Florida v. Riley

The decision gave police officers unprecedented authority to surveil from the sky.

In August of 1984, Deputy Kurt Gell, a police officer with the Pasco County Sheriff's Office received an anonymous tip that Michael A. Riley was growing marijuana at his home, which was situated in a rural area. Deputy Gell surveilled the area on foot and found a greenhouse located near a mobile home. The home and greenhouse were surrounded by a fence, and the only two sides of the greenhouse that were not enclosed were obscured by trees and the mobile home. In order to see what the greenhouse contained, Deputy Gell flew a helicopter over the property at an altitude of approximately 400 feet. As two panels from the top of the greenhouse were missing, Gell was able to see inside, and he identified the plants inside the greenhouse as marijuana plants. Although Gell took pictures of the greenhouse, he testified that he was able to see inside the greenhouse and identify the plants as marijuana with his naked eye.

Based on these observations, Gell went to a magistrate and obtained a warrant to search Riley's property. Forty-four marijuana plants were found in the greenhouse, and Riley was charged with possession of marijuana. At trial, Riley moved to suppress the marijuana evidence, arguing that the aerial search of his property was a violation of the Fourth Amendment and that, as such, the fruits of the search should be excluded from trial. The trial court granted Riley's motion to suppress, but the Florida Court of Appeals reversed. The Florida Supreme Court, however, reversed the appeals court's decision and reinstated the order suppressing the evidence. The state of Florida appealed to the U.S. Supreme Court, which reversed the Florida Supreme Court's decision.

In a close decision, the High Court ruled by a vote of 5-4 that Gell's aerial surveillance was not unconstitutional. In the plurality opinion, written by Justice White, the Court asserted that one of its recent cases, California v. Ciraolo (1986), was the controlling precedent. In that case, police officers visually inspected the backyard of a house while flying a fixed-wing aircraft at an altitude of 1,000 feet. After identifying the presence of marijuana from that distance with their naked eyes, the officers obtained a search warrant based on the observations and found marijuana plants. In that case, the High Court held that the search was not subject to the Fourth Amendment and therefore not illegal. Quoting Katz v. United States (1967), another applicable precedent, the Court reiterated that "`[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.'" Generally, a person receives protection from unreasonable searches and seizures by police under the Fourth Amendment if the person has a reasonable expectation of privacy. A reasonable expectation of privacy is an objectively reasonable expectation that a police officer may not search around for evidence of a crime without first developing probable cause to believe that evidence of a crime can be found in the particular place. To determine whether a person has a reasonable expectation of privacy, courts look at a number of factors, including the capacity of persons to see a particular place with the naked eye.

In Florida v. Riley, Riley's expectation of privacy was not reasonable because the area for which he sought Fourth Amendment protection was visible to the naked eye from above. Quoting Ciraolo and Katz, the Court decided that Riley's expectation of privacy was unreasonable because we live "[i]n an age where private and commercial flight in the public airways is routine." Because Riley had left the roof of his greenhouse partially open, it was open to viewing from the air, and, since the police in Ciraolo did not need a warrant, Gell did not need a warrant.

That Gell's helicopter was flying at a low level of 400 feet above Riley's home was of no matter to the Court. The case would have been different, the Court allowed, if the police had observed any "intimate details" connected with the use of the home or curtilage, or "if flying at that altitude had been contrary to law or regulation." Because it is not illegal for a helicopter to fly at an altitude of 400 feet, such flights are not rare, and so Riley's anticipation that his property would not be observed from such a height was unreasonable.

Justice O'Connor concurred in the judgment, but only because she agreed that Gell's observation "did not violate an expectation of privacy `that society is prepared to recognize as reasonable.'" To O'Connor, though, the decision relied to heavily on compliance with regulations of the Federal Aviation Administration (FAA). "Because the FAA has decided that helicopters can lawfully operate at virtually any altitude so long as they pose no safety hazard," O'Connor argued, "it does not follow that the expectations of privacy `society is prepared to recognize as reasonable' simply mirror the FAA's concerns." O'Connor warned that the basis of the decision on police compliance with FAA standards could eventually erode privacy rights and quality of life. "[E]ven individuals who have taken effective precautions to ensure against ground-level observations cannot block off all conceivable aerial views of their outdoor patios and yards," noted O'Connor, "without entirely giving up their enjoyment of those areas." O'Connor opined that aerial observations lower than 400 feet "may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations."

Justices Brennan, Marshall, Stevens, and Blackmun dissented. In a dissenting opinion joined by Marshall and Stevens, Justice Brennan wrote that Justice O'Connor's opinion "gives reason to hope that this altitude [of 400 feet] may constitute a lower limit." Brennan lamented, however, that "four Justices would remove virtually all constitutional barriers to police surveillance from the vantage point of helicopters." "I cannot agree," Brennan stated, "that the Fourth Amendment . . . tolerates such an intrusion on privacy and personal security."

According to Brennan, Marshall, and Stevens, precedent called for an affirmation of the Florida Supreme Court's ruling. The Ciraolo case hinged on the fact that the officers in the plane were flying at an altitude of 1,000 feet, stated Brennan, not the legality of their location. Employing the standard for determining whether the defendant's expectation of privacy was reasonable, the Court in Ciraolo held that because plane traffic at 1,000 feet was so common, the defendant could not reasonably expect to keep private any activity that could be visible with the naked eye from that altitude. In Riley's case, though, Officer Gell was flying only 400 feet above the ground, enjoying an extraordinary vantage point and using "a very expensive and sophisticated piece of machinery to which few ordinary citizens have access."

Brennan ridiculed the plurality's emphasis on the absence of wind, noise, and dust. "Imagine a helicopter," wrote Brennan, "capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all . . . [or] any threat of injury." Brennan was also puzzled by the plurality's emphasis on the fact that Officer Gell had not seen any "intimate" activity while he was spying. "Where in the Fourth Amendment or in our cases," Brennan wondered, "is there any warrant for imposing a requirement that the activity observed must be `intimate' in order to be protected by the Constitution?" In Brennan's opinion, the Court was dismissing Riley's case "as a `drug case' only at the peril of [its] own liberties."

Brennan concluded the dissenting opinion with a quote from George Orwell's novel 1984:

The black-mustachio'd face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said . . . In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, swooping into people's windows.

"Who can read this passage without a shudder," Brennan asked, "and without the instinctive reaction that it depicts life in some country other than ours?"

In a shorter dissenting opinion, Justice Stevens noted that no High Court precedent indicated who had the burden of proving whether a person's expectation of privacy was reasonable. Stevens indicated that he would place the burden of such providing such proof on the prosecution in any case where the police had surveilled from an altitude of under 1,000 feet. In Riley's case, Stevens felt, the prosecution had not carried that burden.