UNIVERSITY OF THE DISTRICT OF - UDC Law Review

Ciraolo,191 involving aerial surveillance into a curtilage yard.192
The two dissenters in Dunn concluded that the barn was in the curtilage and that, even if it were not, the police activity
intruded upon the defendant’s reasonable expectation of privacy. They wisely concluded:
The Fourth Amendment prohibits police activity which, if left unrestricted, would jeopardize individuals’
sense of security or would too heavily burden those who wished to guard their privacy. In this case, in order to
look inside respondent’s barn, the DEA agents traveled a half-mile off a public road over respondent’s fencedin
property, crossed over three additional wooden and barbed wire fences, stepped under the eaves of the barn,
and then used a flashlight to peer through otherwise opaque fishnetting. For the police habitually to engage in
such surveillance-without a warrant-is constitutionally intolerable.
Although courts have given less than adequate attention to that point,193 it is useful here to take note of the carefully reasoned
opinion in United States v. Vilhotti.194 In that case, an officer standing in a service alley abutting a garage was able, with the
aid of a flashlight, to peer through a small space between the boards covering a rear window and see stolen goods stored
therein. Finding that these facts presented “a close question under the Fourth Amendment,” the court reasoned that
to ascertain what constitutes an unreasonable search the court must evaluate a person’s efforts to insure the
privacy of an area or activity in view of both contemporary norms of social conduct and the imperatives of a
viable democratic society. …
The two most important variables in deciding whether a visual search contravenes the Fourth Amendment are
accessibility to view and the nature of the premises. Thus, for example, “objects falling within the plain view of an
officer who has a right to be in the position to have that view” are not constitutionally protected. … While Kelly’s
vantage point was a well-travelled public right of way, it would be distorting the “plain view” doctrine to hold that it
encompasses peering through cracks in a boarded window. …
The photographs submitted in evidence by the government show, however, that the gaps between the boards covering
the windows were readily apparent to any passerby. The fact that private citizens have peered through these gaps does
not necessarily permit a government agent to do the same. … But under Katz, an agent is permitted the same license
to intrude as a reasonably respectful citizen would take. Therefore, the nature of the premises inspected—e.g.,
whether residential, commercial, inhabited or abandoned—is decisive; it determines the extent of social inhibition on
natural curiosity and, inversely, the degree of care required to ensure privacy. Here, given that an unattached garage
was the object of search, neither social nor physical barriers were sufficient to protect its interior from intrusion by a
casual observer. Kelly’s flashlight search, therefore, did not encroach upon defendants’ reasonable expectations of
privacy. Indeed, it is not unlikely that police officers would routinely make such inspections as part of their
peacekeeping functions.195
Without suggesting that the result ultimately reached in Vilhotti is beyond dispute,196 the fundamental approach taken
deserves to be emulated by other courts. The court in Vilhotti asks the right kinds of questions-questions which must be
answered in order to keep faith with Katz.
Yet another type of situation which has been addressed by the Supreme Court is that in which the looking into a related
structure occurs from the vantage point of an aircraft. In Florida v. Riley,197 an officer in a helicopter hovering 400 feet
above defendant’s residence looked into a partially covered greenhouse in the backyard and saw marijuana plants. Relying on
California v. Ciraolo,198 the Court held no search had occurred. In Ciraolo, involving a viewing into defendant’s fenced back
yard from a fixed-wing aircraft flying at 1,000 feet, the Court reached the highly questionable199 conclusion that defendant
had no reasonable expectation of privacy because “any member of the public flying in this airspace who glanced down could
have seen everything that these officers observed.” A four-Justice plurality in Riley reached the conclusion, surely no less
vulnerable than that in Ciraolo, that “any member of the public could legally have been flying over Riley’s property in a
helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.”
Is there any form of aerial surveillance without sense-enhancing devices200 which does constitute a “search” so as to be
subject to Fourth Amendment limitations The Riley plurality appears to assume the answer is yes,201 but is not very helpful
as to what additional facts will push a case across the Fourth Amendment line. Somewhat curiously, they note that there was
no “intimation here that the helicopter interfered with respondent’s normal use of the greenhouse or of other parts of the
curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and
there was no undue noise, no wind, dust, or threat of injury.”202 Also, all members of the Court seem to agree that flights at
193