OPINION
{1} Defendant Norman Davis was convicted of possession of marijuana after New Mexico State Police officers consensually searched his greenhouse and seized 14 marijuana plants. That search was the result of “Operation Yerba Buena 2006,” a comprehensive aerial surveillance of Davis’ property and the surrounding area conducted by a coordinated law enforcement effort that allegedly discovered marijuana plants growing on Davis’ property. We decide whether that aerial surveillance, and the manner in which it was conducted, amounted to a warrantless search of Davis’ property contrary to rights secured to him under the Fourth Amendment to the U.S. Constitution. Concluding that his federal constitutional rights were violated in this instance, we reverse the opinion of the Court of Appeals to the contrary as well as Davis’ conviction below.
BACKGROUND
{2} Over a period of time during 2005 and 2006, the New Mexico State Police received several reports that residents were growing marijuana plants throughout rural areas of Taos County, New Mexico. The informants, however, were unable or unwilling to provide the police with specific locations where marijuana was growing due to the remoteness of the area and fear of retaliation. In investigating the reports, the New Mexico State Police, Region Three narcotic agents, and the New Mexico National Guard organized Operation Yerba Buena, described as “a collaborative effort in the identification of marijuana plantations in Taos County with the use of two Army National Guard OH 58 Jet Ranger helicopters.”
{3} Prior to the execution of Operation Yerba Buena, the State Police developed an operation plan to provide a common working framework for everyone participating in the operation and to ensure that all participating agencies followed State Police policies and procedures. The plan divided the search areas of Carson Estates and Twin Peaks — vast rural tracts in Taos County — between two separate search teams. Each team consisted of an Army National Guard helicopter with an observer and a ground team comprised of individuals from various law enforcement agencies. All ground team officers were required to carry standard issue State Police tape recorders to be used during any “interviews/'arrests, [and] during [any] contacts from which there are reasons to believe a complaint could result in an arrest.” (Emphasis in original.)
{4} During the operation, the helicopter observers were instructed to fly over the assigned portions of the search area to look for potential “marijuana plantations.” Once an observer spotted marijuana plants, he was instructed to contact the corresponding ground team staged at a pre-identified area and guide the team to the location of the plants. The ground team would then approach and make contact with the particular house to confirm or deny the existence of marijuana. The helicopter was to remain in the vicinity to provide cover and safety to its ground team.
{5} On August 23, 2006, at approximately 9:00 a.m., the helicopters departed the Taos Regional Airport. The total operation lasted approximately ten hours. During that time, the helicopter observers identified possible marijuana plantations at eight properties and directed the ground teams accordingly.
*772The Davis residence
{6} Observer Travis Skinner, upon identifying a potential marijuana plantation, directed his ground team' — five vehicles containing at least six armed law enforcement officers — to the Davis residence. Davis’ property was enclosed from ground level view by fences that ran along the property line, several large trees and bushes, and a “shade screen.” However, when looking down on Davis’ property from the helicopter, Sergeant Skinner was able to see and relay to the ground team the presence of a greenhouse as well as what appeared to be marijuana plants located at the back of Davis’ property near the house. Sergeant Skinner also informed the team that there were dogs on the property.
{7} Davis stated he was “in bed and not feeling very well when [he] heard a helicopter hovering very low, right on top of [his] house.” He stated that the helicopter was making “a considerable racket” and that when the sound did not go away, he went outside to see “what... was going on.” He observed the helicopter hovering approximately 50 feet above his head “kicking up dust and debris that was swirling all around.”
{8} Sergeant Bill Merrell of the New Mexico State Police confronted Davis near Davis’ front door. Other officers were present on either side of his driveway. Sergeant Merrell, as heard on the tape recording, approached Davis, identified himself, and said “it appears that the helicopter . . . [was] looking for marijuana plants and they believe they’ve located some at your residence.” Sergeant Merrell asked Davis for permission to search the residence for the marijuana plants seen by the observer. The noise from the helicopter was audible in the background of Sergeant Merrell’s recording.
{9} In response to Sergeant MerrelPs accusation, Davis admitted that he was growing marijuana in his greenhouse and allowed the officers to search his property. Davis signed a written consent authorizing a complete search of his greenhouse and residence. This Court previously upheld the validity of Davis’ consent, See State v. Davis, 2013-NMSC-028, ¶ 35, 304 P.3d 10 (Davis II). The officers seized 14 marijuana plants from Davis’ greenhouse. Neither the flyover of Davis’ property nor the resulting search was accompanied by a search warrant.
