Florida v. Riley

PETITIONER:Florida
RESPONDENT:Michael A. Riley
LOCATION:Pasco County Sheriff’s Office

DOCKET NO.: 87-764
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Florida Supreme Court

CITATION: 488 US 445 (1989)
ARGUED: Oct 03, 1988
DECIDED: Jan 23, 1989
GRANTED: Feb 22, 1988

ADVOCATES:
Marc H. Salton – on behalf of the Respondent
Parker D. Thomson – on behalf of the Petitioner

Facts of the case

Michael Riley lived in a mobile home situated on five acres of rural land in Florida. Riley owned a greenhouse that was located behind his home; from the ground, the contents of Riley’s greenhouse were shielded from view by its walls and the trees on his property. In 1984, the Pasco County Sheriff’s office received a tip that Riley was growing marijuana on his property. The investigating officer tried to see into the greenhouse from the ground but could not, so he circled in a helicopter at 400 feet and saw what he believed to be marijuana growing inside. Acting on this information, the investigating officer obtained a search warrant, searched the greenhouse, and found the marijuana. Riley was charged with possession of marijuana.

Riley filed a motion to suppress the evidence obtained in the search. The trial court granted his motion and held that viewing his property from the air violated Riley’s reasonable expectation of privacy. The District Court of Appeal of Florida, Second District, reversed the trial court’s decision and denied Riley’s motion to dismiss the evidence. The appellate court also certified the case to the Supreme Court of Florida, which reinstated the trial court’s order to suppress the evidence.

Question

Did the police officer violate the defendant’s reasonable expectation of privacy by observing his property from a helicopter with the naked eye?

William H. Rehnquist:

We’ll hear argument now in Case No. 87-764, Florida against Riley.

Mr. Thomson, you may proceed whenever you’re ready.

Parker D. Thomson:

Mr. Chief Justice, and may it please the Court, the barebones facts in this case are set forth in the trial court’s order granting a motion to suppress the evidence in this case.

They were reprinted in the text of the intermediate appellate order which reached the contrary conclusion.

And they were described by the Supreme Court in reversing again.

These facts were, first, that Defendant Riley had leased an over five acre parcel in Pasco County, Florida on which he placed his mobile home and nearby constructed a shed, described by the trial court as a greenhouse.

The greenhouse was some 10 to 20 feet from the mobile home.

The greenhouse, as constructed by the defendant, was enclosed on two sides and open on two sides.

Trees and shrubbery obscured one of the open sides from view.

The mobile home and one or more other trees obscured the other open side from view from the nearby road.

William H. Rehnquist:

Does the record show the dimensions of the greenhouse, Mr. Thomson?

Parker D. Thomson:

It does not, your Honor.

Does it show now far from the road?

Parker D. Thomson:

Nor does it show how far from the road.

It is a barebones record.

It does not show… there are six photographs in the record which are mainly concentrated on the mobile home and the greenhouse.

The roof of the greenhouse was corrugated roofing, partly translucent, partly opaque.

There were two openings caused by either removing or not installing the roof panels.

The open portion was about ten percent of the roof.

A “Do Not Enter” sign was posted in front of the mobile home.

The area containing the mobile home and the greenhouse was enclosed or partially enclosed by a net wire fence.

A Pasco County deputy received a tip about possible drug manufacture on the property.

That deputy and Deputy Gell, a police officer for 14 years, went to look from the road nearby.

They could not see into the greenhouse.

Gell did not attempt to walk on the property outside of the fenced area to a point where he would be able to see through one of the two open sides of the greenhouse nor did he enter property adjoining the Riley tract to see what he could see from there.

Instead, he got a police pilot to fly him over the property in the police helicopter.

The helicopter circled the greenhouse twice at about 400 feet.

Gell, who had viewed cannabis some hundred times and some six times from the air, identified by naked eye viewing the tall marijuana plants through the roof openings and through the open sides.

He took two pictures of them with a camera.

The helicopter then left.

Parker D. Thomson:

A warrant was issued on the basis of Gell’s affidavit.

The premises were entered and 44 plants seized.

Did the affidavit refer to the photographs?

Parker D. Thomson:

It apparently did, your Honor.

The affidavit–

xxx–

Parker D. Thomson:

–[inaudible]–

Byron R. White:

–Was it ever alleged that there was telescopic lens in that camera?

Parker D. Thomson:

–No.

There is… the camera had a zoom lens.

Gell testified that he had no particular experience on how to use a camera of that sort and what he did was in effect to memorialize what he saw.

The affidavit that he gave, as representative–

Byron R. White:

Well, is there any claim that the human eye was enhanced–

Parker D. Thomson:

–No, your Honor.

Byron R. White:

–By the camera?

Parker D. Thomson:

No, your Honor.

Byron R. White:

All right.

Parker D. Thomson:

It is accepted by all courts, including the trial court which, of course, heard his testimony, that Detective Gell could see what he testified about and what was the basis of the warrant.

William J. Brennan, Jr.:

At what height, the detective made these observations?

Parker D. Thomson:

It is 400 feet, your Honor.

400 feet.

The helicopter was at 400 feet above.

Yes, your Honor.

Thurgood Marshall:

Could it be accurately said that the use of the helicopter was to do something that he couldn’t do otherwise?

Parker D. Thomson:

It’s hard to answer that question.

Thurgood Marshall:

Is it?

Well, didn’t he try to do it?

Parker D. Thomson:

Well, he saw… he looked from the road.

He did not walk through the open fields around the fence and attempt to look from there.

He did not go on adjacent property.

Parker D. Thomson:

There is a greenhouse with two open sides.

