UNIVERSITY OF THE DISTRICT OF - UDC Law Review

is not to conclude that a search of that limited nature may be undertaken only upon facts which would justify a much more
intrusive search.
245 On other uses of telescopes and binoculars, see § 2.2(c).
Mere use of binoculars from a more readily accessible vantage point, such as the woods just outside defendant’s curtilage, is no
search. Ex parte Maddox, 502 So.2d 786 (Ala.1986).
246 People v. Fly, 34 Cal.App.3d 665, 110 Cal.Rptr. 158 (1973). See also United States v. Cuevas-Sanchez, 821 F.2d 248 (5th
Cir.1987) (distinguishing Ciraolo, text at note 258 infra, court holds it is a search to look into defendant’s back yard, surrounded by
10 ft. high solid fence, by installing video camera on top of power pole); State v. Kender, 60 Haw. 301, 588 P.2d 447 (1978)
(where officer had to climb three-quarters of way up fence and support himself on fellow officer’s shoulder and then use 60-power
telescope to see marijuana plants in defendant’s back yard, this a search; court says notion it no search for officer to see from
vantage point where he lawfully present applies only when the situation “involved observations by police officers which were
facilitated by the defendant’s failure to take sufficient steps to protect his privacy,” which not so here given fence around and
heavy foliage on defendant’s yard).
247 See § 2.4(a).
248 State v. Rogers, 161 Vt. 236, 638 A.2d 569 (1993).
249 In support, the court quite properly relied upon United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987),
holding that looking into a barn from outside the curtilage was no search. Dunn says that “there is no constitutional difference
between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the
objects observed by the officers lay within an area that we have assumed … was protected by the Fourth Amendment does not
affect our conclusion.”
See also United States v. Hatfield, 333 F.3d 1189 (10th Cir.2003) (“police observation of a defendant’s curtilage from a vantage
point in the defendant’s open field is not a search”).
See also Widgren v. Maple Grove Township, 429 F.3d 575 (6th Cir.2005) (observation for tax purposes of exterior of owner’s
house from owner’s open fields no search).
250 See Granberg, Is Warrantless Aerial Surveillance Constitutional, 55 Cal.St.B.J. 451 (1980); Kaye, Aerial Surveillance: Private
Versus Public Expectations, 56 Cal.St.B.J. 258 (1981); Comments, 15 Ariz.L.Rev. 145 (1973); 18 Gonzaga L.Rev. 307 (1983); 17
J. Marshall L.Rev. 455 (1984); Notes, 50 Fordham L.Rev. 271 (1981); 60 N.Y.U.L.Rev. 725 (1985); 17 Val.U.L.Rev. 309 (1983);
35 Vand.L.Rev. 409 (1982).
251 People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (1973).
252 People v. Superior Court, 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (1974). See also People v. Lashmett, 71 Ill.App.3d 429, 27
Ill.Dec. 657, 389 N.E.2d 888 (1979) (no search to see tractor and similar farm machinery from plane at 2400 feet).
253 Indeed, the police later looked at the auto parts again from the neighbor’s yard, which was separated from defendant’s property by
a five-foot fence. See also United States v. Allen, 633 F.2d 1282 (9th Cir.1980) (helicopter surveillance not a search where “the
objects observed were large scale modifications of the Allen Ranch landscape and barn”); Reece v. State, 152 Ga.App. 760, 264
S.E.2d 258 (1979) (no search to discover from airplane stolen vehicles in open field); People v. Lashmett, 71 Ill.App.3d 429, 27
Ill.Dec. 657, 389 N.E.2d 888 (1979) (no search to see large farm machinery from plane at 2400 feet); State v. Ryder, 315 N.W.2d
786 (Iowa 1982) (no search to view farm machinery from airplane); State v. Bridges, 513 A.2d 1365 (Me.1986) (post-Ciraolo case
cautiously notes defendant’s conduct observed from plane also readily observable from passersby on road, so it “immaterial that
their activities happened to be observed from the air”).
254 The court in Sneed was not as careful with respect to this point as it might have been. The court did say that there was no evidence
“that anyone had viewed the plants from the neighbor’s corn field,” but did not declare unequivocally that such a viewing could not
readily have been made. It is significant, however, that in discussing the question of whether there is a reasonable expectation of
privacy in a back yard, the court stated that this depended upon the facts of the individual case and then recited factors which
would be relevant in terms of viewing from adjacent property rather than from the air: “the location of the premises, that is,
whether in an urban or isolated area, the existence or nonexistence and height of natural or artificial structures adjacent to the
premises, the height and sight-proof character of the fencing, the location of public or common private walkways adjacent to the
premises.”
255 Williams v. State, 157 Ga.App. 476, 277 S.E.2d 923 (1981) (no search, as aircraft at lawful height); State v. Layne, 623 S.W.2d
229