{10} Several nearby residents characterized the helicopter flyovers during Operation Yerba Buena as terrifying and highly disruptive. Kelly Rayburn watched a helicopter fly around his house about “half a dozen times.” Rayburn said the helicopter flew so close to his roof that the downdraft lifted off a solar panel and scattered trash all over his property. Victoria Lindsay observed a helicopter sweeping back and forth over her property, sending debris and personal property all over the yard. Lindsay also observed the helicopter hovering very close to the ground at a neighbor’s greenhouse. Merilee Lighty observed a helicopter flying over her property for about 15 minutes. She said it was so close that the downdraft affected her trees and her bushes.
{11} William Hecox did not notice any real dust flying at the time of the flyover, but after the helicopter left he noticed that one of his four-by-four beams was broken at the ground and another one was broken three feet up from the ground. Hecox specifically stated that the beams were not broken prior to the helicopter flying over. He also stated that the noise and effect from the helicopter upset his turkey and fowl and caused them to “squawk[] and run[] around.”
*773Suppression hearing
{12} A grand jury indicted Davis on possession of marijuana contrary to NMSA 1978, Section 30-31 -23(A) and (B)(3) (2005), and possession of drug paraphernalia contrary to NMSA 1978, Section 30-31-25(A) (2001), based on the items found during Operation Yerba Buena. Davis filed two suppression motions, arguing that 1) the helicopter surveillance violated his constitutional right to be free from unreasonable searches, and 2) his consent for the subsequent search of his property was involuntary.
{13} Davis requested that the suppression hearing be consolidated with a suppression hearing in a separate case involving Steve Hodges, another Carson resident also charged with possession of marijuana seized from his property as part of Operation Yerba Buena. Although each defendant made additional arguments for suppression (invalid warrant by Hodges and invalid consent by Davis), both presented a similar challenge to the constitutionality of the helicopter surveillance of their property. The district court granted Davis’ consolidation request and held an evidentiary hearing on the motions to suppress.
{14} Several Carson residents testified during the hearing, as previously discussed in this opinion. Some residents testified that the surveillance felt like an invasion with the helicopter hovering so close to the ground that the rotor wash and ground effects kicked up dust and blew debris around their property. Others focused their testimony specifically on the noise disruption from the helicopter, stating that they were unable to go outside and work or have a conversation. Still others alleged that the helicopter physically damaged their property, and recounted the damage to the solar panel and the broken support beams discussed above.
{15} Some of the participating officers also testified during the hearing. Sergeant Matthew Vigil, the officer in command of Operation Yerba Buena, testified that the helicopters were flown at a reasonable height above the residents’ properties and stated that the pilots “were real strict on guidelines as far as altitude.” When asked generally whether a helicopter ever spent “like five minutes or ten minutes over a property in an altitude of less than a hundred feet,” Sergeant Vigil responded in the negative. Sergeant Vigil stated that he was unaware of and did not observe any of the damage or disturbance created by the helicopter’s rotor wash alleged by the individual residents.
{16} Sergeant Adrian Vigil, one of the ground officers, testified that the helicopter probably came down to “a couple hundred feet” to confirm its original observations and provide the ground team with cover. He also testified that the helicopter did not go so low that it would cause interference, and said he could not feel any wash from the helicopter. Sergeant Merrell, the ground team officer in charge of the investigation at Davis’ residence, gave testimony describing his encounter with Davis, and his audio recording of the encounter, including the audible noise from the hovering helicopter, was submitted into evidence.
{17} After considering all testimony, exhibits, and arguments, the district court denied Davis’ suppression motion and issued findings and conclusions in support of its decision. The court analyzed the facts of this case under what it characterized as the Riley/Ciraolo rule, a list of factors used by the United States Supreme Court to assess the constitutionality of aerial surveillance.1 See *774 Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986).
{18} According to the district court’s findings, the helicopter circled over certain locations and then swooped in for closer looks. The court concluded that “[a] greater degree of intrusion is permissible if aerial surveillance is used to confirm facts, rather than flying around generally in an effort to spot greenhouses, then swooping in lower to see what could possibly be seen.” But the district court was “troubled by the testimonial descriptions of rotor wash and flying debris.” Although the court believed that some of the testimony was “overly dramatic and anti-police state rhetoric,” it found merit to the claim that “the police swooped in as if they were in a state of war . . . [which] can be terrifying and intimidating to most normal persons.”
