Amicus Curiae Brief — Florida v. Riley

No. 87-764 JOSEPH F. SPAMOL, JR.

x

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

STATE OF FLORIDA,

Petitioner,

MICHAEL A. RILEY,

Respondent.

On Writ Of Certiorari To The

Supreme Court of Florida

BRIEF ON BEHALF OF COMMUNITY

OUTREACH TO VIETNAM ERA RETURNEES, INC.,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

DEBORAH C. WYATT

Gordon & Wyatt

416 Park Street

Charlottesville, VA 22901

(804) 296-4130

Counsel for Amicus Curiae

EL RP ESE a a TT LD

APPELLATE PRINTING SERV N HERITAGE BLOG RICHMOND VA (804) 64

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TABLE OF AUTHORITIES

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CASES:

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476 U.S. 227 (ISBE) ccccccccccccccccccccccedO bh

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Katz v. United States,

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, No. 87-3605

(4th Cir., filed July 28, 1987)........... 3,9,10

13,18,19

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, 608 F.Supp. 945

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277 U.S. 438 ERD CoScoecccccocesccceccec®

People v. Sabo, 185 Cal. App. 3d 845, 230

Cal. Rptr. 170 (Ct. App. 1986)............17

511 So.2d 282 (FIM. 1987) .cccccccccccccece 9

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365 U.S. 505 (1961) .......6. see eeeeeeee oeee

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227 Va. 297, 315 S.E.2d. 235 (1984)....... 5

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WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (1971) ..ceceecccccccccrecereces 13

No. 87-764

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

On Writ of Certiorari to the Supreme Court of Florida

BRIEF ON BEHALF OF

COMMUNTTY OUTREACH TO VIETNAM ERA RETURNEES, INC.,

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

Community Outreach to Vietnam Era Returnees (COVER)

is an private, non-profit Virginia corporation whose

purpose is to provide counseling to Virginia’s Vietnam

veterans. It files this brief with the consent of both

2

parties 1, and urges that the decision below be affirmed.

Since its inception in 1979, COVER has counseled

approximately two thousand veterans of the Vietnam War.

ln connection with this service, COVER has had occasion

to observe the stress which has been caused to Vietnam

veterans by low-flying helicopter surveillance of their

homes, as is currently carried out anmually across

Virginia at altitudes admittedly as low as 200 feet as

part of Virginia’s "Marijuana Eradication Program".

For many veterans, who are for the most part law-

abiding citizens who have put their lives on the line to

fight enemies of this country, the low-altitude buzzing

of their homes and yards through use of large, military

helicopters is disturbingly similar to the tactics

employed against the enemy in the Vietnam conflict.

This Court may decide that the constitutional

guarantee of privacy in one’s home and curtilage does not

prevent the werrantless helicopter surveillance of such

areas at low altitudes. Such a decision would likely

1 Letters of consent have been filed with the Clerk

of this Court.

have a profound impact on Virginia’s Vietnam veterans by

legitimizing Virginia’s present program °.

ARGUMENT

WARRANTLESS SURVEILLANCE OF HOMES AT ALTITUDES

BELOW FIVE HUNDRED FEET VIOLATES CORE FOURTH

AMENDMENT PROTECTIONS.

The sanctity of the hame has always commanded a

special protection both under the Fourth Amendment to the

tin 2 on ed. It is where “privacy expectations

are most heightened." California v. Ciraolo, 476 U.S.

207, 213 (1986). The home is a haveri where one can

relax, be oneself, retreat from the rest of the world.

It is the “home base” from the troubles which dog one

elsewhere.

Justice William Blackstone said of the common law,

"And the law of England has so particular and terder a

regard to the immmity of a man’s house that it styles it

his castle and will never suffer it to be violated with

2 This program is presently being challenged in the

Fourth Circuit Court of Appeals by five citizens, none of

whom has any criminal record. Letcher v. Garrett,

No. 87-3605 (4th Cir., filed July 28, 1987). A decision

in Letcher is being held in abeyance pending the outcome

in this case by order dated March 18, 1988.

impunity." 4 W. BLACKSTONE, COMMENTARIES 1618 (Lewis

ed.) He continued, "For what is more sacred, what mre

inviolate, than the house of every citizen?" ° Jd.

