Today in 1986: SCOTUS upholds aerial surveillance by police

May 19, 2016

Today in Legal HistoryThe widespread use of unmanned aerial vehicles (UAV), more commonly referred to as “drones,” has privacy advocates concerned.  And this should come as no surprise: Not only have drones become more affordable over the past few years such that the average consumer can afford them, but the Federal Aviation Administration (FAA) recently interpreted federal law to make attacking a UAV a felony.

Perhaps most troubling of all is that many law enforcement agencies across the country – including the Federal Bureau of Investigation – have begun using UAVs for surveillance purposes.

Thanks to a Supreme Court ruling, the question of whether such surveillance is permissible under the U.S. Constitution has already been answered – and in the affirmative.

That ruling, California v. Ciraolo, is celebrating its 30th anniversary today, having been decided on May 19, 1986.

Ciraolo begins with an anonymous tip received by the Santa Clara police that Dante Ciraolo was growing marijuana in his backyard, which was shielded from outside view at the ground level by two fences.  Officers trained in marijuana detection then flew over Ciraolo’s house in a private plane at an altitude of 1,000 feet.  The officers identified marijuana plants growing in Ciraolo’s backyard from this distance, and took photographs of as much.  The police obtained a search warrant using this information.

The police searched the premises using the warrant, and the marijuana plants were seized.

Ciraolo unsuccessfully moved to suppress the evidence obtained from the search, and subsequently pleaded guilty.  The California Court of Appeal reversed, finding that the “warrantless aerial observation of [Ciraolo]’s yard violated the Fourth Amendment.”

The Supreme Court agreed to review the case, and reversed 5-to-4.  The majority, written by Chief Justice Warren Burger, cited to 1967’s Katz v. U.S., finding that Ciraolo had no reasonable expectation of privacy “from  all observations of his backyard” since “[a]ny member of the public flying in this airspace who cared to glance down could have seen everything that the officers observed.”

On the other hand, the dissent, written by Lewis Powell, Jr., came to a different conclusion while also citing to Katz.  Powell cited to Justice Harlan’s concurrence in the Katz decision cautioning the Court against any Fourth Amendment legal standard that only proscribes “physical intrusions by police onto private property,” since such a standard “provides no real protection against surveillance techniques made possible through technology.”

Furthermore, the dissent argued that since “the actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent,” Ciraolo had a perfectly reasonable expectation of privacy in his backyard.

In the context of surveillance by aerial drones, this debate between Ciraolo’s majority and the dissent becomes even more pertinent.  But because only the majority’s stance is controlling precedent, the debate is now only a purely academic one – and aerial surveillance of private property by law enforcement is constitutional.

But that doesn’t mean that it always will be: 2012’s U.S. v. Jones may have revealed some willingness by the Court to adapt its Fourth Amendment jurisprudence vis-à-vis technological advances.  If the Court were to review a case involving evidence obtained using an aerial drone without a warrant, the current Ciraolo’s standard may be modified or erased.

But until such time, UAV aerial surveillance by police is wholly constitutional – thanks to Ciraolo.