{19} Because surveillance was in response to general vague complaints, however, the district court found that “[i]t was not confirmatory activity” and “[t]he claims of dust and destruction [were] negligible, in comparison.” In totality, the court concluded as a matter of law that the helicopter surveillance “just barely” made it over the threshold of validity. The district court then found that Davis’ subsequent consent to the search was valid and not given under duress or coercion. The court denied both of Davis’ motions to suppress.
{20} Following the hearing, Davis entered a conditional plea of guilty reserving his right to appeal the district court’s pretrial denial of his motion to suppress. On Davis’ first appeal, our Court of Appeals reversed the district court on the consent finding, concluding that the State failed to establish that Davis’ consent was voluntary. State v. Davis, 201-NMCA-102, ¶ 1, 150 N.M. 611, 263 P.3d 953 (Davis I). We granted certiorari and reversed, concluding that substantial evidence supported the district court’s finding that Davis voluntarily consented to the search of his residence. Davis II, 2013-NMSC-028, ¶¶ 2, 34. We remanded the case to the Court of Appeals to address remaining issues. Id. ¶ 35.
{21} On remand, the Court of Appeals considered the validity of the aerial surveillance under both the U.S. and the New Mexico Constitutions. State v. Davis, 2014-NMCA-042, ¶ 4, 321 P.3d 955 (Davis III). The Court of Appeals found the surveillance permissible under the Fourth Amendment to the U.S. Constitution, but impermissible under Article II, Section 10 of the New Mexico Constitution. Davis III, 2014-NMCA-042, ¶¶ 1, 11, 27. As justification for its holding, the Court of Appeals stated: “The privacy interest protected by Article II, Section 10 is not limited to one’s interest in a quiet and dust-free environment. It also includes an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the intrusion is performed.” Id. ¶ 19.
{22} Having determined that the aerial surveillance was unconstitutional, the Court of Appeals then concluded that there was insufficient attenuation to purge Davis’ consent from the illegal search. Id. ¶¶ 28-31. Reversing the district court, the Court of Appeals suppressed all evidence obtained from the Davis search. Id. ¶¶ 1, 32.
{23} We again granted the State’s petition for certiorari review, State v. Davis, 2014-NMCERT-003, this time to determine 1) whether aerial surveillance is a violation of Article II, Section 10 of the New Mexico Constitution and, if so, 2) whether Davis’ *775subsequent consent to search his property was sufficiently attenuated from the illegal search.
DISCUSSION
Under our interstitial analysis, we must first consider whether the claimed right is protected under the U.S. Constitution before considering whether the New Mexico Constitution offers broader protection
{24} When interpreting independent provisions of our New Mexico Constitution for which there are analogous provisions in the U.S. Constitution, New Mexico utilizes the interstitial approach. State v. Gomez, 1997-NMSC-006, ¶ 21, 122 N.M. 777, 932 P.2d 1. Under that approach, before reaching the state constitutional claim, we must first determine whether the right being asserted is protected under the Federal Constitution. Id. ¶ 19. If the right is protected under the Federal Constitution, our courts do not reach the state constitutional claim. Id. In this case, therefore, we must first determine whether the aerial surveillance conducted during Operation Yerba Buena violated the Fourth Amendment. If so, we do not address Davis’ state constitutional claim.
{25} “The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy [in the area searched],” in this case the curtilage of a private home. Ciraolo, 476 U.S. at 211 (internal quotation marks and citation omitted). This inquiry normally embraces two discrete questions: “whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, . . . [and] whether the individual’s subjective expectation of privacy is [objectively] one that society is prepared to recognize as reasonable.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks and citations omitted). The determination is based on the totality of circumstances in each particular case. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
Whether Davis had a reasonable expectation of privacy from a helicopter conducting aerial observation over the curtilage of his home
{26} The curtilage of a house is considered an extension of the home for Fourth Amendment purposes. State v. Sutton, 1991-NMCA-073, ¶ 8, 112 N.M. 449, 816 P.2d 518, modified on other grounds by Gomez, 1997-NMSC-006, ¶ 32. As such, the curtilage has “long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept.” Dow Chem. Co. v. United States, 476 U.S. 227, 235 (1986). See also State v. Bryant, 2008 VT 39, ¶ 13, 950 A.2d467 (“A home’s curtilage — the ‘area outside the physical confines of a house into which the ‘privacies of life’ may extend’ — merits ‘the same constitutional protection from unreasonable searches and seizures as the home itself.’” (first quoting State v. Rogers, 638 A.2d 569, 572 (Vt. 1993); then quoting Oliver v. United States, 466 U.S. 170, 180 (1984))).