We know what he did.

Thurgood Marshall:

He didn’t have enough to get a search warrant?

Parker D. Thomson:

Not on the basis of what he saw from the road.

Thurgood Marshall:

So he got a helicopter to find what he couldn’t find otherwise.

Parker D. Thomson:

He could not see it from the road.

There may have been other ways to see it.

We only know what he did, Justice Marshall.

Thurgood Marshall:

To get evidence that he couldn’t get otherwise?

Parker D. Thomson:

That is correct, your Honor.

As I said, 44 plants were seized.

Their height was somewhere from six to 12 feet.

Riley guesses eight feet high.

Riley was charged with manufacture and possession.

The Florida Supreme Court reinstituted the trial court’s order to suppress the evidence here.

In so doing, the Florida Supreme Court purported to follow this Court’s 1986 decision in Ciraolo and concluded that the helicopter, because it had flown below the minimum limit for a fixed-wing aircraft was not at a location where Ciraolo permitted the helicopter to be for purposes of making lawful observation.

But the Florida Supreme Court acknowledged that the helicopter was where it was entitled to be.

Florida seeks reversal and adoption of a rule that warrantless, naked eye, aerial observation by law enforcement personnel is permissible under the Fourth Amendment so long as the observer is where he has the legal right to be for all other purposes, provided there is no physical intrusion, examples of which have been interminable hovering, raising clouds of dust, creating unreasonable noise, and those sorts of things, nor harassment, as there is in certain other cases raised by the respondent in the amicus on that side.

Florida submits that this is a rule simple of application.

It says that a pilot may go for purposes of aerial observation of possible criminal activity where he can go for all other purposes.

Pilots are licensed personnel who know where they can go and where they cannot.

The rules governing where they go are determined by the Federal Aviation Administration for the safety of the aircraft piloted, other aircraft, and the surface.

Sandra Day O’Connor:

Well, Mr. Thomson, do you think that for purposes of the Fourth Amendment, at least, that it should necessarily mirror Federal Aviation Authority regulations?

Parker D. Thomson:

Not necessarily, Justice O’Connor, but pilots will… pilots under what I suggest will go where they are entitled to absent physical intrusion or harassment.

Both are issues, of course, that a judge would determine in response to a motion to suppress.

The pilot would, of course, make the initial determination of where it was safe to go.

A helicopter pilot is free to go and stay off the surface to the extent needed to protect and insure the safety of person and property.

Obviously–

Harry A. Blackmun:

I suppose in your position one could pass by a house in a vehicle with a lift on it, such as are used for trimming trees, and peer in a second or third floor window.

He’s where he has a right to be.

Parker D. Thomson:

–Justice Blackman, the issue there, of course, is the objectively reasonable expectation of privacy from that kind of activity.

If that is what is the activity that is normally conducted there and people proceed in that fashion, yes, that would be the result of that application.

Sandra Day O’Connor:

Similarly, a policeman could just get a tall ladder, I suppose, and put it up on the sidewalk and look over the top of the roof–

Parker D. Thomson:

Well, I submit–

Sandra Day O’Connor:

–or into the patio.

Parker D. Thomson:

–Well, I would submit, Justice O’Connor, that that involves at least far different considerations than the one posed by Justice Blackman.

I do not necessarily believe that it is within the objectively reasonable expectations of privacy that people are going to carry ladders around and stick them from a public sphere against a wall for the specific purpose of going up and looking over.

The question that was asked me before is if–

Sandra Day O’Connor:

Well, using a device other than a ladder, Justice Blackman suggests.

You think that’s all right, but not a ladder?

Parker D. Thomson:

–Proceeding on the public road, yes, I would think so.

If that is what is normally done on that road.

And that is a normal activity–

Sandra Day O’Connor:

Well, it’s not a normal police activity, is it?

Parker D. Thomson:

–Well, I don’t believe that the standard is any more in this case than in any other.

When you choose to look at the expectations of the person who is the subject of the observation, he either expects reasonably or does not expect that certain things are going to happen, certain people are going to see him.

Whether it’s his neighbor, whether it is a policeman, whether it is a telephone repairman.

That is his expectation.

And that is what this Court has the directed… the focus to.

Once you direct it to his expectation, subjectively who that person may be I submit is irrelevant.

John Paul Stevens:

May I ask… you said you want a bright-line rule in effect and the helicopter was in lawful air space, therefore, it’s okay.

How far down could the helicopter go under your bright-line rule?

Parker D. Thomson:

Your Honor, I would submit that the helicopter can go, as stated in the regulations, as close to the surface as not to create a hazard to person of property.

And, in addition, so as not, under the circumstances of that particular helicopter… of course, helicopters are all different in size and noise, and so forth like that… so that it did not create a physical intrusion on the surface or to the property.

John Paul Stevens:

Well, supposing you went down to 50 feet and it would be perfectly safe.

You know, it’s been tested out.

Of course, it would be rather noisy and rather windy, I suppose.

Parker D. Thomson:

Well, whether–

John Paul Stevens:

Would that violate your bright-line rule?

Parker D. Thomson:

–It could.

Parker D. Thomson:

It depends, your Honor, on the degree… on the degree of noise and the degree of–

John Paul Stevens:

Well, is this a bright-line rule if it depends on a degree of noise?

Parker D. Thomson:

–Your Honor, rules are set for the bulk of the cases.

John Paul Stevens:

Well, how far can it go down?

Parker D. Thomson:

It would depend on the size of the helicopter.

It would depend upon the amount of noise it kicked up.

It would depend upon its impact on the ground.

