Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA, 

 Petitioner, 

v. 

JOHN WILLIAM MCKELVEY III, 

 Respondent. 

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Supreme Court No. S-17910

Court of Appeals No. A-12419

Superior Court No. 4FA-14-00040 CR

O P I N I O N

No. 7690 – March 8, 2024

Petition for Hearing from the Court of Appeals of the State 

of Alaska, on appeal from the Superior Court of the State of 

Alaska, Fourth Judicial District, Fairbanks, Bethany 

Harbison, Judge.

Appearances: Michal Stryszak, Assistant Attorney General, 

Anchorage, and Treg R. Taylor, Attorney General, Juneau, 

for Petitioner. Robert John, Law Office of Robert John, 

Fairbanks, for Respondent. Renee McFarland, Assistant 

Public Defender, and Samantha Cherot, Public Defender, 

Anchorage, for Amicus Curiae Alaska Public Defender 

Agency.

Before: Winfree, Chief Justice, and Maassen, Carney, 

Borghesan, and Henderson, Justices. 

BORGHESAN, Justice. 

MAASSEN, Justice, with whom CARNEY, Justice, joins, 

concurring.
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I. INTRODUCTION

Do the police have to get a warrant before taking pictures of your yard 

with a zoom lens while flying in an airplane? The State argues that because small 

airplane travel is so common in Alaska, and because any passenger might peer into your 

yard and snap a picture of you, law enforcement officials may do the same. We 

disagree. The Alaska Constitution protects the right to be free of unreasonable searches. 

The fact that a random person might catch a glimpse of your yard while flying from one 

place to another does not make it reasonable for law enforcement officials to take to the 

skies and train high-powered optics on the private space right outside your home

without a warrant. Unregulated aerial surveillance of the home with high-powered 

optics is the kind of police practice that is “inconsistent with the aims of a free and open 

society.”1

 The Alaska Constitution does not allow it. 

II. FACTS AND PROCEEDINGS2

A. Facts 

When this case began in 2012, John William McKelvey III lived on a 

property in a sparsely populated area just north of Fairbanks. The property was heavily 

wooded, with a single driveway leading to a clearing. In the clearing was a house and

a translucent greenhouse. Surrounding trees blocked ground-level view of the house

and greenhouse from outside the clearing. A gate blocked cars from entering the 

driveway, and numerous signs warned potential visitors that they were not welcome. 

The Alaska State Troopers received a tip from a confidential informant 

that McKelvey was growing marijuana on the property. The informant described seeing 

1

 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001). 

2 The oral argument in this case took place before an audience of students 

and teachers at Lathrop High School in Fairbanks as part of the “Supreme Court Live” 

community outreach program.
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around thirty marijuana plants in five-gallon buckets and claimed that McKelvey took 

the plants into the greenhouse at night. 

To confirm the informant’s report, two troopers flew past McKelvey’s 

property in an airplane. The troopers flew in a straight line past McKelvey’s 

residence — at their closest point the troopers were roughly a quarter mile to a half mile

south of the house at an altitude of roughly 600 feet. The troopers photographed the 

property using a camera with a high-powered zoom lens, which allowed them to 

magnify the image roughly nine times compared to the naked eye. The photographs

revealed five-gallon buckets containing unidentifiable plants inside the greenhouse. 

Based on the tip and observations from the flight, the troopers obtained a 

search warrant for McKelvey’s house and property. Upon searching the house officers 

found marijuana plants, methamphetamine, scales, plastic bags for packaging, a loaded 

AK-47 rifle, and a large amount of cash. McKelvey was charged with criminal offenses 

based upon the evidence discovered during the search.

B. Superior Court Proceedings

McKelvey moved to suppress this evidence. He argued that the 

information supporting the search warrant came from an illegal search: the warrantless 

observation of his home with a telephoto lens during a flight. 

The superior court held an evidentiary hearing. The troopers who flew 

over McKelvey’s property testified about their flight and observations. McKelvey also 

testified, describing his property and his observations of the troopers’ flight. He stated 

that the flight was unusual. First, while there was an airstrip roughly a mile from his 

residence, McKelvey stated that airplanes from that airstrip never flew over his 

property. Second, he described the troopers’ airplane as flying unusually low: He 

estimated they were roughly 100 to 200 feet above the tree line surrounding his property

and stated that he could see a face looking out of the airplane’s window as it flew by. 

The superior court rejected McKelvey’s estimate and found that the airplane maintained 

an altitude of at least 600 feet the entire flight. 
-4- 7690

The superior court denied McKelvey’s motion to suppress. The court 

found that the greenhouse was within McKelvey’s curtilage — the area immediately 

adjacent to the home “to which extends the intimate activity associated with the 

‘sanctity of a [person’s] home and the privacies of life.’ ”3 It then applied the twopronged test established in Katz v. United States to determine whether an illegal search 

occurred.

4

 It first found that McKelvey had a subjective expectation of privacy in the 

contents of the greenhouse. But it then concluded that McKelvey’s expectation of 

privacy in the greenhouse was objectively unreasonable. Because the greenhouse was 

visible to anyone flying overhead, the court decided it was objectively unreasonable for 

McKelvey to believe the greenhouse’s contents would remain private. In support of 

this conclusion, the superior court noted the substantial amount of air travel in Alaska 

and the close proximity of an airstrip to McKelvey’s home. The superior court therefore 

concluded that the troopers did not need a warrant to fly near McKelvey’s property and 

peer into his greenhouse with a telephoto lens. 

The parties then agreed to a bench trial on stipulated facts.5 McKelvey 

was convicted of one count of third-degree misconduct involving a controlled substance

(possession of methamphetamine) and one count of second-degree weapons 

misconduct (possessing a gun in connection with a drug crime). 

3 Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United 

States, 116 U.S. 616, 630 (1886)). 

4 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., 

concurring) (contending government action only rises to the level of a search if it 

violates a subjective expectation of privacy that is objectively reasonable); State v. 

Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d 793, 797 

(Alaska 1973)) (recognizing Alaska’s adoption of the two-part expectation-of-privacy 

test first set forth in Justice Harlan’s concurrence in Katz). 

5 In cases in which parties disagree about what the law requires, but do not 

disagree about what happened, they sometimes agree to streamline the case by agreeing 

(or stipulating) to what happened and having a trial in front of a judge instead of a jury.
-5- 7690

C. Court Of Appeals’ Decision

McKelvey appealed his conviction to the court of appeals, arguing that the 

superior court erred when it denied his motion to suppress.6

 The court of appeals 

reversed the superior court, holding that under the Alaska Constitution the troopers were 

required to obtain a warrant before observing McKelvey’s property from the air using 

a telephoto lens.7 

The court first analyzed McKelvey’s expectation of privacy under the 

Fourth Amendment to the United States Constitution. After reviewing the United States 

Supreme Court decisions relating to aerial surveillance and sense-enhancing 

technology — California v. Ciraolo, Florida v. Riley, and Kyllo v. United States8 — the 

court concluded that the Supreme Court has not directly considered the issue of 

warrantless aerial surveillance enhanced by a telephoto lens.9 The court of appeals 

determined that the Supreme Court’s decisions on overflight observations made it 

“unlikely” that the flight and photographs violated the Fourth Amendment but declined 

to reach a definitive answer.10

The court then turned to McKelvey’s expectation of privacy under the 

Alaska Constitution. It first considered the privacy implications of aerial surveillance

in general. The court began by noting that Alaskans have a heightened privacy interest 

6 McKelvey v. State, 474 P.3d 16, 19-21 (Alaska App. 2020).

7 Id. at 19. 

8 California v. Ciraolo, 476 U.S. 207 (1986) (holding that photography of 

curtilage with 35-mm camera during flight of 1,000 feet over home did not require 

warrant); Florida v. Riley, 488 U.S. 445 (1989) (holding that naked eye observation of 

curtilage during helicopter flight at altitude of 400 feet did not require warrant); Kyllo 

v. United States, 533 U.S. 27 (2001) (holding that the use of non-commercially available 

thermal-imaging device to see inside home required warrant).