(quotation cmitted).

The sanctity of the home was so special to the

drafters of this country’s Constitution that it was

explicitly protected not only in the Fourth but also the

Third Amendment. And so important to the drafters of the

Constitution was the haven of a home that, without a

warrant based “upon probable cause, supported by Oath or

affirmation,...", U.S.Const. amend IV, the home stands

inviolate even when it houses evidence of criminal

wrongdoings and even when this deference allows criminal

activity to go undetected. This is the price our society

was, at the time the Constitution was drafted, and

hopefully still is prepared to pay to preserve this

psychologically and sociologically important part of

life, a private hame.

Yet this concept of hame has never been confined to

an actual main structure. At the time the Fourth

> The actual quote was in Latin: Quod enim sanctius, quid

Amendment was written, a hame was often a collections of

buildings joined by a yard, and many private, cantral

activities of life were conducted outside of any central

structure. E.g., Wellford v. Commonwealth, 227 Va. 297,

315 S.E.2d. 235 (1984). Cooking was commonly performed

outside the house, as were laundering and other cleaning

tasks. Even bathing has often been conducted outside a

main building, either in the open or in a separate

structure. Similarly, outhouses, significantly called

“privies", have been commonplace in this country’s

history.

Though today many people live in apartment houses,

having chosen to limit their privacy to the physical

insides of four walls, the private lives of a significant

percentage of this country’s citizens still involve the

use of a yard, or curtilage. For many citizens, the

front yard and back remain as important a refuge from the

rest of the world as the house physically under a roof.

Bathing may in same cases still occur outside. Many

country dwellers continue to have privies, or outhouses,

and continue to air their laundry on lines in their yard.

It is not just rural dwellers, however, who have

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privacy interests in the open spaces connected with their

home. Hames with an authentic Spanish design often have

patios, large open spaces in the middle cf the house.

Suburban dwellers often share private social moments as

they relax in their backyards. Their patios may not be

in the center of the home, but they are no less private,

especially where other factors, such as fences or

woodland, protect the patios fram public view.

Thus, the walls of a house do not establish the

perimeters of the privacy of a "home" protected by the

Fourth Amendment. Rather, the curtilage around a home

is, for privacy purposes, part of the home itself. "The

protection afforded the curtilage is essentially a

protection of families and personal privacy in an area

intimately linked to the hame, both physically and

psychologically,..." California v. Ciraolo, 476 U.S. at

212-13 (1986).

It is therefore beyond argument that our citizens

have a reasonable, in fact heightened, expectation of

privacy in their curtilages as part of their hames.

E.g., Ciraolo. This expectation is so firmly entrenched

in our common law and societal values that specific proof

of subjective expectation of privacy in the home areas

has never been required to ward off warrantless searches.

Rather, the privacy expectation in the hame is

established de jure by the Fourth Amendment itself. E.g.

Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring) ("a man’s homes is,..., a place

where he expects privacy,...").

At common law, however, the rights associated with a

hame included all of the airspace over the property as

well. It was said that ownership of land extended to the

periphery of the universe. 1 COKE, INSTITUTES 18 (19th

ed. 1832). 4 This was the common law at the time the

Fourth Amendment was adopted.

This was only altered by Congress’ subsequent

passage of 49 U.S.C. § 1304, providing the way for modern

air transportation by providing for "freedom in transit".

Accordingly, in this century, expectation of privacy,

even while in the curtilage, is not an expectation from

* The Latin quotation is: "Qrjus est solum ejus est

usque ad coelum".

all possible viewing, as airplanes now regularly traverse

the airways. Rather, the expectation is necessarily

limited by the knowledge that, far overhead, a member of

the public may view the general outline of the house, the

location of the trees, a car and even the physical

location of a faceless person. This is part of the

realities and necessities of modern life.

