State v. Stevens

[Cite as State v. Stevens, 2023-Ohio-889.]

COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2022CA0017
MELANNIS L. STEVENS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Coshocton County Court
of Common Pleas, Case No. 21-CR-0054

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 17, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON GIVEN GEORGE URBAN
Coshocton County Prosecuting Attorney 116 Cleveland Avenue, N.W.
Suite #808
BENJAMIN E. HALL Canton, Ohio 44702
Assistant Prosecuting Attorney
318 Chestnut Street
Coshocton, Ohio 43812
Coshocton County, Case No. 2022CA0017 2

Hoffman, P.J.
{¶1} Defendant-appellant Melannis Stevens appeals the judgment entered by

the Coshocton County Common Pleas Court convicting her following her pleas of no

contest to two counts of failure to stop after an accident (R.C. 4549.02(A)(2),(B)(2)(a)),

two counts of vehicular assault (R.C. 2903.08(A)(2)(b), (C)(2)), and one count of

tampering with evidence (R.C. 2921.12(A)(2),(B)), and sentencing her to an aggregate

prison term of eighty-four months. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On March 27, 2021, a motor vehicle accident occurred on State Route 751

in Coshocton County, near the intersection with Township Road 250. The victims were

traveling northbound on State Route 751 when they were struck by a dark-colored sedan

travelling southbound, which crossed the center line of travel. The victims suffered life-

threatening injuries. The dark-colored sedan fled the scene of the accident.

{¶3} Police officers investigating the accident collected debris from the scene.

After examining the paint transfer from the vehicles involved in the crash, they determined

the dark-colored sedan was a black 2016-2018 Nissan Altima.

{¶4} A data base search of the Coshocton County Sheriff’s Department revealed

deputies had contact with a 2016-2018 Nissan Altima about a month prior to the accident.

Appellant was the registered owner of the vehicle. Detective Seth Andrews learned

Appellant lived at 7705 Euga Road in Guernsey County, near the scene of the accident.

{¶5} Det. Andrews decided to fly a drone over the property encompassing 7705

Euga Road out of concern the Nissan was being scrapped at the location in order to hide

evidence. On March 30, 2021, Det. Andrews traveled to a location adjacent to the 7705
Coshocton County, Case No. 2022CA0017 3

Euga Road address, approximately 200 yards north of the primary driveway to the

property. The day was clear and sunny.

{¶6} Det. Andrews launched a DJI Mavic 2 Enterprise drone in an effort to find

the black Nissan. The detective had two days of training and had logged approximately

1,600 minutes of flight time with the specific drone used on March 30. The drone had a

camera similar to the type of camera found on a cell phone. The maximum altitude for

the drone is 400 feet, or Class G airspace, as designated by the FAA.

{¶7} Det. Andrews preset the drone to a maximum altitude of 396 feet. He

operated the drone over the property at altitudes between 300 and 396 feet, taking

pictures of the property. The pictures showed several acres of property, partially wooded,

with two driveways. The property included a two-story house, a garage, and a number of

vehicles in various stages of disrepair near a fire pit. The photos showed a black Nissan

Altima in the wooded area behind the home and behind the fire pit, approximately 280

feet from the residence and 80 feet from a neighboring parcel of real estate. A closeup

shot of the vehicle showed it was missing a door, and other parts were on the ground

near the vehicle and near a burn pile. The vehicle was not covered, and the trees were

defoliated because it was still winter, providing no coverage for the vehicle from the air.

The information obtained from the drone search was used to obtain a search warrant for

the property.

{¶8} Appellant was indicted by the Coshocton County Grand Jury on two counts

of failure to stop at the scene of an accident, two counts of vehicular assault, and one

count of tampering with evidence. The two charges of failure to stop at the scene of an

accident were indicted as felonies rather than misdemeanors because the indictment
Coshocton County, Case No. 2022CA0017 4

included additional allegations the accident resulted in “serious physical harm to a

person.”

{¶9} Appellant filed a motion to suppress, arguing the warrantless drone search

of the property was unconstitutional. Following a hearing, the trial court overruled the

motion, finding the vehicle was not within the curtilage of the home and was therefore

subject to the “open fields” doctrine, in which Appellant did not have a reasonable

expectation of privacy. The trial court held even if the open fields doctrine did not apply

in this case, the search was not unconstitutional because the officer was operating the

drone in public navigable airspace in a nonintrusive manner, which does not violate the

Fourth Amendment.