9 McKelvey, 474 P.3d at 22-26.

10 Id. at 25-26. 
-6- 7690

in being left undisturbed in their homes, which includes the curtilage.11 It recognized

that preventing aerial surveillance of the home and curtilage requires “extraordinary 

measures” that would interfere with regular enjoyment of the home and would not be 

feasible for most people to implement.12 It reasoned that the privacy intrusion from a 

typical civilian overflight is minimal — allowing only “fleeting, anonymous, and 

nondiscriminating” views of the curtilage.13 By contrast, the court emphasized that the 

troopers purposefully targeted McKelvey’s home, concluding that these purposeful 

observations were “qualitatively different” than a typical overflight because they are 

more likely to allow for detailed and intrusive observations.14 Accordingly the court 

concluded that McKelvey’s failure to protect his curtilage against aerial observation did 

not mean that he lacked a reasonable expectation of privacy in his curtilage.

15 In 

reaching this conclusion, the court relied heavily upon the dissents from Ciraolo and 

Riley and extensively cited decisions from the courts of Vermont, California, and

Hawai’i which held that the constitutions of those states prohibited aerial observation

of a home’s curtilage in certain circumstances.

16

 Yet after extensively discussing the implications of aerial surveillance 

generally, the court declined to decide whether to adopt the “same broad rule” as those 

11 Id. at 27. 

12 Id. at 31. 

13 Id. at 28 (quoting Ciraolo, 476 U.S. at 223 (Powell, J., dissenting)). 

14 Id. at 28 n.63 (noting that the use of the term “purposeful” was only “a 

means to explain how the police conduct — low-altitude surveillance targeted at a 

specific location — was qualitatively different . . . from the conduct (i.e., passing 

glimpses) of commercial air travelers” (emphasis in original)). 

15 Id. at 28-29.

16 See id. (discussing Ciraolo dissent); id. at 30 (discussing Riley dissent); 

id. at 29 (citing State v. Bryant, 950 A.2d 467, 475 (Vt. 2008)); id. at 31-32 (first citing 

People v. Cook, 710 P.2d 299, 305-08 (Cal. 1985); and then citing State v. Quiday, 405 

P.3d 552, 562 (Haw. 2017)). 
-7- 7690

other state courts.17 The court of appeals focused on the use of a telephoto lens, which 

allowed the troopers to obtain a more detailed view than their naked eyes would permit

from the same aerial vantage point.

18 It held that this combination turned the officers’ 

observations of McKelvey’s curtilage into a search that required a warrant.19

The State of Alaska petitioned for hearing,

20 arguing that the flight and 

use of a telephoto lens did not constitute a search requiring a warrant under either 

federal or state law. We granted the petition and ordered full briefing.21 

III. DISCUSSION 

A. The Alaska Constitution Strongly Protects Against Unreasonable 

Searches And Seizures.

Article I, section 14 of the Alaska Constitution protects the “right of the 

people to be secure in their persons, houses and other property, papers, and effects, 

against unreasonable searches and seizures.”22 “[A] search without a warrant is per se 

17 Id. at 32.

18 Id. 

19 Id. at 33 (“[W]hen an individual has taken reasonable steps to protect their 

house and curtilage from ground-level observation, that individual has a reasonable 

expectation that law enforcement officers will not use a telephoto lens or other visual 

enhancement technology to engage in aerial surveillance of the individual’s residential 

property for the purpose of investigating criminal activity.”).

20 Alaska R. App. P. 302 (authorizing this court’s discretionary review of 

final decisions of the court of appeals); Alaska R. App. P. 304 (establishing criteria for 

exercise of discretionary review). 

21 We invited the Public Defender Agency to file an amicus curiae brief. 

“Amicus curiae” is Latin for “friend of the court.” When people or organizations have 

special expertise or an important stake in an issue that a court is deciding, the court may 

invite them to file a brief to help the court understand the issue and inform its decision. 

We thank the Agency for its helpful briefing in this matter.

22 Alaska Const. art. I, § 14. Because we conclude that the search was 

unlawful under the Alaska Constitution, we need not decide whether it was unlawful 

under the federal constitution.
-8- 7690

unreasonable unless it clearly falls within one of the narrowly defined exceptions to the 

warrant requirement.”23 But not all attempts to observe by government officials amount 

to a “search.” For example, “the mere observation of items which are in plain view or 

which are open and apparent[] is not a search.”24 Police do not need to get a warrant to 

observe things that are in plain view.

To determine whether government conduct is a “search,” we use the test 

the Supreme Court adopted in Katz v. United States when interpreting the analogous 

Fourth Amendment to the U.S. Constitution.25 Under the Katz test, government

conduct amounts to a search if it violates a defendant’s subjective expectation of privacy

and that expectation is objectively reasonable.26 The State concedes that McKelvey 

had a subjective expectation of privacy in the contents of the greenhouse. The only 

issue for us to decide is whether his expectation of privacy was objectively reasonable. 

Whether a subjective expectation of privacy was objectively reasonable is a question of 

constitutional law that we review using our independent judgment, adopting the rule 

that is most persuasive in light of precedent, reason, and policy.27 

The underlying purpose of the Katz test is the same for both the U.S.

Constitution and the Alaska Constitution. We do not seek “to shield criminals nor to 

make the home a safe haven for illegal activities.”28 Instead we seek “to safeguard the 

privacy and security of individuals against arbitrary invasions by governmental 

23 Erickson v. State, 507 P.2d 508, 514 (Alaska 1973). 

24 Klockenbrink v. State, 472 P.2d 958, 961 (Alaska 1970). 

25 See State v. Glass, 583 P.2d 872, 875 (Alaska 1978). 

26 See California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)); Glass, 583 P.2d at 875. 

27 Beltz v. State, 221 P.3d 328, 332 (Alaska 2009).

28 Smith v. State, 510 P.2d 793, 800 (Alaska 1973) (Rabinowitz, C.J., 

dissenting) (quoting McDonald v. United States, 335 U.S. 451, 455-56 (1948)). 
-9- 7690

officials.”29 Yet our approach to interpreting the Alaska Constitution is qualitatively 

different than federal courts’ approach to interpreting the U.S. Constitution. 

The federal approach to determining whether people have an objectively 

reasonable expectation of privacy in a particular situation essentially treats this inquiry 

as a question of fact, focusing on what is commonly practiced.

30 For example, in Riley

Justice Brennan’s dissent criticized the plurality’s31 approach for functionally turning 

the question whether a person has a reasonable expectation of privacy against aerial 

surveillance into a factual question: whether “a single member of the public could 

conceivably position herself to see into the area in question without doing anything 

illegal.” 32 Likewise, in Kyllo the Court held that whether a technologically enhanced 

observation of the home was a search turned on whether the device the police used (a 

thermal-imaging device) was “in general public use” — another inherently factual 

question.33 And in Smith v. Maryland, the Court held that individuals had no reasonable 

expectation of privacy in the digits they dialed because telephone companies must keep 

records of the numbers dialed for billing purposes, and the company may share these 

records with others.34 Justice Marshall’s dissent criticized this approach as unduly

29 Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 528 (1967). 

30 See, e.g., 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(d), at 603-11

(6th ed. 2020) (noting and criticizing federal courts’ approach). 

31 In order to be binding law, an opinion must generally be joined by a 

majority of voting judges. If no opinion is joined by a majority of voting judges, then 

the opinion that receives the most votes is referred to as the “plurality.” This opinion 

is generally not binding but it is viewed as highly persuasive. 

