Warrantless, Low-Flying Helicopter Search Allowed

The Supreme Court continued to march toward greater and greater intrusions on individ-ual privacy when it upheld, in a 5-4 decision, a search involving a heli-copter flying at 400 feet searching for marijuana growinginside a greenhouse. Florida v. Riley, No. 87-764 (January 23, 1989). The decision continues the recent trend of greater power to law enforcement.

The more law enforcement fails, the greater the invasion of privacy the court finds reasonable. Some police will hail this decision, which gives them greater powers to escalate the war on drugs. Unfortunately, the greater in-trusive powers will not make a dent in the drug trade and will harm inno-cents caught in the crossfire.

Many Supreme Court cases pre-ceding Riley document the significant loss of freedom due to the drug war:

•    Without probable cause (i.e., re-liable information that a certain individual has committed a specific crime), airport police can stop, detain and question travelers who fit a drug-cou-ier profile, a broad set of characteris-tics that supposedly resemble most drug dealers. Florida v. Royer, 460 U.S. 491 (1983); Florida v. Rodriguez , 469 U.S. 1 (1984); United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
•    Dogs may be used to sniff' a trav-eller's luggage without probable cause. United States v. Place, 426 U.S. 606 (1983).
•    Police are permitted to search automobiles and inside containers (i.e., glove compartments, brief cases, trunks, etc.) without a warrant. United States v. Ross, 456 U.S. 798 (1982).
•    Police can conduct surveillance of suspects with a transponder or beeper placed in the glove compartments, brief cases, trunks or other places inside vehicles. United States v. Knotts, 460 U.S. 276 (1983).
•    Police are allowed to search boats on inland waterways without probable cause. United States v. Villamonte-Mar-quez, 462 U.S. 579 (1983).
•    Police can acquire a warrant based on an anonymous tip from a face-less informant and search a private home. Illinois    v. Gates, 462 U.S.    213(1983).
•    Police are permitted to search pri-vate property surrounded by fences and "no trespassing" signs without a warrant. Ol-iver v. United States, 466 U.S. 170 (1984).
•    Police are permitted to search barns adjacent to a residence without a warrant, United States v. Dunn, 107 S.Ct. 1134 (1987).
•    Police are permitted to question motorists without suspicion of crimi-nal activity at a roadblock. Texas v. Brown, 460 U.S. 730 (1983).
•    Police are permitted to search backyards without a warrant while flying in an airplane. California v. Ciraolo, 476 U.S. 207 (1986).
•    Police can inspect bank records without the consent of the customer. United States v. Miller, 425 U.S. 435 (1976).
•    Police can record telephone numbers dialed from one's home tele-phone without the consent of the tele-phone subscriber. Smith v. Maryland, 442 U.S. 735 (1979).
•    Police can secretly tape record telephone or face-to-face conversations without consent of the party recorded and without a warrant. United States v. White, 401 U.S. 745 (1971).
•    Police can secretly read or in-spect materials in a person's trash bag without a warrant or probable cause. California v. Greenwood, 108 S.Ct. 1625 (1988).

A review of these decisions leads one to question whether the Supreme Court still believes that the right to privacy "is basic to a free society" and "implicit in the concept of ordered lib-erty," fundamental concepts laid out in the leading case of Wolf v. Colorado, 338 U.S. 25 (1949).

Riley was decided by a plurality decision authored by Justice White and joined by Chief Justice Rehnquist, Justice Scalia and Justice Kennedy. White framed the issue as "whether surveillance of the interior of a partially covered greenhouse in a residen-tial backyard from the vantage point of a helicopter located 400 feet above the greenhouse constitutes a 'search' for which a warrant is required...."

The plurality held that it was not a search requiring a warrant because "Riley could not reasonably have ex-pected that his greenhouse was pro-tected from public or official observa-tion from a helicopter...." That conclusion says a great deal about how lim-ited the legitimate expectation of pri-vacy has become in recent years. Worse yet, it also says a great deal about how intrusive the government is allowed, even expected, to be.

The Riley case developed when a county sheriff received an anonymous tip that marijuana was growing on Riley's property. Unable to see the inte-rior of the greenhouse from ground level, the investigating officer circled twice over the property in a helicopter at 400 feet, making naked-eye observa-tions through openings in the green-house roof and open sides. After ob-serving what he concluded was mari-juana, a search warrant was obtained and Riley was arrested.

Overhead flights equated with police cruisers

In the 1986 Calif v. Ciraolo deci-sion, the court had concluded that an airplane flying in the navigable air-space is akin to a police cruiser driving on the street and, therefore, police are allowed to inspect whatever they can see from that legal vantage point. The courth ad not,ed that flights in the public airspace are routine, and thus there can be no expectation of privacy.

Riley took this rationale further as the helicopter flew below the FAA safe - flight limit. The court noted that the 500-foot altitude limit isnot binding on helicopters saying: "We Would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace...." Does that mean that there is no limit how low a helicopter can go in making an investigatory search? Thankfully the plural-ity did not go that far, saying helicopter searches will not always pass constitu-tional muster merely because they are within the navigable airspace.

In order to find a violation of the Constitution in such cases the plural-ity said it would look for evidence of th e following elements: interference with normal use of the property; observation of "intimate details connected with the use of the home or curtilage"; and, "undue noise, wind, dust or threat of injury." The plurality found none of these problems existed with the search in this case.

In dissent, Justices Brennan, Marshall and Stevens denounced the reasoning of the plurality. Rather than merely looking at FAA regulations, the dissenters urged the plurality to con-sider whether the police helicopter activities are "consistent with the aims of a free and open society."

The dissenting opinion, written by Justice Brennan, was critical of the police cruiser analogy, saying that the vantage point of a police officer in a helicopter is "not one any citizen could readily share" as it "depended on his use of a very expensive and sophisti-cated piece of machinery to which few ordinary citizens have access." Brennan saw it as disingenuous to question the fact that Riley enjoyed virtually complete privacy in his backyard greenhouse that was invaded solely by the low-flying police helicopter.

Justice Brennan cited a half-dozen decisions that interpreted the purpose of the Fourth Amendment as being to safeguard the privacy and security of individuals and said "one wonders what the plurality believes the purpose of the Fourth Amendment to be." He pointed out it is not merely to protect an individual from noise, wind and dust—it is to protect privacy. With regard to the "intimate details" limita-tion on aerial searches noted in the plurality opinion the dissenters asked: where does the Constitution say that only intimate conduct is protected?

Brennan concluded:

"I hope it will be a matter of concern to my colleagues that the po-lice surveillance methods they would sanction were among those described 40 years ago in George Orwell's dread vision of life in the 1980s:

'The black-mustachio'd face gazed down from every commanding corner.

There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said.... In the far distance a helicopter skimmed down between the roofs, hovered for an instant like abluebottle, and darted away again with a curving flight. It was the Police Patrol, snoop-ing into people's windows.' G. Orwell,
Nineteen Eighty-Four (1949).

"Who can read this passage with-out a shudder, and without the instinctive reaction that it depicts life in some country other than ours?"

KBZ

References
Saltzburg, "Another Victim of Illegal Nar-cotics: the Fourth Amendment," 48 Univer-sity of Pittsburgh Law Review 1 (1986).
Wasserstrom, "The Incredible Shrinking Fourth Amendment," 21 American Crimi-nal Law Review 257 (1983).
Wisotsky, "Crackdown: the Emerging 'Drug Exception' to the Bill of Rights," 38Hastings Law Review 883 (1987).