Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CALIFORNIA, Petitioner, v. DANTE CARLO CIRAOLO

No. 84-1513

December 10, 1985

The above-entitled matter came on for oral argument before the Supreme of the United States at 1:43 o'clock p.m.

APPEARANCES:

LAURENCE K. SULLIVAN, ESQ., Deputy Attorney General of California, San Francisco, California; on behalf of the petitioner.

MARSHALL WARREN KRAUSE, ESQ., Larkspur, California; appointed by this Court; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in California against Ciraolo.

Mr. Sullivan, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF LAURENCE K. SULLIVAN, ESQ., ON BEHALF OF THE PETITIONER

MR. SULLIVAN: Thank you. Mr. Chief Justice, and may it please the Court, this case is here on a writ of certiorari to the Court of Appeals for the State of California First Appellate District. That Court reversed a judgment of the Superior Court of the State of California for the County of Santa Clara convicting the respondent in this case, Dante Carlo Ciraolo, of marijuana cultivation, a felony in our state.

This case provides an opportunity for the Court to consider a fourth amendment issue relating to aerial observation which a very important tool used by a number of states as well as the federal government to detect and locate marijuana cultivation throughout this country.

California contends that warrant is not required for police to see what is knowingly exposed in a yard, fenced or not, to anyone who cares to look from navigable air space.

The facts in this case, Your Honors, are that the police received an anonymous complaint that marijuana could be seen growing in a yard at a home in the city of Santa Clara. An officer went by the house on foot, and from the street he saw a rear fence which had bamboo stakes attached to the top of it elevating the fence up to ten feet.

The officers undertook air observation from an airplane at an altitude of not less than 1,000 feet of ground level, and navigated through air traffic in a flight line with the San Jose, California, airport. Without visual or optical aids, the officers observed in the back yard at 15-by-25-foot marijuana garden which was composed, according to the officers' affidavit, of plants that he described as "full and approximately eight to ten feet tall." The officers from the aircraft took a photograph. They later obtained a search warrant, and they seized a total of 73 cultivated marijuana plants.

The respondent Ciraolo pled guilty in the trial court after unsuccessfully moving to suppress all the evidence resulting from the aerial observation, and as permitted by California law, he appealed the denial of the motion to suppress to the Court of Appeals. In reversing that, the appellate court held that the aerial observation was an unreasonable search under the Fourth Amendment, and the California Supreme Court denied a hearing.

The ultimate issue in this case is, as in the companion case, Dow, whether Ciraolo had an expectation of privacy against aerial observation of his garden that society is prepared to recognize as reasonable.

Our position in this case is straightforward. When a person's property is concealed from public view, then the fact of its possession is private, but if property is in public view, it is in no sense private, and hence it is not a subject of Fourth Amendment protection.

Ciraolo's garden, whatever else one can say about it, was knowingly exposed to the scrutiny, the observation, the identification, if you will, of literally anyone in aircraft above or around his property.

QUESTION: I take it the curtilage aspect is immaterial.

MR. SULLIVAN: In this case, Your Honor, it wouldn't matter if it was in the open field. It wouldn't matter if it was in the curtilage.

QUESTION: Well, it isn't in the open field, hut it is, as you say, open to view from above. Do you contest the fact that it was in the curtilage?

MR. SULLIVAN: No.

QUESTION: What do you understand the word "curtilage" to signify?

MR. SULLIVAN: My answer, Your Honor, is Ciraolo's yard. And that is the short answer. You can take various definitions of it. The one that i believe is most useful is, it is the area immediately surrounding the home to which extends the domestic activities of the household, which may be but need not necessarily be enclosed within a fence.

QUESTION: What would you say about a large greenhouse? Sometimes they have greenhouses these days that cover three or four acres, and even California's tall marijuana, a ten, twelve-foot greenhouse. Would it be the same. They could take pictures through the glass of the greenhouse, aerial pictures?

