PORTLAND, Ore. (KOIN) – The Oregon Court of Appeals reversed a lower court ruling on Wednesday, finding Oregon State Police violated the Oregon Constitution while taking photos of a property suspected of housing a marijuana grow.
The defendant, Sengdara Nakhiengchahn, filed the appeal in February, seeking to appeal her conviction for unlawful manufacture of marijuana.
In her appeal, Nakhiengchahn argued that authorities’ warrantless aerial surveillance of her property should be considered an unlawful search, which would violate the Oregon Constitution. Nakhiengchahn furthered that the evidence obtained from the aerial surveillance should have been suppressed in her trial court case.
The case goes back to June 2021, when Oregon State Police Sergeant Tyler Bechtel took part in an aerial surveillance operation to investigate a suspected multicounty marijuana grow operation.
According to court documents, Nakhiengchahn’s property was not one of the targeted locations in the investigation; however, while flying an aircraft with a powerful camera over her property, police noticed “what looked to be a massive agricultural operation,” that was suspected to be a marijuana grow.
The plane was flown by OSP at an altitude between 3,500 and 5,000 feet to record video of the property, court documents state, noting OSP then provided the video to the Polk County Sheriff’s Office.
In addition to flying the plane over the property, court documents say Sgt. Bechtel received permission from a neighbor to take photos from their property of the suspected cannabis plants on Nakhiengchahn’s property.
Based on the aerial and on-the-ground photos, the Polk County Sheriff’s Office obtained a search warrant for Nakhiengchahn’s property, where they seized some of Nakhiengchahn’s belongings and arrested her, according to court documents.
During the trial, Nakhiengchahn moved to suppress the evidence gathered from the surveillance flight and the search warrant. However, the trial court denied the motion. She then took a plea deal in which she pleaded guilty to the manufacturing charge and had the possession charge dropped.
However, the appeals court panel — consisting of Judges Scott A. Shorr, Steven R. Powers and Ramón A. Pagán — agreed with Nakhiengchahn, finding this case of aerial surveillance constitutes an unlawful search in the Oregon Constitution.
“Article I, section 9, guarantees individuals the right ‘to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.’ That provision protects citizens from police conduct that is ‘sufficiently intrusive to be classified as a search,’” the opinion from the appeals court said.
“At the outset, we note that defendant does not contest that the flyover was conducted at a lawful altitude. She acknowledges that, if the officer could see cannabis plants from that altitude without visual aid, it would not constitute a search, nor would subsequent use of a camera to document what he had already seen constitute a search. However, defendant asserts that the officer was not able to identify marijuana from the plane by the naked eye, and therefore his use of the mounted camera constituted a search because it provided qualitatively different information than could be observed plainly. The state maintains that the camera did not provide materially different information than what the officer had seen with his own eyes,” the judges explained.
During the trial, OSP Sgt. Bechtel testified that he saw hastily built greenhouses, similar to ones he’s seen at marijuana grows, on her property, noting before using the camera, he could see green plants and the spacing of the plants through translucent plastic on the greenhouse.
“Although the officer claimed he ‘believed’ he saw marijuana plants, he carefully expressed that his identification was based on the ‘totality of the circumstances.’ In other words, he did not claim he plainly saw marijuana but, rather, that he saw circumstantial evidence of marijuana. The trial court’s factual findings were limited to Bechtel’s belief that he saw marijuana based on that circumstantial evidence. The footage does not support the trial court’s implicit finding that, at various angles, Bechtel was able to see into the greenhouses through the plastic sheeting and identify cannabis plants inside with his own eyes from altitudes ranging from 3,500 feet and higher,” the opinion says. “In the video, the particular plants in the greenhouses are not visible from any angle until the plane-mounted camera zooms in significantly.”
“We note that our decision here is narrow and confined to the circumstances of this case. Officers can and have made lawful aerial observations of marijuana on private property. And this opinion does not preclude the ability of police to use technology, under certain circumstances, to aid in their aerial observations. We have repeatedly upheld the police use of technology to record what was openly visible to the observing officers,” the appeals court added.
“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. 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. In doing so, the officer constructively invaded defendant’s property in violation of her constitutional rights,” the judges said.
Reacting to the appeals court decision, Attorney Luke Miller — who represented Nakhiengchahn in the trial court case — told KOIN 6 News on Thursday, “We are happy with the decision. While the court did not pronounce the use of a high-powered camera attached to a fixed-wing aircraft unconstitutional, I think this case is an example of freedoms/liberties butting up against advanced technology. Technology advances, law enforcement tactics change, but fundamental rights remain. As technology advances impacting law enforcement investigations, we will continue to see this tension. It’s imperative our rights – including the fundamental right to privacy and to be left alone, and not be subject to unlawful warrantless searches – remain intact.”
A spokesperson for Oregon State Police, Jolene Kelley, told KOIN 6 News, “While we do not provide comment on judicial decisions, our agency operates in accordance applicable laws and court directives.”
KOIN 6 News has also reached out to the Polk County Sheriff’s Office. This story will be updated if we receive a response.
Meanwhile, a spokesperson for the Oregon Attorney General’s Office told KOIN 6 they are reviewing the decision, noting it will be a few weeks before they decide whether to appeal.