32 Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J., dissenting). 

33 Kyllo v. United States, 533 U.S. 27, 34 (2001). 

34 442 U.S. 735, 743 (1979). 
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focused on the factual question of what telephone companies actually do, rather than 

“on the risks [one] should be forced to assume in a free and open society.”35

By contrast, whether a particular expectation of privacy is objectively 

reasonable under the Alaska Constitution “entails ‘a value judgment . . . whether, if the 

particular form of surveillance practiced by the police is permitted to go unregulated by 

constitutional restraints, the amount of privacy and freedom remaining to citizens would 

be diminished to a [degree] inconsistent with the aims of a free and open society.’ ”36 

This judgment is influenced by the fact that the Alaska Constitution, unlike the federal 

constitution, explicitly recognizes and protects the right to privacy.37 We therefore

“give section 14’s protection against unreasonable searches and seizures ‘a liberal 

interpretation’ ”38 that “increases the likelihood that a person’s expectation of privacy

. . . can be deemed objectively reasonable.”39 

B. We Decline To Extend The “Open View” Doctrine To Aerial 

Surveillance From Public Airspace. 

The State’s argument for why its officers did not need a warrant to observe 

McKelvey’s greenhouse from the air is straightforward. The State argues that, because 

any member of the public can observe a person’s curtilage from a low-flying aircraft 

using a zoom lens, a person has no reasonable expectation that items or activities in the 

curtilage are private. 

35 Id. at 750 (Marshall, J., dissenting).

36 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (alterations in original) 

(quoting 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(d), at 393 (3d ed. 1996)).

37 Alaska Const. art. I, § 22 (“The right of the people to privacy is recognized 

and shall not be infringed.”). 

38 State v. Gibson, 267 P.3d 645, 659 (Alaska 2012) (quoting Municipality

of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993)). 

39 Beltz v. State, 221 P.3d 328, 334 (Alaska 2009). 
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The State relies on our decisions applying the “open view” doctrine: 

“Activities that are open to public observation are not generally protected by the Fourth 

Amendment” or article I, section 14 of the Alaska Constitution.

40 In particular the State 

argues that the court of appeals erred by overlooking our decision in Cowles v. State, 

which held that authorities did not have to get a warrant before using a hidden overhead 

camera to record suspected criminal activity in a workplace that was visible to the 

public.41 The State argues that the troopers’ actions in this case were similar. They 

placed themselves where any member of the public could be, and used a fairly common 

type of camera to observe what any member of the public could see. As further support 

for its argument, the State emphasizes that we have held that officers’ use of binoculars 

or flashlights to better see does not turn an observation into a search.42 

Relatedly, the State faults the court of appeals’ reliance on dissents in 

Supreme Court decisions addressing aerial observation. The State acknowledges that 

the Alaska Constitution is generally more protective than the federal constitution. But 

it argues that our decision in Cowles is more consistent with the majority opinions in 

40 Cowles, 23 P.3d at 1171; accord Pistro v. State, 590 P.2d 884, 887 (Alaska 

1979) (holding there was no search when officers walked down private driveway 

“impliedly open to the public” and observed defendant in his garage); Daygee v. State, 

514 P.2d 1159, 1162 (Alaska 1973) (holding that observation of “that which is in the 

plain view of an officer who is rightfully in a position to have that view” is not a search). 

See also Anderson v. State, 444 P.3d 239, 243 (Alaska App. 2019) (discussing this 

doctrine — which is often described as plain view — and describing why it is better 

conceived as “open view”).

41 23 P.3d at 1175. 

42 Daygee, 514 P.2d at 1162 (holding that the officer did not perform a search 

when he shone a flashlight into the back of the car); see also Anderson v. State, 555 

P.2d 251, 257 n.29 (Alaska 1976) (“As with flashlight observations, courts have had 

little difficulty sustaining the warrantless seizure of items observed in plain view with 

the assistance of binoculars.”). 
-12- 7690

those Supreme Court cases, which concluded that police did not have to get a warrant 

to observe the curtilage from an aircraft flying in public airspace. 

These arguments require us to decide whether the “open view” doctrine 

applies to airborne views as well as to views from the ground. When confronting novel 

constitutional questions, “sound analysis requires that we look to the various federal 

precedents that have interpreted provisions of the federal constitution that parallel 

Alaska’s constitution.”43 

The Supreme Court has held that naked-eye aerial surveillance of the 

curtilage is not a search that requires a warrant. In California v. Ciraolo the Court held 

that warrantless “naked-eye observation of the curtilage by police from an aircraft 

lawfully operating at an altitude of 1,000 feet” did not violate the Fourth Amendment.44 

The Court essentially applied the rules for ground-level observation of the curtilage to 

aerial observation.45 According to this logic, if the public could lawfully make the same 

observations that the police did, then no search occurred.

In Florida v. Riley a fractured majority held that police did not require a 

warrant when they flew a helicopter over the defendant’s property at 400 feet and 

observed marijuana growing in his greenhouse with their naked eyes.46 The plurality 

held that this issue was controlled by Ciraolo: The observation was from a helicopter 

flying in public airspace, meaning that “[a]ny member of the public could legally have 

been flying over Riley’s property . . . and could have observed Riley’s greenhouse” in 

43 Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972).

44 476 U.S. 207, 213 (1986).

45 Id. (“The Fourth Amendment protection of the home has never been 

extended to require law enforcement officers to shield their eyes when passing by a 

home on public thoroughfares.”).

46 488 U.S. 445, 451-52 (1989).
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the manner that the officers did.47 Justice O’Connor concurred but expressed 

dissatisfaction with the plurality’s framing of the issue. She wrote that “[t]he fact that 

a helicopter could conceivably observe the curtilage at virtually any altitude or angle, 

without violating Federal Aviation Administration regulations, does not in itself mean 

that an individual has no reasonable expectation of privacy from such observation.”48 

In her view the analysis should be “whether the helicopter was in the public airways at 

an altitude at which members of the public travel with sufficient regularity” that the 

defendant’s expectation of privacy was objectively unreasonable.49 Justice O’Connor 

concluded that the defendant bore the burden of proof for this question but failed to 

meet it.

50 Thus, no warrant was required.

The Supreme Court has not directly considered the use of visionenhancing technology to observe the curtilage during aerial observation. The Court was 

careful to note in Ciraolo that “[a]erial observation of curtilage may become invasive, 

either due to physical intrusiveness or through modern technology which discloses to 

the senses those intimate associations, objects or activities otherwise imperceptible to 

police or fellow citizens.”51 But the Court has not provided further guidance. In the 

related context of ground-level observations, the Court explicitly approved the use of 

binoculars and generally approved the use of commercially available technology to 

attempt to peer inside the home.

52 Likewise, the Court has approved the use of 

47 Id. at 451. 

48 Id. at 454 (O’Connor, J., concurring).

49 Id.

50 Id. at 455.

51 California v. Ciraolo, 476 U.S. 207, 215 n.3 (1986) (alteration in original). 

52 See On Lee v. United States, 343 U.S. 747, 754 (1952) (“The use of 

bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not 

a forbidden search or seizure, even if they focus without his knowledge or consent upon 
-14- 7690

advanced cameras and lenses to photograph an industrial site from the air, but that 

opinion was careful to note that its holding did not extend to homes.53 

The State correctly points out that our decision in Cowles endorsed, to 

some extent, the majority opinion in Ciraolo and Justice O’Connor’s concurring

opinion in Riley. In Cowles we ruled that a public employer did not need a warrant to 

install a hidden camera in the ceiling above an employee’s desk when the desk was 

visible to the public, albeit from a different vantage point.54 We began with the “open 

view” doctrine: “Activities that are open to public observation are not generally 

protected . . . .”55 We rejected the argument that placing a video camera in “an 

especially good position” made the observation a “search” when the area being 

observed could be seen by the public.56 Citing Ciraolo and Justice O’Connor’s 

concurring opinion in Riley, we also rejected the argument that the purpose of the 

surveillance — detecting criminal activity — was relevant to the employee’s reasonable 

expectation of privacy.57 We approvingly cited Justice O’Connor’s concurrence in 

Riley for the proposition that if a person’s activities can be observed from a vantage 

what one supposes to be private indiscretions.”); cf. Kyllo v. United States, 533 U.S. 27, 

40 (2001) (holding that obtaining information about constitutionally protected area 

using sense-enhancing technology constitutes search when that technology is not in 

general public use). 

