Summary of Florida v. Reilly 488 U.S. 445 (1989)

Statement of the case: The petitioner (State) argues that the evidence gathered when an officer in a helicopter overflew the accused’s greenhouse should be admitted since the surveillance of a person’s property from a helicopter does not constitute a search under the 4th Amendment, and no warrant is required.

Procedure below: The trial court granted the accused’s motion to suppress the evidence, and the Florida Court of Appeals, Second District, reversed, but certified to the Florida Supreme Court the question whether the helicopter surveillance constituted a “search” for which a warrant was required under the Federal Constitution’s Fourth Amendment. The Florida Supreme Court (1) held that because the accused had a reasonable expectation that his activities inside the greenhouse would remain private and out of the view of aerial observers, the helicopter surveillance constituted a “search” under the Fourth Amendment, (2) quashed the decision of the Court of Appeals, and (3) ordered the trial court’s suppression order reinstated. The U. S. Supreme Court granted certiorari.

Statement of facts: Police flew over Riley’s (D) property in a helicopter, about 400 feet above the ground. They viewed D’s partially covered greenhouse and observed marijuana plants inside.

Legal issue: Does the surveillance of a person’s property from a helicopter constitute a search under the 4th Amendment, requiring a warrant?

Holding: The surveillance of a person’s property from a helicopter does not constitute a search under the 4th Amendment, and no warrant is required.

Reasoning: (White, J.) One has an unreasonable expectation of privacy when it is lawful for the public to fly a helicopter above his property and observe open areas below. In this case, D’s expectation of privacy is unreasonable because private and commercial flights routinely fly over his property, and P’s helicopter did not interfere with D’s normal use of property. The helicopter flew over the home and looked into the curtilage of the home but still no reasonable expectation of privacy, no search was going on therefore the 4th was not implicated. But Justice White did place some limits by stating that the helicopter did not create a physical intrusion onto the D=s property.

Concurrence: (O’Connor, J.) The decision turns on whether members of the public travel the public airways at that height with sufficient regularity. The assumption is that there is considerable public use of airspace at 400 feet. The burden is on D to introduce evidence to the contrary.

Dissent: (Brennan, J.) Analysis turns on whether public observation is so commonplace to make D’s expectation of privacy unreasonable, not whether police had a right to fly in the airways.

Dissent: (Blackmun, J.) The burden of proving that the accused lacked a reasonable expectation of privacy should rest with the prosecution.

Legal analysis: This is another bad decision based on poor analysis by the majority. Where does the standard end; at 100 feet or how about 50 feet. Or how about using spy satellites that can take pictures down to 1 inch resolutions from 120 miles above the earth. The police officer flew up with the express purpose of looking down into the curtilage of the accused , and a search warrant should have been required. The court should take the intent of the officer into account when analyzing issues of this nature. Ordinarily, people do not fly around at 400 feet circling a neighborhood. What about the analysis in Katz? There was privacy in a glass public phone booth that was closed. The greenhouse was missing a couple of panels and done from an altitude of 400 feet-which is within the public navigable airspace. This was a 5-4 decision.

Summary– Conversations w/ false friends is not a search. Trespassing into open fields is not a search. Pen register and bank record surveillance not searches. Aerial surveillance not a search. Katz was supposed to have enhanced civil liberties for individuals has not really happened.

Factors of what is a search– 1- Nature of place observed- a home will be protected much more than what is going on in an open field. 2- The steps taken to enhance privacy- Did homeowner leave window curtains open or shut, did he put up a 6 or 10 foot fence around property or not. 3- Degree to which surveillance requires a physical intrusion onto the property- Where was the observer while all this was going on. In the air then it much less likely to be deemed a search if you enter the curtilage then it will more than likely result in a search. The trespass doctrine is still considered as in pre-Katz days. 4- Nature of the activity being observed- Are officers looking at private event or at other events that don’t have the same privacy connotations. 5- Availability to the general public of the technology used by the police- the more available the tech the less likely it will be a search. Since anyone can use binoculars then we should expect police to use them. 6- The extent to which the surveillance is unnecessarily invasive or disruptive- Like in Reilly, the helicopter was flying high and was not disruptive.