https://supreme.justia.com/cases/federal/us/488/445/

This case covered a search warrant for a greenhouse believed to be growing marijuana that was discovered by a police helicopter. District court suppressed the evidence. Court of appeals reversed. Florida Supreme Court revered the appeals court. SCOTUS reversed the Florida Supreme Court.

The only property that receives 4th amendment protection is the curtilege. Which “includes area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches and many self-defense laws. When considering whether something is in a dwelling's curtilage, courts consider four factors:

The proximity of the thing to the dwelling. Whether the thing is within an enclosure surrounding the home. What the thing is used for. What steps, if any, the resident took to protect the thing from observation/access by people passing by. These factors were determined by the Supreme Court in United States v. Dunn.”

https://www.law.cornell.edu/wex/curtilage

Justice O’Conner disagreed with the other 4 justices in the majority on the reasoning, rendering it a plurality opinion and not binding precedent. The dissent is pretty solid. It describes a hypothetical that did not exist in 1989, but it sure does now. I will first cite Brennan in dissent citing from the plurality, then his dissent:

“Neither is there any intimation here that the helicopter interfered with respondent's normal use of the greenhouse or of other parts of the curtilage. As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment."

I will deal with the "intimate details" below. For the rest, one wonders what the plurality believes the purpose of the Fourth Amendment to be. If through noise, wind, dust, and threat of injury from helicopters the State "interfered with respondent's normal use of the greenhouse or of other parts of the curtilage," Riley might have a cause of action in inverse condemnation, but that is not what the Fourth Amendment is all about. Nowhere is this better stated than in JUSTICE WHITE's opinion for the Court in Camara v. Municipal Court, 387 U. S. 523, 387 U. S. 528 (1967):

"The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."

Justice Brennan then says:

“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. Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all -- and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably "where they had a right to be." Would today's plurality continue to assert that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was not infringed by such surveillance? Yet that is the logical consequence of the plurality's rule that, so long as the police are where they have a right to be under air traffic regulations, the Fourth Amendment is offended only if the aerial surveillance interferes with the use of the backyard as a garden spot. Nor is there anything in the plurality's opinion to suggest that any different rule would apply were the police looking from their helicopter, not into the open curtilage, but through an open window into a room viewable only from the air.”

I think it is safe for police to rely on this case law. But, if SCOTUS took a case on this issue, I am doubtful they would still decide it the way they did in 1989. Not just because I think the reasoning is questionable; but the Court had been on a tear trying to undo the Warren & Burger Courts at that point and were basically weaving a word salad of faulty logic to uphold nearly every act of government. We actually got a good decision in 2018 that barred police from getting warrantless cell tower tracking data. However they did this while not abrogating US v. Miller (1976); a case which held that there is no reasonable expectation of privacy in information made available to third parties.

That case has an amazing dissent by Justice Thurgood Marshall (who does not get near enough credit around these parts for upholding these types of constitutional protections). Two issues were here: (1) an invalid subpoena issued by a US Attorney and not a court; and (2) whether a warrant is required vs a subpoena. I won’t cite his dissent, I recommend you read it directly.

https://supreme.justia.com/cases/federal/us/425/435/#tab-opinion-1951689