Law and Disorder

The Fourth Amendment from 10,000 feet: Things are looking down

By A.J. Wagner

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

– Fourth Amendment to the United States Constitution

Police should not, according to our Constitution, be able to enter into our private spaces and view or seize whatever they wish, at least not without a warrant. Yet, that is exactly what the City of Dayton proposes with an eye-in-the-sky airplane to fly 10,000 feet above Dayton taking pictures of whatever comes into view.

The Supreme Court of the United States has looked at this issue before and found similar activity to fall within the parameters of the Constitution. In Florida v. Riley, 488 U.S. 445 (1989), the Court said that police do not need a warrant to observe an individual’s property from public airspace.

A review of the facts, however, may show that Dayton’s surveillance is not an identical situation.

The Riley decision occurred after police in Florida got a tip that a man was growing marijuana on his property. The sheriff tried to see inside the man’s greenhouse but had no luck, so he got a helicopter and managed to see inside the greenhouse where two of the overhead glass panels were missing. There he spotted the reported marijuana. Based on this view, a warrant was obtained and the greenhouse was raided.

The trial court tossed the warrant after finding that there was a reasonable expectation of privacy inside the greenhouse. The Florida Court of Appeals disagreed, but the state’s Supreme Court reinstated the trial court decision.

The case was taken to the United States Supreme Court where the decision of the Florida Supreme Court was undone. The court reasoned that there can be no reasonable expectation of privacy in a greenhouse with broken panels open to view from above. Any citizen could have flown over the greenhouse at 400 feet and peered in, the officer did what any member of the public could do.

Justice O’Connor said the expectation of privacy is not surrendered just because “[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.” The question should be whether the public ever travels at such low altitude to obtain such a vantage point. If the public does not fly helicopters at such low altitude, then the expectation of privacy could exist. Nevertheless, since the greenhouse owner didn’t offer proof of the frequency of such flights, O’Connor concurred with the plurality.

Justice Brennan, joined by Marshall and Stevens, believed, as O’Connor did, that the key issue in the case was whether ordinary citizens were normally in the air above the defendant’s home. They argued, however, that because the chances of ordinary citizens having a helicopter to perform such a task were low, the burden should be on the police to show that such flights by the public were common.

The justices were focused on the issue of ordinary use of the skies because of the required “expectation of privacy” that applies to Fourth Amendment cases. Basically, if there is an expectation of privacy, a warrant must be obtained. That expectation is subjective – did the owner expect privacy in the area where the illegal item was sitting? – but it is also objective – would society expect there to be privacy in such a situation?

If planes or helicopters normally flew overhead at 400 feet, privacy in an open greenhouse could not be expected objectively. Thus, the concern about how often helicopters were seen over this farm.

A more recent decision, Kyllo v. United States, 533 U.S. 27 (2001), looked at the expectation of privacy in light of complicated technology and ruled that the use of thermal imaging by police required a warrant. Such equipment is not in the hands of the public, and therefore one can expect privacy because people would not normally be measuring the heat being thrown off by a house where marijuana is growing in the basement under lamps.

The technology of capturing pictures at 10,000 feet is likewise not ordinary. This special equipment will require a separate scrutiny from the courts than the helicopter at 400 feet. The images captured by such sophisticated technology will likely be fine for a person walking down the street where there is no expectation of privacy, but when the camera captures images from a backyard hidden by a privacy fence, the analysis could take a different turn.

So, if you live in a glass house, keep your glass repaired, use a frosted glaze and, as always, don’t throw rocks.


Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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