IN THE

COURT OF APPEALS OF THE STATE OF MASSACHUSETTS

No. 00-00001

SLYE KARGUY,

Petitioner

v.

THE COMMONWEALTH OF MASSACHUSETTS,

Respondent

ON APPEAL TO THE COURT OF APPEALS OF

THE STATE OF MASSACHUSETTS FROM

THE WORCESTER DISTRICT COURT

BRIEF OF PETITIONER

Some Lawyer

Attorney for Petitioner

4567 Any Lane

Anytown, Fiction37214

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction pursuant to Code Annotated Mass. Const. Pt. 1, art. XIV Mass. Gen. Laws Ann. ch. 276, 2 (West)

QUESTIONS PRESENTED

Did law enforcement violate search & seizure laws and violation of curtilage laws, to obtain the evidence against Mr, Karguy by flying 400 feet above the Petitioner's garage? Did the police conduct unlawful surveillance? Was the aerial surveillance lawful? Was there probable cause for surveillance and then search? Was this warrantless search lawful? Did the use of drone by law enforcement lawful?

STATEMENT OF THE FACTS

Mr. Slye Karguy, stands convicted under Massachusetts state law for charges involving theft, trafficking in stolen property, fraud, and alteration of vehicle identification numbers.Mr. Karguy runs a small salvage yard on a 2.5 acre piece of property surrounded by several fences, tall trees, dense scrub bushes, andposted No Trespassing signs.The property contains 2 structures:a small one-room cabin, in which Mr. Karguy resides, and a separate structure, approximately 32 feet high, with sliding barn doors on all four sides, no windows, and no roof.

On the day of Mr. Karguy's arrest, state and local authorities conducted a drone-surveillance sweep after an anonymous tip line received several calls reporting the operation of multiple automotive chop shops in a rural Brookfield.Captured video of the larger structure, obtained by the drone's camera from approximately 100 feet in the air and simultaneously transmitted to police officers on the ground, revealed the presence of multiple dismantled vehicles, a pile of license plates, various automotive parts and tools, including grinders, cutting saws, hoists and welding rigs.Mr. Karguy was taken into police custody at approximately 4:00 a.m. that morning, and was subsequently charged based on that footage.

The trial was held in Worcester District Court and Judge Pretend considered all testimony, exhibits, and arguments and found Mr. Karguy guilty.

Mr. Karguy now appeals to the Massachusetts Supreme Court based on the hen appealed to the Massachusetts Supreme Court and they concluded Mr. Karguys

Brief the mandatory court opinion that you will be citing in your appellate brief as assigned in Week 3.Refer to "Briefing An Opinion" in Statsky Chapter 7, and include all sections of a Comprehensive Case Brief, as detailed in Exhibit 7-13.

Citation:Florida v. Michael A. Reilly, 488 U.S. 445, 109 S. Ct.693, 102 L. Ed. 2d 835, 57 USLW 4126 (January 3, 1989)

Parties:Parker D. Thomson,Special Assistant Attorney General of Florida, filed the brief for Petitioner. Marc H. Salton argued the cause for the Respondent.

Objectives of the Parties:In the beginning of this matter, the Petitioner was looking to convict Respondent of possessing marijuana.Respondent's objective was to convince the court that law enforcement violated search & seizure laws and violation of curtilage laws, to obtain the evidence against him by flying 400 feet above the Respondent's greenhouse to spot the marijuana growing.

Theories of the Parties:1. TRIAL:Respondent was charged with possession of marijuana under Florida law. Respondent filed a Motion to Supress the evidence based on it being illegally obtained by violating search & seizure laws, and curtilage under the 4^th amendment. The trial court granted Respondents motion to suppress; the Florida Court of Appeals reversed the decision but referred the case to the Florida Supreme Court; which quashed the decision of the Court of Appeals and reinstated the trial court's suppression order.

2. APPEAL: The Petitioner now wants the U.S. Supreme Court to review this matter and find in favor of the Petitioner.

HISTORY OF THE LITIGATION:

Prior Proceeding: TRIAL:Respondent was charged with possession of marijuana under Florida law. The trial court granted his motion to suppress the evidence.The Petitioners then brought the Motion to Supress to the Florida Court of Appeals which reversed the Trial court's decision. Although reversing, the State Court of Appeals referred the case to the State Supreme Court on the question whether the helicopter surveillance from 400 feet constituted a "search" for which a warrant was required under the Fourth Amendment. Answering that question in the affirmative, the court quashed the Court of Appeals' decision and reinstated the trial court's suppression order.

Present Proceeding:APPEAL: The people now appeal the dismissal of the information to the Florida State Supreme Court and dismiss the Petitioner's Motion to Supress

Facts: The officer based his need for a warrant from his flight in a helicopter 400 feet above the ground over the Respondent's property and spotted marijuana growing in Respondent's greenhouse through windows that were open and through partial openings in the roof.

Issue:When evidence is seized from 400 feet above the ground is it in violation of search & seizure laws and/or in violation of curtilage laws (4^th amendment)?

Holding:Yes

Reasoning:"Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. Any member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case wasnotviolating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent's claim that he reasonably anticipated that his greenhouse would not be subject toobservation from that altitude. Neither is there any intimation here that the helicopter interfered with respondent's normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment."

Disposition:"The judgment of the Florida Supreme Court is accordingly reversed."

"So ordered."Westlaw,All Citations, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835, 57 USLW 4126