MR. SULLIVAN: If you can see, in my view, if you can see through the greenhouse, sure, you can take pictures, and the reason to me is --

QUESTION: And if you can persuade someone that that is marijuana --

MR. SULLIVAN: And if you can --

QUESTION: -- that is, if you are going to get a warrant before you actually seize it.

MR. SULLIVAN: And if you can persuade them that is marijuana, you should be able to get a warrant. To me the photography case, if that is what Your Honor is asking, specifying the -- or focusing on the photography that the officer did, to me it is indistinguishable from a case where the officer was looking down from the airplane, saw it, and had a stenographer and said, here, I am going to describe to you under oath right now what I am looking at. To me that was controlled by the Court's decision in Jacobson. You are controlling against the risk of misdescription.

QUESTION: Mr. Sullivan, I assume you agree that a police officer would not be authorized to make a ground entry examination of the curtilage in this case.

MR. SULLIVAN: Yes.

QUESTION: Now, what about a low level hovering helicopter examination?

MR. SULLIVAN: One of the attorneys --

QUESTION: Do you think there is a distinction there?

MR. SULLIVAN: One of the attorneys in the prior case, Your Honor, said that there is a California case, and that is right, there is. There is a California case, for what it is worth. Well, this is a California case, too, and we think it is wrong.

QUESTION: What is your view of --

MR. SULLIVAN: My view is that there are lots of other ways of handling that kind of problem. The Constitution doesn't necessarily constitutionalize FAA regulations. It seems to me there might well be remedies through an injunction action --

QUESTION: Is there a Fourth Amendment violation by virtue of the low level hovering helicopter in your view or not?

MR. SULLIVAN: I suspect that if you are hovering over 20 feet you have got a strong case that it may well be, but I am saying that if this Cort was ever presented with that situation, it probably would first look to the question of whether there realistically are better ways of adapting or controlling for that kind of abuse.

I don't mean to say in any way that cops should be going around hovering at 25 feet. I am saying that the Fourth Amendment does respond to the fact that there are remedies, and you don't necessarily have to constitutionalize something every time somebody says, gee, that really seems offensive to me.

QUESTION: Well, perhaps you don't, but do you recognize that there are Fourth Amendment limits to the type of technology and enhancement of ordinary powers of observation that police can use?

MR. SULLIVAN: The Fourth Amendment to my mind imposes limits on the expectations of privacy which people have that society is prepared to recognize. In this case --

QUESTION: Are we prepared to recognize an interest against the use of infrared photography or some other visual enhancement devices of that kind?

MR. SULLIVAN: In my view that would turn -- my feeling would be no, Your Honor. And the reason is, in the context of this case, is the same, is that we don't have people going around with infrared devices shooting at them through windows. We do have airplanes. We do have people that use airplanes for no other reason than to look down on the ground, including fenced yards.

So it seems to me there is a foreseeability aspect there, and that may well cross the line. The infrared problem may well do it. That may be enough to violate the Fourth Amendment. I am not saying that whatever technology exists police can use. I am saying that when you are dealing with something as routine, and I use that word purposely, because as I understand Mr. Ciraolo's position before this Court, it is not just that the public can see his yard. It is that the police can see it routinely, that that is okay, but what they can't do is view it when they think he has got marijuana, and they have a reasonable suspicion for thinking that.

QUESTION: May I follow up on one of Justice O'Connor's questions? She asked you about a ground intrusion, and you say that would violate the Fourth Amendment.

MR. SULLIVAN: Yes.

QUESTION: What if the police rented a fire truck or a tall crane and climbed up to the top of it and looked over the fence? Fourth Amendment violation or not?

MR. SULLIVAN: Yes, I think the ladder situation, the hook and ladder situation is a foreseeability problem, and I think I stated in my brief, Your Honor, that to my mind the reason why the knothole or the ladder hypothetical causes a problem is precisely because the homeowner has taken means to protect against the kind of intrusion you are talking about.

