UNIVERSITY OF THE DISTRICT OF - UDC Law Review

however by fact lights were on inside the garage).
194 United States v. Vilhotti, 323 F.Supp. 425 (S.D.N.Y.1971).
195 See also State v. Bowling, 867 S.W.2d 338 (Tenn.Crim.App.1993) (police viewing of defendant’s truck, parked in his garage, was
a search, as “truck was behind a solid, completely closed garage door,” and while “the only other garage door was open, it had
been raised a mere one and a half feet to allegedly enable the dog to come and go,” so officer’s “actions of getting on his hands and
knees with his head very near to the ground and looking into the garage are not those actions which society would permit of a
reasonably respectful citizen”).
Compare United States v. Pace, 955 F.2d 270 (5th Cir.1992) (declining, on basis of Supreme Court’s Dunn case, supra, to reach
same result where a barn outside the curtilage involved; while “officers could not see inside the barn from any distance, but had to
press their faces close to the opening to see inside,” court concluded controlling fact was that police were still outside curtilage at
time of observation; decision subject to question in that one of the four factors in Dunn was that the defendants there had done little
to prevent someone standing in the open fields from viewing the interior of the barn).
Compare State v. Buzzard, 112 Ohio St.3d 451, 860 N.E.2d 1006 (2007) (where tracks from burglarized business led to driveway
ending at nearby windowless building, but locked double door was “warped and loose fitting” so that quarter-inch gap allowed
police to see stolen goods within, that no search, as “the viewing took place in front of the garage, where there is a diminished
expectation of privacy”).
196 See the dissent by Wright, J., in the rather similar case of United States v. Wright, 449 F.2d 1355 (D.C.Cir.1971). It may be,
however, that Wright is a better case than Vilhotti for finding that a search had occurred. In Vilhotti the gaps were “readily
apparent to any passerby”; In Wright, the majority said there was “a nine-inch gap between the doors,” but the dissent points out
that the “records shows that the ‘nine-inch gap’ was actually an eight-inch slit one half inch wide … and the police may have
pulled on the doors so they could see inside.”
197 Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), discussed in Foster, Warrantless Aerial Surveillance and
the Right to Privacy: The Flight of the Fourth Amendment, 56 J. Air & Com. 719 (1991); 28 Duq.L.Rev. 327 (1990); 17
Fla.St.U.L.Rev. 157 (1989); 17 Hastings Const.L.Q. 725 (1990); 19 Stetson L.Rev. 273 (1989); 23 Suffolk U.L.Rev. 866 (1989);
62 U.Colo.L.Rev. 407 (1991); 67 U.Detr.L.Rev. 143 (1989); 38 U.Kan.L.Rev. 107 (1990); 1990 Utah L.Rev. 407; 43 Vand.L.Rev.
275 (1990).
198 California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).
199 See the discussion of Ciraolo in § 2.3(g).
200 On use of such devices, see § 2.2(b), (c) and (d).
201 They assert: “This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the
Fourth Amendment simply because the plane is within the navigable airspace specified by law.”
202 See also Henderson v. People, 879 P.2d 383 (Colo.1994) (no search where helicopter overflight, by which marijuana plants in shed
spotted, was between 500 and 700 ft. and notwithstanding five passes there was “little evidence of the noise, wind, dust, threat of
injury, or interference with the use of the curtilage” required by Riley).
Compare Commonwealth v. Oglialoro, 525 Pa. 250, 579 A.2d 1288 (1990) (where police in helicopter “reduced their altitude to 50
feet, where they hovered over the property for 15 seconds and then made 3 passes over the property over a five minute period,” so
the defendant’s wife “experienced sensations caused by the helicopter’s proximity, including loud noise and vibration of the house
and windows,” “such evidence is sufficient to establish that the helicopter’s presence at 50 feet above the barn represented a hazard
to persons and property on the ground and that the conduct of the police in flying at this level was unreasonable”).
203 The plurality ambiguously refers to where flights are “sufficiently rare”; O’Connor, J., concurring, asks whether “members of the
public travel with sufficient regularity” at that altitude; Brennan, J. (joined by two other Justices), dissenting, inquiries whether
“public observation” of Riley’s curtilage was “commonplace”; and Blackmun, J., dissenting, asks whether “private helicopters
rarely fly over curtilages at an altitude of 400 feet.”
204 The 4-Justice plurality assumed nonrarity from the collective facts that there are over 10,000 helicopters in the U.S. and that it is
lawful to operate them at 400 feet. By reference to “the record not suggesting otherwise,” they seemed to assume the defendant had
the burden (unmet here) of showing otherwise. O’Connor, J., concurring, more specifically relied on the fact “the defendant must
bear the burden of proving that his expectation of privacy was a reasonable one,” which included proof of the rarity of helicopters
at 400 feet. Blackmun, J., dissenting, “would impose upon the prosecution the burden of proving contrary facts necessary to show
221