UNIVERSITY OF THE DISTRICT OF - UDC Law Review

629 (Tenn.Crim.App.1981) (no search, as plane in navigable air space).
256 Note, 60 N.Y.U.L.Rev. 725, 749 (1985).
257 Id. at 746.
258 California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), discussed in Junker, The Structure of the Fourth
Amendment: The Scope of the Protection, 79 J.Crim.L. & C. 1105, 1152–55 (1989); Comments, 30 Ariz.L.Rev. 361 (1988); 75
Cal.L.Rev. 1767 (1987); 36 Cath.U.L.Rev. 667 (1987); 22 Gonzaga L.Rev. 393 (1987); Notes, 73 Cornell L.Rev. 97 (1987); 53
J.Air.L. & C. 291 (1987); 47 La.L.Rev. 1365 (1987); 18 Loyola U.L.J. 285 (1986); 52 Mo.L.Rev. 507 (1987); 40 Sw.L.Rev. 1133
(1986); 23 Tulsa L.J. 259 (1987); 66 Wash.U.L.Q. 111 (1988).
259 The Court “assumed” the defendant had an actual expectation of privacy, but nonetheless made some troublesome observations in
that connection. See § 2.1(c).
260 Ciraolo was followed in Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), upholding police surveillance from
a helicopter at an altitude of 400 feet. The surveillance was of the interior of a greenhouse, and thus the case is further discussed at
note 197 supra.
See also State v. Ainsworth, 310 Or. 613, 801 P.2d 749 (1990) (relying on Ciraolo, court holds no search where naked eye police
observation from helicopter and “they lawfully were in the air above defendants’ land”).
See also United States v. Warford, 439 F.3d 836 (8th Cir.2006) (though helicopter sometimes “dropped to an altitude of 200 or
300” feet, that legally permissible and not shown to be so rare as to violate reasonable expectation of privacy); United States v.
Boyster, 436 F.3d 986 (8th Cir.2006) (even if lands viewed within curtilage and helicopter was “at an altitude of around one
hundred feet,” there no search, as defendant did not claim flight at that level illegal or “so rare as to make aerial surveillance at that
level unreasonable”).
261 E.g., text at note 121 supra.
262 On such analysis, the court in People v. Mayoff, 42 Cal.3d 1302, 233 Cal.Rptr. 2, 729 P.2d 166 (1986), decided to reject Ciraolo
“and thus adhere to the contrary state view.”
On this dissent, see Hancock, Justice Powell’s Garden: The Ciraolo Dissent and Fourth Amendment Protection for Curtilage-Home
Privacy, 44 San Diego L.Rev. 551 (2007).
263 In State v. Davis, 51 Or.App. 827, 627 P.2d 492 (1981), the court rejected the trial court’s position that the viewing by aircraft was
a search solely because the flight at 600–700 feet was lower than permitted by the FAA for fixed-wing aircraft:
The trial court’s application of the FAA regulation is not an appropriate method of analysis in a search and seizure
area for several reasons. It provides a mechanical approach to search and seizure issues-one merely determines
whether an aircraft was above or below the prescribed minimum altitude, and Fourth Amendment protection is or is
not afforded based on this demarcation. …
We also find little attraction in the idea of using FAA regulations because they were not formulated for the purpose
of defining the reasonableness of citizens’ expectation of privacy. They were designed to promote air safety. …
Lastly, we wish to point out that the FAA regulations distinguish between the types of aircraft involved. The
regulation in this case was applied to a fixed-wing aircraft. The regulation allows helicopters to be flown at lower
altitudes. To use the regulation would make ‘a crazy quilt’ out of the Fourth Amendment, with the ‘pattern of
protection’ being dictated by the type of aircraft used for surveillance.
Comment, 24 Cal.W.L.Rev. 379, 380 (1988), concludes “that aerial surveillance by a helicopter at an altitude of 300 to 500 feet
does not offend the fourth amendment and is not unreasonable if the aircraft is (1) being lawfully operated, and (2) not
unreasonably intrusive.”
264 Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). See also United States v. Breza, 308 F.3d 430 (4th
Cir.2002) (spotting marijuana plants in defendant’s noncurtilage garden from helicopter no search here, where “the helicopter fully
complied with applicable regulations regarding proper altitude” and “such flights were a regular occurrence in the area”); United
States v. Fernandez, 58 F.3d 593 (11th Cir.1995) (under Riley, observation of marijuana plants from helicopter at 500 feet no
search); Commonwealth v. One 1985 Ford Thunderbird Automobile, 416 Mass. 603, 624 N.E.2d 547 (1993) (no Fourth
Amendment violation when helicopter flew over defendant’s home at altitude of 1,500, 800 and 700 ft., so that visible to naked eye
view were hundreds of marijuana plants in empty swimming pool).
230