Yet this reality does not alter the reasonable

expectation of privacy from anything closer or more

intrusive than this. For those whose yards are not

otherwise viewable by the public, it does not alter the

reasonable expectation that they and their lives will

remain basically anonymous and unobserved while in the

privacy of their curtilages.

However, with air transportation came the ability to

surveil by air. What is new and physically possible will

be tried by eager law enforcement officials. See, e.g.,

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

overturning Olmstead v. United States, 277 U.S. 438

(1928) (wiretap), and Goldman v. United States, 316 U.S.

129 (1942) (bugging device) ; Silverman v. United States,

365 U.S. 505 (1961) (spike mike driven into wall).

Not content with surveillance from normal airspace,

government agents throughout the country, see, e.g.,

Letcher v. Garrett, No. 87-3605 (4th Cir., filed July 28,

1987); NORML v. Mullen, 608 F.Supp. 945 (N.D. Cal. 1985),

remanded, 796 F.2d 276 (9th Cir. 1986), amended, 828 F.2d

536 (9th Cir. 1987); Riley v. State, 511 So.2d 282, (Fla.

1987), have begun to surveil at lower than normal public

airspace, at altitudes where precious anonymity is lost,

where private activities and faces, not viewable to the

public, may be seen and scrutinized.

This case then presents one of the latest, and

perhaps most constitutionally dangerous, technological

assaults on privacy, the intentional use of helicopters

to fly over homes, there to descend to altitudes low

enough to allow government agents to see what the general

public cannot, and to do so without any probable cause

whatsoever to believe that criminal activity is being

conducted.

The issue of aerial surveillance of the hame, like

other issues involving technological assaults on

a ye

10

protected privacy, see, €.g., Katz v. United States,

overturning Goldman v. United States, has become an issue

waiting to probe once again this country’s commitment to

the Fourth Amendment and to its contimmed vitality, and

to force anew a review of the purpose of that amendment.

For if descents to 400 feet are constitutionally

permissible in this case, so are descents to 200 feet, as

is now being challenged in Letcher v. Garrett, as are

descents to fifty feet, and, in fact, warrantless

searches of the curtilage by land, and the death knell of

home privacy has been sounded.

Yet this Court’s pronouncements in the recent cases

of California v. Ciraolo, 476 U.S. 207 (1986), and Dow

Chemica] Company v. United States, 476 U.S. 227 (1986),

do not invite such eradication of the Fourth Amendment.

In Ciraolo and Dow, the Court addressed for the first

time the Fourth Amendment implications of aerial

surveillance. Ciraolo involved an attempt to suppress

evidence gained by surveillance at 1000 feet; Dow

involved high-altitude aerial photographs of a commercial

facility.

In both decisions, the Court recognized the

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important, reasonable, and therefore legitimate privacy

expectations not only in a physical dwelling house but

equally in the curtilage around it. In Ciraolo, the

2 net ae le a ae

Court stated, "The protection afforded the curtilage is

essentially a protection of families and personal privacy

in an area intimately linked to the hame, both physically

and psychologically, where privacy expectations are most

heightened." 476 U.S. at 212-13. In Dow, the Court

noted, "We find it important that this is not an area

immediately adjacent to a private home, where privacy

expectations are most heightened." Id. at 237 n.4.

While recognizing the reasonable expectation of

privacy in the curtilage, the Court also recognized that

the Fourth Amendment does not require "law enforcement

officers to shield their eyes when passing by a hame on

public thoroughfares." Jd. at 213. Because — amd only

because -—- the evidence in Ciraolo was abtained from

“public navigable airspace", id., in what amounted to a

“public thoroughfare" (1000 feet), id., where "[a]ny

member of the public" could have been, id., it was seen

in plain view, not by virtue of a search.

