By Hayden Brown
When is a search a “search”? The United States Supreme Court established a general answer to this question in the seminal Fourth Amendment case Katz v. United States. Justice Harlan’s concurring opinion in Katz held that in most situations, police intrusion becomes a search when it invades a person’s “reasonable expectation of privacy.” Justice Harlan’s analysis was later adopted by a majority of the Court in California v. Ciraolo. This formula was open to much interpretation, and later courts bore the burden of applying it to a myriad of situations—including the unique air law issue of aerial police surveillance of individuals’ homes and “curtilage,” or the area immediately surrounding the home. Current Supreme Court precedent holds that warrantless aerial police surveillance of a person’s fenced backyard and curtilage is generally permissible so long as the police officers are legally in the airspace and aircraft are not exceptionally rare in the area. This may come as a surprise to many homeowners around the country, who presumably believe they manifest a clear expectation of privacy in their backyards by erecting fences—structures intended to exclude wandering eyes. The Supreme Court of Hawai‘i recently considered the concerns of such homeowners when it correctly ruled that warrantless aerial police surveillance of backyards and curtilage is impermissible under the Hawai‘ian state constitution. The Hawai‘ian high court interpreted the state constitution using the same reasonable expectation of privacy test employed by the U.S. Supreme Court in construing the Federal Constitution. The U.S. Supreme Court should reverse course on this important and timely air law issue and follow Quiday’s reasoning; the Supreme Court’s recent Fourth Amendment jurisprudence suggests that it may be willing to do so.
Hayden Brown, Note, Not in My Backyard: State v. Quiday and Warrantless Aerial Police Surveillance, 84 J. Air L. & Com. 117 (2019).