The Sheriff’s Office received an anonymous tip that the defendant was growing marijuana on his property. The defendant lived in a mobile home on five acres of rural property. A deputy saw a greenhouse behind the mobile home, but could not see inside as walls, trees and the mobile home blocked his view. However, the deputy could see that part of the greenhouse roof was missing. The deputy flew over the curtilage at 400 feet in a helicopter, and with his naked eye saw marijuana inside the greenhouse. A search warrant was obtained and executed, resulting in the discovery of marijuana.
Whether naked eye observations on a curtilage from 400 feet in a helicopter constitute a search?
No. The government may use air space consistent with public use.
The Supreme Court had previously approved flying a fixed wing aircraft at 1,000 feet over curtilage. The aircraft was in public airspace and complied with FAA regulations. Therefore, no reasonable expectation of privacy existed. The Court also approved flying over an industrial complex and taking photographs, as in Dow Chemical Co. v. United States.
In this case, the defendant had no reasonable expectation of privacy from the helicopter overflight. FAA regulations allow any helicopter to fly lower than fixed wing aircraft if its operation is conducted without hazard to persons or property on the ground.
488 U.S. 445, 109 S. Ct. 693 (1989)