California v. Ciraolo
Decided on May 19, 1986; 476 US 207


A. Issues Discussed: Search and seizure

B. Legal Question Presented:

Is the Fourth Amendment violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard?


A. Background:

"On September 2, 1982, Santa Clara Police received an anonymous telephone tip that marijuana was growing in respondent's backyard. Police were unable to observe the contents of respondent's yard from ground level because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Later that day, Officer Shutz, who was assigned to investigate, secured a private plane and flew over respondent's house at an altitude of 1,000 feet, within navigable airspace; he was accompanied by Officer Rodriguez. Both officers were trained in marijuana identification. From the overflight, the officers readily identified marijuana plants 8 feet to 10 feet in height growing in a 15- by 25-foot plot in respondent's yard; they photographed the area with a standard 35mm camera.

On September 8, 1982, Officer Shutz obtained a search warrant on the basis of an affidavit describing the anonymous tip and their observations; a photograph depicting respondent's house, the backyard, and neighboring homes was attached to the affidavit as an exhibit. The warrant was executed the next day and 73 plants were seized; it is not disputed that these were marijuana.

After the trial court denied respondent's motion to suppress the evidence of the search, respondent pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal reversed, however, on the ground that the warrantless aerial observation of respondent's yard which led to the issuance of the warrant violated the Fourth Amendment...."

On certiorari the US Supreme Court reversed the judgment of the California Court of Appeal.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by C. Douglas Floyd, Alan L. Schlosser, and Charles S. Sims; for the Civil Liberties Monitoring Project by Amitai Schwartz; and for the National Association of Criminal Defense Lawyers by John Kenneth Zwerling.

Marshall Warren Krause, by appointment of the Court, argued the cause for respondent. With him on the brief was Pamela Holmes Duncan.

Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Linley E. Pearson, Attorney General of Indiana, William E. Daily and Lisa M. Paunicka, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Charles M. Oberly, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Neil F. Hartigan, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Francis X. Bellotti, Attorney General of Massachusetts, William L. Webster, Attorney General of Missouri, Robert M. Spire, Attorney General-Designate of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Paul Bardacke, Attorney General of New Mexico, Anthony Celebrezze, Attorney General of Ohio, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Travis Medlock, Attorney General of South Carolina, Jeffrey Amestoy, Attorney General of Vermont, Gerald L. Baliles, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Archie G. McClintock, Attorney General of Wyoming; for Americans for Effective Law Enforcement Inc. et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales; for the Criminal Justice Legal Foundation by Christopher N. Heard; and for the Washington Legal Foundation by Daniel J. Popeo and George C. Smith.

Laurence K. Sullivan, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, and Eugene W. Kaster, Deputy Attorney General.


"The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.' ...[F]irst, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?

Clearly - and understandably - respondent has met the test of manifesting his own subjective intent and desire to maintain privacy as to his unlawful agricultural pursuits. However, we need not address that issue, for the State has not challenged the finding of the California Court of Appeal that respondent had such an expectation. It can reasonably be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least street-level views. So far as the normal sidewalk traffic was concerned, this fence served that purpose, because respondent 'took normal precautions to maintain his privacy.'

Yet a 10-foot fence might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus. Whether respondent therefore manifested a subjective expectation of privacy from all observations of his backyard, or whether instead he manifested merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in these circumstances. Respondent appears to challenge the authority of government to observe his activity from any vantage point or place if the viewing is motivated by a law enforcement purpose, and not the result of a casual, accidental observation.

We turn, therefore, to the second inquiry... whether that expectation is reasonable. In pursuing this inquiry, we must keep in mind that '[t]he test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity,' but instead 'whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'

...The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible....

In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye."

The US Supreme Court reversed the judgment of the California Court of Appeal.

Justice Vote: 4 Pro vs. 5 Con
  • Burger, W. Con (Wrote majority opinion)
  • White, B. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Stevens, J.P. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion)
  • Powell, L. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)
  • Blackmun, H. Pro (Joined dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the California Court of Appeal judgment; the Supreme Court reversed in a 5-4 vote, giving the ACLU an apparent loss.