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U.S. court sides with Montezuma County after drone is used in marijuana search

A drone used by the Sheriff’s Office identified marijuana plants illegally being grown in Dolores. The discovery ultimately led to a lawsuit against Sheriff Steve Nowlin. (Unsplash)
Judge rules on Fourth Amendment claims, leaves other claims to a state court

The U.S. District Court for Colorado on Oct. 27 dismissed a Dolores resident’s lawsuit against Montezuma County Sheriff Steve Nowlin, the Board of County Commissioners and two deputies alleging that the officers violated the Fourth Amendment to the U.S. Constitution by flying a drone over the plaintiff’s property while investigating a marijuana case.

The judge left it to a state court to decide whether the sheriff and two deputies made an unlawful entry and search.

Christopher Tuck filed the lawsuit Aug. 24, 2022, after the Sheriff’s Office used a drone to investigate suspected illegal marijuana growth at Tuck’s property.

According to court documents, a confidential informant tipped off Deputy Jeffrey Copeland, saying that the plants gave off an odor on windy days. On Aug. 24, 2020, deputies Copeland and John Haynes piloted the drone on a seven-minute flight that took at least 20 photos.

Photographs obtained by the drone found about 210 marijuana plants in two locations on the property. The drone was reportedly flown 390 feet over and around the property.

Photographs taken from the drone and other evidence led to the seizure of the plants, and Tuck was charged with cultivating more than 30 marijuana plants.

When the Sheriff’s Office executed the second of two search warrants on Sept. 2, 2020, officers including Copeland and Nowlin “took photos of (Plaintiff’s) property, seized samples of his plants and destroyed his remaining marijuana plants.”

Tuck was issued a summons for cultivating more than 30 marijuana plants, a Class 3 drug felony by Colorado statute, and the criminal case went to court.

Judge Todd Plewe of the 22nd Judicial District granted Tuck’s motion to suppress all evidence based on the warrantless drone search, saying the “officers did not act in good faith.” Prosecutors dropped the case April 5, 2022.

Tuck then brought his lawsuit against Nowlin, Copeland, Haynes and the county commission in case No. 22-cv-02175-MEH. Under state law, Tuck accused Nowlin, Haynes and Copeland of unlawful entry and search, and Copeland of invalid search warrants and unlawful search.

“Mr. Tuck argued that the drone flight over and around his property was an illegal, warrantless search under the Fourth Amendment of the United States Constitution as well as other federal and state claims,” a news release from the Sheriff’s Office said.

Under federal jurisdiction, Tuck accused Copeland of a Fourth Amendment violation of invalid search warrants and unlawful search and the Board of County Commissioners of a Fourth Amendment violation of unconstitutional customs, policies and/or practices. He also accused all defendants of malicious prosecution against all defendants.

The U.S. District Court for the state of Colorado, under presiding Judge Michael E. Hegarty, ultimately found that the Fourth Amendment “does not unquestionably protect against aerial viewing of a person’s property.”

The news release also noted that the court and Tuck did not find examples of a case that deemed drone photography by law enforcement unconstitutional.

The court also dismissed the remaining federal claims against the defendants and dismissed the claims brought under state law jurisdictional grounds, with leave for Tuck to bring the claims of unlawful entry and search in state court.

“The Montezuma County Sheriff's Office operates drones under a policy that balances property owners’ privacy concerns with law enforcement’s right to conduct constitutionally permissible aerial surveillance. The Sheriff’s Office drone program follows FAA requirements both for training and for certification of its drone pilots and drone flight requirements,” the release said.

“The use of drones provides a valuable tool to law enforcement, not only in investigation of crime but in search and rescue and other community service roles. This court decision is important, not just for Montezuma County, but also for all law enforcement that properly conducts drone use,” they continued.