For example, in the knothole situation, the guy -- really the question is does he have to maintain his fence, because that is how the observation was made. That seems to me to be a quite different question from, does he have to take any protections at all, which is Ciraolo saying, no, he doesn't. That seems to me to be a categorically different question.

As far as the ladder is concerned, I go back to the proposition that ordinarily when you have a situation where a person can walk into a hotel lobby, which I did this morning, and saw sitting there aerial photography of Washington, including pictures of fenced residential yards, I think you are in a different situation than saying that the police can go up and take a hook and ladder truck and stair out over your fence.

I mean, putting aside, quite aside any physical invasiveness difference, and I think there probably is --

QUESTION: If that is your test, what if the respondent here had grown a big tree or something that partially but not totally concealed the marijuana plant because he wanted to avoid this very risk? Would he then be entitled to protection?

MR. SULLIVAN: If it is exposed to the air space, then it can't be a very good tree.

QUESTION: It is exposed to all except a very sharp-eyed police officer with a good, sharp camera, just as it is exposed on the ground unless you get a ladder. I am not sure --

MR. SULLIVAN: Well, that is not this case, Your Honor, because in this case the officer just had to look down, and he wasn't using --

QUESTION: I understand. My hypothetical is that. I am just wondering if you are saying that the Fourth Amendment protection would obtain if he tried but just didn't quite succeed in concealing it from the air.

MR. SULLIVAN: Yes. Well that is the same as the knothole question, and to my mind, to my mind there are a lot of permutations to that. Did he know that the tree only partially exposed it? It is like the knothole. Does someone have to take extreme measures to see it?

QUESTION: What is your answer to the knothole?

MR. SULLIVAN: Well, the answer to the knothole is that in many cases I can foresee it being perfectly legitimate. If I am walking down a sidewalk and I turn my head and I see a hole in a wall, and through it I see a plant, a marijuana plant, I don't consider that to be a violation of the Fourth Amendment. Before I am going to say it is a violation, I am going to ask a lot of questions, like what is the purpose of the hole? Some holes in fences are for seeing through. I mean, they give you a hole so that you can look through the fence.

I would want to know if the officer has to step off the sidewalk.

QUESTION: If it is a knothole you have to stand on a ladder to see through, then it is bad?

MR. SULLIVAN: Well, there are -- you have to draw distinctions that respond to people's foreseeabilities, to the foreseeability of situations. And it doesn't bother me to say that people don't expect the police to put a ladder up to their fence and to say at the same time that if a policeman is walking down the sidewalk and you left a hole like this in your fence and he turns his head and sees a marijuana plant, he can act on that. That distinction doesn't bother me at all, no.

In our view, Ciraolo cannot claim an expectation recognized by society that members of the public can see his marijuana garden but police may not do so any more than he could legitimately claim that redhaired people can see his marijuana garden from aircraft but not brownhaired people.

What the Fourth Amendment in cur view permits the police to do is to enter an area that is publicly accessible, and there, and certainly navigable air space is such an area, and there they may see what is normally exposed to view.

QUESTION: I would like to test out something in Justice O'Connor's question. Suppose there was invented, and maybe there has already been invented a gadget that can aim and go through the walls of a house and listen to the conversations inside. If the police did that, going through the walls of a private home, and recorded a conversation about some criminal activity, would that be a violation of the Fourth Amendment without a warrant?

MR. SULLIVAN: Yes, and I suspect the Court would spend about a half-page on that, citing the decision in Karo. In fact, I think there was the mention of parabolic microphones, that if the officer marches down the street and doesn't have the parabolic microphone on, it won't violate the Constitution, but if he starts aiming it routinely or randomly at anybody's house or in an focused way at someone's house specifically, it is going to violate it.

