Amicus Curiae Brief — California v. Ciraolo

Supreme Court, U-d-

FILED

oct 4 WS

No. 84-1513

——«

In the Supreme Court—

OF THE

United States

OL, JR.

OCTOBER TERM, 1984

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

VS.

DANTE CARLO CIRAOLO,

Respondent.

On Writ of Certiorari to the

California Court of Appeals

for the First Appellate District

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION

BEST AVAILABLE COPY

AND THE AMERICAN. CIVIL LIBERTIES UNION OF

NORTHERN CALIFORNIA AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

MARGARET C. CROSBY

ALAN L. SCHLOSSER Counsel of Record

EDWARD M. CHEN PuHiLip D. WITTE

American Civil Liberties Union 225 Bush Street

Foundation of Northern Post Office Box 7880

California, Inc. San Francisco, CA 94120

1663 Mission Street, Suite 460 Telephone: (415) 983-1000

San Francisco, CA 94103 Counsel for the American

(415) 621-2493 Civil Liberties Union and

Cuar es S. Sims the American Civil Liberties

American Civil Liberties Union Union of Northern

132 West 43rd Street California, Amici Curiae

New York, NY 10036 in Support of Respondent

(212) 944-9800

PILLSBURY, MADISON & SUTRO

225 Bush Street

Post Office Box 7880

San Francisco, CA 94120

Of Counsel

C. DouGLas FLoyp

JEFFRIES BANKNOTE CO. @ 425 CALIFORNIA ST. @ S.F., CA 94104 @ (415) 951-1300

TABLE OF CONTENTS

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SII suihsinctsuises teboblinieiesptucrnelipteiitnicsitiiaicibuipcenmaccwinincsgunnsadnegtion

I. Mr. Ciraolo possessed a reasonable expectation of

privacy in his enclosed backyard, which was entitled

to Fourth Amendment protection..............cccccceeeeeees

II. Areas not exposed to public view do not lose Fourth

Amendment protection because of the availability of

technologically enhanced surveillance methods. ........

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TABLE OF AUTHORITIES

Cases

Pageis)

Air Pollution Variance Bd. v. Western

I I ka soc cetnapodeseneseas 6

Berman ¥. New VOrR, S68 US. 41 ccciccec..ccccccscsscsosccsccssess 10

Coolidge v. New Hampshire, 403 U.S. 443.000.0000... 11,15

Dean v. Superior Court, 35 Cal.App.3d 112,

itd disasndidinakcibidcchnsssevescocscccees 11, 13

Fullbright v. United States, 392 F.2d 432,

ce BO | Sn 13

Goldman v. United States, 316 U.S. 129.000.0000. 10

G.M. Leasing Corp. v. United States,

EE ESE SS a 6

Gouled v. United States, 255 U.S. 298........................... 11

Johnson v. United States, 333 U.S. 10.........................004. 4

Katz v. United States, 389 U.S. 347....2, 3, 4,5, 7, 11, 15

i i cceessstiilandl 8

Oliver v. United States, 466 U.S. __.,

cee 3, 6,7, 8,9

Olmsteaa v. United States, 277 U.S. 438.0... 10

Payton v. New York, 445 U:S. 573.0... eeeeeeeeeees 6, 11

People v. Sneed, 32 Cal.App.3d 535, 108

I IE aiiiitinlas din ctclascshscbscctnscusadentesscsevicnevees 11,13

MB a... s cocasesccnsccccencsocconces 5,8

Schneckloth v. Bustamonte, 412 U.S. 218.00... 4

Smith v. Maryland, 442 U.S. 735.............cccessesseeeeees 5,7

State v. Arno, 90 Cal.App.3d 505,

i. a senncnensctononecs 13

State v. Kender, 60 Haw. 301, 588 P.2d 447.000.000.000... 13

United States v. Allen, 675 F.2d 1373,

certiorari denied 454 U.S. 833 ............cccceeeeeees 5, 10, 13

United States v. Carratala,

i ss acsoesnseundensenets 10

United States v. Di Re, 332 U.S. 581..........................000. 8

United States v. Karo, 468 U.S. ___.,

ESS SL 3,12

United States v. Kenaan, 496 F.2d 181.0000... 12

Pageis)

