Summary of the Argument
Petitioner's Brief:
The People of the State of California Counsel: John K. Van De Kamp, Attorney General; Steve White, Chief Assistant Attorney General - Criminal Division; Eugene Kaster, Deputy Attorney General |
Respondent's Brief:
Dante Ciraolo Counsel: Marshall Warren Krause; Pamela Holmes Duncan Krause, Baskin, Shell, Grant & Ballentine |
Petitioner's Summary of the Argument
|
Respondent's Summary of the Argument
|
The curtilage doctrine protects against warrantless physical intrusions into the home. A fence does not preclude all government views of curtilage from outside. A person may reasonably expect that an officer will not jump a fence or place a ladder against it. However, it does not follow that police in aircraft can never look into the yard. Thus, the fact that something would be unseen by police but for their use of an airplane does not constitutionally fulfill the mere hope that it will not be seen. Although this was Ciraolo's actual expectation, it is not one which society accepts as reasonable, especially when, as here, there exists specific justification for focusing upon his particular yard.
There is no reason why police should be precluded from observing what would be entirely visible to them as private citizens from the same vantage point. Texas v. Brown, 460 U.S. 730, 740 (1983). Such an observation notes something outside the home that was voluntarily exposed to anyone who looked. United States v. Knotts, 460 U.S. 276, 281 (1983); Katz v. United States, 389 U.S. at 351. The Court of Appeal's constitutionally protected area analysis erroneously hinges upon one's ability to close a yard to ground view and upon the characterization of an aerial observation as either directed or routine. Both criteria, uniformly rejected by other courts, would protect a few from being viewed by police performing what society considers to be activity open to view. Yet, these criteria fail to protect the many from aerial observations which are truly invasive of legitimate privacy expectations in the home. Aerial observation of curtilage may 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. That is not this case. Nothing was discovered in Ciraolo's yard that was concealed from aircraft. The police did not forfeit their right to observe, as they can on any routine aerial patrol, merely because they suspected Ciraolo in advance. Ciraolo's hope that police would not see is not protected by the Fourth Amendment. |
Respondent is entitled to the same protections in his enclosed, suburban backyard as in his home against warrantless searches for crime. Neither the limited scope of the information revealed by the aerial intrusion nor its lack of physical penetration are relevant to depriving respondent of his Fourth Amendment security rights.
Not only respondent's privacy, but an entire social attitude is at risk in this case. We face an explosion in technological advances capable of intruding into those aspects of life normally thought of as free of governmental surveillance unless the surveillance is authorized by a magistrate. Deprived of normally anticipated security, our society will lose values at the core of its strength. The decision of the police to jump respondent's fence by the warrantless use of an airplane was a deliberate and unnecessary evasion of the warrant requirement for the purpose of gathering evidence of crime. There is no waiver of Fourth Amendment rights by failing to retreat indoors when someone does not wish to be spied upon by the government. Vulnerability to an occasional view from a passing airplane is not comparable to a focused search, by trained experts, in an attempt to gather evidence of crime. Application of the Warrant Clause to the facts of this case would provide needed protections against unrestrained police investigations using technological advances which interfere with normal concepts of privacy. An administrative warrant solution is also possible where government inspections to enforce the laws are an appropriate enforcement procedure. |