John Paul Stevens:

Then it does not depend on the fact that it’s in lawful air space.

Parker D. Thomson:

That is… If it is–

John Paul Stevens:

See, that is not your rule, as I understand it.

Parker D. Thomson:

–The rule is that it be within lawful air space and–

John Paul Stevens:

And that it not be annoying.

Parker D. Thomson:

–And it not be, as the rule itself says, it not be a hazard to person or property on the surface.

John Paul Stevens:

No.

But I’m assuming it’s not hazardous to person or property on the surface when you’re 60 or 50 or 60 feet above the ground.

Parker D. Thomson:

Then, your Honor, the helicopter can–

John Paul Stevens:

But it’s quite noisy and it’s windy.

Parker D. Thomson:

–The helicopter can go to the point that it is not a hazard to person or property.

John Paul Stevens:

So you have abandoned your notion that there is a limit based on the degree of noise and wind?

Parker D. Thomson:

I have said, across open fields, your Honor–

John Paul Stevens:

No, no.

Over a congested area here.

Parker D. Thomson:

–You cross open fields with no problem.

When you reach a congested area, I have said that if in fact, despite compliance with the rule, it constitutes a physical intrusion in certain cases–

John Paul Stevens:

Well, then–

Parker D. Thomson:

–which would be–

John Paul Stevens:

–then just leave it noise and wind.

Is there a point at which a helicopter is perfectly lawful but nevertheless is too noisy to be constitutionally in the proper place?

Parker D. Thomson:

–I would submit, your Honor, under certain circumstances huge helicopters, military type helicopters without–

John Paul Stevens:

No.

John Paul Stevens:

Just the traffic–

Parker D. Thomson:

–could without question–

John Paul Stevens:

–The traffic helicopter we’ve all seen flying around.

Parker D. Thomson:

–I doubt, your Honor, that it would cause, let us say in that case below a hundred feet, sufficient physical intrusion and I include noise within that to be a problem.

A small helicopter holding two people.

John Paul Stevens:

But your rule… I want to be clear on it.

Your rule that you advocate is not a rule that says as long as it’s in the lawful air space it’s okay?

Parker D. Thomson:

No, your Honor, that is correct.

It is not that.

It says… that’s where you start and–

John Paul Stevens:

And how do you know 400 feet wasn’t too noisy?

Parker D. Thomson:

–Excuse me, your Honor?

John Paul Stevens:

How do we know 400 feet wasn’t too noisy?

Parker D. Thomson:

Well, too noisy to whom?

John Paul Stevens:

Well, to people on the ground.

If you’re sitting in your back yard, you want helicopters 400 feet up?

Parker D. Thomson:

There is absolutely no contention whatsoever in this record, nor have I seen a contention in the record of any reported case involving helicopters that at 400 feet they are causing disturbance to the ground.

Four hundred feet is virtually the height of the Washington Monument.

I do not believe–

John Paul Stevens:

It’s less than the height of the Washington Monument.

Parker D. Thomson:

–Five hundred and twelve feet I believe is the Washington Monument.

It is–

John Paul Stevens:

So it’s 80 percent of the height of the Washington Monument.

Parker D. Thomson:

–There is none here, no record in this case, no suggestion in this case, your Honor, nor in any other reported case that I have seen that 400 feet… a helicopter flying at 400 feet is in any way a problem to the ground or creates any kind of physical intrusion.

William H. Rehnquist:

Mr. Thomson, would the rule that you’re talking about govern all of the six acres of this property?

What was it, five or six acres?

Parker D. Thomson:

A little over five, your Honor.

The record simply says over five acres.

William H. Rehnquist:

Well, supposing it were on a part of the property, say, the furthest of that acreage away from the house, no difference?

Parker D. Thomson:

Your Honor, the rule would be the same.

Parker D. Thomson:

That is, I do not say in the open fields portion of this, of the clear open fields portion of this property that it could create any physical intrusion.

Obviously, when it comes over trees and so forth near the greenhouse, it may have to lift up.

It can probably go lower, in accordance with the FAA regulations in the open area.

But that’s hard to tell without looking at a picture of it.

Sandra Day O’Connor:

And, Mr. Thomson, barring noise or dust, or that sort of disturbance, you would think that it’s perfectly reasonable for a helicopter, police helicopter, to hover of a… let’s say, a southwestern type house with an inner courtyard or patio that isn’t roofed?

Parker D. Thomson:

No, I think you have some–

Sandra Day O’Connor:

That’s all right?

Parker D. Thomson:

–What I think you’re… I think when you have interminable hovering of that sort, you could have different, you could have a different rule.

But I would suggest generally not.

Helicopters can fly over… not just police helicopters, people taking pictures for real estate, people taking… news photographers.

There are helicopters all over Florida and all over the United States today for a whole variety of purposes.

And it is the submission of the State of Florida that that is today one of the factors that are to be considered in what is an objectively reasonable expectation of privacy.

People may not like it, and they may not like all other kinds of helicopters up there, but that is part of life today.

And it is our submission that police helicopters can do what other helicopters can do.

Anthony M. Kennedy:

And under Florida law, would there be a civil cause of action for an invasion of privacy–

Parker D. Thomson:

There could be.

Anthony M. Kennedy:

–in circumstances such as this?

Parker D. Thomson:

There could be.

The–

Anthony M. Kennedy:

Well, I’m asking you about Florida law.

Parker D. Thomson:

–There are, it seems to me, two possible contentions of a civil cause of action.

One would be for a nuisance and one would be for invasion of privacy.

Depending upon what was seen and what was done with it, yes, I think there could be a cause of action for invasion of privacy.

