d 1191,

1193 (2000) (quoting State v. Wilson, 92 Hawai#i 45, 48, 987

P.2d 268, 271 (1999)). Substantial evidence is “credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion.”

State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)

(citing State v. Eastman, 81 Hawai#i 131, 135, 913 P.2d 57, 61

(1996)).

Pretrial conclusions of law are reviewed de novo.

Locquiao, 100 Hawai#i at 203, 58 P.3d at 1250. “A conclusion of

13
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

law that is supported by the trial court’s findings of fact and

that reflects an application of the correct rule of law will not

be overturned.” Dan v. State, 76 Hawai#i 423, 428, 879 P.2d

528, 533 (1994) (citing Amfac, Inc. v. Waikiki Beachcomber Inv.

Co., 74 Haw. 85, 119, 839 P.2d 10, 29 (1992)).

IV. DISCUSSION

At issue on certiorari is whether the three helicopter

flyover reconnaissance missions, whereby Officer Hanawahine flew

over the Waipahu Residence at a height of approximately 420 feet

to observe the marijuana plants growing in its curtilage with

the naked eye, constituted unconstitutional, warrantless

searches, which violated Quiday’s rights under article I,

section 7 of the Hawai#i Constitution. We agree with the ICA,

albeit on different grounds, that the aerial surveillance

conducted in the present case were unconstitutional searches

that violated Quiday’s reasonable expectation of privacy.

Article I, section 7 of the Hawai#i Constitution

protects the right of the people to be free from “unreasonable

searches, seizures and invasions of privacy.” Haw. Const. art.

I, § 7. The basic purpose of article I, section 7 “is to

safeguard the privacy and security of individuals against

arbitrary invasions by government officials.” State v. Wallace,

80 Hawai#i 382, 392, 910 P.2d 695, 705 (1996) (quoting State v.

14
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Bonnell, 75 Haw. 124, 136, 856 P.2d 1265, 1272 (1993)). If an

action taken by the government intrudes on an individual’s

reasonable expectation of privacy, such an intrusion is a

“search” in a constitutional sense, and must be supported by a

warrant, or an applicable exception to the warrant requirement,

and probable cause in order to be constitutional. Bonnell, 75

Haw. at 137, 856 P.2d at 1273 (“It is well settled that an area

in which an individual has a reasonable expectation of privacy

is protected by article I, section 7 of the Hawaii Constitution

and cannot be searched without a warrant.”).

We have previously recognized that “[c]urtilage is

usually defined as a small piece of land, not necessarily

enclosed, around a dwelling house and generally includes

buildings used for domestic purposes in the conduct of family

affairs.” State v. Kender, 60 Haw. 301, 304, 588 P.2d 447, 449

(1978). “[O]ne’s back yard may be part of one’s curtilage[.]”

Id. An individual’s curtilage is protected by article I,

section 7 of the Hawai#i Constitution when he or she has a

reasonable expectation of privacy therein. See id., 588 P.2d at

499-50.

This court has adopted the two-part test that Justice

Harlan articulated in his concurring opinion in Katz v. United

States, 389 U.S. 347 (1967), to determine whether an individual

15
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

has a reasonable expectation of privacy. Bonnell, 75 Haw. at

139, 856 P.2d at 1273-74. Under this test: “First, one must

exhibit an actual, subjective expectation of privacy. Second,

that expectation must be one that society would recognize as

objectively reasonable.” Id., 856 P.2d at 1274 (quoting State

v. Biggar, 68 Haw. 404, 407, 716 P.2d 493, 495 (1986)). We now

apply this test to the facts before us.

A. Quiday exhibited a subjective expectation of privacy.

We believe that Quiday exhibited an actual, subjective

expectation of privacy in his backyard where the marijuana

plants were located. Quiday’s placement of the plants in his

backyard, the activities in which were not capable of

observation by members of the public at ground-level, was

“indicative of [his] subjective intent to avoid the public gaze”

into the curtilage of his home. State v. Kaaheena, 59 Haw. 23,

29, 575 P.2d 462, 467 (1978) (holding that the defendants’ drawn

curtains and closed venetian blinds were indicative of their

subjective expectation of privacy); see also Biggar, 68 Haw. at

407, 716 P.2d at 495 (determining that the defendant exhibited a

subjective expectation of privacy by closing the door to a

toilet stall, and the fact that the door did not close

completely did not eliminate this expectation). That Quiday did

not cover the marijuana plants with a tarp or other structure to

16
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

preclude their visibility from above does not alter the fact

that Quiday exhibited a subjective intent to keep the marijuana

plants out of view from the public eye, and therefore, evinced a

subjective expectation of privacy. State v. Davis, 360 P.3d

1161, 1180 (N.M. 2015) (Chavez, J., concurring) (reasoning that

“an individual’s subjective expectation of privacy from ground-

level surveillance is coextensive with his or her subjective

expectation of privacy from aerial surveillance” because “[i]f

an individual has taken steps to ward off inspection from the

ground, the individual has also manifested an expectation that

the visibility of his or her property that he or she sought to

block off from the ground should also be private when seen from

the air,” due to the fact that “members of the general public

generally do not intently scrutinize other peoples’ curtilages,

even when they do fly over private property”).