Yet because new technologies can result in other

ae

12 —

forms of unreasonable intrusion, Katz v. United States,

389 U.S. 347 (1967), this Court’s opinion went further.

It passed the surveillance in Ciraolo through a second

test: whether it was conducted in an intrusive manner.

As discussed below, helicopter surveillance below 500

feet is not subject to logical plain view analysis and,

moreover, such low altitude surveillance presents an

inescapable tendency to intrusiveness.

A. An altitude of 400 feet is not a public

thoroughfare.

Altitudes for air traffic are established by the

Federal Aviation Administration (FAA). See 14 C.F.R. §

91.79. Those regulations provide that "no person may

operate an aircraft below" the following altitudes: 1000

feet over the highest obstacle within a radius of 2000

feet, when over congested areas; 500 feet above any

person, vessel, vehicle or structure in noncongested

areas.

The FAA, recognizing the special services that may

be provided by helicopter, then allows an exception for

helicopters, providing that helicopters may be operated

at less than the minimm altitudes under certain

13

conditions there set forth, including compliance with

routes and altitudes prescribed by the Administrator.

‘This ¢xception does not mean that altitudes under

500 feet may be considered normal public thoroughfares.

Webster supplies the following definition of

"thoroughfare":

1: a way or place through which there is passing:...

2: an unobstructed way open to the public

3: an important street or highway....

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2380 (1971).

This definition squares with the analysis in

Ciraolo. If evidence can by seen from a road along which

the public may legally be travelling, then an officer

need not "shield his eyes" when he too travels along such

a roadway.

Yet the public does not travel at 400 feet. The

lowest altitude which the public may use as "a way or

passage through" or as "an important [aerial] street or

highway" is 500 feet. Even this low an altitude is

seldom used, by the public or by govermments, according

to the record in Letcher v. Garrett, Joint Appendix at

285, 302, 355 & 363, amd is only permitted for air

traffic while over noncongested areas. The

———

« ee

14

public does not travel back and forth under 500 feet.

The FAA itself does not view altitudes under 500

feet as public thoroughfares. "Navigable airspace" is

defined by federal law, namely: “airspace above the

minimum altitudes...." 49 U.S.C. § 1301 (29). 14 C.F.R.

§ 91.79 then provides that helicopters "may be operated

at less than the minimms...." The fact that helicopters

are exempted fram the minimum does not change the

minimum, which stands at 1000 feet and 500 feet,

depending on area. 14 C.F.R. §91.79 (b) and (c).

Rather, this language is an explicit recognition that the

minimum altitude remains at 500 feet.

Florida basically acknowledges that the flight

involved in this case, a flight under 500 feet, was a

flight below the minimm altitude established for

navigable air space and that it was, therefore, not in

navigable airspace. Petitioner’s Brief on the Merits at

29-30. However, Florida argues for same “bright line”

rule, which rule is never enunciated but which would,

presumably, allow flights under 500 feet.

Yet the need for and utility of a “bright line"

approach serves yet another compelling reason for why

15

surveillance under 500 feet should not be permitted under

Fourth Amendment law. If the open-ended helicopter

exception determines what may be considered normal public

airspace for plain view purposes, then the exception

would swallow the rule, and all airspace, including six

inches above the ground, becomes plain view since no

altitude is wholly precluded for helicopters.

Such an analysis of the Fourth Amendment question

makes meaningless verbiage out of this Court’s discussion

of “public navigable airspace" ard the 1000 foot altitude

in Ciraolo, since under such an analysis al] airspace

becomes public navigable airspace. It further makes

meaningless this Court’s efforts in Oliver v. United

States, 466 U.S. 170 (1984), since all land, including

one foot out a backdoor, including an enclosed patio,

would become in essence an “open field" for purposes of

govermmental intrusion.