Anthony M. Kennedy:

And is that consistent with your view that there is an objective… that there is no objective expectation of privacy?

I don’t see now that fits.

Parker D. Thomson:

There is no more–

Anthony M. Kennedy:

If Florida permits a civil cause of action, for an invasion of privacy in circumstances such as this, how does that comport with your premise that there is no objective expectation of privacy?

Parker D. Thomson:

–I believe that this Court for Fourth Amendment standards has said that violations of local law are not the factors to be determined in–

Anthony M. Kennedy:

I’m well aware of that, but I’m just asking you about the objective expectation that a property owner has.

Does Florida law protect people that have no objective expectations to privacy and then gives them a cause of action anyway?

Parker D. Thomson:

–No, your Honor.

It would have to be an unreasonable interference with privacy.

And it would have to be utilized in a certain way so that it was damage to the person.

Mr. Thomson, I think–

Parker D. Thomson:

Those are the standard rules for a civil case for privacy.

–I think you said a moment ago that there is no different rule for police officers than the private individual.

Parker D. Thomson:

That is correct, your Honor.

You don’t really mean that, do you?

Parker D. Thomson:

I believe, your Honor, the pilot of a police helicopter can fly wherever the pilot of any other helicopter can fly.

Well, do you think that a police officer can go anyplace that a private car can go, including the basement of this building?

You don’t really mean that.

You don’t–

Parker D. Thomson:

No, I–

–need that, do you?

Parker D. Thomson:

–No, I did not… I do not need that and I do not argue for that.

But I do not think I can go to the basement of this building either.

That’s why the rule I suggested was that a police officer could do what a member of the public could do.

Well, you know–

Parker D. Thomson:

I don’t believe that a member of the public can go into this–

–The open field doctrine didn’t contemplate this.

Parker D. Thomson:

–Did not contemplate–

Because they didn’t have helicopters.

Parker D. Thomson:

–Oh, actually, it–

Did they?

Parker D. Thomson:

–it depends on the formulation.

Actually, in the Oliver case, both sides argued to this case that aerial surveillance of the open fields was not a problem and used helicopters as an example during argument.

And the court notes it in the case.

The case… the case was… that’s Justice Holmes’ case.

Parker D. Thomson:

That’s not Justice Holmes’ case of Hester; helicopters have been around for a long, long time but they were not in normal use until the 1940s and 1950s.

What year was it that helicopters had been around a long time?

Parker D. Thomson:

Well, helicopters have been around the whole 20th Century but it did not come into normal regular use until the ’50s and into heavy police use until the ’60s and forward.

It was not normally around at the time of the Hester case, your honor.

Mr. Thomson, in discussing with Justice Kennedy the possibility of a private cause of action for violation of privacy under Florida law, did you mean to say that on these facts a Florida court would have awarded–

Parker D. Thomson:

Absolutely not.

–damages or–

Parker D. Thomson:

Absolute not.

I was trying to respond to a hypothetical question of whether there could, under certain circumstances, be an invasion of privacy claim.

I said, yes, it’s a tort in the State of Florida and it could be used on this set of facts.

I would submit absolutely not.

Not a shred of a basis for an invasion of privacy claim.

–Mr. Thomson, just to get things into perspective, I have here a brochure about this building and it says that this room has a height of 44 feet.

Parker D. Thomson:

I suspect, your Honor, that’s right.

I would have guessed it was maybe closer to 50, but at least that gives us some indication of where your helicopter was flying.

Parker D. Thomson:

Helicopters go down… helicopters can go down to where they will not be a hazard to surface or property.

That is correct.

And it depends on the helicopter, the size of the helicopter, and so forth, how far that helicopter can go down.

The submission that we make to this Court is that the Florida Supreme Court incorrectly drew a line based upon the words 500 feet in rural areas, and a thousand feet in urban areas, must be the test for helicopters.

They drew those rules, of course, from the FAA regulations with respect to fixed-wing aircraft.

They contended that the helicopter flight below that was barred by this Court’s reference in Ciraolo to navigable airspace.

However, a look at Ciraolo in our opinion does not justify that conclusion.

The reference in Ciraolo to navigable airspace was in the context of the airplanes involved in that and to show that the pilot in that case was where that pilot was lawfully entitled to be.

That, we submit, is the crux of the issue in Ciraolo, and that is the crux of the issue in this case.

This pilot went exactly where he was lawfully entitled to be, 400 feet, took two swings around the property, was able to identify through two open sides and a ten percent open roof of this greenhouse what was inside it, to identify it sufficiently to sign the affidavit and get the warrant issued.

We submit that both… that the supreme court was wrong as to this case and this case is facts.

We submit that it also was in error with respect to not… to looking at a rule based upon what a fixed-wing aircraft can do rather than one that looks to where the pilots of police helicopters may lawfully be.

There is no question that this was within the curtilage, is there?

Parker D. Thomson:

Florida questions… seriously questions that it was within the curtilage.

It seems to me, Justice Blackman, that this Court in Dunn divided curtilage issues into two.

One distance and one use.

The distance of the greenhouse from the mobile home, the trailer, was ten to twenty feet.

Parker D. Thomson:

Certainly, on the issue, that would imply that that factor of a curtilage test was met.

Shorter than this bench?

Parker D. Thomson:

That is correct.

Secondly, the mobile home and the greenhouse were both within a fenced or partially fenced area.

That is, they appeared to have been within a common enclosure.

That, too, would meet the factor of distance as one of the four factors of the Dunn case.

The third… the third and fourth factors apply to the issue of use.