{27} Falling within the curtilage of a home, however, does not automatically warrant protection from all observation under the Fourth Amendment. The U.S. Supreme Court has consistently maintained that the Fourth Amendment offers no protection— even within the home or curtilage — if the observed area is knowingly exposed to public view. Kyllo v. United States, 533 U.S. 27, 32 (2001). See also Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); Dow Chem. Co., 476 U.S. at 234-35 (visual observation is no *776search at all). In order to claim protection under the Fourth Amendment, therefore, an individual must take affirmative steps to exhibit an expectation of privacy.
{28} In this case, Davis did take affirmative steps to exhibit an expectation of privacy from ground level surveillance. He fully enclosed his property with ground level “fencing,” using a combination of vegetation and artificial devices. But, exhibiting a reasonable expectation ofprivacy from ground level surveillance may not always be enough to protect from public or official observation from the air under the Fourth Amendment. Riley, 488 U.S. at 450-51.
{29} In two cases remarkably similar to the case at bar, the U.S. Supreme Court addressed the constitutionality of warrantless aerial observation of the curtilage of a home that, like Davis’, was blocked from ground-level observation but left open to observation from the air. In the first case, California v. Ciraolo, the police attempted to observe the backyard of a private residence where marijuana was allegedly being grown. Ciraolo, 476 U.S. at 213. High double fences completely enclosed the yard, prohibiting all ground level observation, so officers secured a private plane and flew over the house. Id. at 209. From the air, the officers identified marijuana plants and photographed the plants with a standard 35 mm camera. Id.
{30} The U.S. Supreme Court granted certiorari to determine whether officers violated the Fourth Amendment when they observed the fenced-in backyard within the curtilage of a home from a fixed-wing aircraft at an altitude of 1,000 feet. Id. The Court determined there was no reasonable expectation ofprivacy when the observations “took place within public navigable airspace, in a physically nonintrusive manner.” Ciraolo, 416 U.S. at 213 (internal citation omitted).
{31} In support of its holding, the Court stated “[t]he test of legitimacy is not whether the individual chooses to conceal assertedly ‘private activity,’ but instead whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Id. at 212 (alteration in original) (internal quotation marks and citation omitted).
That the area is within the curtilage does not itself bar all police observation. The F ourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
Ciraolo, 476 U.S. at 213 (internal quotation marks and citations omitted).
{32} Three years later in Florida v. Riley, the U.S. Supreme Court again addressed aerial observation under the Fourth Amendment. 488 U.S. at 447-48. In that case, the officer utilized a helicopter to observe a targeted area. Id. at 448 The Court granted certiorari to determine whether warrantless surveillance of a partially covered greenhouse in a residential backyard from a helicopter 400 feet above the greenhouse constituted a search under the Fourth Amendment. Id. at 448.
{33} The opinion in Riley was badly fractured, but a majority of the Court agreed that the observation was not a search under the *777Fourth Amendment. Id. at 447, 452 (O’Connor, J., concurring). Justice White wrote an opinion for a plurality of four justices. Id. at 447. Following the reasoning advanced in Ciraolo, the plurality reiterated that:
[Tjhe home and its curtilage are not necessarily protected from inspection that involves no physical invasion. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. As a general proposition, the police may see what may be seen from a public vantage point where they have a right to be. Thus the police, like the public, would have been free to inspect the backyard garden from the street if their view had been unobstructed. They were likewise free to inspect the yard from the vantage point of an aircraft flying in the navigable airspace.
Riley, 488 U.S. at 449-50 (internal alterations omitted) (internal quotation marks and citations omitted). The plurality determined that the helicopter, like the airplane in Ciraolo, was hovering within the prescribed navigable airspace. Riley, 488 U.S. at 451. In making that determination, the plurality relied on Federal Aviation Administration regulations that permit helicopters to operate at less than the minimum altitude for fixed-wing aircraft, as long as the “operation is conducted without hazard to persons or property on the surface.” Id. at 451 n.3 (internal quotation marks and citation omitted).