United States v. Kim, 415 F.Supp. 1252...........0... 10, 13

United States v. Knotts, 460 U.S. 276.................000 3,12

United States v. Robinson, 414 U.S. 218 ........... ee. 4

United States v. Taborda, 635 F.2d 131.............. 7, 10, 13

Warden v. Hayden, 387 U.S. 294..............ccccccccccossssssesseee 4

Constitutional Provisions

United States Constitution

POUT FR cain kcbsesdiidccsidinecictininthcidsscese 2, passim

Other Authorities

Amsterdam, Perspectives on the Fourth

Amendment (1974) 58 Minn.L.Rev. 349 ................... 15

| LaFave, Search and Seizure, A Treatise on

the Fourth Amendment (1978) ..............ccccceeeeeeeeeees 9,15

Ringel, Searches & Seizures, Arrests and

Confessions (1985).............06. Sisistitill Mabel cediiehiiadtsdbidedes 15

No. 84-1513

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1984

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

VS.

DANTE CARLO CIRAOLO,

Respondent.

On Writ of Certiorari to the

California Court of Appeals

for the First Appellate District

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE'

This case presents the question whether law enforcement

officers, without probable cause and without a search war-

rant, may conduct aerial! surveillance of the private area

immediately surrounding a home, or “curtilage,” which the

homeowner has protected from public view.

The American Civil Liberties Union (“ACLU”) is a

national, nonprofit organization of persons dedicated to

' Letters from counsel for both parties consenting to the filing of a brief amici

curiae are submitted with this brief.

2

safeguarding civil rights and civil liberties. The American

Civil Liberties Union of Northern California (““ACLU-

NC”) is the regional affiliate of the ACLU. These amici

curiae submit this brief because the argument advanced to

support the activities of the police in this case would, if

accepted, fundamentally alter our historic expectations

that the home and its immediate surroundings are areas in

which people may maintain privacy in their intimate

human relations and affairs. Reversal of the decision of the

California court in this case would destroy an expectation

of privacy which must be protected from intrusive, techno-

logically enhanced, governmental surveillance if the pur-

pose of the Fourth Amendment is to be achieved.

SUMMARY OF ARGUMENT

In Katz v. United States (1967) 389 U.S. 347, 351-352,

the Court set out a framework for resolution of Fourth

Amendment questions, which made clear that what a per-

son seeks to preserve as private may be constitutionally

protected. The principle applies to a person making a call

in a public telephone booth, and should apply with even

greater force to a person enjoying his private backyard.

Both individuals have reasonable expectations of privacy

which the state cannot invade without first obtaining a

search warrant.

In contrast to “open fields,” in which a person has

diminished privacy interests and expectations, curtilage,

the outdoor area immediately surrounding the home, was

considered by the common law to be part of the home itself

for search and seizure purposes. It is an area where inti-

mate and private human activities historically have oc-

curred, and must be permitted to continue to occur, free

from intrusive governmental surveillance, if privacy inter-

ests that lie at the core of our constitutional form of

government are to be preserved. Private activities which

are closely associated with and occur nearby the home

——

3

should not be invaded by inquisitive law enforcement of-

ficers without warrants (Oliver v. United States (1984) 466

US. , 104 S.Ct. 1735, 1741).

Technological advances in the area of surveillance

threaten to undermine the individual’s right to be secure in

his or her home from unreasonable searches. It is true that

matters which a person knowingly exposes to routine public

observation may also be viewed by the police. This Court's

decisions equally recognize that privacy interests in the

home which a person takes reasonable precautions to pro-

tect from public view do not evaporate simply because the

police may invade them by non-physically intrusive

methods of technological surveillance (United States v.

Karo (1984) 468 U.S. , 104 S.Ct. 3296; United States

v. Knotts (1983) 460 U.S. 276). The Fourth Amendment

must not be interpreted so narrowly that the police can

fundamentally alter historically recognized privacy inter-

ests in the curtilage by resorting to innovative surveillance

methods. The warrant requirement and the crucial prob-

able cause standard, both specified by the constitutional

text, are necessary protections to ensure that the general

public is safe from overzealous state intrusions into inti-

mate private matters.