Sure, the exploitation of technology into the home can be threatening and invokes Fourth Amendment protections. I think that brings up, Your Honor, what I understand to be Ciraolo's core contention in this case, and that is that the statement in Oliver that the distinction between open fields and curtilage implies that the curtilage warrants the Fourth Amendment protections that attach to the home. That was the statement that I believe was made in the lead opinion.

I think what Ciraolo is asking this Court to do is to read that statement as meaning that the distinction between curtilage and the open field implies that the level of expectations in the home attached to the curtilage. That is not what the statement said. It said protections of the Fourth Amendment.

The level of privacy expected in the home, I submit to you, is different than the level of privacy outside in the curtilage because by custom, by habit, when we want the highest level of privacy, we retire into the home. It seems to me that in order to know what protections attach to the curtilage, one has to know what level of protection attaches to the home, but for this Court that is not a new question. That was answered in Katz, and it seems to me that Katz controls this case.

The statement was, around which this case seems to revolve like the moon around the earth is what a person knowingly exposes to the public even in his own home or office is not a subject of Fourth Amendment protection. But what he seeks to preserve as private even in an area accessible to the public may be protected.

Now, to my mind that doesn't take a lawyer to figure out what the court was saying. I mean, it responds to something that we all understand and know. It responds to the realities of life. If you keep something out of public view in your home or your curtilage the fact that some individual may have means of observing it does not mean that the government necessarily can do so without justification.

But if the public can see it by virtue of where you placed it, it doesn't matter if it was in your home or in your yard, and it doesn't matter that you hoped it would be secret from government, because you disclosed it. There is no privacy interest advanced protecting from observation what was entirely visible to everyone, including the officer who could have acted as a private citizen and observed the very same thing.

I think if that contention is accepted in this case, then all of Ciraolo's other arguments as far as fences acting as roofs or being a badge of expectation, as far as the focus argument that I can expect police to look at my yard routinely but I don't expect them to look at it when they have reasonable suspicion, all the rest of those arguments just seem to me to fall by the wayside.

QUESTION: Mr. Sullivan, in Oliver we had an open field a substantial distance from any residence. And you have just been talking about the privacy protected within a home. The curtilage, as suggested in Oliver, often is considered to be a part of the residential area occupied by a family. Your argument is, however, as I understand it, that that curtilage is more like an open field than it is like a home. Is that what your argument is?

MR. SULLIVAN: No, Your Honor, because if I was going to make that argument, I would be saying -- I would be contradicting myself in saying the police can walk into your back yard. They can't. And that is true whether or not, in my view, whether or not there is a fence or not. They can't walk into the curtilage. They can't physically trespass it.

QUESTION: They may photograph it.

MR. SULLIVAN: If they can see it -- I mean, all I have to argue, and what I am arguing is, if they can see it with the naked eye from air space, sure, they can take a camera and photograph exactly what they saw, which is what they did here.

QUESTION: And that would be true, for example, if you had a type residence with a patio in the back surrounded by a brick wall and, say, a swimming pool in one part of it, and marijuana being planted right beside the swimming pool. Same rule, I suppose, would be your argument.

MR. SULLIVAN: If you can see the marijuana with your naked eye from air space, I don't think it makes one whit of difference or not the officer has a camera with him or not, because all he is doing is -- the expectation of privacy vis-a-vis aerial observation wasn't there to begin with. You didn't have a secret from anyone --

QUESTION: From the air.

MR. SULLIVAN: From the air. That is right. You didn't have a secret to begin with. You didn't have a privacy interest from aerial observation to begin with, and therefore that expectation cannot be created through the fact that the officer having identified your marijuana now takes a picture of it so he can show the magistrate. I just don't understand that argument.

QUESTION: Mr. Sullivan, if I understand your argument, the case would be different for you if the marijuana, instead of being these very large plants, were tiny plants, and at 1,000 feet they would have to use high-powered equipment that was very, very sophisticated in order to detect the fact it was marijuana. It would be visible, but you couldn't really know what it was without the camera.

