CRIMINAL LAW
Supreme Court of Alaska (2024)
Caitlyn Leary
In State v. McKelvey, 544 P.3d 632 (Alaska 2024), the Supreme Court held that law enforcement may not take photos of a person’s property with a high-power zoom lens from an airplane without a warrant. (Id. at 636). McKelvey lived in a sparsely populated area north of Fairbanks, and his property was heavily wooded and gated to keep out visitors. (Id.). Based on a tip that McKelvey was growing marijuana, State Troopers decided to fly over his property and take photos using a high-powered zoom lens that magnified images nine times compared to the naked eye. (Id.). When photographs showed several buckets containing unidentifiable plants, State Troopers obtained a search warrant for McKelvey’s property. (Id.). McKelvey was charged when the search revealed marijuana, methamphetamine, baggies, a loaded rifle, and a large amount of cash. (Id. at 636–37). On appeal, the State argued that troopers did not need a warrant because small airplane travel is common in Alaska, and anyone could peer into someone’s property and take a photo from a plane. (Id. at 636). However, the Supreme Court affirmed the court of appeal’s decision that troopers were required to obtain a warrant before photographing McKelvey’s property with a high-powered lens. (Id. at 637, 650). The Court reasoned that, under the state Constitution, Alaskans have a reasonable expectation of privacy on their property. (Id. at 645). Further, if law enforcement could use an aerial zoom lens to observe the public’s private lives, it could have a “chilling effect” on Alaskans’ sense of security. (Id. at 646, 648). Affirming the appellate court’s decision, the Supreme Court held that law enforcement cannot use a high-powered zoom lens to take pictures of a person’s property without a warrant. (Id. at 650).