{¶10} Appellant entered pleas of no contest to all five counts of the indictment,

and was convicted. The trial court sentenced Appellant to an aggregate term of

incarceration of eighty-four months. It is from the May 24, 2022 judgment of the trial court

Appellant prosecutes her appeal, assigning as error:

I. THE TRIAL COURT ERRED IN ACCEPTING A NO CONTEST

PLEA WITHOUT A PROPER RECITATION OF THE FACTS WHEN THE

INDICTMENT FAILED TO LIST THE SPECIFIC INJURIES THAT

ELEVATED THEM TO “SERIOUS INJURIES.”

II. THE TRIAL COURT ERRED IN NOT GRANTING THE

APPELLANT’S MOTION TO SUPPRESS.
Coshocton County, Case No. 2022CA0017 5

I.

{¶11} In her first assignment of error, Appellant argues the trial court erred in

finding her guilty upon her pleas of no contest to failure to stop at the scene of an accident

as felony offenses without an explanation of the evidence supporting the allegations in

the indictment the victims suffered serious physical harm.

{¶12} Pursuant to Crim.R. 11(B)(2), “[t]he plea of no contest is not an admission

of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment,

information, or complaint * * *.” The no contest plea constitutes a stipulation the judge

may make a finding of guilty or not guilty from the explanation of circumstances. R.C.

2937.07. However, in order to convict a defendant who has entered a no contest plea,

the State must provide an explanation of circumstances to maintain the offense. State v.

Puterbaugh, 142 Ohio App.3d 185, 755 N.E.2d 359, 361–62 (2001) “[The] explanation is

sufficient if it supports all the essential elements of the offense.” Id. at 189. Therefore, a

defendant who pleads no contest should be found not guilty where the State's explanation

of the circumstances does not establish all of the elements of the offense. Id.

{¶13} In the instant case, Appellant entered a plea of no contest to each individual

count of the indictment. Following the entry of the no contest pleas, the following colloquy

occurred:

THE COURT: Mr. Meranda, on behalf of your client, do you waive

further presentation of any evidence with regard to Counts 1 through 5 in

Case 21-CR-0054 and Count 1 in Case 21-CR-0085?

MR. MERANDA: I would, Your Honor.
Coshocton County, Case No. 2022CA0017 6

THE COURT: Thank you. And are you doing that with the consent

of your client?

MR. MERANDA: Yes, Your Honor.

THE COURT: And, Ms. Stevens, is that correct? You consent to the

waiver – the further presentation of evidence regarding all six charges?

THE DEFENDANT: Yes, sir.

{¶14} Tr. (Plea Hrg.) 16.

{¶15} We find Appellant, having waived the State’s presentation of evidence, has

waived any error in the failure of the State to present a detailed explanation of the

circumstances supporting the allegation of serious physical harm to the victims. Appellant

argues in her brief her waiver was insufficient, and the court erred when it did not require

the State to proffer some support for the serious physical harm allegation. Appellant’s

Brief, p. 6. Appellant cites no legal authority for this proposition, and we decline to adopt

a rule requiring the trial court to force the State to proffer an explanation of the

circumstances after the defendant has waived such proffer. We find Appellant’s plea of

no contest to the indictment, which included allegations of serious physical harm, coupled

with her waiver of further explanation of the evidence by the prosecutor, was sufficient to

allow the trial court to convict her of all charges.

{¶16} The first assignment of error is overruled.

II.

{¶17} In her second assignment of error, Appellant argues the trial court erred in

overruling her motion to suppress. She argues the warrantless search of the property by
Coshocton County, Case No. 2022CA0017 7

the drone did not fall within any recognized exception to the requirement of a warrant,

and she further argues Det. Andrews was not federally licensed to fly the drone.

{¶18} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,

116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial

court's findings of fact is subject to a de novo standard of review. Ornelas, supra.

{¶19} Moreover, due weight should be given “to inferences drawn from those facts

by resident judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct.

at 1663.

