Boyd v. United *226 States, 116 U. S., at 635.

The activities under surveillance in Knotts took place on public streets, not in private homes. The state of California appealed the ruling to the U.S. Supreme Court which reversed the decision of the lower, appellate court. Ante, at 213-214. "[5]Id., at 178. A warrant issued,[1] and a search of the yard confirmed Shutz' aerial observations. The Court's reliance on Knotts reveals the second problem with its analysis. The State argues that respondent has "knowingly exposed" his backyard to aerial observation, because all that was seen was visible to the naked eye from any aircraft flying overhead. The court ultimately decided that open airspace constituted a public place and, therefore, citizens have no Fourth Amendment protection from any overflight made by law enforcement. That court held first that respondent's backyard marijuana garden was within the "curtilage" of his home, under Oliver v. United States, 466 U.S. 170 (1984). The Court finds support for this conclusion in United States v. Knotts, 460 U.S. 276 (1983). The activities under surveillance in Knotts took place on public streets, not in private homes. The dissent contends that the Court ignores Justice Harlan's warning in his concurrence in Katz v. United States, 389 U.S., at 361 - 362 , 88 S.Ct., at 516-517, that the Fourth Amendment should not be limited to proscribing only physical intrusions onto private property. ^ . 442 U.S., at 740, quoting Katz v. United States, supra, at 361 (Harlan, J., concurring). Warren Earl Burger. Ibid. 460 U.S., at 281-282. It was the officer's observation, not the photograph, that supported the warrant. This page was last edited on 22 December 2017, at 23:27.

As the foregoing discussion of the curtilage doctrine demonstrates, respondent's yard unquestionably was within the curtilage. 2 Oxford English Dictionary 1278 (1933). "[4]Oliver v. *220 United States, 466 U.S. 170, 182 (1984). From Free Law Project, a 501(c)(3) non-profit. . 2d 210, 1986 U.S. LEXIS 154, Docket Number: At the suppression hearing, respondent sought to introduce evidence showing that he did use his yard for domestic activities. All Rights Reserved

The dissent contends that the Court ignores Justice Harlan's warning in his concurrence in Katz v. United States, 389 U. S., at 361-362, that the Fourth Amendment should not be limited to proscribing only physical intrusions onto private property. Johnson v. United States, 333 U.S. 10, 14 (1948). [3] In Dow Chemical Co. v. United States, post, p. 227, decided today, we hold that the use of an aerial mapping camera to photograph an industrial manufacturing complex from navigable airspace similarly does not require a warrant under the Fourth Amendment.

"At the very core [of the Fourth Amendment] stands the right of a [person] to retreat into his own home and there be free from unreasonable governmental intrusion." That the area is within the curtilage does not itself bar all police observation.

Later that day, Officer Shutz, who was assigned to investigate, secured a private plane and flew over respondent's house at an altitude of 1,000 feet, within navigable airspace; he was accompanied by Officer Rodriguez. This line of reasoning is flawed. One may assume that the Court believes that citizens bear the risk that air travelers will observe activities occurring within backyards that are open to the sun and air. Ibid. Travelers on commercial flights, as well as private planes used for business or personal reasons, normally obtain at most a fleeting, anonymous, and nondiscriminating glimpse of the landscape and buildings over which they pass.
The Court's decision has serious implications for outdoor family activities conducted in the curtilage of a home. Katz announced a standard under which the occurrence of a search turned not on the physical position of the police conducting the surveillance, but on whether the surveillance in question had invaded a constitutionally protected reasonable expectation of privacy.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Syllabus. Since 1942, science has developed even more sophisticated means of surveillance. Since Officer Shutz could not see into this private family area from the street, the Court certainly would agree that he would have conducted an unreasonable search had he climbed over the fence, or used a ladder to peer into the yard without first securing a warrant. Since Katz, we have consistently held that the presence or absence of physical trespass by police is constitutionally irrelevant to the question whether society is prepared to recognize an asserted privacy interest as reasonable.

The Court in Dow emphasizes, moreover, that society accepts as reasonable citizens' expectations of privacy in the area immediately surrounding their homes.
Oliver v. United States, supra, at 180. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. The Court rejects that contention, holding that respondent's expectation of privacy in the curtilage of his home, although reasonable as to intrusions on the ground, was unreasonable as to surveillance from the navigable airspace. The claimed area here was immediately adjacent to a suburban home, surrounded by high double fences. The Court does not explain why this single fact deprives citizens of their privacy interest in outdoor activities in an enclosed curtilage. Brief for Petitioner 14-15.

Johnson v. United States, 333 U.S. 10, 14 (1948). Post, at 215-216. California v. Ciraolo, 476 U.S. 207 (1986) California v. Ciraolo. Id., at 182-183. Id., at 1089-1090, 208 Cal. Yet the Court approves purposeful police surveillance of that activity and area similar to that approved in Knotts with respect to public activities and areas. Moreover, the capability now exists for police to conduct intrusive surveillance without any physical penetration of the walls of homes or other structures that citizens may believe shelters their privacy. Any member of the public flying in this airspace who glanced down could have seen *214 everything that these officers observed. Id., at 630. I agree with that conclusion because of the close proximity of the yard to the house, the nature of some of the activities respondent conducted there,[7] and because he had taken steps to shield those activities from the view of passersby. As all of us know from personal experience, at least in passenger aircrafts, there rarely — if ever — is an opportunity for a practical observation and photographing of unlawful activity similar to that obtained by Officer Shutz in this case.

Since respondent had a reasonable expectation of privacy in his yard, aerial surveillance undertaken by the police for the purpose of discovering evidence of crime constituted a "search" within the meaning of the Fourth Amendment. Officer Shutz testified that the photograph did not identify the marijuana as such because it failed to reveal a "true representation" of the color of the plants: "you have to see it with the naked eye." . The indiscriminate nature of aerial surveillance, illustrated by Officer Shutz' photograph of respondent's home and enclosed yard as well as those of his neighbors, poses "far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight." [3] As was said more than four decades ago: "[T]he search of one's home or office no longer requires physical entry for science has brought forth far more effective devices for the invasion of a person's privacy than the direct and obvious methods of oppression which were detested by our forbears and which inspired the Fourth Amendment. None of the prior decisions of this Court is a precedent for today's decision. One may assume that the Court believes that citizens bear the risk that air travelers will observe activities occurring within backyards that are open to the sun and air. . denied, 351 U.S. 932 (1956)." The state of California appealed the ruling to the U.S. Supreme Court which reversed the decision of the lower, appellate court. The warrant was *210 executed the next day and 73 plants were seized; it is not disputed that these were marijuana. We turn, therefore, to the second inquiry under Katz, i. e., whether that expectation is reasonable. The Court does not explain why it finds this fact to be significant.


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