May 19, 2010
A man’s home may be his castle, but what about his backyard? Under the Fourth Amendment, a yard that adjoins a house is usually protected from warrantless searches – but on May 19, 1986, the U.S. Supreme Court ruled that an aerial “search” of a fenced-in yard doesn’t require a warrant, no matter how tall the fence.
In this case, the fence was 10 feet high. And as it turned out, the defendant needed every vertical inch, because some of the six dozen marijuana plants growing behind it were nearly 10 feet tall themselves.
An anonymous tip led Santa Clara police to the house, and faced with the formidable fence, the officers returned later that day in a private plane. They photographed the clearly identifiable flora and used the photos as evidence to obtain a search warrant. The defendant was later convicted of felony marijuana cultivation, but the verdict was reversed on Fourth Amendment grounds.
Chief Justice Warren Burger asserted that while the Fourth Amendment does protect citizens from warrantless searches of their yards, it does not protect them against observations by an officer ”from a public vantage point where he has a right to be and which renders the [illegal] activities clearly visible.” Writing for the 5-4 Supreme Court majority, Burger compared the officers’ airborne surveillance to peering through a knothole: “If there is an opening, the police may look.”
And while the defendant clearly had an expectation of privacy, Burger said that expectation wasn’t reasonable in this case. ”Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed,” Burger wrote. “…It is unreasonable for the respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.”
Especially when those plants are 10 feet tall.
Westlaw users: Read the Supreme Court’s ruling in California v. Ciraolo (106 S.Ct. 1809) on Westlaw. (Requires sign-on)