ARGUMENT

I. MR. CIRAOLO POSSESSED A REASONABLE EX-

PECTATION OF PRIVACY IN HIS ENCLOSED BACK-

YARD, WHICH WAS ENTITLED TO FOURTH AMEND-

MENT PROTECTION.

Since Katz v. United States (1967) 389 U.S. 347, the

touchstone of Fourth Amendment analysis has been

whether a person has a “constitutionally protected reason-

able expectation of privacy” (Oliver v. United States

(1984) 466 U.S. ___., 104 S.Ct. 1735, 1740). In Katz, the

Court held that FBI agents had violated the Fourth

Amendment by failing to obtain a search warrant before

4

installing an electronic listening and recording device in a

public telephone booth to obtain evidence against Katz, a

suspected bookmaker. The Court recognized that, because

of the advent of eavesdropping devices, people’s privacy

could be unconstitutionally invaded without the necessity

of a technical trespass (Katz v. United States (1967) 389

U.S. 347, 353; see id. at 362 (Harlan, J., concurring)). The

Court stated that “what [a person] seeks to preserve as

private, even in an area accessible to the public, may be

constitutionally protected” (id. at 351-352). * In his con-

currence in Katz, Justice Harlan stated the standard for

determining whether particular searches violated the

Fourth Amendment as a two-part test: “first that a person

have exhibited an actual (subjective) expectation of priva-

cy and, second, that the expectation be one that society is

prepared to recognize as ‘reasonable’ ” (id. at 361).

In the instant case, there is no question that Mr. Ciraolo

exhibited a subjective expectation of privacy, and that this

expectation was reasonable. He protected his backyard

from outside observation by an exterior fence six feet in

height and by an interior fence rising about 10 feet, which

connected the perimeter fence to the house (Joint Ap-

pendix 11-12, 37-38). This act put the police (and everyone

else) on notice that Mr. Ciraolo had demarcated an area of

privacy. As the Court has stated:

“One of the main rights attaching to property is the right

to exclude others, see W. Blackstone, Commentaries,

Book 2, ch. 1, and one who owns or lawfully possesses or

2 The Katz Court also reiterated the rule that warrantless searches are per se

unreasonable under the Fourth Amendment, subject only to a few specifically

established and well-delineated exceptions (389 U.S. at 357)—none of which

are relevant to the case presently before the Court (e.g., search incident to

arrest (United States v. Robinson (1973) 414 U.S. 218, 235); search associat-

ed with “hot pursuit” (Warden v. Hayden (1967) 387 U.S. 294, 298-299);

search pursuant to consent (Schneckloth v. Bustamonte (1973) 412 US. 218,

222); and search for evidence threatened with removal or destruction (see

Johnson v. United States (1948) 333 U.S. 10, 15)).

10 ee eee ok eaten gona ee

5

controls property will in ail likelihood have a legitimate

expectation of privacy by virtue of this right to exclude”

(Rakas v. lilinois (1978) 439 U.S. 128, 144, n. 12).

The area searched in this case, Mr. Ciraolo’s private

backyard, was subject to a greater expectation of privacy

than the public telephone booth in Katz. A person who

swims in the family pool or sunbathes on the backyard

patio expects to be free to engage ‘n these activities without

being scrutinized from the air (see Brief for Petitioner on

Writ of Certiorari, hereinafter “Br. for Petitioner,” 9

(photograph revealed Mr. Ciraolo’s yard, family swimming

pool, patio and sun umbrella)).

It would be preposterous to assert that Mr. Ciraolo

surrendered his expectation of privacy by failing to prevent

a specially chartered police surveillance plane from in-

specting his property. Under the Fourth Amendment, sure-

ly a person should not be required to erect a roof or canopy

blocking the air and the light of the sun to preserve a

privacy interest in his own backyard.’ A person need only

take “normal! precautions to maintain his privacy—that is,

precautions customarily taken by those seeking privacy”

(Rakas v. Illinois, supra, 439 U.S. at 152 (Powell, J.,

concurring)). In Katz, for example, the individual had only

to close the glass door of the telephone booth behind him

(Katz v. United States, supra, 489 U.S. at 352). '

5 See United States v. Allen (9 Cir. 1980) 675 F.2d 1373, 1380. certiorari

denied (1981) 454 U.S. 833 (“{A] person need not construct an opaque

bubble over his or her land in order to have a reasonable expectation of

privacy * * *.”).