MR. SULLIVAN: I suspect that might well be a different case. Yes, Your Honor.

QUESTION: You would distinguish that case.

MR. SULLIVAN: I understand I was hearing the previous example given by Justice Powell, I believe, of looking through one of the glass buildings that has opaque windows in it, and using some sort of penetration aid to visually observe that. Well, to my mind, maybe I am being overly simplistic. The public doesn't carry those around with them. They can't see into the building. So maybe the government shouldn't be able to use that, at least not without some kind of regulation,

If that is true, all right, but that is not my case. What I am saying is that if the public can be there and if the police can be there and see the thing routinely, which I guess they can, because Ciraolo says random patrol is okay, why in the world can't they be there because they are following up their suspicion that led them to that place? It just doesn't make any sense to me.

I think that there is no constitutional requirement in this case that the government have a warrant. I think that there is no requirement that the constitution places on police that they have some quantum of suspicion for why they were looking. I think what they can do is go into navigable air space, and I think they can use their eyes, and I think they can see what everybody else can see.

Now, that may seem to be not the most earthshaking proposition this Court has ever heard, but I think it is all that this Court needs to say in order to reverse the Court of Appeals. And I urge it to do so

CHIEF JUSTICE BURGER: Mr. Krause?

ORAL ARGUMENT OF MARSHALL WARREN KRAUSE, ESQ., APPOINTED BY THIS COURT, ON BEHALF OF THE RESPONDENT

MR. KRAUSE: Mr. Chief Justice, and may it please the Court, there is a word that hasn't been mentioned much today, and that is the warrant. The warrant clause of the Fourth Amendment is what we think is extremely and most significant in this case. There are very good reasons for requiring a warrant, and I don't need to repeat them here because this Court has repeated them in Katz and in Comera and in Karo, and we all know what they are.

Now, there are exceptions to the warrant requirement, and they show that privacy or security in our society is never 100 percent pure or 100 percent secured. There is always the possibility, no matter how private and intimate an area is, that smoke will be discovered, and the fire department will come in, despite your protestations that this is Fourth Amendment sacred ground.

There is always the possibility that there will be an accidental entry, that the police acting legitimately make a mistake as to the address and come into your home and your privacy is invaded, and anything that is seen in plain view during that invasion is subject to admission in a criminal court, because it is in plain view while the police are acting properly.

A friend can breach your trust and tell the police everything that you said in confidence, and there will be an occasionally air traveler who can look down into your back yard, no matter how private you would like it to be with your swimming pool and your other private activities in your back yard. There will be an occasional air traveler.

Why does that deprive Mr. Ciraolo of privacy any more than these other exceptions to the warrant clause? Why does that excuse the police from taking the perfectly reasonable step of taking their anonymous tip and what other information they could gather by appropriate police work and presenting it to a magistrate and getting appropriate authority to invade the privacy?

QUESTION: I suppose the answer to that is, they didn't have probable cause.

MR. KRAUSE: Well, I don't know whether it is up to us to say that. If they didn't have probable cause on the facts that are in this record, they could have investigated more. They could have determined if Ciraolo was perhaps named in another police report with regard to marijuana cultivation. They could have done innumerable things.

Instead, the police decided that they were going to be the magistrate and they were going to authorize a search of Mr. Ciraolo's curtilage, his back yard. I think that kind of a focused aerial invasion of this protected area is much different than a casual overflight on which the State of California relies in this case.

QUESTION: Is there any limit in your view to what may constitute curtilage around a residence as to space?

MR. KRAUSE: There certainly is. I have read about 100 lower federal courts on curtilage, and there are all sorts of different opinions as to what it is, but not one case ever denies the idea that a back yard right next to someone's home is curtilage.

QUESTION: How big can it be? No limit?