{34} Significantly for our case, the plurality emphasized that the helicopter was not violating the law, and there was no indication in the record that “the helicopter interfered with respondent’s normal use of the greenhouse or of other parts of the curtilage,” or caused undue noise, wind, dust, or threat of injury. Id. at 451 -52. The plurality thus found that the police did no more than any member of the public could do flying in navigable airspace, and the Court held that the surveillance did not violate the Fourth Amendment. Id. at 451. Justice White cautioned, however, that not every inspection of the curtilage of a house from an aircraft will “pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law.” Id.
{35} Although we avoid the temptation to draw too much settled legal principle from either of these two opinions, we believe certain inferences are appropriate. First, it appears after Ciraolo and Riley that the Fourth Amendment affords citizens no reasonable expectation of privacy from aerial surveillance conducted in a disciplined manner — mere observation from navigable airspace of an area left open to public view with minimal impact on the ground. It also seems, however, that warrantless surveillance can go beyond benign observation in a number of different ways, one of those being when surveillance creates a “hazard” — a physical disturbance on the ground or unreasonable interference with a resident’s use of his property. In that case, surveillance more closely resembles a physical invasion of privacy which has always been a violation of the Fourth Amendment. See Riley, 488 U.S. at 449-52. See also United States v. Jones,__U.S.__, 132 S. Ct. 945, 955 (2012) (“[A] search within the meaning of the Fourth Amendment occurs, at a minimum, ‘[w]here ... the Government obtains information by physically intruding on a constitutionally protected area.’” (Sotomayor, J., concurring, quoting 132 S. Ct. at 950 n.3.) (second alteration in original)). For reasons that follow, this distinction, referenced in both Ciraolo and Riley, informs our *778constitutional analysis of what occurred on Davis’ property.
{36} We do not consider this question in a vacuum. Many state courts base their determination of whether a particular aerial surveillance violates the Fourth Amendment on the degree of physical intrusion on the ground below. In assessing intrusion, courts look at the legality of the flight, the altitude of the aircraft, the frequency and duration of the flight, and the nature of the area observed — factors similar to Ciraolo and Riley and factors employed by the district court in this very case. See United States v. Bassford, 601 F. Supp. 1324, 1330 (D. Me. 1985) (“[CJourts have taken a case-by-case approach to the [FJourth [AJmendment problems implicated by aerial surveillance [considering factors such as] the height of the aircraft, the size of the objects, the nature of the area observed,... the frequency of flights over the area, and the frequency and duration of the aerial surveillance.” (internal citations omitted)). See also Bryant, 2008 VT 39, ¶¶ 23-26 (“Since the rulings in . . . Ciraolo and Riley,... some state courts have relied solely on the legality of a helicopter’s position in public airspace to determine whether the aerial surveillance at issue was a search. . . . Some courts . . . consider the legality and intrusiveness of the surveillance flight. . . . Still other state courts attempt to give effect to all of the Riley opinions by evaluating legality, intrusiveness, and the frequency of flight at the altitude at which the surveillance took place. ... A remaining group of state courts rely on a multitude of factors of their own articulation.” (internal citations omitted)).
{37} Consistent with the general trend of focusing on the degree of intrusiveness, our Court of Appeals over 30 years ago found no Fourth Amendment violation based partly on the district court’s finding that the aerial observation was accomplished “without disturbing defendant’s premises.” State v. Rogers, 1983-NMCA-115, ¶¶ 3, 5, 100 N.M. 517, 673 P.2d 142 (internal quotation marks omitted). Although decided three years before the first of the U.S. Supreme Court opinions on aerial surveillance, the Court of Appeals’ opinion in Rogers presaged the analysis eventually undertaken by that Court.