‘ Even if Mr. Ciraolo were aware that his neighborhood was subject to air

surveiilance, his Fourth Amendment protections would not disappear. Con-

tinued violations should not be allowed to justify themselves. Along the same

lines, the Court in Smith vy. Maryland (1978) 441 U.S. 735, 740-741, n. 5,

proposed a hypothetical in which the government suddenly announces on

nationwide television that all homes would henceforth be subject to warrant-

less entries. Expectations of privacy would be destroyed, but not reasonably,

and the Fourth Amendment would still be violated.

6

In its recent decision in Oliver v. United States (1984)

466 U.S. ___, 104 S.Ct. 1735, this Court, while not

resolving the question presented here (see id. at 1742, n.

11), sharply distinguished between the reasonability of an

individual’s historically recognized privacy interest in the

“curtilage,” or area immediately surrounding the home,

and an “open field.” Sustaining the search of “open fields”

in that case, the Court noted that several factors determine

whether a privacy interest is entitled to Fourth Amend-

ment protection, including the intention of the Framers,

the uses for which a particular location is customarily

employed and “our societal understanding that certain

areas deserve the most scrupulous protection from govern-

ment invasion * * *” (id. at 1741). In light of these factors,

it concluded that “an individual may not legitimately de-

mand privacy for activities conducted out of doors in fields,

except in the area immediately surrounding the home”

(ibid.) (emphasis added). The Fourth Amendment

“reflects the recognition of the Founders that certain en-

claves should be free from arbitrary government interfer-

ence,” particularly the “sanctity of the home” (ibid.).

Further,

“the common law distinguished ‘open fields’ from the

‘curtilage,’ the land immediately surrounding and as-

sociated with the home. * * * At common law, the

curtilage is the area to which extends the intimate activi-

ty associated with the ‘sanctity of a man’s home and the

privacies of life, * * * and therefore has been considered

part of home itself for Fourth Amendment purposes”

(id. at 1742) (emphasis added). °

5 The Court cited with approval lower court decisions which enforced Fourth

Amendment protections in the area immediately adjacent to the home (104

S.Ct. at 1742), See also Payton v. New York (1979) 445 U.S. 537, 587,

quoting G.M. Leasing Corp. v. United States (1976) 429 U.S. 338, 354

(distinguishing between a warrantless seizure in open area and on private

premises); Air Pollution Variance Bd. v. Western Alfalfa (1974) 416 US.

(footnote continued on next page)

~ ee

7

The State’s arguments to the contrary rest on funda-

mental misconceptions repeatedly rejected by this Court’s

decisions. Primarily, the State argues that the historical

protection of the curtilage extends only to “warrantless

physical intrusions” (Br. for Petitioner 12; see id. at 20-

21), despite this Court’s repeated holdings that a physical

trespass is neither necessary (see, e.g., Katz v. United

States, supra, 389 U.S. 347, 353) nor sufficient (Oliver v.

United States, supra, 104 S.Ct. 1735) to establish a Fourth

Amendment violation.

Similarly, the State asserts that Mr. Ciraolo’s subjective

expectation was that the police would not discover his

contraband, and concludes that such an expectation is

unreasonable (Br. for Petitioner 16-21). Under this anal-

ysis, Katz would not have been protected by the Fourth

Amendment since his subjective expectation was that the

FBI agents would not overhear his telephone conversation.

The correct approach is to focus on expectations of privacy

which people generally have in their homes and backyards

(or, in Katz, the telephone booth), rather than solely on

suspected unlawful activity occurring there. What is criti-

cal is that a person has sought “to preserve [something] as

private” (Smith v. Maryland (1978) 442 U.S. 735, 740,

quoting Katz v. United States, supra, 389 U.S. at 351). As

one court stated:

“We take this first factor to mean in essence that the

defendant must have acted in such a way that it would

have been reasonable for him to expect that he would not

be observed” (United States v. Taborda (2 Cir. 1980)

635 F.2d 131, 137).

In Katz, for example, the defendant occupied a telephone

booth, shut the door and paid the toll (389 U.S. at 352). In

(footnote continued from previous page)

861, 865 (Fourth Amendment protections do not extend to sights seen in open

fields).