MR. KRAUSE: I think it depends upon what really is the intimate area connected with the house, and I wouldn't mind accepting Mr. Sullivan's definition that he gave in his portion of the argument. Something intimately connected with the house. People go in and out of their house. They use the outdoor area in the same way that they use the indoor area when they are fortunate enough to have one, and they have their right to privacy in the same way.

I would not distinguish. I would agree with Justice Powell in the Oliver case that there really is no distinction between the privacies of the home and the privacies of the back yard, the intimate area of the home, unless you give up that distinction. If you don't build a fence and you let your neighbors look in, then you have waived the right of privacy.

But in Ciraolo's case, he did not do that. He built his fence, and I think there is no question that it is within the curtilage.

QUESTION: Suppose, given the enormous profits in the drug business, that someone takes two acres or four acres and builds a wall entirely around it as tall as the ceiling of this room. Is that all private? Is that curtilage?

MR. KRAUSE: I think that you are pressing me to give an answer when I can't give it. There is a limited to what the curtilage is. What that limit is, I don't know. I would say that if you look at Blackstone, you look at the common law aspect, where this whole idea of curtilage developed, and it had another name in the common law, by the way. It is called the homestall, which is something I discovered.

But anyway, that means that it is connected in some way with the living areas of the home, and if it is totally devoted to agricultural pursuits, it doesn't seem to me quite the same. I would say that if there is a barn, if there is a house used for purposes of the main house, you could have that as the curtilage, but it is impossible to give an exact definition.

I want to get back to the focused aerial surveillance here, because I think that focus is extremely important. This was not a casual overflight, Justices. This was an intense look at someone's particular back yard, someone as to whom evidence of criminal activity was already present in the minds of the police. This was a situation where a warrant was certainly possible to obtain. I don't know whether one would have been obtained or not. It depends on the magistrate.

QUESTION: Mr. Krause, did I detect anything in the brief that your position would be a little different if this were a routine police patrol by air?

MR. KRAUSE: Yes, I think our position would be a little different because that kind of a situation raises the same issue that Justice White dealt with in the Camera case, that it is impossible to be specific as to probable cause as required by the Fourth Amendment, so I have suggested that under those circumstances where there is routine aerial surveillance of back yards on an intense basis that is going to take place, that the administrative warrant solution would seem to be ideal, and could be adopted on the same basis that this Court adopted such a solution in the Camera case.

One more thing about the focused nature of this search. The police knew that it was Mr. Ciraolo's back yard. It wasn't, as you are landing in National Airport you might see someone's back yard, you don't know who that person is, you don't know anything about that person. They knew it was Mr. Ciraolo's back yard.

QUESTION: I am not sure that I understand your focus argument. Suppose we are just concerned with a ground search, and police have reasonable suspicion of drug dealing out of a certain house. They are not required to go a warrant. They can instead choose to make a focused examination of the exterior of the premises and make a stakeout and take all the time they want to determine the situation.

MR. KRAUSE: I agree, Justice O'Connor.

QUESTION: So why isn't the same thing true of the examination from the air?

MR. KRAUSE: Because the focus was not on what they could see from the ground. The focus was on what they could see under very special circumstances, not as an air traveler --

QUESTION: No, but they could have seen it in a routine patrol. Why can't they focus on it from the air?

MR. KRAUSE: Because the focus intensifies the attention given to a particular back yard. A routine surveillance from the air may or may not have uncovered Mr. Ciraolo's agricultural endeavors. We don't know. There is no evidence along that score. The only thing that we do know is that it required an expert to be picked up by the police who has been trained in marijuana surveillance from the air, told that marijuana is suspected in Mr. Ciraolo's back yard, specifically directed to that place. That is why the focus is much more intense than you would ever get.

Now, in your example, of course, the police can bring all the experts they want to look at the outside of this home, but when you are talking about curtilage, this Court has said that is protected area.

QUESTION: Well, protected from what? From an entry on the ground.

MR. KRAUSE: Protected in the same way that the home is protected from an unwarranted entry.