{38} Much as with this case, Rogers involved aerial observation of a greenhouse within the curtilage of a home from a helicopter looking for marijuana plants. Id. ¶ 2. Rogers and his neighbors testified that the helicopter hovered as low as 30 feet and that the noise of the helicopter awakened them and kicked up dust. Id. ¶¶ 5, 12. The helicopter pilot testified, however, that the total surveillance lasted for only 15 to 30 seconds and the helicopter stayed above 100 feet, hovering over an adjacent field several hundred feet from the residence. Id. ¶ 12. As finder of fact, the district court found the State’s witnesses persuasive. Id. ¶ 5. Our Court of Appeals concluded that “[w]hile the facts of this case teeter dangerously close to exceeding the limitations implicit in the Fourth Amendment, we do not believe that defendant may claim constitutional protection under these circumstances. . . . [T]he surveillance methods used by the police were not unreasonable.” Id. ¶ 13. Substantial evidence supported the district court’s finding of no disturbance to the defendant’s property, and the Court of Appeals affirmed. Id. ¶¶ 5, 14.
{39} As in Rogers, in most cases courts find that the aerial observation was not sufficiently intrusive as to invade a reasonable expectation of privacy, and sustain the warrantless aerial surveillance. See, e.g., People v. McKim, 263 Cal. Rptr. 21, 25 (Ct. App. 1989) (upholding a helicopter surveillance where there was no evidence the helicopter interfered with the defendant’s use of his property or “created any undue noise, wind, dust, or threat of injury”); Henderson v. *779 People, 879 P.2d 383, 389-90 (Colo. 1994) (en banc) (upholding helicopter surveillance where there was little evidence of wind, dust, threat of injury, or interference and there was no indication the neighbors felt compelled to go outside and observe the commotion); State v. Rodal, 985 P.2d 863, 867 (Or. Ct. App. 1999) (upholding surveillance where the helicopter was operated in a lawful and unintrusive manner).
{40} There are instances, however, where “the means of surveillance [were] sufficiently intrusive so as to give rise to a constitutional violation.” See 1 Joseph G. Cook, Constitutional Rights of the Accused § 4:5 n.6 (3d ed. 2015). We have found two state court cases from other jurisdictions concluding that the degree of physical invasiveness from warrantless aerial surveillance amounted to an unconstitutional search under the Fourth Amendment.
{41} In Commonwealth v. Oglialoro, the Supreme Court of Pennsylvania held that aerial surveillance of a barn violated the Fourth Amendment due to the risk of harm to the resident and her property during the search. 579 A.2d 1288, 1294 (Pa. 1990). In that case, the police hovered over a barn located within the curtilage of a home at an altitude of 50 feet for “approximately 15 seconds and made a total of three or more passes over the . . . property, lasting approximately five minutes.” Id. at 1290. The wife of the defendant testified that she was “present in the home at the time [and] experienced various sensations caused by the helicopter[’]s proximity, such as loud noise, and vibration of the house and windows.” Id. The Court stated:
While the police had a right to fly above [defendant’s] property and he had no reasonable expectation of privacy that they would not peer into his barn, it remains to be decided whether the conduct of the police in flying at 50 feet above the barn was hazardous to persons or property on the surface. If so, the search would be unreasonable .... When weighing the issue of whether or not a helicopter surveillance is intrusive to the point of being hazardous, or non-intrusive, a trial court should ask whether or not a risk of harm or danger exists in regards to the person(s) present or property being observed, whether ornot a danger, or threat of injury exists, in regards to persons present within the area being searched.
Id. at 1293. There was no testimony from the police to refute the wife’s testimony. Id. at 1294.
{42} The Pennsylvania Supreme Court determined under the evidence presented that the “helicopter’s presence at 50 feet above the barn represented a hazard to persons and property on the ground and that the conduct of the police in flying at this level was unreasonable.” Id. at 1294. The Court concluded that the surveillance was intrusive and that flying at that low level created a risk of harm, and noted that the police did not produce any evidence rebutting the wife’s testimony or explaining why it was necessary to conduct observation from such a dangerously low altitude. Id.
{43} The Colorado Court of Appeals, also finding a violation of the Fourth Amendment, held that aerial surveillance of a backyard went beyond mere observation when a helicopter 1) “descended to 200 feet,” 2) “hovered in the area for several minutes,” and 3) created “enough noise that numerous people ran out” to see what was happening. People v. Pollock, 796 P.2d 63 (Colo. Ct. App. 1990). The defendant and several neighbors testified that the helicopter was *780extremely noisy and that one child asked if the army was invading. Id. at 65.