Having concluded that the first part of the two-part

test has been met in this case, we now analyze whether Quiday’s

expectation of privacy was objectively reasonable.

B. Quiday’s expectation of privacy was objectively reasonable.

The ICA held that the circuit court erred in ruling

that Quiday did not have a reasonable expectation of privacy in

the area where the marijuana plants were located because, on

balance, the five factors discussed in Stachler and Knight

17
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

supported that Quiday’s expectation of privacy was reasonable.

Quiday, 138 Hawai#i at 130-31, 377 P.3d at 71-72. The ICA went

a step further, and utilized the public policy considerations

discussed in the California Supreme Court’s decision in Cook to

establish a rule whereby targeted aerial surveillance of a

person’s residence and curtilage is, per se, a “search” under

article I, section 7 of the Hawai#i Constitution. Id.

We disagree with the ICA in two respects. First,

although the ICA aptly observed that this court has previously

considered the constitutionality of aerial surveillance

practices twice before in Stachler and Knight, the facts of

these cases are significantly distinguishable from those in the

present case. Therefore, Stachler and Knight are not

controlling here.

In Stachler, the police conducted general surveillance

for criminal activity via a helicopter flying approximately 300

feet above the ground. 58 Haw. at 413-14, 570 P.2d at 1325. As

the police helicopter flew over the defendant’s property, one of

the officers, using binoculars, observed a patch of marijuana

about nine feet by twelve feet containing three rows, each with

approximately four plants that were about eight to ten feet

tall. Id. There was no determination that the patch, located

roughly fifteen feet south of the defendant’s house, was within

18
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

the curtilage of the defendant’s home. Id. at 414, 570 P.2d at

1325. The defendant’s land was in a sparsely populated,

relatively remote agricultural area, surrounded by abandoned

farms and wild trees. Id. at 413, 570 P.2d at 1325. The

defendant’s property could not be seen from the nearest public

road, nor from the neighboring property. Id. To get to the

defendant’s house, one had to pass through a locked gate and

travel up an unimproved road. Id.

In Knight, police were conducting general helicopter

surveillance in search of marijuana plants. 63 Haw. at 91, 621

P.2d at 372. Flying at an altitude of approximately 400-500

feet, the police observed a greenhouse about sixty feet by

ninety feet in dimension approximately forty-five feet away from

the defendants’ home. Id. The greenhouse was not shown to be

within the curtilage of the defendants’ residence. See id. The

top of the greenhouse was covered by an opaque plastic roof, and

the sides were wrapped with 80% shade cloth of black fiber glass

material. Id. While the police could not discern what was

inside the greenhouse due to the opaque roof, they still

photographed the greenhouse’s exterior during their aerial

surveillance. Id.

In short, the premises that the police observed from

an aerial vantage point in Stachler and Knight were not shown to

19
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

be located in the curtilage of either of the defendants’ homes.

Stachler, 58 Haw. at 414, 570 P.2d at 1325, Knight, 63 Haw. at

91, 621 P.2d at 372. Additionally, the defendants in Stachler

and Knight did not shield the observed premises from the public

eye; neither the marijuana patch nor the greenhouse were

concealed from view by any type of fencing or other barrier.

See Stachler, 58 Haw. at 413-14, 570 P.2d at 1325, Knight, 63

Haw. at 91, 621 P.2d at 372.

By contrast, in this case, the marijuana plants that

Officer Hanawahine observed via helicopter were tucked in the

curtilage of Quiday’s home; the plants were lined up in two

rows, directly along the west side of the Waipahu Residence.

Accordingly, Stachler and Knight are inapposite insofar as this

court, in both cases, did not render any decision with regard to

whether the observed locations were within the curtilage, and

concluded that the defendants did not have a reasonable

expectation of privacy in the observed areas based upon other

facts. See Stachler, 58 Haw. at 418-20, 570 P.2d at 1327-28;

Knight, 63 Haw. at 93, 621 P.2d at 373.

Second, we disagree with the ICA to the extent that it

interpreted Stachler and Knight to create a five-factor

balancing framework for analyzing the constitutionality of

aerial surveillance practices. This court has established that

20
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

whether an individual has an expectation of privacy that is

objectively reasonable is subject to a case by case analysis,

based on the totality of the circumstances in each case.

