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Foley argued that police were within their rights in seizing the plants under the “plain view doctrine.” Foley asserted that the helicopters were flying lawfully under the Federal Air Commerce Act which sets navigable air space at 1,000 feet above the highest structures in congested areas and 500 elsewhere over residences and people. There are no limits over unoccupied fields, Foley said. Once the information regarding the plants’ location was relayed to the ground crew, Foley maintained officers were able to seize them under the plain view doctrine.
The case was built on “obviously circumstantial evidence”, he admitted. However, he pointed out the plants were growing in a well defined patch. They were well watered and covered with wood shavings. When the warrant was served, Haase told Argiro it was his house and he had the wood working shop, Foley concluded.
A “plain view” discovery must be inadvertent, Konick countered. These pilots did not just fly over the property and acciden
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