QUESTION: I don't think the Court has said that. I think that is the question, and I don't think the Court has said that.

QUESTION: Certainly Oliver didn't say that. All it said was, the curtilage is different from the open field. It didn't say it is entitled to the same protection as the house.

MR. KRAUSE: The Oliver case said, joined the home and the curtilage in opposition to the open field, and I am sure that the majority wrote that opinion to answer the attacks of the dissent, who were complaining about the Oliver case narrowing privacy, and they said, no, we don't narrow privacy in the areas where it really counts, in the curtilage and in the home.

Now, I read that case to say that the curtilage does have the same protection as the home. If it doesn't, then I have something to learn, but I think if it doesn't, it should have, and if it doesn't completely have the same protection, it should have nearly the same protection, because in their back yard is the place where we have the right to have our access to light and to air and to have the kind of repose we need in our society.

QUESTION: Yes, but you wouldn't show any protection if there were no fence.

MR. KRAUSE: If there were no fence, it would be --

QUESTION: It would still be curtilage.

MR. KRAUSE: It would be a waiver. It would be the kind of thing, the same thing that Justice Brennan talked about in his concurring opinion in the Lewis case, where the police sent an informant into the home to broadcast outside what was going on in the home. Justice Brennan said that that was a waiver of Fourth Amendment rights in the home. When you invite someone in, you invite them to say what has happened in the home.

So if you invite the public to look into your back yard by not protecting it, you have waived your Fourth Amendment rights.

QUESTION: Well, in this day and age, with the frequency of air travel, it may well be that if you don't put a patio cover over your back yard you waive any right for an aerial look.

MR. KRAUSE: I think the kind of frequency of air travel you are talking about, Justice O'Connor, and I will have to get back to the focus, is not the same kind of scrutiny as I am talking about. I am talking about the police knowing whose back yard this is, so whatever they see, no matter if it is legal or illegal conduct, they can report, we saw such and such happening in the Ciraolo back yard. That is open to anyone who wants to listen to them to talk about, and they go in without warrant, without permission, without anything.

The government, the state is arguing here, they are saying cover your back yard or we will spy on you at will. We will invade your privacy without judicial authorization. We have no obligation to report to anyone on what we found. We have no restrictions as to time, place, or manner. And by the way, it is too late to act after your privacy has already been violated, and there is a case on that. It is called NORML versus Mullen, and it is in 608 Federal Supplement, where the drug enforcement agency was using helicopters to actually chase young girls down the street to actually -- they went so far as to have helicopters hovering so near outhouses as it blew the toilet paper out the window.

[General laughter. ]

MR. KRAUSE: They were abusing, and we expect that such an abuse should not happen. They could be gathering evidence of crime, and they could also be spying on a political gathering. They are attempting to deprive us of our privacy in our back yard without limit and without warrant.

As far as what the curtilage is, Justice Rehnquist, I think a very good description of what we expect in the curtilage is found in the Sixth Circuit en banc decision in the Dow Chemical case, and I hope my predecessors in this Court will excuse me for citing that opinion, but it is a very fine discussion of what is the curtilage, how far it extends, and what it means in American jurisprudence, and I think the Sixth Circuit was using that to distinguish it from the Dow plant, and perhaps for that reason they laid it on very heavy, but it is a very fine description of what the curtilage of the home is.

I think that the Oliver discussion of protection of the curtilage would be meaningless if an airplane could fly over and say as we have in our case. I think that Mr. Ciraolo if he should learn in advance that police were going to fly over his back yard and look carefully at what he was doing in his back yard any time they wanted under any conditions, I think he could obtain a civil injunction against that invasion of privacy, because I think this air space --

QUESTION: On what grounds, Mr. Krause?

MR. KRAUSE: On grounds of invasion of privacy and --

QUESTION: You mean not a federal constitutional --

MR. KRAUSE: Well, I think he could have a Bivens injunction, yes.