53 Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (holding 

government’s use of sophisticated cameras and zoom lenses to photograph industrial 

site was not a search); id. at 237 n.4 (noting, for purposes of its analysis, that “it [is]

important that this is not an area immediately adjacent to a private home, where privacy 

expectations are most heightened” (emphasis in original)). 

54 Cowles v. State, 23 P.3d 1168, 1170-71 (Alaska 2001).

55 Id. at 1171.

56 Id. at 1172.

57 Id. at 1172-73. 
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point generally used by the public, that person cannot reasonably expect privacy from 

observation by police.58 

The State argues that this logic should govern here. Because the troopers 

observed what any person flying in the air might observe, McKelvey had no reasonable 

expectation that his curtilage would be free from aerial observation with visionenhancing technology. And although Cowles did not involve observation of the home, 

the State points out that we have applied the open view doctrine to hold that police do 

not engage in a search by looking inside the home when standing in a public place.59 

The court of appeals did not expressly reconcile Cowles or our other “open 

view” decisions with its conclusion that the Alaska Constitution does not permit 

authorities to observe curtilage that is visible from public airspace.60 Yet the court of 

appeals’ reasoning implicitly recognized that the assumptions underlying the open view 

doctrine do not apply with the same force to airborne views, at least when the home is 

concerned.61 

“If there is any area of human activity to which a right to privacy pertains 

more than any other, it is the home.”62 Protection of the home extends to the 

58 Id. at 1173 n.21 (citing Florida v. Riley, 488 U.S. 445, 453 (1989)

(O’Connor, J., concurring)). 

59 Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979); Daygee v. State, 514 

P.2d 1159, 1162 (Alaska 1973). 

60 See McKelvey v. State, 474 P.3d 16, 28 n.63 (Alaska App. 2020) 

(addressing Cowles only to explain that authorities’ subjective purpose of detecting 

criminal activity did not affect analysis of whether conduct amounted to search). That 

is not to fault the court of appeals. The State did not emphasize Cowles and our other 

open view decisions in its briefing to that court. 

61 See id. at 31 (describing difficulty of protecting curtilage from aerial 

observation).

62 Ravin v. State, 537 P.2d 494, 503 (Alaska 1975); accord Lum v. Koles, 

426 P.3d 1103, 1112-13 (Alaska 2018). 
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curtilage — the area outside the walls of a home into which the “privacies of life” may 

extend.

63 Although a person’s home is a place where the person expects privacy, it is 

generally true that objects, activities, or statements “expose[d] to the ‘plain view’ of 

outsiders are not ‘protected’ because no intention to keep them [private] has been 

exhibited.”64 When a person has taken no steps to protect the area immediately outside 

the person’s home from view, that person cannot reasonably expect items or activities 

in this area will remain private or protected from the eyes of passersby — or police.65 

But this framework breaks down when applied to aerial observations. 

An unstated premise of the ground-level open view doctrine is that people 

can protect their privacy through reasonable steps, such as building fences, planting 

trees, or closing blinds.66 Or they can choose, like McKelvey, to live in a home in the 

63 Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United 

States, 116 U.S. 616, 630 (1886)); see also Fraiman v. State, Dep’t of Admin., Div. of 

Motor Vehicles, 49 P.3d 241, 245 n.21 (Alaska 2002); Kelley v. State, 347 P.3d 1012, 

1013-14 (Alaska App. 2015). 

64 Smith v. State, 510 P.2d 793, 797 (Alaska 1973) (quoting Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

65 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (“Activities that are 

open to public observation are not generally protected by the Fourth Amendment [or 

article I, section 14].”); Pistro v. State, 590 P.2d 884, 887 (Alaska 1979) (holding there 

was no search when officers walked down private driveway “impliedly open to the 

public” and observed defendant in his garage); Daygee v. State, 514 P.2d 1159, 1162 

(Alaska 1973) (holding that there was no search when police “observe[d] that which is 

in the plain view of an officer who [was] rightfully in a position to have that view”); 

see also California v. Ciraolo, 476 U.S. 207, 213 (1986) (“The Fourth Amendment 

protection of the home has never been extended to require law enforcement officers to 

shield their eyes when passing by a home on public thoroughfares.”).

66 See Lorenzana v. Superior Ct., 511 P.2d 33, 36, 44 (Cal. 1973) (holding 

plain view did not apply when officer walked within six inches of house and peered 

through a two-inch gap between drawn blinds and windowsill); State v. Morrow, 291 

N.W.2d 298, 299 (Wis. App. 1980) (holding implicitly that plain view did not apply 

when officer assumed prone position on floor of hotel hallway to look under door into 
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middle of the woods that is not visible to outsiders. By doing so people may control 

how much outsiders see of their private lives. Failing to do so makes it unreasonable 

to expect privacy. But a person cannot easily protect against aerial observation. By 

going airborne a person can see the home or curtilage from “virtually any altitude or 

angle.”67 “[E]ven individuals who have taken effective precautions to ensure against 

ground-level observations cannot block off all conceivable aerial views of their outdoor 

patios and yards without entirely giving up their enjoyment of those areas.”68 

Extending the open view doctrine from the ground to the air would 

conflict with Katz’s maxim that “what [one] seeks to preserve as private, even in an 

area accessible to the public, may be constitutionally protected.”69 For example, the 

constitutional protection against unreasonable search and seizure applies to boxes 

carried in public, letters sent in the mail, and even phone calls made in public telephone 

booths.70 Determining whether a constitutional protection survives exposure to a 

room); State v. Adams, 378 So. 2d 72, 74 (Fla. App. 1979) (holding plain view did not 

apply when police looked in defendant’s room in a rooming house by going onto the 

porch and then standing on a chair to peer through a window above eye level); cf. State 

v. Johnson, 580 S.W.2d 254, 257 (Mo. 1979) (holding plain view applied when window 

had no curtains or blinds and officers could “readily” see inside); United States v. 

Llanes, 398 F.2d 880, 884 (2d Cir. 1968) (holding plain view applied when officers 

overheard defendant’s conversation, which was “quite audible,” while standing in 

apartment hallway); United States v. Fields, 113 F.3d 313, 321 (2d Cir. 1997) (holding 

plain view applied when police looked through “plainly visible five- to six-inch gap” in 

blinds).

67 Florida v. Riley, 488 U.S. 445, 454 (1989) (O’Connor, J., concurring).

68 Id. 

69 Katz v. United States, 389 U.S. 347, 351 (1967). 

70 Rios v. United States, 364 U.S. 253, 254, 261-62 (1960) (holding owner 

of box taken into public had reasonable expectation of privacy in its contents); Ex parte 

Jackson, 96 U.S. 727, 733 (1877) (“Letters and sealed packages . . . in the mail are as 

fully guarded from examination and inspection, except as to their outward form and 
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publicly accessible area is, at base, an inquiry into reasonableness.71 Boxing up an item, 

sealing an envelope, or closing a telephone booth door do not create impenetrable 

privacy barriers. But taking those steps is enough to create a reasonable expectation of 

privacy, which is all that the constitution requires. Likewise, building fences, planting 

trees, or living in a home in the middle of the woods that is not visible to outsiders does 

not completely shield one’s curtilage from view, especially from aerial surveillance. 

