SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Aerial Surveillance: 0verflights over a suspect’s backyard (i.e., within the
“curtilage” of the home), so long as the observers are in the legal (“navigable”)
airspace, when naked-eye observations of illegal activity below are made, are
legal, whether the observers are on routine patrol or are responding to a specific
tip and/or otherwise purposely looking into the defendant’s yard. (California v.
Ciraolo (1986) 476 U.S. 207 [90 L.Ed.2 nd 210].)
California’s previous rule that observations of contraband within the
curtilage of one’s home (i.e., the yard) under such circumstances should be
suppressed (see People v. Cook (1985) 41 Cal.3 rd 373; People v. Ciraolo
(1984) 161 Cal.App.3 rd 1081.) was overruled in California v. Ciraolo,
supra. Passage of Proposition 8 in June, 1982, dictates that California
follow the federal rule.
The federal Environmental Protection Agency’s use of aerial photography,
flying at the legal “navigable altitude,” was held to be within its statutory
authority, as a regulatory and enforcement agency requires no explicit
authorization to employ methods of observation available to the public.
Additionally, the taking of photographs of petitioner's complex from
navigable airspace was not a search prohibited by the Fourth
Amendment. (Dow Chemical Co. v. United States (1986) 476 U.S. 227
[90 L.Ed.2 nd 226].)
Overflights conducted by officers of a greenhouse situated 125 yards from
a two-story residence did not constitute a search requiring a warrant under
the Fourth Amendment. (United States v. Broadhurst (9 th Cir. 1986)
805 F.2 nd 849, 849-850, 856-857.)
Electronic Tracking Devices (Transmitters):
General Rule: Electronic tracking devices are lawful to use in tracking, so
long as the route used is otherwise open to view and so long as the
installation of the tracking device itself was not accomplished in violation
of the Fourth Amendment. (United States v. Knotts (1983) 460 U.S. 276
[75 L.Ed.2 nd 55]; but see United States v. Jones. infra.)
However, the act of putting a tracking device (e.g., a “Global Positioning
System,” or “GPS”) onto a vehicle, even the exterior or undercarriage, is a
Fourth Amendment search. (United States v. Jones (Jan. 23, 2012) __
U.S. __ [132 S.Ct. 945; 181 L.Ed.2 nd 911].)
© 2012 Robert C. Phillips. All rights reserved
The Court in Jones did not indicate, however, whether a search
warrant would be necessary, declining to rule on whether such a
search, even if warrantless, was “reasonable” under the
circumstances because that argument had been “forfeited” when
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