The error in such an analysis can be further seen by

considering the equivalent situation on the ground. A

person might leave a sidewalk and take a shortcut across

someone’s front lawn. Certainly this does not create a

new “public thoroughfare". Even if the owner were to

ek ll

16

give special permission to the person to do so, making

the shortcut "legal", this does not make the path

"public" and an officer taking the same shortcut for

surveillance purposes would not be in plain view of the

house or what goes on inside. Cf. Oliver v. United

States, 466 U.S. 170 (1984) (trespass in open fields and

in curtilage distinguished for purposes of Fourth

Amendment protection) .

So it is here. The fact that the FAA has granted an

exemption to helicopters to descend below 500 feet for

special purposes does not make this lower altitude a

public thoroughfare. Surveillance under 500 feet is

simply not in plain view.

That the 500 foot minimm is established by the FAA

rather than the Constitution does not affect the

constitutional analysis. The FAA has established, as it

was Charged to do, those altitudes which accommodate

interests in air travel with air safety and physical

intrusiveness. Expectations of privacy, which once

ascended above a hame to an infinite altitude, are now

curtailed to the extent one must expect anonymous flights

high overhead, and in no case closer than 500 feet.

17

There is no justification for encroaching even more upon

the sanctity of the home by removing this remaining

privacy security zone.

The FAA’s regulations have established the public

air highways. So established, constitutional analysis

must proceed therefrom just as a constitutional question

involving viewing from off a paved roadway would revolve

around the road in existence, not turn on speculation

that the road ought to be widened.

In light of all of the above, it is simply beyond

serious dispute that, when govermment agents descend

below 500 feet to surveil curtilages, they are departing

from any plain view vantage point and are viewing what

the public normally cannot see. Such surveillance,

without probable cause and a search warrant, violates the

Fourth Amendment. See, e.g., NORML v. Mullen; People v.

Sabo, 185 Cal.App.3d 845, 230 Cal. Rptr. 170 (Cal. App.

1986), cert. denied sub nom. California v. Sabo,

_U.S.__, 107 S.Ct. 2200 (1987).

B. Helicopters present special dangers of intrusiveness.

As the Supreme Court noted in California v. Ciraolo,

476 U.S. 207 (1986), “aerial cbservation of curtilage my

18

become invasive, either due to physical intrusiveness or

through modern technology which discloses to the senses

those intimate associations, objects or activities

otherwise imperceptible to police or fellow citizens."

Id. at 216 n.3. ‘Thus, the sheer ability to view what is

otherwise hidden itself makes surveillance intrusive.

In this case, the goverrmment implicitly admits that

the lower altitudes are sought to enable officials to see

what otherwise they cannct. Therefore it is admitted

that, whatever they look at during such low surveillance,

the officials are viewing “objects ... otherwise

imperceptible to police or fellow citizens." Id.

Not only objects but persons otherwise hidden from

public examination, who perhaps are working or sunbathing

without regard to their clothing, are suddenly exposed to

view. At 200 feet, the altitude presently used by the

Virginia State Police for marijuana surveillance, faces

can be discerned and recognized. Joint Appendix at 267-

68, Letcher v. Garrett, No. 87-3605 (4th Cir., filed July

28, 1987). Public anonymity is destroyed.

Not only are the flights intrusive because they

“disclose to the senses" what is “otherwise imperceptible

19

to police or fellow citizens", they are also physically

intrusive. In the record of Letcher v. Garrett, the

govermment conceded that the Bel] UH-1H (Huey) military

helicopters generally used for marijuana surveillance

could cause wind disturbance on the ground at 200 feet.

Joint Appendix at 231. The record in that case comteined

undisputed evidence that the helicopter surveillance as

conducted at 200 feet blew clothes off a clothesline,

broke limbs off a tree, frightened children, frightened

and greatly disturbed elderly individuals, and even blew

over an outhouse. E.g., Joint Appendix at 31-33, 45-46 &

108-09, Letcher v. Garrett. It was not disputed in that

case that the military helicopters were noisy and

disruptive from the ground, causing approximately three

times more noise and wind disturbance than averade

Civilian helicopters, and were sufficiently noisy that

the victims below could not even converse at a shout.