8

the present case, Mr. Ciraolo erected high fences around

his backyard. °

The State also misinterprets the requirement that the

expectation of privacy must be reasonable. The question is

not whether a person should be allowed to engage in illegal

activities or possess contraband (see Br. for Petitioner 22-

23). An illegal search is not made legal by the evidence it

uncovers (United States v. Di Re (1948) 332 U.S. 581,

595). A warrantless search normally is unconstitutional

even if contraband is found. The safeguards of the Fourth

Amendment protect all individuals, known or suspected

offenders as well as innocent people (Ker v. California

(1963) 374 U.S. 23, 33). The controlling question is

whether the police’s intrusion infringed upon the personal

and societal values protected by the Fourth Amendment

(Oliver v. United States, supra, 104 S.Ct. at 1743). As the

Court has stated:

“Legitimation of expectations of privacy by law must

have a source outside of the Fourth Amendment, either

bv reference to concepts of real or personal property law

or to understandings that are recognized and perinitted

' by society” (Rakas v. /ilinois, supra, 439 U.S. ai 144, n.

12).

Here, the expectation of privacy in a fenced-in backyard

has been recognized for centuries by Anglo-American com-

mon law and is supported by clear understandings

recognized by society. That expectation is surely reason-

able for Fourth Amendment purposes.

® There is no support in the record for the suggestion made in the brief for the

Criminal Justice Legal Foundation (hereinafter “Br. for Legal Foundation”)

that Mr. Ciraolo’s backyard was in a regular flight path or subject to routine

overflight by commercial aircraft. In any event, the slight probability of

overflight by and unintended observation from such aircraft presents virtually

no threat to legitimate privacy interests and expectations, in marked contrast

to focused surveillance from 2 low-flying, specially chartered police airplane,

as in this case.

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9

The briefs submitted by petitioner and amicus curiae

Criminal Justice Legal Foundation contend that activities

that take place in a fenced-in residential backyard without

an opaque dome over it are activities “open to view” (Br.

for Petitioner 14), “obvious and patent” (id. at 25) and

“exposed to everyone” (id. at 33). The Legal Foundation

takes this premise to its illogical conclusion with the inven-

tion of a new exception to Fourth Amendment require-

ments: an alleged “open skies” exception (Br. for Legal

Foundation 14).

In essence, the Legal Foundation argues that the validity

of the search depends, not on the privacy associated with

the home and immediately surrounding areas, but on the

physical position of the police in surveilling those histori-

cally protected places (Br. for Legal Foundation 14). These

arguments are not only foreign to Fourth Amendment

doctrine but repugnant to society’s expectations of what is

private and what is not. They erroneously shift the focus of

analysis from the reasonability of privacy expectations as-

sociated with a particular area to the location or means

from or by which surveillance may be conducted. In this

society, people do not normally expect their neighbors or

the general public to surveil their backyards from an air-

plane. Uncritical use of labels like the “open skies” must

not be allowed to destroy this expectation. ‘ The “open

field” doctrine refers to the area searched, not the location

of the searchers (Oliver v. United States, supra, 104 S.Ct.

at 1741-1742). Professor LaFave agrees that this is the

proper analysis (1 LaFave, Search and Seizure, A Treatise

on the Fourth Amendment (1978) §§2.2 and 2.3 & Supp.

(1985)).

7 Of course, if a person’s backyard abuts a hill or a high-rise building, that

individual must recognize that these physical factors limit privacy, and the

individual should conduct backyard activities, such as sunbathing,

accordingly.

10

The fundamental issue presented by this case is whether

the historic privacy interest enjoyed by ail persons in their

homes and immediately surrounding areas will be

destroyed by exposure to extraordinary police surveillance

because of the possibility that illegal activity may occasion-

ally be discovered. The impairment of reasonable privacy

interests and attendant freedom from governmental intru-

sions that such a course would entail compels its rejection.

