§ 6.07 AERIAL SURVEILLANCE

• Jurisdiction: United States

§ 6.07. Aerial Surveillance¹¹⁶

[A] Rule

As explained more fully below, non-sense-enhanced aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a Fourth Amendment search if the surveillance: (1) occurs from public navigable airspace; (2) is conducted in a physically nonintrusive manner; and (3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.

[B] Surveillance by Airplanes

In California v. Ciraolo,¹¹⁷ O, a police officer, received an anonymous tip that C was growing marijuana in his backyard. O attempted to observe C's yard from ground-level but was thwarted by a six-foot-high outer fence and a 10-foot-high inner fence. Therefore, O obtained a private plane to fly over the backyard at an altitude of approximately 1,000 feet, which was within public navigable airspace according to Federal Aviation Administration (FAA) regulations. From that vantage point, O observed marijuana plants in C's backyard.

The Supreme Court held that this aerial surveillance of C's backyard, an area that the Court agreed was within the curtilage of the house, did not constitute a search. Regarding the subjective prong of the Katz test, Chief Justice Warren Burger stated that "[c] learly . . . [C] has met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agriculture." Remarkably, however, this did not necessarily satisfy the subjective prong, for all that the 10-foot-high fence demonstrated to the Court is C's "intent and desire" to maintain privacy; it did not necessarily demonstrate his expectation of such privacy.

The Court pointed out that the fence "might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a 2-level bus."¹¹⁸ Therefore, the Court stated that it was "not entirely clear" whether C maintained a "subjective expectation of privacy from all observations of his backyard," or only from ground-level observations. The implication from this comment may be that one cannot satisfy the first prong of Katz unless the person has an expectation of privacy regarding all modes of surveillance possible under the circumstances.

In any case, the Court held that the objective prong of the expectation-of-privacy standard was not satisfied here. The Chief Justice observed that police officers need not shield their eyes from information or activities knowingly exposed to them,¹¹⁹ even in the curtilage of a house. And the fact that a person has taken measures to restrict some views of her activities within the curtilage does not preclude the police from observing them from a public vantage point where they have a right to be.

According to Ciraolo, a person is not entitled to assume that what is grown in the backyard will not be observed in a nonintrusive manner by passing aircraft in public airspace or, for that matter, "by a power company repair mechanic on...