The issue of use, of course, is where the concept of curtilage came from.

That was an extension of the domestic uses of the house.

The first of these is that this particular greenhouse was used for the manufacture of an illegal substance.

We do not submit… we submit that, therefore, it does not meet that factor of Dunn.

And, fourthly, the… I believe it to be a carry forward of the use factor.

The question was whether or not reasonable precautions had been taken to obscure the vision of that from passersby.

In this particular case, two sides were open, ten percent of the roof was missing, and patently it did not obscure from a person passing by in a helicopter at 400 feet.

It is our submission that, therefore, it does not meet the two use factors of the Dunn test.

Of course, there are four factors.

It has seemed to us on reviewing these cases that this Court in Dunn has indicated a turn more towards the use considerations and whether in fact what is being done there is an extension of the domestic trailer.

Well, don’t we–

Parker D. Thomson:

And we submit that this was not.

–Do you think the curtilage issue is here?

Parker D. Thomson:

Yes, your Honor.

You think that’s subsumed in your one question you raised?

Parker D. Thomson:

No, your Honor, it is not within the one question we raised.

We believe it is here.

It is not within the specific terms of that test.

The issue, your Honor, is one of the objective manifestation–

Well, did you claim it wasn’t within the curtilage in the Florida courts?

Parker D. Thomson:

–Your Honor, the trial court held that it was within the curtilage and it was held that in each of the courts in Florida.

Well, did you object to that finding in the appellate courts?

That it was within the curtilage or not?

Parker D. Thomson:

Only to the extent, your Honor, that the objectively reasonable manifestations of this subject and intent for privacy was–

So your argument really was that even if it was within the curtilage, it’s still reasonable?

Parker D. Thomson:

–That is correct; which was of course, the conclusion of Ciraolo.

And you didn’t… at least you didn’t split off the curtilage issue here.

Parker D. Thomson:

We in no way split the curtilage off.

We comprehended it within the general issue.

So, we should… do you think we should judge this case on the basis that the greenhouse was within the curtilage?

Parker D. Thomson:

Your Honor, that is for your ultimate determination.

Well, I know it is, but what do you think?

How do you think we should judge it?

Parker D. Thomson:

My answer is that Florida seriously questions on the basis of what was… that it was within the curtilage.

Well, do you think that’s open to us here?

Parker D. Thomson:

Well, I believe that it is–

Perhaps it is.

Maybe that’s part of the reasonableness inquiry.

I don’t–

Parker D. Thomson:

–Well, that is how it seems to get into the cases as to the question of the reasonableness of the expectation of privacy, and, of course, it has been extended… it has been argued to this court by the amicus on the other side that if it is within the curtilage, there absolutely must be a determination made… to that effect a determination which I believe this Court rejected in Ciraolo.

I’d like to reserve the rest of my time.

William H. Rehnquist:

Thank you, Mr. Thomson.

We’ll hear now from you, Mr. Salton.

Marc H. Salton:

Thank you, Mr. Chief Justice.

If it pleases the Court, it is the position of the respondent that this case should be determined within the framework of Katz versus the United States.

And under Katz versus the United States, the two controlling questions are whether Michael Riley manifested an expectation of privacy in the contents of his greenhouse, and, two, whether that expectation is one that society is prepared to recognize as reasonable.

In answering the first question, of whether Riley manifested that expectation of privacy, we would submit that the record is complete with facts showing that manifestation.

The wooded area, the fence around the mobile home and greenhouse, the positioning of that greenhouse directly behind the mobile home so it was viewable from the roadway, and, as Mr. Riley testified, from any adjoining property.

Do we ever even get into this kind of an inquiry if it is conceded… unless we have to determine curtilage?

I mean, I’m not aware of any cases that say, yes, this was within the curtilage but there was no reasonable expectation of privacy.

Isn’t that question automatically answered if we accept that it was within the curtilage?

Marc H. Salton:

I would submit that if it’s within the curtilage there the expectations… he has heightened expectations and there is an indicia of reason to his expectation if we’re dealing with the curtilage.

The curtilage bears directly upon the reasonableness of the privacy expectations.

Marc H. Salton:

And the only reason I’m mentioning the manifestation of those expectations is apparently Florida, at least in their brief, appeared to contest that.

Our submission, of course, is with the root, the enclosed two sides, the fact that shrubbery and the mobile home blocked view from the unenclosed sides.

Well, Mr. Salton, suppose that what had happened here is that the owner of the home had simply left the curtains slightly ajar looking into the home.

Now, a police officer going by on the sidewalk or road can lock in through that window.

Isn’t that right?

Marc H. Salton:

Yes.

And that’s perfectly reasonable even though it’s within the curtilage.

Marc H. Salton:

Yes.

As Katz teaches us, the fact that something is in the curtilage or the home, if an activity or an object is knowingly exposed to the public, it will lose the Fourth Amendment protection.

Well, if the curtains are left open and the policeman is there on the sidewalk, he doesn’t have to turn his eyes aside, he can look in the window and what he sees he can use to get a warrant.

Marc H. Salton:

Yes, he can.

Now, is the flying over the roof where they’ve left two panels off similar to that?

Is it like looking into a window where the curtains have been left ajar?

Marc H. Salton:

No, I would submit it’s not.

And why not?

Marc H. Salton:

Because the viewing is from a non-public place.

When the curtains are left–

Well, but the air space above… maybe that’s like a public thoroughfare for use by aircraft.

Marc H. Salton:

–It’s our submission that 400 feet and circling a private residence is not like a public thoroughfare.

The–

Well, 400 feet for a helicopter is a lawful use apparently.