{¶20} Appellant did not raise the issue of Det. Andrew’s lack of a license to fly the

drone in her motion to suppress, nor did the trial court consider the issue. “It is well-
Coshocton County, Case No. 2022CA0017 8

settled law that issues not raised in the trial court may not be raised for the first time on

appeal because such issues are deemed waived.” Columbus v. Ridley, 2015-Ohio-4968,

50 N.E.3d 934, ¶ 28 (10th Dist.), quoting State v. Barrett, 10th Dist. Franklin No. 11AP-

375, 2011-Ohio-4986, 2011 WL 4489169, ¶ 13; see State v. Comen, 50 Ohio St.3d 206,

211, 553 N.E.2d 640 (1990). This principle also applies to arguments not asserted either

in a written motion to suppress or at the suppression hearing. Id. We find Appellant

cannot assert her argument Det. Anderws was not properly licensed to fly the drone for

the first time on appeal, as the State did not have the opportunity to demonstrate

compliance with licensing requirements and the trial court did not have an opportunity to

consider the issue.

{¶21} Appellant also argues contra to the trial court’s findings, the warrantless

search by the drone did not fall into any recognized exception to the requirement of a

warrant.

{¶22} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception to the warrant requirement applies. Katz v. United States, 389 U.S. 347, 357,

88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The government may not intrude into areas where

legitimate expectations of privacy exist. In determining whether the Fourth Amendment

protects against a search, “the rule that has emerged * * * is that there is a twofold

requirement, first that a person have exhibited an actual (subjective) expectation of

privacy and, second, that the expectation be one that society is prepared to recognize as

‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). See Rakas v. Illinois, 439
Coshocton County, Case No. 2022CA0017 9

U.S. 128, 143–144, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Williams, 73 Ohio St.3d

153, 166–167, 652 N.E.2d 721 (1995).

{¶23} The trial court found the car was not located within the curtilage of the

house, and thus the “open fields” doctrine applied; therefore, Appellant did not have a

reasonable expectation of privacy in the area where the car was found. Accordingly,

police were not required to have a warrant to search the wooded area where the car was

located, whether such search was by drone or on foot.

{¶24} “The curtilage is an area around a person's home upon which he or she

may reasonably expect the sanctity and privacy of the home. For Fourth Amendment

purposes, the curtilage is considered part of the home itself.” Oliver v. United States, 466

U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The only areas of the curtilage

where officers may lawfully go are those impliedly open to the public, including walkways,

driveways, or access routes to the house. State v. Cook, 5th Dist. Muskingum Nos.2010–

CA–40, 2010–CA–41, 2011–Ohio–1776, ¶ 65, citing State v. Birdsall, 6th Dist. Williams

No. WM–09–016, 2010–Ohio–2382, ¶ 13. Because the curtilage of a property is

considered to be part of a person's home, the right of the police to come into the curtilage

is highly circumscribed. State v. Woljevach, 160 Ohio App.3d 757, 2005–Ohio–2085, 828

N.E.2d 1015, at ¶ 29. “The extent of a home's curtilage is resolved by considering four

main factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether

the area is included within an enclosure surrounding the home; (3) the nature of the use

to which the area is put; and (4) the steps taken to protect the area from observation by

passersby.” State v. Doyle, 5th Dist. No. 16CA05, 2016-Ohio-5742, 70 N.E.3d 981, ¶ 15.
Coshocton County, Case No. 2022CA0017 10

{¶25} However, in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed.

898 (1924), the United States Supreme Court found even though there had been a

trespass by police officers, no illegal search or seizure occurred because the Fourth

Amendment protection afforded to people in their “persons, homes, papers, and effects”

is not extended to “open fields.” Id. at 59. Government intrusion upon open fields is not

an “unreasonable search” as proscribed by the Fourth Amendment. State v. Paxton, 83

Ohio App.3d 818, 824, 615 N.E.2d 1086 (6th Dist.1992), citing Oliver v. U.S., 466 U.S.

170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

{¶26} In State v. Wooley, 5th Dist. Ashland No. 16-COA-003, 2017-Ohio-576,

police initially spotted marijuana growing in both a wooded area away from a residence

and in pots in the home’s backyard by airplane surveillance. Police then entered the

property without a warrant to seize the plants. After finding no Fourth Amendment

violation in the warrantless search by airplane, we then addressed whether the

subsequent warrantless entry on foot was in violation of the Fourth Amendment. We

found he marijuana growing in the woods was subject to the open fields doctrine. Id. at

¶28. However, we found the potted marijuana plants in the backyard of the resident were

located within the curtilage of the home, and the warrantless search and seizure of the

plants in the backyard was in violation of the Fourth Amendment. Id. at ¶30.