But to require more would force people to give up the privacy of their yards just because 

it is not feasible to block aerial surveillance. This rule would be unreasonable and 

“inconsistent with the aims of a free and open society.”72 The open view doctrine 

therefore is not a good fit for aerial observations. 

Our conclusion draws support from the Supreme Court’s more recent 

approach to the Fourth Amendment. In Carpenter v. United States the Court declined 

to apply the established “third-party doctrine” to cellphone location records because of 

their “unique nature.”73 This doctrine holds that “a person has no legitimate expectation 

of privacy in information he voluntarily turns over to third parties.”74 The records at 

issue indicated when a cellphone connected to a specific cell site, showing where the 

weight, as if they were retained by the parties forwarding them in their own 

domiciles.”); Katz, 389 U.S. at 352 (holding individuals maintain reasonable 

expectation of privacy in contents of phone calls made in public telephone booths).

71 Anchorage v. Cook, 598 P.2d 939, 941 (Alaska 1979) (“The touchstone of 

our analysis under [article I, section 14 and] the Fourth Amendment is always ‘the 

reasonableness in all the circumstances of the particular governmental invasion of a 

citizen’s personal security.’ ” (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09 

(1977) (internal quotation marks omitted))). 

72 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001). 

73 See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (declining 

to apply the third-party doctrine to cell site location information because of “the unique 

nature of cell phone location records”). 

74 Id. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743-744 (1979)). 
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phone was located at that time.75 Collecting these records allows police to reconstruct 

a person’s movements over time. Because this information is shared with a cellphone 

service provider, lower federal courts had held that the government could acquire this 

information without a warrant under the third-party doctrine.

76 The Supreme Court 

rejected that approach. It reasoned that the third-party doctrine was designed for 

substantially less intrusive records — copies of “canceled checks, deposit slips, and 

monthly statements” — not the “all-encompassing record of the holder’s whereabouts” 

that cell site location data provides.77 Because of these differences, applying the thirdparty doctrine to cell site location information would have been “a significant 

extension” of this doctrine — not, as the government claimed, “a straightforward 

application” of it.78 The Supreme Court declined to extend it.

79 

Carpenter’s holding is not directly applicable to this case. Aircraft and 

cameras with zoom lenses are not new technology, and Carpenter expressly stated that 

it was not “call[ing] into question conventional surveillance techniques and tools.”80 

But aspects of the Court’s reasoning support our decision not to extend the “open view” 

doctrine to aerial views. First, the Court refused to “mechanically” apply its existing 

doctrines to a “qualitatively different” kind of technology.

81 Second, it relied on the 

75 Id. at 2211-12.

76 See, e.g., United States v. Davis, 785 F.3d 498, 509-11 (11th Cir. 2015); 

United States v. Graham, 824 F.3d 421, 425-26 (4th Cir. 2016). 

77 Carpenter, 138 S. Ct. at 2216-17.

78 Id. at 2219.

79 Id. at 2223.

80 Id. at 2220. 

81 Id. at 2216, 2219. 
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practical impossibility of protecting oneself from collection of cell site location data.82 

The same points support our decision not to mechanically extend the open view doctrine 

to airborne surveillance.83 

C. Alaskans Have A Reasonable Expectation That Authorities Will Not 

Examine The Curtilage Of Their Homes From Aircraft With HighPowered Optics. 

Because the open view doctrine does not control our decision in this case, 

we consider directly whether allowing the government to view the curtilage of a 

person’s home from an aircraft, using a camera equipped with zoom lens, without first 

getting a warrant, is consistent with the aims of a free and open society.

84 “Whether an 

expectation of privacy is justified ‘must . . . be answered by assessing the nature of a 

particular practice and the likely extent of its impact on the individual’s sense of 

security balanced against the utility of the conduct as a technique of law 

enforcement.’ ”85 

The most important point in this analysis is the degree to which a type of 

police surveillance can reveal intimate details of life that a person may wish to keep 

private. In Glass v. State we held that to allow warrantless recordings of telephone calls 

risked chilling “public and private expression on the great issues of our day, as well as 

82 Id. at 2220 (rejecting rationale of “voluntary exposure” because “cell 

phones and the services they provide are ‘such a pervasive and insistent part of daily 

life’ that carrying one is indispensable to participation in modern society’ ” (quoting 

Riley v. California, 573 U.S. 373, 385 (2014))).

83 Because we conclude that the open view doctrine does not govern the 

circumstances of this case, we decline the Public Defender Agency’s invitation to revisit 

whether Cowles was correctly decided. 

84 See Weltz v. State, 431 P.2d 502, 506 (Alaska 1967) (noting there is “no 

exact formula for the determination of reasonableness in connection with a search and 

seizure and so each case must be decided on its own facts and circumstances”). 

85 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001) (alterations in original) 

(quoting United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J., dissenting)).
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private discussion about the mundane, the trivial, and the banal,” turning our “once free 

society” into “a nation of ‘hagridden and furtive’ people.”86 Although people regularly 

make “thoughtless comments about sex, religion, politics, acquaintances, personal 

finances and even one’s innermost thoughts” to their friends,

87 “[f]ew of us would ever 

speak freely if we knew that all our words were being captured by machines for later 

release before an unknown and potentially hostile audience.”88 “Faced with the choice 

of silence or the risk that comments will be ‘etched in stone,’ a speaker may choose the 

former alternative, to the manifest diminution of the spontaneity which marks our daily 

discourse.”89 The chilling effect would not be limited to those engaged in illegal 

activity: “If . . . law enforcement officials may lawfully cause participants secretly to 

record and transcribe private conversations, nothing prevents monitoring of those 

persons not engaged in illegal activity, who have incurred displeasure, have not 

conformed or have espoused unpopular causes.”90 

In Beltz v. State we held that the constitution prohibits indiscriminate 

searches of people’s garbage.

91 We reasoned that people’s expectation that their 

garbage will remain private is somewhat diminished because they put it in a public place 

for collection, where it is exposed to “potential intrusions by intermeddling humans 

(even garbage collectors).”92 But we concluded that because a person’s garbage can 

86 State v. Glass, 583 P.2d 872, 877 (Alaska 1978) (quoting Holmes v. Burr, 

486 F.2d 55, 65 (9th Cir. 1973) (Hufstedler, J., dissenting)). 

87 Id. at 878.

88 Id. at 877 (quoting Holmes, 486 F.2d at 72 (Hufstedler, J., dissenting)). 

89 Id. at 878.

90 Id.

91 Beltz v. State, 221 P.3d 328, 335 (Alaska 2009). 

92 Id. at 336. But see id. at 340-42 (Winfree, J., dissenting) (arguing that the 

“comprehensive regulation of the storage and presentation of garbage for collection” 

undercuts notion that acceptance of this risk is voluntary). 
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reveal so much “highly personal information” — such as the type of medication the 

person is using — allowing unfettered searches of garbage would violate Alaskan’s 

sense of security and privacy.

93 Accordingly we held that police may search garbage

set out for public collection only if they have reasonable suspicion that a crime had been

committed.