You concede that the helicopter was lawfully at 400 feet, do you?

Marc H. Salton:

–I would concede that it’s arguably that it was, assuming FAA regulations are not violated, that it is a lawful place.

But you made no allegation that at 400 feet it was a hazard to anybody?

Marc H. Salton:

No, we have not–

No.

Marc H. Salton:

–made that allegation.

Ten times the height of this room, approximately.

Marc H. Salton:

Approximately.

A lawful place, though, does not equate, Justice O’Connor, to continue the answer to your question, with a public place.

Marc H. Salton:

And I think it goes back to your first question.

If the curtains are left open and the police officer views it from the sidewalk leading to the house or from the roadway, that’s from the public place.

But if the police officer, to view into the open curtain, has to climb a tree on a neighbor’s yard, that may be a lawful place, but it’s not a public place.

Well, in today’s world do we have to define what’s a public thoroughfare in the air?

Is that what we have to do?

Marc H. Salton:

No.

I think we have to look at it under the facts of the particular case and determine whether in fact that is an area that the public would reasonably be expected to be or is normally in that place.

Well, most of us are accustomed to helicopters flying overhead rather frequently these days, aren’t we?

Marc H. Salton:

Flying overhead but not at 400 feet or less and circling private residence.

Or be accustomed to air traffic, whether helicopter or fixed-wing airplanes, is in the higher altitudes.

I mean, altitudes talked about in Ciraolo and–

Mr. Salton, is 400 feet above, right straight up here, public property?

Marc H. Salton:

–I’m not so sure it’s public property.

Congress has given the public a right of transit through navigable air space.

Is it public?

Marc H. Salton:

I would submit it’s not public property.

Can a helicopter fly through it?

Marc H. Salton:

A helicopter may fly through it.

May fly through it?

Marc H. Salton:

Yes.

Well, could it take a picture from it?

Marc H. Salton:

I would submit if they could fly through it, they can take a picture from it.

Could that person taking the picture be a policeman?

Marc H. Salton:

Yes, that person can be a policeman.

May I ask you, on this question of the public use of this particular air space, who flies helicopters?

I know police departments have them, the military has them, weather has them.

Do the… does the private citizen normally fly around in a helicopter?

Marc H. Salton:

I would say a private citizen does not normally fly around in a helicopter.

But, of course, I think common knowledge is that some private citizens do use helicopters for–

Well, is there anything in the record that tells us how many helicopter are operated by private citizens for their own personal use?

Marc H. Salton:

–No, there is nothing in the record to indicate that.

Mr. Salton, suppose I have a house that’s way out in the country.

It’s on a road out it’s very far removed.

It’s in the mountains somewhere.

And I choose to leave my curtains open and my blinds up.

The fact is the public can look in.

But there’s never any of the public up there, or very rarely is.

Could a police officer choose to go by and look in?

Marc H. Salton:

I would submit that your question goes to the reasonableness of a person’s expectations of privacy.

Right.

Is the mere fact that there are not many people normally on that street enough to create in me an expectation that’s valid against the law?

Marc H. Salton:

Yes.

I would submit that it is enough to create that expectation of privacy.

On, so the police cannot look into open windows in country homes?

Only in city homes?

Marc H. Salton:

If they position themselves in a non-public vantage point where the public–

It’s a public road, it’s just not used very often.

Marc H. Salton:

–Oh, I’m sorry.

I thought you meant–

It’s sort of like the air space.

Marc H. Salton:

–you meant… I misunderstood your question.

If he’s on the public road–

It’s a public road but the public rarely uses it.

There is almost never anybody up there.

Marc H. Salton:

–If the public uses that road, then I would submit that the police could look at it.

Why is that different from the helicopter example then?

Marc H. Salton:

Because–

There are very rarely helicopters up there, but they are free to be there.

Marc H. Salton:

–But they don’t fly at that altitude and circle private residences.

Just as the public very rarely goes up this mountain road I’m talking about.

Marc H. Salton:

If 400 feet was the particular viewing in this case… or, at least, we know at least 400 feet.

It may have been lower, but that’s unclear.

We know that the contents of that greenhouse were not viewable from the altitude that the police helicopter first flew to arrive over Riley’s residence.

It was not until… and the record indicates that the pilot indicated that they were a lot higher when they flew in than when they circled.

That did not become visible until they lowered to 400 feet, or possibly less, and circled the residence.

At that time, he was able to be in a position that he could see.

And what I am submitting is that that is different than the individual on the public road seeing into a window, even if the public road is not used frequently.

But, could the… in Justice Scalia’s example, a policeman you say could look in the window from the road, from the public road.

Well, would he have to drive on?

Could he stop and stare at the window saying,

“I can’t believe my eyes; I’d better make sure? “

Marc H. Salton:

If the window is open to the public road, I would assume the police officer could stop.

So, it isn’t the circling by the helicopter that really gets you, is it?

It’s just… would be all right if the helicopter just flew across at 400 feet and took a picture which permitted the warrant to be issued?

Marc H. Salton:

My position is that at 400 feet it would not because helicopters don’t normally fly at 400 feet.

And so your answer… your position would be the same if the helicopter just flew across–

Marc H. Salton:

Just flew over.

–the property at 400 feet–

Marc H. Salton:

At that altitude.

–and took a single picture, which was adequate to get a warrant?

Marc H. Salton:

Yes, that would be still my position because I think public can normally stop and does stop on public roads, but they don’t do the circling maneuvers and so forth in the airways.

I think, as Justice Scalia indicated in his concurrent opinion in O’Connor versus Ortega, the Fourth Amendment protects privacy, not solitude.

