UNIVERSITY OF THE DISTRICT OF - UDC Law Review

328 Riley, 488 U.S. at 448 (observing that “[w]ith his naked eye, [the officer] was able to see through the openings in the roof ... to
identify what he thought was marijuana growing in the structure”).
329 Ciraolo, 476 U.S. at 215 (observing that “[t]he Fourth Amendment simply does not require the police traveling in the public
airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye”).
330 Riley, 488 U.S. at 451 (observing that “it is of obvious importance that the helicopter in this case was not violating the law”);
Ciraolo, 476 U.S. at 213 (noting that “[t]he observations by [the officers] in this case took place within public navigable airspace”).
Also important to the Riley Court was the fact that “no intimate details” about the home or curtilage were observed and the fact
that “there was no undue noise ... and no wind, dust, or threat of injury.” Riley, 488 U.S. at 452.
331 Kyllo cites these cases favorably, in part, because of our long history of permitting nontrespassory visual surveillance. See Kyllo,
533 U.S. at 31-33 (observing that “[v]isual surveillance was unquestionably lawful because ‘the eye cannot by the laws of England
be guilty of a trespass”’ (quoting Boyd v. United States, 116 U.S. 616 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029
(K.B. 1765)))).
332 Id. at 38 n.5 (“We think the [Ciraolo] Court’s focus in this second-hand dictum [from the California Supreme Court] was not upon
intimacy but upon otherwise-imperceptibility, which is precisely the principle we vindicate today.”). The majority explained that
limiting “searches” to those that revealed only intimate details “would not only be wrong in principle; it would be impractical in
application.” Id. at 38.
333 Id. at 40 (observing that “[w]here, as here, the Government uses a device that is not in general public use, to explore details of the
home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively
unreasonable without a warrant”).
334 See Riley, 488 U.S. at 455 (O’Connor, J., concurring) (disagreeing with the plurality’s focus on the fact that the helicopter
remained within navigable air space and, alternatively, arguing that “we must ask whether the helicopter was in the public airways
at an altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy from aerial
observation was not one that society is prepared to recognize as reasonable” (internal quotation marks omitted)).
335 See Bond v. United States, 529 U.S. 334, 338-39 (2000) (finding that an officer’s probing palpation of Bond’s soft-side luggage
located in a bus’s overhead bin violated the Fourth Amendment).
336 If the Riley plurality approach had been applied, then police would have been permitted to conduct a probing palpation because
any passenger could have probed Bond’s luggage while placing a bag in the overhead bin.
337 See Bond, 529 U.S. at 338-39 (observing that while “a bus passenger clearly expects that his bag may be handled ... [h]e does not
expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner”).
338 The obvious hazard that Kyllo’s exception for routine technology creates was described by Justice Stevens in his dissent:
“[P]utting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow,
rather than recede, as the use of intrusive equipment becomes more readily available.” Kyllo, 533 U.S. at 47 (Stevens, J.,
dissenting).
339 See, e.g., Fitzgerald v. State, 837 A.2d 989, 1037 (Md. Ct. Spec. App. 2003), aff’d, 864 A.2d 1006 (Md. 2004). As the Maryland
Court of Special Appeals observed in Fitzgerald:
The investigative use of the animal sense of smell, human or canine, cannot even be defined as a technology. It is, a fortiori, not an
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