{¶27} In the case sub judice, we find the trial court did not err in finding the area

where the vehicle was located was not within the curtilage of the house. The vehicle was

located approximately 280 feet from the house and 80 feet from neighboring property.

There was no fencing on the property. The photographs show a burn pit and junk vehicles

located behind the house, and the vehicle in question located even farther from the house,
Coshocton County, Case No. 2022CA0017 11

in a wooded area. Because the vehicle was not located in the curtilage of the home, we

find Appellant did not have a reasonable expectation of privacy in the area based on the

open fields doctrine, and officers therefore could search the area without a warrant.

{¶28} Appellant appears to argue the use of the drone is more intrusive than a

search on foot, and is in violation of the Fourth Amendment even in an open field where

the officer could have lawfully entered and searched on foot without a warrant. We

disagree. This Court has previously recognized air surveillance generally does not

require a warrant. Wooley, supra, at ¶25, citing State v. Little, 183 Ohio App.3d 680,

2009–Ohio–4403, 918 N.E.2d 230, ¶ 22 (2nd Dist.), appeal dismissed, 125 Ohio St.3d

1458, 2010–Ohio–2753, 928 N.E.2d 735.

{¶29} Likewise, the United States Supreme Court has found no violation of the

Fourth Amendment in several cases involving the use of air surveillance. In Dow Chem.

Co v. United States, 476 U.S. 227, 106 S. Ct. 1819, 90 L.Ed 2d 226, the court held aerial

photographs of Dow’s plant complex from an aircraft lawfully in public navigable airspace

was not a search prohibited by the Fourth Amendment. The EPA did not use a unique

sensory device not available to the public, but rather used a conventional, albeit precise,

commercial camera commonly used in mapmaking, and the photographs were not so

revealing of intimate details as to raise constitutional concerns. Id. at 238.

{¶30} Similarly, in California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L.Ed 2d

210, officers used an airplane flying at an altitude of 1,000 feet over the defendant’s home

after receiving a tip he was growing marijuana in his backyard. The area was fenced, but

from the air officers were able to observe marijuana with the naked eye. Despite the fact

the plants were in the curtilage of the home, the court held the warrantless air surveillance
Coshocton County, Case No. 2022CA0017 12

did not require a warrant because anyone happening to fly over the defendant’s home

could glance down and see the marijuana plants growing. The court specifically noted

the search took place within public navigable airspace, in a physically nonintrusive

manner. Id. at 213.

{¶31} Finally, in Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693, 102 L.Ed. 2d 835

(1989), police received an anonymous tip marijuana was being grown on the defendant’s

property. The investigating officer discovered he could not observe the contents of a

greenhouse on the property from ground level. The greenhouse was enclosed on two

sides and obscured from view on the other sides by trees, shrubs, and a residence. The

officer then circled twice over the property in a helicopter at an altitude of 400 feet and

made naked-eye observations of marijuana plants through openings in the greenhouse

roof. The court found no violation of Riley’s Fourth Amendment rights despite the fact he

had taken precautions to shield the greenhouse from view at ground level. The court

concluded the helicopter was flying within navigable airspace pursuant to FAA regulations

for helicopters, there was no evidence the helicopter interfered with Riley’s use of the

greenhouse or other parts of the curtilage of the residence or intimate details were

observed, and there was no evidence of undue noise, dust, wind, or threat of injury. Id.

at 451-52.

{¶32} While the use of drones as a tool for criminal investigations is currently an

undeveloped area of the law, we find no reason to distinguish the use of the drone in this

case from other air surveillance. Nothing in the record suggests the drone in the instance

case, flying at an altitude of 300-396 feet, is more intrusive than the helicopter flying at

400 feet in Riley, supra. The vehicle was not located in the curtilage of the home, and no
Coshocton County, Case No. 2022CA0017 13

steps were taken to hide the vehicle from view, either at ground level or by air. The

camera attached to the drone was similar to a cell phone or I-pad camera, both of which

were readily available to the public, and the drone itself was a model readily available to

the public. The drone was flying in Class G airspace within FAA regulations. We find the

trial court did not err in finding the warrantless flyover by the drone in this case did not

violate the Fourth Amendment.