94 

Peering into people’s yards with a high-powered lens when flying 

overhead has a similar potential to reveal intimate details that a person may wish, and 

expect, to keep private. Aerial observation with the aid of a zoom lens might capture, 

for example, an unflattering photo of a person in a swimsuit, images of a person 

practicing a silly dance with their children, or expressions of religious devotion that one 

might not wish others to see. The mere knowledge that the government could make 

these kinds of detailed observations without a warrant may discourage Alaskans from 

using their curtilage to live their private lives.95 

One could reasonably wonder just how chilling the specter of warrantless 

aerial observation of the home would be. Aviation gas is expensive, officers are busy, 

and the likelihood of detecting criminal activity with indiscriminate surveillance flights 

is low. Consequently, aerial surveillance of people’s curtilage by law enforcement may 

be infrequent. But as the court of appeals astutely observed, the rise of drones has the 

93 Id. at 335-36 (majority opinion). 

94 Id. at 336. Probable cause exists “when reliable information is set forth in 

sufficient detail to warrant a reasonably prudent man in believing that a criminal offense 

has been or was being committed.” Harrelson v. State, 516 P.2d 390, 396 (Alaska 

1973). Reasonable suspicion is a lower standard that exists when “the totality of the 

circumstances indicates that there is a substantial possibility that conduct giving rise to 

a public danger has occurred, is occurring, or is about to occur.” Beltz, 221 P.3d at 337

(emphasis in original). 

95 See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984) (“[S]ecretly

televising people (or taking still or moving pictures of them) while they are in what they 

think is a private place is an even greater intrusion on privacy than secretly recording 

their conversations.”).
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potential to change that equation.96 The State responds that this case does not involve 

drones, that drone use by law enforcement officials is currently limited by statute,97 and 

that there may be reasons to distinguish the use of drones from the use of manned 

aircraft for law enforcement purposes. All those things are true. But the legal status of 

drones could change. And it would not be wise for us to ignore, when assessing the 

risk that warrantless aerial surveillance poses to Alaskans’ sense of security and 

freedom, the likelihood that advances in technology will make aerial surveillance 

cheaper and more feasible in the coming years and decades. 

The State argues that, considering the totality of the circumstances 

surrounding the troopers’ observation of McKelvey, allowing this kind of observation 

without a warrant would not be unduly chilling. The State emphasizes several factors: 

(1) the ubiquity of small-aircraft travel in Alaska; (2) the unobtrusiveness of the 

troopers’ flight; (3) the troopers’ use of a camera and lens that any person could buy; 

(4) the relatively low level of detail in the photos taken; (5) the availability of satellite 

images of McKelvey’s (and everyone’s) property on the internet; and (6) the utility of 

warrantless aerial surveillance to law enforcement.98 The State also invites us to follow 

96 See McKelvey v. State, 474 P.3d 16, 30 (Alaska App. 2020) (reasoning 

that “in light of [drone] technology, an approach that focuses on the amount of 

disruption or disturbance caused by the police surveillance is fundamentally inadequate 

to protect the rights guaranteed to Alaska’s citizens by our constitution”).

97 AS 18.65.900-.902.

98 The State argues that we should consider McKelvey’s failure to protect 

his greenhouse and marijuana plants from aerial observation as a factor weighing 

against his reasonable expectation of privacy. As we explained in the preceding section, 

because it is not practical to protect one’s curtilage from aerial observation without 

virtually destroying the ability to use and enjoy it, the failure to do so does not diminish 

one’s reasonable expectation of privacy. If a person failed to protect their curtilage 

from ground-level view, then the person would not have a reasonable expectation of 

privacy in the curtilage from the air or the ground. 
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the lead of other state courts that have held that aerial observation by police does not 

require a warrant. We address each argument in turn.

1. Ubiquity of small-aircraft travel in Alaska

The State argues that because flights on small aircraft are so common 

everywhere in Alaska, Alaskans cannot reasonably expect privacy in the curtilage of 

their homes. Pointing to the superior court’s findings, the State asserts passengers in 

these aircraft fly relatively close to the ground, at low speeds, and regularly use 

binoculars and high-powered cameras to view the ground below. We accept the State’s 

assertion that there is more air travel per capita in Alaska than the average state and that 

the small aircraft so common here fly at slower speeds and lower altitudes than the big 

aircraft that predominate Outside. But there is no support for the State’s suggestion that 

pilots and passengers regularly examine the curtilage of people’s homes with highpowered optics. People train their cameras and binoculars on Alaska’s majestic scenery 

and wildlife. There is no reason to think they are focused on the bleached garden boxes, 

tangled fishing nets, and parted-out snowmachines lying next to people’s homes. The 

fact that it is common for small aircraft to fly overhead does not make it unreasonable 

for Alaskans to think that what they do in the outdoor space of their homes that they 

have tried to keep private will remain private. 

2. Obtrusiveness of the troopers’ flight

The State asserts that the troopers’ flight was particularly unobtrusive 

because they did not fly directly over McKelvey’s property. Obtrusive aerial 

surveillance — like a helicopter hovering directly above one’s home for 10 minutes —

would certainly be chilling. But the knowledge that police may discreetly surveil you 

from the air without your even noticing it is equally chilling to one’s sense of privacy. 

The wiretaps in Glass were not obtrusive. But that is why they were so insidious and 
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corrosive to Alaskans’ sense of security.99 If the surveillance technique cannot be 

detected, then one can never fully protect against being surveilled. 

3. Use of a commercially available camera and zoom lens

As a threshold matter the State asserts that distinguishing between nakedeye observation and observation aided by technology is inconsistent with our case law. 

To be sure, we have held that it is not a search to use vision-enhancing technology to 

view what is already within open view from the ground. 100 But we have already 

explained why we decline to mechanically extend our precedent on ground-level 

surveillance. And it is just common sense to acknowledge that using aircraft

exponentially increases the power of vision-enhancing tools to produce detailed 

glimpses of a person’s yard. This case does not require us to decide whether aerial 

observation of the curtilage without vision-enhancing technology requires a warrant.101 

What we do recognize is that the combination of flight and high-powered optics gives 

99 State v. Glass, 583 P.2d 872, 877 (Alaska 1978) (noting that mere 

possibility of widespread covert recording “pose[d] ‘a grave danger of chilling all 

private, free, and unconstrained communication’ ” (quoting Lopez v. United States, 373 

U.S. 427, 452 (1963) (Brennan, J., dissenting))). 

100 See Anderson v. State, 555 P.2d 251, 257 (Alaska 1976) (holding officer’s 

use of flashlight to aid observation was not a search). 

101 The concurrence states that we should decide this issue nonetheless and 

hold that any “targeted” aerial surveillance of the curtilage from the air requires a 

warrant, regardless of whether vision-enhancing technology is used. Although the 

concurrence suggests that our rejecting the open view doctrine compels a rule against 

all targeted aerial surveillance of the curtilage, that conclusion does not follow 

automatically. Our precedent requires us to “assess[] the nature of a particular practice

and the likely extent of its impact on the individual’s sense of security balanced against 

the utility of the conduct as a technique of law enforcement.” Cowles v. State, 23 P.3d 

1168, 1171 (Alaska 2001) (emphasis added). There is “no exact formula for the 

determination of reasonableness in connection with a search and seizure and so each 

case must be decided on its own facts and circumstances.” Weltz v. State, 23 P.3d 1168, 

1172 (Alaska 2001) (alterations in original). For those reasons, we decline to go beyond 

the facts of this case. 
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law enforcement officials the power to see enough detail of a person’s private life just 

outside the home to corrode Alaskans’ sense of security. It is therefore a search that 

requires a warrant. 

The State also argues that the specific observations did not violate any 

reasonable expectation of privacy because they were made with commercially 

available, commonly used equipment that did not allow for detailed observations of 

McKelvey’s home. This point is not persuasive. 

