Criminal Procedure

Fact pattern

A small-town police department decides that it wants increased surveillance to help investigate crimes. To that end, the department buys two small consumer drones with video recording capabilities, both from Bigonlineretailer.com, a site that sells all manner of products to the general public.

On a particularly slow day at the local precinct, the drone surveillance unit decides to conduct some general surveillance and, so doing, to allow new officers to practice using the drones.

The drones happen to fly over a small greenhouse owned by a local nurse practitioner, A. The greenhouse is located just behind A’s home, immediately off her back deck. A fence surrounds the property, including the home and the greenhouse. Although the sides of the greenhouse are made of opaque frosted glass, the top is transparent.

Hovering at an altitude of 500 feet, the drones obtain clear footage of twelve potted marijuana plants growing inside the greenhouse, even without using their high-tech zoom function. In this town, the Federal Aviation Administration (FAA) has approved private flights at 500 feet.

Using the footage, the police immediately obtain a warrant to physically search the greenhouse and seize the plants. Having done so, they arrest A for possession of marijuana. In this state, the possession of marijuana is prohibited for all purposes, including for medical use. Assume that A maintained a subjective expectation of privacy with respect to the greenhouse.

A challenges the constitutionality of the drone surveillance, on the basis that it constituted an unlawful warrantless search.

Question

Will A’s argument succeed? Explain, focusing only on whether the drone surveillance constituted a search within the meaning of the Fourth Amendment, but do not analyze any other issue that may be raised by the facts.