And I would submit that it’s not the public.

I think our society does not require the public to close up their homes, their windows from the chance or the non-public areas, shut out light, shut out nature, on the fear that somebody is going to surveil their home.

I don’t think society requires that.

Society requires people to take normal precautions.

And that is precautions from where the public is expected to be.

Mr. Salton, if we do reach the curtilage issue in our disposition of this case, do you think it makes some difference, or does it make no difference, the fact that there was a commercial raising of contraband going on in the greenhouse?

It wasn’t just a kitchen garden, so to speak.

Marc H. Salton:

Well, I would have to take issue with the commercial raising of–

It was just home consumption?

Marc H. Salton:

–We are talking basically 44 marijuana plants, and I would submit that 44 marijuana plants does not make a commercial operation.

The court in Ciraolo indicated they had little difficulty determining that his back yard was curtilage, and that contained 73 marijuana plants.

There is absolutely no evidence in the record that Michael Riley ever distributed, sold, or intended to distribute or sell one ounce of marijuana.

Is there any testimony at all in the record on that point?

Marc H. Salton:

None at all.

And–

So, all we know then is that the greenhouse was devoted to the raising of contraband?

The greenhouse had 44 marijuana plants.

Which are contraband.

Marc H. Salton:

–Which are illegal.

Yeah.

Do you think we should take that into consideration in deciding whether or not this complies with the curtilage rule?

Marc H. Salton:

No.

Not the fact that it contained a plant that was illegal.

If we were dealing with the phencyclidine laboratory that’s depicted in Dunn where sophisticated chemicals are used, trucks are going in and out, where we do have a large scale production of drugs–

What if there were hundreds of marijuana plants in this greenhouse?

Marc H. Salton:

–If there was a showing that we were dealing with the same type of situation in Dunn, then that would be a factor for the Court to consider.

But the mere presence of an illegal plant, I submit, does not take it out of the realm of the curtilage.

Does the record show anything else in the greenhouse except those 43 plants?

Marc H. Salton:

The record just shows 44 marijuana plants were in the greenhouse.

And our position is that it’s a gardening activity; obviously an illegal activity, but still activity associated with the home.

Well, how is it associated with the home in the sense that the phencyclidine was not associated with the home.

They are both close physically.

Marc H. Salton:

Well, one of the factors in Dunn was the… I think the court’s determination that the barn where the laboratory was, was outside the perimeter of the home, the fence perimeter of the home, and at least 60 yards form the home.

And determined that that was a factor to show that it was not connected or close to the home, like our greenhouse house is.

Well, do you think the result in Dunn would have been different if the phencyclidine operation in the barn were as close as this greenhouse?

Marc H. Salton:

I think it would be a factor that the Court would consider.

The Court indicated that it was not so that was more reason to consider it not part of the curtilage, but–

You think a marijuana garden is as connected with the domestic activities as an herb garden or a bunch of tomato plants or something like that?

Marc H. Salton:

–I think unless it’s a commercial operation, it’s a gardening activity.

Part of the domestic activities of the house, raising marijuana?

Marc H. Salton:

Unless it’s shown as a commercial activity, I would submit it is.

And it’s no different… the structure in that location is no different than the bathhouse, than the workshed, whatever you would see at that location.

The importance, obviously, of curtilage is that it bears on Riley’s reasonableness of his expectations of privacy because society has long recognized the home and curtilage as harboring a fundamental right to be free from government intrusion.

And unless Riley does some act to expose the contents of that greenhouse to the general public, he’s entitled to the reasonableness of the privacy expectations.

If we look at Florida’s bright-line rule, which is what they’re requesting, and that is basically that the helicopter should be able to fly wherever FAA regulations allow it to fly, what you then have are FAA regulations which are safety regulations dictating or having a significant bearing on Fourth Amendment privacy rights.

And I would submit that those regulations have no bearing on privacy and on the Fourth Amendment.

The FAA can change those regulations and basically what you have is a member of part of the Executive Branch of the government dictating Fourth Amendment privacy rights.

An interesting aspect of that would be that the FAA regulations under visual flight regulations, called VFR, restrict helicopters to 300 feet in congested areas.

In rural areas, they have no limitations as far as height limitations.

Which would basically mean that an individual in an urban area where homes are right on top of each other, at least under the FAA, would have more legitimate privacy expectations than someone in a rural area.

And I would submit that that defines common sense and defies the purposes of the Fourth Amendment.

In Ciraolo the court found–

Marc H. Salton:

Yes.

I think the court found that Ciraolo was within the curtilage.

–It was?

Marc H. Salton:

It was within the curtilage.

Yes.

Marc H. Salton:

They made that finding.

I think the import of Ciraolo, and this again goes to the public nature of the view, of the vantage point of the observation, at least eight times within that case there were phrases such as “public thoroughfare”, “public vantage point”, “public nature of the view”, and the fact that Ciraolo had opened his marijuana garden to the sky, so to speak… there was no enclosure, he took no precautions to view or to stop any member of the public who happened to fly over in the air where the public normally flies from viewing the marijuana… was a distinction in that case.

And, as the court said, the police are simply not required to avert their eyes if they’re in the same place the public is in normally.

And here, Riley took precautions to avert the viewing of this from the sky.

The fact that he was not completely successful, the fact that the police were able to position themselves in a position that again the public doesn’t ordinarily use to view these plants does not make his expectation unreasonable.

Mr. Salton, do you rely on the fact that they where specifically looking at this piece of property?

Would the case be any different if they had a routine practice of flying up and down through this area at 400 feet–

Marc H. Salton:

I think the Court–

–when they found this stuff?