Kender, 60 Haw. at 304, 588 P.2d at 449-50 (agreeing with the

California Supreme Court that whether an individual has a

reasonable expectation of privacy in a certain place will depend

upon “[a] number of factors” that will “arise on a case by case

basis”); State v. Ward, 62 Haw. 509, 515, 617 P.2d 571-72 (1980)

(holding that the reasonable expectation of privacy test

requires courts to consider “all factors on a case-by-case

basis”).

Rather than creating a new analytical framework, the

Stachler and Knight courts applied the foregoing totality-of-

the-circumstances analysis in determining that the helicopter

flyovers therein were not “searches” in the constitutional

sense. In Stachler, this court held that the defendant did not

have a reasonable expectation of privacy in his marijuana patch

based on the following facts: (1) the police helicopter was

flying at a lawful and reasonable height based on state law and

Civil Aeronautics Board regulations; (2) there was no aerial

harassment or prolonged aerial surveillance stretching out over

hours or days; (3) no highly sophisticated viewing devices had

been employed; (4) the defendant did not demonstrate that

21
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

helicopter flights were rare occurrences in the area; and (5)

the defendant’s expectation of privacy in his marijuana plants

was “inconsistent with the ‘common habits of persons engaged in

agriculture.’” 58 Haw. at 418-20, 570 P.2d at 1327-28.

The Knight court, faced with facts comparable to those

in Stachler, similarly held that naked-eye observations of the

defendants’ greenhouse did not constitute a search. Knight, 63

Haw. at 93, 621 P.2d at 373. Though this court’s analysis in

Knight concerning the constitutionality of the police’s aerial

surveillance was sparse, it appears that this court relied upon

similar factors that the Stachler court utilized to the extent

that both cases presented the same issue in the context of

analogous fact patterns. See id.

When the two cases are examined collectively, it

appears that this court held that the defendants in Stachler and

Knight did not have a reasonable expectation of privacy in their

marijuana patch and greenhouse, respectively, based on the

totality of the circumstances presented in those cases. This

court did not, in either case, establish a rigid analytical

framework which requires courts to consider a specific set of

factors when evaluating the constitutionality of aerial

surveillance practices.

Therefore, we disagree with the ICA with respect to

22
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

its interpretation of our decisions in Stachler and Knight and

its application of these cases to the distinguishable facts in

the present case. However, notwithstanding the foregoing

differences in opinion, we agree with the ICA to the extent that

we also believe that the California Supreme Court’s opinion in

Cook is applicable to the present case, inasmuch as Cook

provides us with persuasive guidance as to how to resolve the

crucial issue of first impression before us: whether Quiday had

a reasonable expectation of privacy from aerial surveillance of

the curtilage of his home, which was hidden from view at ground-

level.

In Cook, police officers received an anonymous tip

that the defendant was growing marijuana at his residence, which

was located in a semi-rural area. 710 P.2d at 302. An officer

went to the defendant’s property, but was unable to verify the

tip because a high wooden fence surrounded the defendant’s

property, and there was no other publicly-accessible location

from which to make further observations. Id. Two days later,

the officer, by plane, flew over the defendant’s property at an

altitude of about 1,600 feet. Id. During the fly-over, the

officer observed and photographed what he believed to be

marijuana plants growing in an enclosed area behind the

defendant’s house. Id.

23
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

The officer procured a search warrant based upon his

observations and the photographs. Id. After conducting a

search pursuant thereto, police found marijuana plants growing

behind the defendant’s house in an area that was surrounded on

three sides by solid wood fence that was eight feet tall; the

house itself provided a barrier on the fourth side. Id. The

fence was covered on the top with wood beams and chicken wire.

Id. A second six-foot high fence surrounded the entire house,

including the enclosure where the marijuana plants were being

grown. Id.

The Cook defendant was charged with unlawfully

cultivating marijuana. Id. He moved to suppress the evidence

obtained during the search of his home, arguing that the search

warrant was invalid because the warrant was obtained as a result

of an unlawful search. Id. The trial court ruled that the fly-

over did not constitute a search because the defendant did not

have a reasonable expectation of privacy in his backyard. Id.

On appeal, the government argued that the defendant

did not have a reasonable expectation of privacy in his backyard

because although the fence blocked his backyard from view at

ground-level, “the yard was open to routine observation from any

private, commercial, or government flight across the airspace

above his property.” Id. at 304. The government further

24
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

asserted that “the surveillance here was not unduly intrusive,

since it took place from a height of some 1,600 feet.” Id.

