Florida v. Riley: The Emerging Standard for Aerial Surveillance of the Curtilage
The expression, "a man's home is his castle," embodies one of the most cherished individual liberties in American society, the right to en-joy privacy and freedom from unreasonable government intrusion in the confines of one's home.' Recognizing the importance of this right, the first Senate adopted the fourth amendment, which protects individuals from unreasonable searches and seizures.
Initially, the United States Supreme Court narrowly construed the fourth amendment as protecting only physical intrusions of persons,houses, papers, and effects. Later, the Court expanded coverage of the fourth amendment to include the area immediately adjacent to the home and used in connection with it. This area is referred to as the curtilage and for fourth amendment purposes is considered part of the home itself. The curtilage does not extend to distant areas that could be considered open fields, which are not protected under the fourth amendment because they do not harbor the intimate activities that the fourth amendment is intended to protect from governmental interference or surveillance.
In recent years the increased use of aircraft by government officials to detect illegal activity in areas obstructed from view at ground level has threatened to reduce the amount of privacy traditionally enjoyed in the curtilages of personal residences. In California v. Ciraol the Court adopted a restrictive view of the amendment's protections, holding that police do not need a warrant to search curtilage areas from the air as long as the police operate at a legal altitude. Last term, in Florida v. Riley, a plurality of the Court affirmed the Ciraolo standard. Significantly, however, Justice O'Connor, who concurred in the judgment, and four dissenting justices determined that the proper standard to be applied in aerial surveillance cases should focus on the frequency of public flights at the altitude at which the officials were operating, rather than on whether the altitude was within legal limits.
This Recent Development examines the development of the curtilage doctrine to its present status. Part II examines the development of fourth amendment protection, particularly Katz v. United States, in which the Court determined that the scope of fourth amendment protection is governed by reference to objectively reasonable expectations of privacy.2 0 Part II also analyzes the aerial surveillance standards of California v. Ciraolo. Part III examines the recent decision of Florida v. Riley and compares the various opinions in the case. Finally, Part IV advocates a new standard to be applied to cases involving aerial surveillance of residential curtilages.