Warrantless Air Searches of Yards Upheld

A sharply divided Supreme Court, expanding the aerial search powers of government, ruled Monday that police do not need warrants to fly over fenced residential yards to look for marijuana.

The justices, by a 5-4 vote, struck down a California appellate court ruling that had thrown out the conviction of a Santa Clara man accused of growing marijuana on the grounds that such surveillances violated the Fourth Amendment prohibition against unreasonable search and seizure of evidence.

EPA Aerial Photos

In another 5-4 decision, the court upheld the authority of the federal Environmental Protection Agency to take aerial photographs without a warrant of the facilities of a chemical firm suspected of violating clean-air laws. In the California case, the justices concluded that there was no legitimate expectation of privacy in a fenced backyard that could just as well be viewed by a utility line repairman or any passing aircraft.

“In an age where private and commercial flight in the public airways is routine, it is unreasonable for (the defendant) to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet,” Chief Justice Warren E. Burger wrote for the court.

‘Open Field’ Rulings

Under previous court rulings, an “open field,” such as a wooded area on private rural land, is not entitled to the privacy protections that the Constitution has long provided for the home.

In this instance, the justices concluded that the defendant’s “curtilage”--the fenced area immediately surrounding the home--should be treated the same as the “open field.”

In dissent, Justice Lewis F. Powell Jr., joined by Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun, rejected the analogy to commercial and private overflights. He said there is little chance that passengers in such planes would be willing or able to observe and report on criminal activity from the sky.

Powell, who ordinarily supports prosecutors in cases before the court, lamented the decision’s “serious implications” for backyard family activity.

“Aerial surveillance is nearly as intrusive on family privacy as physical trespass . . . “ Powell wrote. “It would appear that, after today, families can expect to be free of official surveillance only when they retreat behind the walls of their homes.”

California Victory

The ruling represents a substantial victory for California authorities and several law enforcement groups.

The impact could be considerable. Last December, the California Supreme Court, in another case, held that warrantless aerial surveillance of backyards violated state law barring unreasonable search and seizure. But, as attorneys in the case noted Monday, California’s Victims Bill of Rights Initiative, which was approved by voters in 1982 as Proposition 8, holds that evidence from such searches must be admitted in California courts if permitted under rulings of the U.S. Supreme Court.

Clearing the Air

Deputy state Atty. Gen. Laurence K. Sullivan, who represented the state before the justices, said that the decision would “clear the air” by removing doubt about the admissibility of such evidence.

Sullivan rejected the suggestion that the ruling would open the door to widespread invasions of privacy by law enforcement officials. “Police will still obtain search warrants whenever required,” he said.

However, Marshall F. Krause of Larkspur, the attorney who represented the marijuana suspect, said that the decision takes away “one of the most intimate areas” of privacy.

“I thought the justices would sympathize with the right to keep police out of your backyard,” Krause said. “This is a sorry day for civil liberties.”

The case (California vs. Ciraolo, 85-1513) began in 1982, when Santa Clara officers received an anonymous tip that marijuana was being grown in the backyard of the home of Dante Carlo Ciraolo. Police officers, unable to see over two fences that surrounded the yard, chartered a plane, flew over the area and identified and photographed a patch of 73 marijuana plants up to 10 feet tall.

Based on that evidence, the officers obtained a search warrant, seized the plants and arrested Ciraolo. After a trial court denied his attempt to suppress the evidence, Ciraolo pleaded guilty to cultivation of marijuana. But the California appellate court overturned the conviction, saying that the officers should have obtained a warrant before the overflight.

Chemical Firm Case

In the other aerial search case, the justices turned down contentions by the Dow Chemical Co. that the EPA’s surveillance and aerial photography of the company’s 2,000-acre facility in Midland, Mich., violated its right to privacy.

Burger, again writing the majority opinion (Dow Chemical vs. U.S., 84-1259), said that the industrial plant was comparable to an “open field” and, as such, “it is open to the view and observation of persons in aircraft lawfully in public airspace . . . sufficiently near the area for the reach of cameras.”

In dissent, Powell said that the EPA had penetrated “a private commercial enclave” where privacy interests could legitimately be claimed by the company.