The commercial availability of a piece of technology is not an appropriate 

measure of whether the technology’s use by the government to surveil violates a 

reasonable expectation of privacy. If it is not a search when the police make 

observations using technology that is commercially available, then the constitutional 

protection against unreasonable searches will shrink as technology advances. That may 

be the trajectory of the Fourth Amendment under the Supreme Court’s seemingly factbased approach to determining reasonable expectations of privacy.102 As the Seventh 

Circuit recently observed, that approach creates a “precarious circularity.”103 Adoption 

of new technologies means “society’s expectations of privacy will change as citizens 

increasingly rely on and expect these new technologies.”104 And “[o]nce a technology 

is widespread, the Constitution may no longer serve as a backstop preventing the 

government from using that technology to access . . . previously inaccessible private 

102 See Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding whether police 

action amounted to search turned, in large part, on whether they used a commercially 

available device).

103 United States v. Tuggle, 4 F.4th 505, 527 (7th Cir. 2021), cert. denied, 142 

S. Ct. 1107 (2022). 

104 Id. 
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information because doing so will no longer breach society’s newly minted 

expectations.”105 

What’s worse, new technologies often become embedded in society 

without full consideration of their privacy implications. Few of us likely understood 

the degree to which we were exposing our personal lives to data mining by technology 

firms when we signed up for social media. Few of us likely anticipated, when we began 

shopping for things online, that we would receive advertisements for car seats and burp 

cloths before telling anyone there was a baby on the way.106

The Alaska Constitution’s protection against unreasonable searches is not 

yoked to the march of technology in the same way. Instead it requires a “value 

judgment” as to whether the government’s unregulated use of technology to observe is 

consistent with Alaskans’ expectation of a free society.107 Aircraft and zoom lenses are 

not new technologies, of course. Yet we decline to hold that it is automatically 

reasonable for the government to use these tools to observe the private area outside 

Alaskans’ homes just because these tools are widely available for purchase by the 

general public. 

4. Level of detail captured by particular photos 

As for the State’s invitation to determine whether aerial observation 

amounts to a search based on the precise level of detail captured in particular

photographs (or through the binocular lenses), this approach is impractical. The level 

of detail captured in aerial photographs can vary greatly due to small differences in 

105 Id. (calling on Supreme Court or Congress to change approach to 

determining reasonable expectation of privacy under Fourth Amendment). 

106 Kashmir Hill, How Target Figured Out A Teen Girl Was Pregnant Before 

Her Father Did, FORBES (Feb. 16, 2012), https://www.forbes.com/sites/kashmirhill/ 

2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/?sh 

=489835e26668. 

107 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001). 
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flight path, altitude, and lens power. Courts would have a hard time articulating a 

standard based on such “[s]ubtle distinctions,” and law enforcement officials would 

have a hard time following it.

108 

Moreover, the level of detail captured in a particular observation is not a 

perfect proxy for how intrusive the act of observing was. As the Supreme Court noted 

in Kyllo, “there is no necessary connection between the sophistication of the 

surveillance equipment and the ‘intimacy’ of the details that it observes.”109 Although 

most aerial observations by police would likely not reveal anything particularly 

embarrassing, that is not the point. “A search is a search, even if it happens to disclose 

nothing but the bottom of a turntable.”110 We measure a search by its potential for 

intrusion, rather than what it actually reveals. Even relatively unsophisticated cameras, 

when used from an aircraft, can show an uncomfortably detailed image of a person 

lounging in a swimsuit. 

5. Availability of satellite images on the internet

The fact that other images of McKelvey’s curtilage are available online 

does not make his expectation of privacy in the curtilage unreasonable. These overhead

images capture only a single moment in time, from a single vantage point, and are not 

frequently updated. The troopers spent the time and money to fly past McKelvey’s 

home because doing so could give them far more information about what he did in his 

curtilage than searching online images. The existence of these online images does not 

108 Ferguson v. State, 488 P.2d 1032, 1035 (Alaska 1971) (“[T]he law of 

search and seizure should be written with a view to[wards] those whose conduct it is 

meant to control. Subtle distinctions, which even lawyers find hard of application, 

should be avoided.”). 

109 Kyllo v. United States, 533 U.S. 27, 38 (2001).

110 Arizona v. Hicks, 480 U.S. 321, 325 (1987) (lifting up stereo “a few 

inches” to look at its serial numbers was search for Fourth Amendment purposes). 
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make it unreasonable for people to expect privacy from aerial surveillance by the police 

with high-powered optics. 

6. Utility of warrantless aerial surveillance of the curtilage

Determining whether a police practice is consistent with the Alaska 

Constitution’s protection against unreasonable searches requires considering “the utility 

of the conduct as a technique of law enforcement.”111 Catching unlicensed growing 

operations is an important part of Alaska’s regulatory framework for marijuana,

112 but 

the State has not explained why other police practices are ineffective in catching and 

deterring these operations. The State also raises the specter of child abduction, implying 

that without visually enhanced aerial observations police will struggle to locate missing 

children. But under the “exigent circumstances” exception to the warrant requirement,

police do not need a warrant to search a property if there is a real risk a child will be 

injured without immediate police action.

113 And if police have reason to suspect that 

the child is being kept in a particular home and there are no exigent circumstances, then 

they may seek a warrant to search that home, including from the air. It is also worth 

111 Cowles, 23 P.3d at 1171 (quoting United States v. White, 401 U.S. 745, 

787 (1971) (Harlan, J., dissenting)).

112 See former AS 11.71.040(a)(3)(G), (2013) (possessing 25 or more 

marijuana plants is a class C felony); AS 17.38.070(b) (creating exception from usual 

criminal penalties for licensed commercial marijuana cultivators); AS 17.38.020(2) 

(creating exception from usual criminal penalties for individuals who cultivate six or 

fewer plants for personal use); 3 Alaska Administrative Code (AAC) 306.400(a) 

(prohibiting cultivation of marijuana that is not for personal use and not licensed); 3 

AAC 306.840 (allowing up to $50,000 in fines for violations of marijuana regulations). 

113 See Schultz v. State, 593 P.2d 640, 642 (Alaska 1979) (noting warrantless 

searches are permissible in “those instances where there is a ‘compelling need for 

official action and no time to secure a warrant’ ” (quoting Michigan v. Tyler, 436 U.S. 

499, 509 (1978))); accord Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“Numerous 

state and federal cases have recognized that the Fourth Amendment does not bar police 

officers from making warrantless entries and searches when they reasonably believe 

that a person within is in need of immediate aid.” (footnotes omitted)).
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noting that most land in Alaska is not curtilage of the home, where the right to privacy 

is strongest. Therefore authorities are not necessarily restricted from using aircraft and 

vision-enhancing technology to surveil those areas. We are not persuaded that the need 

to investigate the curtilage of the home using aircraft paired with high-powered optics 

outweighs the corrosive impact of this practice on Alaskans’ sense of privacy.114 

7. Decisions by other courts 

Finally, the State points to a number of other jurisdictions that have 

approved the use of telephoto lenses to peer into homes, including some that have 

approved the use of telephoto lenses during flights.115 McKelvey counters with a 

number of jurisdictions that bar intrusive warrantless aerial observations of curtilage.

116 

114 This case does not present, and therefore we decline to decide, the 

constitutionality of other kinds of aerial observation, like wildlife surveys, that may 

result in occasional observation of the curtilage by government officials using zoom 

lenses or binoculars. We note only that the chilling effect and relative societal benefit 

of these activities, which typically are announced to the public and conducted for 

discrete periods of time, may be different.

115 See, e.g., State v. Vogel, 428 N.W.2d 272, 274-77 (S.D. 1988) (holding 

that police could use camera with telephoto lens to photograph marijuana plants inside 

residence during aerial observation because there was “no showing that the cameras and 

lenses used . . . were ‘sophisticated visual aids’ or ‘special equipment not generally in 

use’ ” and “Vogel made no effort to shield his marijuana plants from either an aerial or 

ground-level observation” (quoting United States v. Kim, 415 F. Supp. 1252, 1255-56 

(D. Haw. 1976))); State v. Rogers, 673 P.2d 142, 144 (N.M. App. 1983) (holding that 

use of binoculars to “verify” naked-eye observation of marijuana did not violate Fourth 

Amendment); State v. Lange, 463 N.W.2d 390, 395 (Wis. App. 1990) (permitting aerial 

observation of marijuana within defendant’s curtilage using “standard binoculars and 

cameras equipped with generally available standard and zoom lenses” so long as 

“overflights were not rare and the pilot was within navigable airspace specified by 

law”).