For several reasons, the California Supreme Court

rejected the government’s argument. Id. The Cook court first

observed that “the fact that government officials or members of

the civilian public might be expected, for one reason or

another, to enter a place or see or hear the activities within,

does not necessarily preclude reasonable claims of privacy from

intensive spying by police officers looking for evidence of

crime.” Id. Accordingly, the Cook court reasoned that although

“[o]ne’s yard may unavoidably be exposed to casual glances from

passing aircraft, . . . [a person] may still reasonably assume

that it will not be intently examined by government agents who

are flying over it for that specific purpose.” Id.

The California Supreme Court further determined that

the government’s argument could not stand because “the

Constitution does not provide that one is open to governmental

inspection by any and all means he has failed to forestall.”

Id. at 305. To the Cook court, “[s]uch a rule would encourage

the transformation of our open society into a garrison state,”

and would impose upon private citizens the “virtually

impossible” task of “shielding private activities in

presumptively private areas from all possible observation.” Id.

25
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Acknowledging that its primary goal was to engage in

the “delicate balancing of societal and privacy interests which

underlies constitutional protections against ‘unreasonable’

searches and seizures,” the California Supreme Court held: “We

must conclude that an individual has a reasonable expectation of

privacy from purposeful police surveillance of his back yard

from the air. We can conceive of no societal or law enforcement

interest strong enough to justify such unfettered intrusions on

the sanctity of private residences.” Id. The court concluded

that “the warrantless aerial scrutiny of defendant’s yard, for

the purpose of detecting criminal activity by the occupants of

the property, was forbidden by article I, section 13 of the

California Constitution.” Id. at 307.

The facts in the present case are nearly identical to

those in Cook. Here, as in Cook, Officer Hanawahine received an

anonymous tip that marijuana plants were being grown at Quiday’s

residence. Subsequently, as was the case in Cook, Officer

Hanawahine was unable to verify the tip at ground-level because

Quiday’s residence was surrounded by gates and fences, and

conducted several aerial fly-overs to bypass the physical

boundaries that concealed Quiday’s backyard from ground-view,

for the specific purpose of detecting criminal activity in

Quiday’s backyard. In support of its position that Quiday did

26
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

not have a reasonable expectation of privacy from aerial

surveillance of his backyard, the State advances an argument

nearly identical to the government’s argument in Cook.

Specifically, the State contends that the police did not run

afoul of Quiday’s constitutional rights because his backyard was

in “open view,” insofar as his backyard was not concealed from

aerial observation by any physical coverings.

In our view, the State’s argument is unpersuasive. We

agree with the California Supreme Court in that we also believe

that although Quiday’s yard “may unavoidably be exposed to

casual glances from passing aircraft,” Quiday was still entitled

to “reasonably assume” that his backyard would “not be intently

examined by government agents who are flying over it for” the

specific purpose of detecting criminal activity therein. Cook,

710 P.2d at 304. In other words, we agree that while a private

citizen may tolerate casual glances by a passerby on a private,

commercial, or government flight, this does not necessarily mean

that an individual thereby foregoes his or her reasonable

expectation of privacy from “intensive spying by police officers

looking for evidence of crime” in the curtilage of his or her

home--an area where the private domestic activities normally

conducted within the sanctity of the home itself can be expected

to extend. Id.

27
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Accordingly, we hereby adopt the rule established by

the California Supreme Court in Cook, and hold that an

individual has a reasonable expectation of privacy from

governmental aerial surveillance of his or her curtilage and

residence, when such aerial surveillance is conducted with the

purpose of detecting criminal activity therein. Such purposeful

aerial surveillance of an individual’s residence and curtilage

qualifies as a “search” under article I, section 7 of the

Hawai#i Constitution.

Therefore, when Officer Hanawahine conducted three

aerial reconnaissance missions over two days, during which he

flew over Quiday’s home at a height of 420 feet in order to

observe the marijuana plants growing in the curtilage of

Quiday’s home, Officer Hanawahine conducted unconstitutional,

warrantless searches in contravention of Quiday’s rights under

article I, section 7 of the Hawai#i Constitution. As a result,

the evidence obtained during the execution of the search

warrant, which was based on Officer Hanawahine’s observations

during his aerial reconnaissance missions, was the fruit of the

poisonous tree. Consequently, we agree with the ICA, though on

different grounds, that the circuit court erred in denying

Quiday’s motion to suppress evidence.

28
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

V. CONCLUSION

For the foregoing reasons, we affirm the ICA’s

July 20, 2016 judgment on appeal filed pursuant to its June 21,

2016 opinion, which vacated the circuit court’s August 19, 2013

findings of fact, conclusions of law, and order denying Quiday’s

motion to suppress evidence and remanded the case for further

proceedings, but on different grounds.

Stephen K. Tsushima /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Susan L. Arnett
for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

29