Il. AREAS NOT EXPOSED TO PUBLIC VIEW DO NOT

LOSE FOURTH AMENDMENT PROTECTION BE-

CAUSE OF THE AVAILABILITY OF TECHNOLOGI-

CALLY ENHANCED SURVEILLANCE METHODS.

The implications of the present case are far-reaching. As

early as 1928, Justice Brandeis warned, “The progress of

science in furnishing the Government with means of espio-

nage is not likely to stop with wire-tapping” (Olmstead v.

United States (1928) 277 U.S. 438, 474 (dissenting opin-

ion)). “ In 1967, the Court recognized that “|t]he law,

though jealous of individual privacy, has not kept pace with

these advances in scientific knowledge” (Berger v. New

York (1967) 388 U.S. 41, 49).

- It is not being alarmist to recognize that police use of

high- technology surveillance techniques poses a significant

threat to Fourth Amendment protections. Police have at

their disposal not only bugging devices, but thermal imag-

ing systems for night surveillance,’ high-powered optical

equipment,”’ seismic sensors," ultraviolet particle detec-

® Justice Murphy similarly commented that “the search of one’s home or office

no longer requires physical entry, for science has brought forth more effective

devices for the invasion of a person’s privacy * * *” (Goldman v. United

States (1942) 316 U.S. 129, 139 (dissenting opinion)).

* United States v. Carratala (S.D.Fla.) No. 83-393-Cr-SMA(s).

10 See, e.g., United States v. Taborda (2 Cir. 1980) 635 F.2d 131; United

States v. Kim (1976) 415 F.Supp. 1252.

1! United States v. Allen (9 Cir. 1980) 675 F.2d 1373, certiorari denied (1981)

454 US. 8°

1]

tors’ and a variety of surveillance aircraft.’ The federal

government has available to it much more sophisticated

technological innovations, including high-flying reconnais-

sance jets and spy satellites. In the technological age of law

enforcement, when abuse of power can damage lives as well

as render privacy impossible, the Court must interpret the

Fourth Amendment as it applies to novel surveillance

methods to preserve its original purpose (see Payton v. New

York (1979) 445 U.S. 573, 591, n. 33). ™

Katz v. United States (1967) 389 U.S. 347 illustrates

this Court’s willingness to adapt its interpretation of the

Fourth Amendment to meet new threats to privacy inter-

ests posed by technology. By shifting the focus from the

protection of places to the protection of people, the Court

recognized that an individual’s privacy can be invaded

through an electronic device without the person even know-

ing it. Aerial searches of a person’s enclosed backyard pose

dangers to legitimate privacy interest as serious as and

precisely analogous to those posed by the bugging invali-

dated in Katz.

‘2 United States v. Kenaan (1 Cir. 1974) 496 F.2d 181.

'3 See, e.g., Dean v. Superior Court (1973) 35 Cal.App.3d 112, 110 Cal.Rptr.

585 (airplane); People v. Sneed (1973) 32 Cal.App.3d 535, 108 Cal.Rptr.

146 (helicopter).

‘4 Claims of police efficiency must not be allowed to be used as a pretext for

eroding Fourth Amendment protections. In a discussion of the warrant

requirement, the Court stated in Coolidge v. New Hampshire (1971) 403

U.S. 443, 481:

“It is not an inconvenience to be somehow ‘weighed’ against the claims of

police efficiency. It is, or should be, an importaht working part of our

machirery of government, operating as a matter of course to check the

‘well-intentioned but mistakenly over-zealous executive officers’ [Gouled

v. United States (1921) 255 U.S. 298, 304] who are a part of any system

of law enforcement.”

Although the Legal Found-tion argues that aerial searches are necessary to

locate small gardens in rural areas (Br. for Legal Foundation 22), Mr.

Ciraolo and his family do not live in some isolated, impenetrable location,

but in an urban area. This fact hints at the potential for abuse if warrantless

aerial searches are permitted on the grounds that no other method of law

enforcement is adequate.

