This Recent Development endorses the qualified open view approach, but proposes a new list of considerations to be applied when evaluating an aerial surveillance case. This proposed analysis rejects the open fields doctrine. Instead, courts should apply the Katz test to aerial surveillance. The per se open view approach,however, which holds that no reasonable expectation of privacy can exist in any open area visible from the air, is too narrow to ensure protection of the public's privacy rights. A broader view of the open view approach, which will subject government air surveillance to the warrant requirement in certain circumstances, strikes a more satisfactory balance between the use of a potent investigatory tool and the preservation of constitutionally guaranteed privacy. Once the defendant has established a subjective expectation of privacy under the first part of the Katz test, the reasonableness of the warrantless observations should be examined.
Kurt L. Schmalz,
Warrantless Aerial Surveillance: A Constitutional Analysis,
35 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol35/iss2/4