{44} The Colorado Court of Appeals characterized Pollock as a close case but determined that two critical factors in the record distinguished Pollock from Ciraolo and Riley. 1) infrequency of helicopter flights at that altitude, and 2) excessive noise from the helicopter. Pollock, 796 P.2d at 64. The Court held that, “on this record, with unrefuted evidence, the type of which was notedly absent in both California v. Ciraolo and Florida v. Riley, . . . defendant had a reasonable expectation ofprivacy thatno such surveillance would occur.” Id. at 65.
The aerial surveillance during Operation Yerba Buena in light of these Fourth Amendment cases
{45} Our review of these and other cases involving aerial observation of marijuana plants, both pre- and post-Ciraolo and Riley, leads us to certain conclusions. First, unobtrusive aerial observations of space open to the public are generally permitted under the Fourth Amendment. Even a minor degree of annoyance or irritation on the ground will not change that result. If that were all that occurred in the surveillance of the Davis property, this would likely not constitute an unreasonable search under the Fourth Amendment.
{46} Our second conclusion, however, is that when low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground — most commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panic — then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less. Obviously, the line drawn between activity permitted with or without a warrant is fact-dependent; any further definition is elusive. For that reason, we must return to the evidentiary hearing conducted in this case and the resulting observations of the district court.
{47} Although the district court concluded as a matter of law that Operation Yerba Buena did not amount to an unconstitutional search, many of its findings and much of the evidence suggest that the police went beyond mere observation as that term has been defined by Fourth Amendment jurisprudence. The district court’s findings make multiple references to the degree of noise and disturbance on the ground and suggest that the helicopter swooped down low enough to cause panic among the residents.
{48} In addition to the district court’s findings, evidence from Davis and the other residents suggests that the officers in the helicopter did more than merely observe. There were multiple allegations regarding other properties that the helicopter caused property damage — the broken beams and the damaged solar panel — and produced excessive noise and kicked up dust and debris. The noise allegations in particular are supported by Sergeant Merrell’s audio recording where the helicopter is clearly heard hovering over Davis’ home. And it is clear from all testimony that the helicopters were there to do more than just observe; they were also there to provide aerial cover and protection for the officers on the ground — in other words, to participate actively in the investigation. In so doing, the police increased the risk of actual physical intrusion as occurred in this case.
{49} We acknowledge testimony to the contrary, primarily from law enforcement officers who were there on the ground. For example, police officers testified that the helicopter was operating at a lawful altitude and emphasized that the pilots strictly adhered *781to altitude guidelines. However, as the U.S. Supreme Court said in Riley, an observation will not always be lawful under the Fourth Amendment simply because the plane is operating within navigable airspace. Riley, 488 U.S. at 451. Like in Pollock and Oglialoro, the police here failed to provide testimony rebutting the specific claims of damage and disruption as described by Davis and the other residents at the suppression hearing.
{50} For example, Sergeant M. Vigil stated that he was unaware of any damage to any resident’s property, and Sergeant A. Vigil stated that he did not feel any wash from the helicopter. Both of these accounts imply that the officers either may not have recalled or were not particularly focused on whether there was damage or wash. These vague recollections are not the type of conclusive evidence that can effectively rebut the specific allegations made by the residents. Further, and perhaps more importantly, neither Sergeant M. Vigil nor Sergeant A. Vigil was present for the surveillance of Davis’ property. They were assigned to searches of properties located elsewhere in the search area.
{51} Regrettably for the State, Sergeant Skinner, the observer for the team that did fly over Davis’ property, did not testify at the suppression hearing. Sergeant Merrell, who was also present at Davis’ property, testified but did not address or refute Davis’ allegations of disturbance, excessive noise, and dust. Perhaps most importantly, the district court, having personally witnessed all testimony and other evidence elicited at the suppression hearing, did not disregard the residents’ testimony as not credible, did not find that the dust and disturbance never happened, and did not find that the police officers ’ testimony was exclusively reliable.
{52} Based on the evidence, therefore, we conclude that the official conduct in this case went beyond a brief flyover to gather information. The prolonged hovering close enough to the ground to cause interference with Davis’ property transformed this surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into Davis’ expectation of privacy. We think what happened in this case to Davis and other persons on the ground is precisely what did not occur in either Ciraolo or Riley and what did occur in both Oglialoro and Pollock. Accordingly, we hold that the aerial surveillance over Davis’ property was an unwarranted search in violation of the Fourth Amendment.