12

In light of these technological developments, which ex-

pose the most intimate details of everyday living to inten-

sive government surveillance without the necessity of physi-

cal trespass, this Court has recognized that the focus of

Fourth Amendment analysis must be on a person’s reason-

able expectation of privacy in the area to be protected,

rather than on the means which the government may em-

ploy to invade that privacy. In United States v. Karo

(1984) 468 U.S. ___., 104 S.Ct. 3296, the Court held that

the warrantless monitoring of an electronic beeper in a

private residence violated the Fourth Amendment. Since

the government obtained information that could not have

been obtained by observation by members of the general

public from outside the curtilage of the house, reasonable

expectations of privacy were infringed just as if a govern-

ment agent had entered the house without a warrant to

search for the object sought.

“Indiscriminate monitoring of property that has been

withdrawn from public view would present far too seri-

Ous a threat to privacy interests in the home to escape

entirely some sort of Fourth Amendment oversight” (id.

at 3304).

Similarly, in the instant case, Mr. Ciraolo’s backyard had

been fenced from public view. It was only by means of a

specially chartered airplane flying at a low level that the

government was able to intrude into the privacy of the

curtilage.

In contrast, in United States v. Knotts (1983) 460 US.

276, the Court held that no violation occurred in the

monitoring of a beeper as it traveled in a car and arrived in

the area of a cabin. The critical factor distinguishing Karo

was that in Knotts, the beeper’s route could have been

observed by police or any member of the public stationed

along the way or following the suspect’s car on the public

highway (460 U.S. at 282, 285). “A person traveling in an

13

automobile on public thoroughfares has no reasonable ex-

pectations of privacy in his movements from one place to

another” (id. at 281). Thus, in Knotts, the information

obtained was “voluntarily conveyed to anyone who wanted

to look” (ic. .) (emphasis added). In such circumstances,

use of a beeper to assist the observation did not alter the

Fourth Amendment analysis. In contrast, in the present

case, as in Karo, the object of the police search was not

available to anyone who wanted to look, and was entitled to

Fourth Amendment protection against invasive surveil-

lance by a low-flying, specially chartered police aircraft.

The same analysis exposes the fallacy of the State’s

contention that the search in this case was analogous to

police observation from a nearby hill or from the window of

an apartment (Br. for Petitioner 19, 24-25). Although

some courts have invalidated such searches (e.g., United

States v. Kim (D.Haw. 1976) 415 F.Supp. 1252; State v.

Arno (1979) 90 Cal.App.3d 505, 153 Cal.Rptr. 624), they

raise a much different question than the instant case. In

such circumstances, a person’s property is by hypothesis

exposed to routine observation from locations which are

accessible to members of the general public. A person who

‘9 Many decisions have invalidated aerial searches and less intrusive warrant-

less surveillance involving technologically enhanced viewing where the place

searched was one to which (unlike an open field) a reasonable expectation of

privacy adhered. See, e.g., United States v. Taborda (2 Cir. 1980) 635 F.2d

131 (telescopic surveillance of interior of residence); United States v. Kim

(D.Haw. 1976) 415 F.Supp. 1252 (search into apartment using high-

powered telescope); People v. Sneed (1973) 32 Cal.App.3d 535, 108

Cal.Rptr. 146 (low-altitude helicopter search of private property); State v

Kender (1979) 60 Haw. 301, 588 P.2d 447 (telescopic search of backyard).

Decisions sustaining searches in similar circumstances have generally in-

volved situations in which the area was routinely exposed to public observa-

tion, was not protected from public view or was not closely associated with

the home (United States v. Allen (9 Cir. 1980) 675 F.2d 1373, certiorari

denied (1981) 454 U.S. 833 (helicopter search of property bordering federal

land routinely traversed by Coast Guard helicopters); Fullbright v. United

States (10 Cir. 1968) 392 F.2d 432, certiorari denied (1968) 393 U.S. 830

(search of open shed using binoculars); Dean v. Superior Court (1973) 35

Cal.App.3d 112, 110 Cal.Rptr. 585 (aerial search of unfenced three-quarter-

acre field)).

14

knowingly exposes his activities to routine public observa-

tion is not entitled to prevent the police from also looking.