116 See People v. Cook, 710 P.2d 299, 305 (Cal. 1985) (holding “an individual 

has a reasonable expectation of privacy from purposeful police surveillance of his back 

yard from the air”); State v. Quiday, 405 P.3d 552, 561-62 (Haw. 2017) (holding that 
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The opinions of other courts interpreting other states’ constitutions are helpful because 

they illuminate the issues we must consider and the different ways competing 

considerations may be balanced. But our analysis of what the Alaska Constitution

requires is driven primarily by our own precedent, our own heightened guarantee of 

privacy, and our own social conditions. 

Having considered those factors, we hold that the Alaska Constitution

requires law enforcement officials to obtain a warrant before using aircraft and visionenhancing technology (such as a camera with zoom lens or binoculars) to observe the 

curtilage of a person’s home that is protected from ground-level observation. Because 

the troopers did not get a warrant before taking aerial photos of McKelvey’s curtilage, 

it was error to deny McKelvey’s motion to suppress evidence obtained as a result of 

those photos.

IV. CONCLUSION

For the foregoing reasons, the court of appeals’ decision is AFFIRMED.

“purposeful aerial surveillance of an individual’s residence and curtilage qualifies as a 

‘search’ under article I, section 7 of the Hawai’i Constitution” even though these 

residences and curtilage “may unavoidably be exposed to casual glances from passing 

aircraft” (quoting Cook, 710 P.2d at 304)); see also State v. Bryant, 950 A.2d 467, 475-

782, 482 (Vt. 2008) (holding police violated state constitution when they hovered over 

defendant’s property at a low-altitude for fifteen to thirty minutes to observe his 

marijuana plants). 
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MAASSEN, Justice, with whom CARNEY, Justice, joins, concurring.

 I concur in today’s opinion and write separately only because I believe it 

is narrower than the constitutional right of privacy demands. I agree, of course, with 

the court’s starting point: that the Alaska Constitution requires us to interpret liberally 

its protection against unreasonable searches and seizures, thus making us more inclined 

than other courts might be to find that a citizen’s expectation of privacy is objectively 

reasonable.1 I also agree with the court’s conclusion that the “open view” doctrine 

applicable to ground-view observation cannot be “mechanically extend[ed] . . . to 

airborne surveillance”;2 citizens who can protect themselves from prying eyes at ground 

level by building tall fences cannot get the same protection from the air unless they 

cover all their outdoor living spaces — something a reasonable society does not demand 

of them. My only disagreement with the court’s analysis is that it stops short of its 

inevitable conclusion.

 The court decides that an aerial search requires a warrant when conducted 

with a “combination of flight and high-powered optics,” because in those circumstances 

law enforcement officers have “the power to see enough detail of a person’s private life 

just outside the home to corrode Alaskans’ sense of security.”3 Because the aerial 

surveillance at issue here had this technological enhancement, the court declines “to 

decide whether aerial observation of the curtilage without vision-enhancing technology 

requires a warrant.”4

 But I see no reason to leave this question unanswered. 

 As the court notes, while other courts are not unanimous in their treatment 

of this issue, some have come down decidedly in favor of a more expansive view of the 

 1 Opinion at 10. 

 2 Opinion at 20. 

 3 Opinion at 25-26. 

 4 Opinion at 25 (emphasis in original). 
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privacy right.5 The U.S. Supreme Court held in California v. Ciraolo that the Fourth 

Amendment does not protect citizens from aerial surveillance because “[a]ny member 

of the public flying in this airspace who glanced down could have seen everything that 

[the] officers observed”; thus any expectation of protection from aerial observation — 

even in a backyard protected by a 10-foot fence — was unreasonable.6 But four 

members of the Court joined in a dissent written by Justice Powell, who highlighted the 

difference between air travelers’ “fleeting, anonymous, and nondiscriminating glimpse 

of the landscape and buildings over which they pass” and targeted aerial surveillance 

by law enforcement officers intent on finding evidence of crime.7 In the first instance 

“the actual risk to privacy . . . is virtually nonexistent,” whereas in the second the risk 

is obvious.8 Justice Powell concluded:

Here, police conducted an overflight at low altitude solely 

for the purpose of discovering evidence of crime within a 

private enclave into which they were constitutionally 

forbidden to intrude at ground level without a warrant. It is 

not easy to believe that our society is prepared to force 

individuals to bear the risk of this type of warrantless police 

intrusion into their residential areas.[9]

The supreme courts of California and Hawai’i have reached the same conclusion.10

 5 Opinion at 30-31 n.116. 

 6 476 U.S. 207, 209, 213-15 (1986) (5-4 decision). 

 7 Id. at 223-25 (Powell, J., dissenting).

 8 Id. 

 9 Id. at 224-25.

10 People v. Cook, 710 P.2d 299, 305 (Cal. 1985) (“Striking that balance [of 

societal and privacy interests], we must conclude that an individual has a reasonable 

expectation of privacy from purposeful police surveillance of his back yard from the 

air.”); State v. Quiday, 405 P.3d 552, 562 (Haw. 2017) (following Cook to hold 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 
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 These courts, and our court today, persuasively explain why a citizen’s 

home and curtilage that are plainly visible from the sky may nonetheless be subject to 

a reasonable expectation of privacy, making the “open view” doctrine that applies at 

ground level inapplicable. That is enough of a basis on which to decide this case. If 

the open view doctrine does not apply to airspace, then the usual corollary that allows 

law enforcement officers to enhance that open view with commonly available 

technology11 does not apply either; a warrant is required.12

 I would hold simply that 

Alaskans’ reasonable expectation of privacy in the home and curtilage protects them 

from targeted surveillance from the air, and law enforcement officers must therefore 

obtain a warrant before conducting such a search with or without technological 

enhancements. Our constitutional privacy right should lead us to that rule eventually 

in any event. 

thereby for[]goes 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”); 

see also State v. Bryant, 950 A.2d 467, 481-82 (Vt. 2008) (holding that “targeted, lowlevel helicopter surveillance by the police of activities in an enclosed backyard is not 

consistent with [the landowner’s legitimate expectation of privacy] — not without a 

warrant”).

11 See Cowles v. State, 23 P.3d 1168, 1170-72 (Alaska 2001) (holding that 

when employee’s desk was open to public view, surveillance of it by hidden video 

camera did not violate employee’s reasonable expectation of privacy); Daygee v. State, 

514 P.2d 1159, 1162 (Alaska 1973) (“That the officer’s view in this case was aided by 

a flashlight is irrelevant. The flashlight beam merely illuminated that which would have 

been visible in the light of day.”); Elson v. State, 633 P.2d 292, 295-96 (Alaska App. 

1981) (holding that officer’s act of raising “cocaine snifter” vial to streetlight to better 

inspect its contents did not remove it from “plain view” analysis).

12 See Cowles, 23 P.3d at 1170 (noting that “placing a hidden video camera 

in a house in order to record activities there without a warrant is prohibited just as is a 

warrantless entry to search for evidence”); State v. Glass, 583 P.2d 872, 881 (Alaska 

1978) (“In the absence of limited exceptions, a search warrant should be obtained from 

an impartial magistrate, based on probable cause to believe that criminal activity will 

be discovered, before electronic monitoring of conversations should be allowed.”), 

modified in part on reh’g, 596 P.2d 10 (Alaska 1979).