Marc H. Salton:

–The Court pretty well rejected that argument in Ciraolo and made the determination that the fact that that was a focused viewing had no distinctions under the Fourth Amendment.

Of course, this was a much more focused viewing than that in which occurred in Ciraolo.

Marc H. Salton:

We went much lower and they could see much more.

And–

But, again, you don’t rely on that though?

It would have been the same case if–

Marc H. Salton:

–No, I–

–they had just been flying by at 400 feet?

Marc H. Salton:

–I’m not relying on that.

And that’s based on this Court’s decision in the Ciraolo case.

Florida’s bright-line rule, basically it would allow a helicopter to view everything before it as long as it’s flying in a safe manner.

And that basically is from 50 feet to 100 feet.

Not only the views of our curtilage is open to the police, but the inside of our homes.

If the helicopter could fly at 25 feet with safety within the FAA regulations and then could see the interior of a home… and I think of the California contemporary homes or, as Justice O’Connor indicated, the southwestern homes with open areas, all that is open to the view of the police.

I expect a lot of people don’t engage in nude sunbathing in their back yards because of helicopters, I would expect.

Certainly in urban areas they probably don’t engage in that practice on apartment house roofs for that reason.

So, I mean, what’s so extraordinary about the fact that if you want to have privacy, even inside your home, you’d better put a roof over it?

Marc H. Salton:

Well, how about a large glass opened area of a window?

A helicopter would have a view into the interior of the home where the intimacies of private lives take place.

And I don’t think society is prepared to say that we need to shut ourselves up in lock-tight, airtight boxes so that the government can’t look in.

And basically that’s what would happen under the theory of the government’s case of a public vantage point.

I submit that it would be no different if the police took the Goodyear blimp and hovered it 400 feet or 300 feet over a house and from there could view everything that was before it, everything that the family was coins, the private lives of the individuals.

There wouldn’t be any noise, there wouldn’t be any disruptions, and conceivably the blimp was in a lawful place.

But is society prepared to require everybody to shut ourselves off from light, from nature, from the beauty of their surroundings and basically–

Just to stop you from growing marijuana, that’s all.

[Laughter]

Marc H. Salton:

–Well, the fact that marijuana was growing here obviously resulted in this case.

But the point is that if the police can do it in this case, they can look at people’s associations, the political associations that they have.

Noncriminal activity is also an issue here.

The privacy of an individual in the home and in his yard is what is at stake in this particular case.

And if you allow the police, whether by means of a helicopter, whether by means of a hot air balloon, whether by means of climbing a tree, and being in a public place and looking into the home and the protected area around the home, society suffers.

And it suffers for what I submit are not legitimate law enforcement purposes.

Marc H. Salton:

And obviously society needs to balance their privacy with legitimate law enforcement concerns, but that’s not at stake here.

As the very well researched brief of petitioner indicates, they found approximately 5C-some reported cases dealing with aerial surveillance.

Well, approximately nine, or ten or eleven, dealt with surveillance of the curtilages and only five or six dealt with surveillance of structures within the cartilage.

The vast majority of those cases dealt with marijuana production in the open fields where large acreage, with large tracts of marijuana are being grown, whether on hillsides, whether in the woods.

That is the marijuana production in which the law enforcement needs to have its legitimate concerns.

The backyard marijuana plots, so to speak, is an insignificant aspect of helicopter use.

A determination by this court that a viewing by the police from a helicopter any other area of the home or the curtilage when privacy precautions have been taken is a search requiring a search warrant, and does not affect the surveillance of the open fields.

It does not affect the helicopter use to apprehend fleeing felons.

Let’s talk about that a minute.

Isn’t there rather wide use these days of police helicopters to apprehend suspects in cases of violent crime in urban areas?

Marc H. Salton:

It is used.

And don’t they come down fairly close to the ground to try to see if someone is fleeing or around in an area where some serious crime has been committed?

Marc H. Salton:

I wouldn’t call it frequent.

And the rule you’d have us… well, fairly often one reads about it.

The rule you’d have us adopt might discourage that kind of use, I suppose.

Marc H. Salton:

I think the helicopter can fly there lawfully.

So, the police can do that in terms of–

Just wouldn’t be able to use the evidence that they saw the suspect running down the alley or something of that sort?

Marc H. Salton:

–No, because there you have a fleeing felon situation and I believe that has always been or frequently found to be an exception to the search warrant requirement, the apprehension of a fleeing felon.

Consequently, there wouldn’t be a requirement for a warrant in that situation.

So, the ruling in this case would not affect the use of helicopters.

We’re simply talking about the use of helicopter to look into our homes.

And I would submit that society, balancing that off, the interests of the home, the privacy of the families and individuals in the home or the curtilage, outweighs the limited law enforcement use that we have in this particular situation.

The fact that a helicopter is intrusive or non-intrusive is not necessarily the factor itself.

The viewing of our intimate activities is just as disturbing, is just as violative of privacy rights to whether it’s accompanied by noise or not.

And I would submit to this court that allowing surveillance at low altitudes, below the altitudes normally used by the public, in such a manner to view into the curtilages and the privacies of our home is repugnant to the Fourth Amendment, it’s repugnant to a free society, and I would urge this Court to affirm the decision of the Florida Supreme Court.

Thank you.

William H. Rehnquist:

Thank you, Mr. Salton.

Mr. Thomson, you have one minute remaining.

Parker D. Thomson:

No rebuttal, your Honor.

William H. Rehnquist:

Well, the case is submitted and we’ll resume at one o’clock.