Consider reading the Washington Post article at the link below, as well as the following excerpts dissenting from a Supreme Court opinion that upheld government helicopter viewing of private property from 400 feet without a search warrant.
In the news article, a search warrant was obtained in advance. However, consider the article’s mention of use of drones as methods of “urban surveillance.” Would that be constitutional?
Domestic use of aerial drones by law enforcement likely to prompt privacy debate
From, Florida v. Riley, 488 U.S. 445 (1989)
Justice O’Connor’s Concurrence
[I]t is not conclusive to observe, as the plurality does, that “[a]ny member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse.” Nor is it conclusive that police helicopters may often fly at 400 feet. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public and Riley cannot be said to have “knowingly expose[d]” his greenhouse to public view.
Justice Brennan’s Dissent
The police officer positioned 400 feet above Riley’s backyard was not, however, standing on a public road. The vantage point he enjoyed was not one any citizen could readily share. His ability to see over Riley’s fence depended on his use of a very expensive and sophisticated piece of machinery to which few ordinary citizens have access.
Because the State has greater access to information concerning customary flight patterns and because the coercive power of the State ought not be brought to bear in cases in which it is unclear whether the prosecution is a product of an unconstitutional, warrantless search, the burden of proof properly rests with the State and not with the individual defendant. The State quite clearly has not carried this burden.
Justice Blackmun’s Dissent
Justice Blackmun recognized that five of the nine justices (O’Connor and the four dissenters) had agreed that “the reasonableness of Riley’s expectation [of privacy] depends, in large measure, on the frequency of non-police helicopter flights at an altitude of 400 feet.” Like Brennan, Blackmun noticed that the main disagreement among these five justices was whether the government or the defendant had the burden of proof in establishing whether public flights above Riley’s home were common or rare. Blackmun thought it was likely that such flights were quite rare, supporting Riley’s case, so the government had to show they occurred with some regularity. He wrote that “burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved.”
Tags: austin, drones, florida v. riley, fourth amendment, katz
