UNIVERSITY OF THE DISTRICT OF - UDC Law Review

265 Such analysis was challenged by 3 of the 4 dissenters: “If indeed the purpose of the restraints imposed by the Fourth Amendment is
to ‘safeguard the privacy and security of individuals,’ then it is puzzling why it should be the helicopter’s noise, wind, and dust that
provides the measure of whether this constitutional safeguard has been infringed.”
Consider also Commonwealth v. One 1985 Ford Thunderbird Automobile, 416 Mass. 603, 624 N.E.2d 547 (1993) (cautiously
concluding that under the state constitution such overflight is lawful “when the police have a reasonable suspicion that illegal
activity is occurring in a backyard”).
Consider also State v. Bryant, 183 Vt. 355, 950 A.2d 467 (2008) (helicopter surveillance by circling over defendant’s yard at 100
feet for 15–30 minutes, contrary to law, violated state constitution).
266 Dean v. Superior Court, 35 Cal.App.3d 112, 110 Cal.Rptr. 585 (1973).
267 Ciraolo, Dow Chemical Company v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986).
268 Governments are beginning to use satellite imagery for a variety of enforcement purposes, such as to detect the growing of crops
without an irrigation permit, unreported property improvements, and unreported timber cutting. This practice will doubtless
increase, for, as compared with taking photographs from airplanes, “satellite imagery can be much more cost-effective” and “is
faster as well. … And as sharper-resolution photos become available, … the program could be used to look for objects as small as
backyard porches, to check if homeowners have their construction permits in order.” Kerber, When Is a Satellite Photo an
Unreasonable Search, Wall St.J., Jan. 27, 1998, p. B.1, col. 3–4; p. B4, col. 4–5.
For an updated description and assessment of satellite surveillance, see Note, 65 Ohio St.L.J. 1627 (2004).
268.1 Comment, 51 S.Tex.L.Rev. 173, 201 (2009).
268.2 Comment, 74 J.Air L. & Com. 627, 661 (2009), reasoning: “This conclusion follows from a variety of factors, such as the rarity of
UAS use within the public sector, the ability of technology to perceive details that would otherwise be imperceptible without
physically entering the curtilage of the home, and the invasive nature of UAS surveillance conducted through stealth.”
268.3 See, generally, Comments, 74 J.Air L. & Com. 627 (2009); 49 Jurimetrics J. 491 (2009); 51 S.Tex.L.Rev. 173 (2009).
268.4 Comment, 74 J.Air L. & Com. 627, 661 (2009).
269 United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.1975).
270 To the contrary is United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.1975), where officers gained entrance to
petitioner’s farm through an adjoining field. The officers climbed a fence at the boundary of petitioner’s farm premises and
proceeded thereupon through open fields and timber to a point about 300 to 400 feet from petitioner’s farm buildings. After a
surveillance plane criss-crossed over the property several times, the officers heard the petitioner and his wife shouting to one
another about the need to dispose of the marijuana. Petitioner’s farm was fenced; the farm yard was six-tenths of a mile from the
public road; and a no trespassing sign was posted at the gate. In holding that the officers had intruded upon petitioner’s justified
expectation of privacy, the court stated: “In this case … there was nothing to indicate that petitioner and his wife should have had
any reason to expect their conversations, even their shouted conversations, to be overheard by anyone. They had taken deliberate
measures to ensure that their activities and conversations would be protected from other persons, official or non-official.”
However, such analysis cannot be squared with the Supreme Court’s more recent Oliver decision, discussed in § 2.4(a).
271 See § 2.2(e).
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