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On The Front Lines

Rutherford Institute Challenges Police Authority to Use Low-Flying Helicopters for Aerial Surveillance

RICHMOND, Va. — Responding to numerous reports of low-flying aircraft harassing property owners throughout Central Virginia in August 2020, The Rutherford Institute has filed a Freedom of Information Act (FOIA) request with the Virginia State Police (VSP) seeking information about its aerial surveillance program in order to determine whether the state is complying with Fourth Amendment restrictions on the use of aircraft to spy upon citizens. As part of its FOIA request, Institute attorneys are asking the VSP to turn over records, documents and other information relating to its flyovers and aerial surveillance programs in six Central Virginia counties, including specifying specific incidents of flyovers, the aircraft and on-board equipment used during these operations, and the laws and policies VSP acts under in conducting aerial surveillance.  While the Fourth Amendment allows law enforcement to conduct naked-eye observations of private property during ordinary flyovers, the Constitution forbids unusually low flyovers or the use of high-tech sight-enhancing equipment for aerial searches.   

“Incredibly, merely growing a vegetable garden on your own property, or in a greenhouse on your property, could get you flagged by these aerial and ground surveillance teams for a drug raid by a SWAT team,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “These sweeps, which have become regular occurrences across the country, are part of a multi-million dollar government program that sends local police, state police and the Army National Guard along with expensive military helicopters—out on exploratory sorties in order to uncover marijuana growing operations, even in states where it’s legal to grow marijuana.”

In 2012, The Rutherford Institute came to the defense of a 54-year-old Virginia resident after a SWAT team-like raid, aided by military helicopter surveillance and acting without a search warrant, allegedly found two marijuana stalks growing among weeds on his 39-acre property. In August 2020, numerous reports began circulating on social media of unusual activity by aircraft in the skies over Albemarle, Greene and other Central Virginia counties. Residents reported helicopters at unusually low altitudes over their property and hovering for extended periods of time for the apparent purpose of observing conditions and activities on the ground. One property owner reported that not long after aircraft began buzzing her rural property for several minutes, a convoy of law enforcement vehicles rolled up to her house to examine the plants she was growing. When the police found nothing illegal, they complimented her on the condition of her tomatoes and left. In late August, a joint operation of the VSP and county sheriff’s office made a seizure of marijuana after a helicopter was used to spot marijuana plants growing on property in Greene County. Although the U.S. Supreme Court has ruled that police may conduct warrantless aerial surveillance of private property and use observations as the basis for searching the property, it has also found surveillance aircraft may not fly lower than the altitude of normal commercial aircraft. Additionally, police may not use sophisticated equipment that enhance the ability of airborne personnel to identify objects on the ground. In its FOIA request to the VSP, The Rutherford Institute is seeking information about the VSP’s use of aerial surveillance in the Counties of Albemarle, Fluvanna, Greene, Louisa, Madison and Orange, to determine if the VSP is violating the Fourth Amendment.

The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been violated and educates the public about threats to their freedoms.

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