In contrast, this case involved a setting in which routine

observation by the general public could neither reasonably

be anticipated nor guarded against. Here, the police used

invasive modern technology to conduct surveillance of pri-

vate areas that would not ordinarily be observable by

members of the public. *

Warrantless aerial surveillance, in ways different from

other methods of technologically aided surveillance, invites

abuse. Everything on the ground that is not covered with

blackout cloth is in open view. The homes and yards of

suspected offenders and wholly innocent people alike are

necessarily surveilled. Aerial searches are, in effect,

dragnets. Legitimizing them would alter society’s very con-

cept of privacy. If this Court were to announce a rule that

homeowners’ privacy expectations are now curtailed by

police surveillance from the air, the impact of this ruling

would extend beyond the curtilage. Once one accepts peti-

tioner’s premise that the “airways” are “an open place”

where the police must be expected to be, then private

activities on a sundeck or viewed through a skylight or

picture window would be as open to police surveillance as

activities in the backyard. As one commentator has

observed: |

“[A]nyone can protect himself against surveillance by

retiring to the cellar, cloaking all the windows with thick

caulking, turning off the lights and remaining absolutely

quiet. This much withdrawal is not required in order to

claim the benefit of the amendment because, if it were,

the amendment’s benefit would be too stingy to preserve

the kind of open society to which we are committed and

'6 The State acknowledges that it would have been improper to scale the fence

in this case to observe what was within the yard (Br. for Petitioner 20-21).

The rationale which would legitimize an equivalent or greater invasion of

privacy from an airplane or hovering helicopter is difficult to discern.

15

in which the amendment is supposed to function. What

kind of society is that?” (1 LaFave, Search and Seizure,

A Treatise on the Fourth Amendment (1978) §2.2 at

261, quoting with approval Amsterdam, Perspectives on

the Fourth Amendment (1974) 58 Minn.L.Rev. 349,

402). “

In sum, what a person “knowingly exposes to the public”

(Katz v. United States, supra, 489 U.S. at 351) is accorded

no Fourth Amendment protection. But a historically pri-

vate area which a person takes reasonable precautions to

guard from public view does not lose its constitutional

protection by virtue of the failure to take extraordinary

steps to guard against unusual police surveillance made

possible solely by modern technology. To require extraordi-

nary precautions to prevent such observations would funda-

mentally alter the protection of the Fourth Amendment as

we now understand it. The Fourth Amendment must not be

jettisoned because of crime statistics. As this Court stated

in Coolidge v. New Hampshire, supra, 403 U.S. at 455:

“In times of unrest, whether caused by crime or racial

conflict or fear of internal subversion, this basic law and

the values it represents may appear unrealistic or ‘ex-

travagant’ to some. But the values were those of the

authors of our fundamental constitutional concepts.”

‘7 To the same purpose, Ringel comments:

“It would be meaningless to say that people have a right to be free from

unreasonable searches if the right depends on making observation by out-

siders impossible, particularly in light of the sophisticated techniques of

surveillance available today” (Ringel, Searches & Seizures, Arrests and

Confessions (1985) §8.1 at 8-3).

16

CONCLUSION

For the foregoing reasons, the judgment of the

California Court of Appeals should be affirmed.

Respectfully submitted,

MARGARET C. CROSBY C. DouGLas FLoyp

ALAN L. SCHLOSSER Counsel of Record

EDWARD M. CHEN PHiuip D. WITTE

American Civil Liberties Union 225 Bush Street

Foundation of Northern Post Office Box 7880

California, Inc. San Francisco, CA 94120

1663 Mission Street, Suite 460 Telephone: (415) 983-1000

San Francisco, CA 94103 Counsel for the American

Telephone: (415) 621-2493 Civil Liberties Union and the

CHARLES S. SIMs American Civil Liberties

American Civil Liberties Union Union of Northern California,

132 West 43rd Street Amici Curiae in support of

New York, NY 10036 Respondent

Telephone: (212) 944-9800

PILLSBURY, MADISON & SUTRO

225 Bush Street

Post Office Box 7880

San Francisco, CA 94120

- Of Counsel