The New Mexico Constitution
{53} Under our interstitial approach to the New Mexico Constitution as explained previously, because we find the asserted right to be protected under the Federal Constitution we do not reach the same claim under our New Mexico Constitution. In resolving this dispute on federal grounds, two consequences for the Court of Appeals’ opinion become clear. First, we reverse the Court of Appeals’ holding with respect to the Fourth Amendment because we find an unreasonable, unconstitutional search under the U.S. Constitution. Second, it is now unnecessary to reach the same question posed under the New Mexico Constitution, which renders the Court of Appeals’ discussion of that subject moot though informative. In the end, however, we uphold the result achieved by the Court of Appeals, which is to suppress all evidence obtained from the search of Davis’ property and to reverse his conviction.
{54} As an aside, we note that the Court of Appeals, when reviewing the district court’s order in this case, suggested that when considering privacy interests under our State Constitution we move away from an intrusion analysis in anticipation of fixture surveillance *782conducted by “ultra-quiet drones” and other high-tech devices. Davis III, 2014-NMCA-042, ¶ 19. Because this case only involves surveillance by helicopters, technology that has been with us for nearly 80 years, we find it unnecessary to speculate about problems — and futuristic technology — that may or may not arise in the future. Instead, we reserve judgment and await a proper case with a developed record.
Davis’ consent was not sufficiently attenuated from the unconstitutional search
{55} As this Court decided in Davis II, Davis validly consented to the search of his home and greenhouse after Sergeant Merrell informed him that a helicopter spotter had identified marijuana plants growing on his property. 2013-NMSC-028, ¶¶ 19-20, 35. However, having now determined that the helicopter flyover was an illegal search, we are left to decide whether Sergeant Merrell obtained Davis’ consent by means “sufficiently distinguishable to be purged of the primary taint of the illegal helicopter surveillance.” Davis III, 2014-NMCA-042, ¶ 30 (internal quotation marks and citation omitted).
{56} “The fruit of the poisonous tree doctrine bar[s] the admission of legally obtained evidence derived from past police illegalities.” State v. Monteleone, 2005-NMCA-129, ¶ 16, 138 N.M. 544, 123 P.3d 111 (alteration in original) (internal quotation marks and citation omitted). “In order for evidence obtained after an illegality, but with the voluntary consent of the defendant, to be admissible, there must be a break in the causal chain from the [illegality] to the search[.]” State v. Taylor, 1999-NMCA-022, ¶ 28, 126 N.M. 569, 973 P.2d 246 (alterations in original) (internal quotation marks and citation omitted), overruled on other grounds by State v. Leyva, 2011-NMSC-009, ¶ 17 n.1, 149 N.M. 435, 250 P.3d 861. “In deciding whether the consent is sufficiently attenuated from the Fourth Amendment violation, we consider the temporal proximity of the illegal act and the consent, the presence or absence of intervening circumstances, and the purpose and flagrancy of the official misconduct.” Taylor, 1999-NMCA-022, ¶ 28.
{57} In this case, Sergeant Merrell’s contact with Davis and his subsequent request to search Davis’ greenhouse were made in direct response to, and simultaneously with, the information provided by the helicopter spotter, information obtained as a result of the illegal helicopter search. Sergeant Merrell told Davis that “the helicopter . . . [was] looking for marijuana plants and they believe they’ve located some at your residence.” Sergeant Merrell then asked Davis for permission to search his property.
{58} Further, the helicopter was present and was continuing to provide information to Sergeant Merrell as Sergeant Merrell approached Davis. The helicopter is clearly audible on SergeantMerrell’s belttape during his discussion with Davis and remained over the house until Davis gave verbal consent to search his property.
{59} We affirm the Court of Appeals’ determination that Sergeant Merrell entered “[Davis’] property solely as a result of information obtained in the helicopter search,” and there were no “intervening circumstances between the aerial search and [Davis’] consent.” Davis III, 2014-NMCA-042, ¶ 31. As a result we hold that there was insufficient attenuation to purge Davis’ consent of the taint resulting from the warrantless aerial search.
CONCLUSION
{60} For the foregoing reasons we hold that this aerial surveillance amounted to an *783unconstitutional search under the Fourth Amendment and reverse the Court of Appeals ’ determination to the contrary. We affirm the ultimate determination of the Court of Appeals to suppress all evidence seized as a result and reverse the conviction in this case.
{61} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice, specially concurring
CHARLES W. DANIELS, Justice