{¶33} The second assignment of error is overruled.

{¶34} The judgment of the Coshocton County Common Pleas Court is affirmed.

By: Hoffman, P.J.
Wise, J., concurs and
King, J., concurs in part; dissents in part
Coshocton County, Case No. 2022CA0017 14

King, J. concurring in part, dissenting in part,

{¶ 35} I concur in judgment because this case is resolved by the open fields

doctrine. I respectfully dissent from the majority's assertion in paragraph 32 that "we find

no reason to distinguish the use of the drone in this case from other air surveillance." As

the majority notes, this is an emerging area of the law and there is reason to think there

may indeed be material distinction.

{¶ 36} In Florida v. Riley, 488 U.S. 445, 452, 109 S.Ct. 693, 102 L.Ed.2d 835

(1989), five members of the court agreed surveillance by helicopter over a subject's

property at an altitude of at least 400 feet did not require a search warrant. The plurality

of the court focused on whether law enforcement had the legal right to be in the airspace

it occupied. Id. at 450-451. The plurality's consideration of the lawfulness of law

enforcement's presence focused on whether law enforcement had violated FAA rules or

other laws. Id. at 451-452.

{¶ 37} One can question whether Riley controls the federal constitutional analysis

for aerial drones because there are obvious differences in the technologies. True, they

do share some superficial similarities, but the differences are significant. It would be inapt

to conclude a dairy cow is a race horse because both are mammals that eat grass.

Compared to a helicopter, a drone is small, quiet, less noticeable, remotely operated, and

maneuverable in small places. Further, a drone is seemingly able to conduct more

intrusive surveillance than the naked eye could conduct from a helicopter. In other words,

the technology deployed here is qualitatively different than the helicopter examined in

Riley.
Coshocton County, Case No. 2022CA0017 15

{¶ 38} In reviewing the interplay of technology and the Fourth Amendment, the

United States Supreme Court held one of the key considerations is whether the

technology allows the government to explore details "that would previously have been

unknowable without physical intrusion." Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct.

2038, 150 L.Ed.2d 94 (2001). When certain technology is used this way, it is a search

and thus subject to the warrant requirement. Id. In the Kyllo case, it was the use of thermal

imaging to see through the walls into a home.

{¶ 39} Here, the operation of the drone appears superficially consistent with the

operation of the helicopter in Riley. On the other hand, the qualities of the drone allow it

to obtain details that would be "unknowable without a physical intrusion" e.g., flying over

a fence and then photographing license plates or people or objects through windows or

open doorways of homes, barns, and accessory buildings. The use of the device in that

way to surveil a house or curtilage would be equivalent to a physical intrusion and thus a

search requiring a warrant. Thus, the court should remain conscious of the difference in

the technologies and not give carte blanch to the use of aerial drones merely because of

Riley.

{¶ 40} The United States Supreme Court returned to the issue of the deployment

of newer technologies in United States v. Jones. 565 U.S. 400, 132 S.Ct. 945, 181

L.Ed.2d 911 (2012). In Jones, law enforcement attached a GPS surveillance device to a

vehicle to track the subject's movements. Id. at 403. This device was attached while the

vehicle was parked in a public parking lot. Id. Yet, the court held, "[t]he Government

physically occupied private property for the purpose of obtaining information" and

concluded there was a Fourth Amendment violation. Id. at 404-405.
Coshocton County, Case No. 2022CA0017 16

{¶ 41} The Jones analysis was not grounded in the Katz line of cases, rather the

"common-law trespassory test." Id. Jones went on to say by applying 18th-century

understandings of trespass to the case, the court was setting forth the minimum protection

afforded an individual. Id. at 405-407. Moreover, the court stated this minimum protection

was in addition to whatever protections might be afforded under Katz. Id. at 411 ("What

we apply is an 18th-century guarantee against unreasonable searches, which we believe

must provide at a minimum the degree of protection it afforded when it was adopted.")

(Emphasis sic.)

