Case Report – BCCA says aerial surveillance by telphoto zoom lens not a search

Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens.

The police obtained  a search warrant based partly on the surveillance evidence. The pictures showed plants of a “distinctive green” colour through the opaque walls of a number of greenhouses. The grounds for the search warrant were also based on the location of the greenhouses on the rural property, which suggested they were meant to be obscured from public view, and a variety of observations taken from an adjacent property.

The Court held there was no search that engaged section 8 of the Charter. In doing so, it said:

The greenhouses were visible from the air and anyone in an airplane, helicopter, or other aerial device would have been able to see what the police observed and photographed. Anyone using binoculars would have seen what the police saw and the zoom lens employed by the police is readily available at retail stores. It is not advanced or unique technology and did not permit the police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures. Additionally, the police were able to see a marihuana plant through a greenhouse door left open. Obviously, the plant was thus in public view.

The Court also held that the police did not need to announce their presence on the property given it was a large rural property. It said, “To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush.”

R. v. Kwiatkowski, 2010 BCCA 124.


2 thoughts on “Case Report – BCCA says aerial surveillance by telphoto zoom lens not a search

  1. Interesting how the Court of Appeal implies that if surveillance equipment is available in retail stores, that somehow makes it less intrusive.

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