Joint Appendix at 272-73, 305 & 318, Letcher v. Garrett.

Florida, though on the one hand urging an elusive

"pright-line" rule, acknowledges exceptions when

helicopters are used in a harassing manner or are

physically intrusive, though Florida never defines or

20

even describes what it would consider to be physically

intrusive. The very need for such exceptions, drawn from

Ciraolo, further undercuts the feasibility of Florida’s

fuzzy “bright line".

Moreover, contrary to Florida’s implication that

abuses could be easily kept to a minimm, the records in

the cases of Letcher v. Garrett and NORML v. Mullen, 608

F.Supp. 945 (N.D. Cal. 1985), if not logic alone, quickly

disprove this hypothesis. Violations and abuses would

be virtually impossible to police in any effective manner

once the 500 foot minimum were discarded. The evidence

in Letcher v. Garrett, for example, indicated that,

despite mmerous citizen complaints, the government never

determined that any pilot had ever violated a directive.

Joint Appendix at 231 & 554, Letcher v. Garrett. Without

a pilot’s confession, it would be difficult if not

impossible for an isolated, rural civilian, on the

ground, to prove in any court the special harassing

nature and/or physical intrusiveness of any particular

flight. Such abuse can only be effectively policed when

governmental surveillance is confined to the altitudes of

normal public air traffic.

21

For all these reasons, the only feasible "bright

line" is that which establishes that surveillance in

normal navigable air space, that is above 500/1000 feet

— amd only such aerial surveillance — is in "plain

view" .>

It is no new discovery that what cannot find a hame

in logic mst retreat to an emotional enclave. In the

present case, the weight of Florida’s argument relies not

on sound analysis of Fourth Amendment law or Fourth

Amendment history. As pointed out, Florida never even

once defines its “bright line", whether, for example,

this line would allow all aerial surveillance, including

one foot off the ground. Rather than dwelling on such

questions of logic, Florida resorts to the emotional

rhetoric of the “war on drugs", making such emotionally-

charged statements as:

The practical law enforcement issue at stake

in this case is the degree to which we must

surrender in the war on drugs.

> Of course, if a helicopter needed to descend for some

other lawful and neutral purpose, such as for emergency medical

care, and during the descent evidence of a crime were viewed,

this would fall within traditional plain view analysis.

te we he — —_ _ ———

below 500 feet that the neutrality of the flight becomes relevart.

|

22

Petitioner’s Brief on the Merits at 27; see also Brief of

Airborne Law Enforcement Association, Inc., as Amicus

Curiae at 3 ("war against drugs").

COVER supports legitimate law enforcement efforts

towards the eradication of any illegal activity. Yet

even were warrantless, low-flying surveillance of the

curtilages of the populace important to such efforts,

which it is not ©, even rape, kidnapping, and murder have

never justified warrantless searches of the homes of

innocent and guilty alike. Such rhetoric as the "war on

drugs", itself now used as a "drug" on the masses as has

been observed by commentators, ought not to be allowed to

lull this country into discarding precious, fundamental

© As the evidence in the record of Letcher v.

Garrett, No. 87-3605 (4th Cir., filed July 28, 1987),

indicates, only a mimute percentage of marijuana

manufacturing occurs within the curtilages. E.g. Joint

Appendix at 105, 122-158, with 226 (mumber of occasions

marijuana retrieved from curtilages in 1985 program),

compared with 242-251 (overall seizures for 1985).

23

CONCLUSION

The only feasible as well as constitutional rule

regarding aerial surveillance is one which prohibits

aerial surveillance below normal public thoroughfares of

-500 feet or above.

Accordingly, the judgment below should be affirmed.

June 1988

Respectfully submitted,

—_ —

=

) _—_

D C. WYATT

n & Wyatt

416 Park Street

Charlottesville, VA 22901

(804) 296-4130

lf ; ;

e #

—_