{¶ 42} The Jones test applied to drone surveillance would suggest a different result

than under the plurality's approach to helicopter aerial surveillance addressed in Riley.

Under the common law ad coelum doctrine, a property owner's rights extend above and

below the surface. Cf. United States v. Causby, 328 U.S. 256, 260-261, 66 S.Ct.1062, 90

L.Ed. 1206 (1946). It follows then, if the surreptitious attachment of a GPS tracking device

to a vehicle parked in a public place is a trespass that would be recognized under the

common law, then it would seem flying a drone that physically intrudes into a property

owner's common law airspace should also be recognized as a trespass under Jones.

{¶ 43} The Jones court did caution that the boundaries of the Fourth Amendment

are not co-extensive with common law understanding of property rights rules (and thus

trespass). Jones, 545 U.S. at 951. The court then went on to re-affirm its earlier holding

in Oliver v. United States, 466 U.S. 170, 183, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984),

which concluded a common law trespass into an open field was not a protected area

under the Fourth Amendment.
Coshocton County, Case No. 2022CA0017 17

{¶ 44} With regard to Causby, supra, the court's casual rejection of the ad coelum

doctrine was dicta, as the underlying claim arose under the Fifth Amendment. Causby at

258. Moreover, the court recognized it was possible for the aerial intrusion to be so severe

that a taking occurs. Id. at 261. This implies some property interest remains despite

federal regulations. Further, Jones also recognized a warrant can be required even when

the physical intrusion takes place in a public area. Assuming arguendo all regulated

airspace is a public place, Jones still suggests a warrant would be required if that intrusion

was into a constitutionally protected area.

{¶ 45} Accordingly, whether a warrant is required to operate an aerial drone in

federally regulated airspace now turns on whether the intrusion was into a constitutionally

protected area.

{¶ 46} With regard to fixed wing aircraft surveillance, the United States Supreme

Court has held there is no constitutional protection when an airplane flies in commercially

navigable airspace. California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210

(1986); Dow Chemical Co. v. U.S., 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986).

As the court observed, it would be incongruent to subject the government to a higher

burden, when any member of the public was free to look out the window of a commercial

aircraft and observe the same. Ciraolo at 213-214. But the fractured nature of the Riley

decision, compounded with the Jones decision, leaves open the question of whether the

airspace below 400 feet, within which a drone can legally operate, is constitutionally

protected and thus subject to the warrant requirement.

{¶ 47} The plurality in Riley made much out of the helicopter's legal right to be in

the airspace because of FAA regulations. Riley, 488 U.S. at 450-451. Yet, this approach
Coshocton County, Case No. 2022CA0017 18

was rejected by a majority of the Riley court, in a series of separate opinions (O'Connor,

J., concurring, Brennan, J., dissenting, and Blackmun, J., dissenting). Moreover, that

same majority appeared to broadly agree (though for different reasons) the Fourth

Amendment provides protection, to varying degrees, in the airspace below 400 feet.

O'Connor, J., concurrence at 455, Brennan, J., dissent at 460, and Blackmun, J., dissent

at 467.

{¶ 48} Thus, the parameters of Fourth Amendment protections a property owner

has in the airspace over the home and curtilage in which an aerial drone can lawfully

operate was left undefined by Riley. But Causby and Riley, along with the technological

differences of an aerial drone to a helicopter, lead me to conclude there is both some

property right in that airspace and some constitutional protection against surveillance in

that airspace.

{¶ 49} While this case is resolved by the open fields doctrine, a warrant may well

be required for aerial drone surveillance of the curtilage or home. The area defined as the

curtilage is protected under the Fourth Amendment, thus requiring a warrant for

government actors to enter the property. See Collins v. Virgina, 138 S. Ct. 1663, 1666,

201 L.Ed.2d 9 (2018), citing Florida v. Jardines, 569 U.S. 1, 11, 133 S.Ct. 1409, 185

L.Ed.2d 495 (2013). It follows that if some portion of the airspace above it is also

constitutionally protected, under either Katz or Jones, then a warrant would be required.

Further, Article I, Section 14, of the Ohio Constitution may afford property owners

protection above what the Fourth Amendment provides.
Coshocton County, Case No. 2022CA0017 19

{¶ 50} For these reasons, I concur in judgment, but partially dissent from the

majority's opinion.