UNIVERSITY OF THE DISTRICT OF - UDC Law Review

feet. The viewing from the helicopter was held to be a search, while the observation from the plane was held not to be a
search.
When considered from the perspective of the Katz test, the two decisions are not inconsistent. In Sneed, the court reasoned
that
[w]hile appellant certainly had no reasonable expectation of privacy from … airplanes and helicopters flying
at legal and reasonable heights, we have concluded that he did have a reasonable expectation of privacy to be
free from noisy police observation by helicopter from the air at 20 to 25 feet and that such an invasion was an
unreasonable governmental intrusion into the serenity and privacy of his back yard.
In the other case, by comparison, the court noted:
Patrol by police helicopter has been a part of the protection afforded the citizens of the Los Angeles
metropolitan area for some time. The observations made from the air in this case must be regarded as routine.
An article as conspicuous and readily identifiable as an automobile hood in a residential yard hardly can be
regarded as hidden from such a view.
But these two cases do not suggest that whether the aerial surveillance is or is not a search should be determined merely by
the altitude of the aircraft. The fundamental question is whether this surveillance permitted the police to see that which the
occupant justifiably believed was private. In Superior Court, therefore, it would seem highly relevant that the officers in the
airplane saw a large object which was readily observable by the defendant’s neighbors.253 By contrast, in Sneed it was not
conclusively established that the marijuana plants could have otherwise been observed without intruding onto protected
property.254 But some later lower court cases seemed to proceed as if it was simply a matter of whether the surveilling
aircraft was at a lawful height.255
More and more cases of this genre reached the courts, with the ultimate result of “doctrinal incoherence and conflict among
the court decisions”256 on just how Katz applied to aerial surveillance of the curtilage. As for whether society is prepared to
recognize the dweller’s actual expectation of privacy as reasonable,
courts have taken two sharply conflicting approaches. The first, best described as the “reasonable passerby” approach,
holds that if a dweller has exhibited an expectation of privacy, the reasonableness of the dweller’s expectation must
then be determined by comparing the nature and conduct of the aerial surveillance with the range of normal aerial
behavior of the public in the vicinity. The second approach, best described as the “reasonable per se” approach, holds
that if a dweller has exhibited an expectation of privacy, it is per se one that society will find may not reasonably be
violated from the air.257
Then came California v. Ciraolo,258 where police, proceeding on an anonymous tip that defendant was growing marijuana in
his backyard, surrounded by a 6-foot outer fence and 10-foot inner fence, flew over the property at an altitude of 1,000 feet
and saw marijuana plants 8 to 10 feet in height, which they photographed with a standard 35 mm. camera. The observation,
on which a search warrant was thereafter grounded, was held by the court of appeals to be an illegal search, but the Supreme
Court, in a 5-4 decision, disagreed. Stating the question as “whether naked-eye observation of the curtilage by police from an
aircraft lawfully operating at an altitude of 1,000 feet violates an expectation of privacy259 that is reasonable,” the majority
responded:
The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace, see 49
U.S.C.App. § 1304, in a physically nonintrusive manner; from this point they were able to observe plants readily
discernable to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and
the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer
needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have
seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that
his garden was not protected from such observation is unreasonable and is not an expectation that society is prepared
to honor.260
As discussed earlier,261 the most sensible way to apply the Katz justified-expectation-of-privacy test is to characterize police
surveillance as a search unless it occurs from a “public vantage point” and uncovers what the person has not protected from
scrutiny by the “curious passerby.” Under that approach, the Ciraolo case should have come out the other way. The fact that
the aircraft was in “public navigable airspace” does show that the surveillance occurred from a “public vantage point,” but
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