Appeals court presses parties on consent after low helicopter flyover in Foreman case

MADISON COUNTY — At oral argument in the appeal of Marion Brock Foreman, defense and state lawyers focused on whether a low helicopter flyover and subsequent on-the-ground actions produced an unlawful aerial search and whether any later consent to enter the home and open a gun safe cured that alleged unlawfulness.

"Your honor, my name is Drew Farmer, together with mister Mark Donahoe, both of us of the Madison County Bar. We represent the appellant in this matter, Marion Brock Foreman," defense counsel Drew Farmer told the panel, adding that he would "focus primarily on the consent issue this morning unless the court has questions, regarding the helicopter overflight." The state was represented by Alan Groves.

The central legal dispute at argument was whether the flyover constituted a Fourth Amendment search under the framework discussed in Florida v. Riley and related authorities, and who bears the burden to prove that a search occurred. Farmer argued the record supports an inference that the helicopter flew at unusually low, treetop heights and that the neighbor's testimony distinguishing those flights from routine medevac helicopters should be sufficient to show a search. Farmer noted…