QUESTION: Well, that would assume there is a Fourth Amendment violation.

MR. KRAUSE: And I think there is, for this reason.

QUESTION: But that is what we are trying to decide here. I mean, it doesn't help your argument here trying to convince us that there is a Fourth Amendment violation to say he could also if there were a Fourth Amendment violation get a Bivens action civil injunction.

MR. KRAUSE: I realize that without what I am going to say next, but what I am going to say next is that the --

QUESTION: Would you have a dirty hands problem?

MR. KRAUSE: Well, you could say that.

QUESTION: The government is interfering with my violation of the law.

MR. KRAUSE: I think that certainly without the warrant situation you have got the jumping the fence situation, as Mr. Sullivan agreed, that he couldn't peak over the fence by jumping the fence or putting up a ladder. Instead, he thinks that he can do the same thing by taking up an airplane, but it is the same privacy that is invaded.

QUESTION: But am I correct in understanding that you would find no objection if the police as a routine matter sent up an officer every day to fly at 1,000 feet and look for these plants?

MR. KRAUSE: Yes, I would find an objection. I would think that that was a situation that is ideal for an administrative warrant, and if they are going to --

QUESTION: I understand you would think of an administrative warrant, which isn't, of course, isn't even mentioned in the warrant clause, but apart from the warrant, when you say that that would -- that would be prohibitive, if you say that is prohibitive, then you are not relying on your focus argument.

MR. KRAUSE: I would say that it is prohibitive without an administrative warrant to specifically look into people's property for purposes of criminal law violation. In that answer, I am not relying on my focus argument. I am relying on my focus argument in this case.

Now, Justice Rehnquist, what I wanted to say is that I look at this aerial view as a right of innocent passage kind of issue under international law where ships can go through private waters because they are passing through, but when it comes to a different purpose, if a ship's purpose in passing through the territorial waters of the United States is to spy on the United States, the United States need not give that ship the right of innocent passage, and I think the same is true with regard to a plane whose sole purpose is to invade the privacy of the back yard.

The homeowner need not give the police that right to invade. That is why I say a civil action could be brought.

Now, I see no difference between flying over and putting up a ladder. Logically, there is no difference whatsoever. Putting up a ladder probably allows you to verify what is there much better and it doesn't intrude on everybody else's privacy. At least when you put up a ladder, you only see Mr. Ciraolo's back yard. You don't see the ten or twelve back yards that you have seen in your aerial surveillance.

The problem is to the government I imagine that it appears to be more snoopy. It appears to be dirty business, as Justice Holmes condemned in the Olmstead case, because you are snooping, and somehow to elevate the police at a 1,000-foot level is different. Now, 1,000 feet is about ten times the width of this chamber. It is really not that high. It is less than a quarter of a mile. I see no difference between that and the ladder situation.

In the Carroll case the government said, of course, that their privacy invasion was only a little one. It was only putting the beeper in someone's home. But Justice White pointed out that if the government had sent in the FBI to check to see whether the chemicals were present, that would, of course, be a violation of the Fourth Amendment, so it is similarly a violation of the Fourth Amendment when they obtain the same information by sending in a beeper.

And here they obtained the same information not by the ladder which they agree is condemned, but by sending up the airplane. I think that the idea that Mr. Ciraolo has waived his right to be free of a focused aerial surveillance made for that specific purpose of gathering criminal evidence is unnecessary for good police work.

Ciraolo didn't open his privacy up. The police are trying to open it up. They are trying to insert a can opener and open it up. They are trying to say that it doesn't matter what our purpose is because some stray airplane might have flown over. This is the hypothetical situation that doesn't decide Fourth Amendment cases. Fourth Amendment cases are decided by the realities, and there is a footnote in the Carroll case, Footnote 4, in which the hypothetical possibility that privacy could be invaded is said not to deprive people of Fourth Amendment rights.

The warrant requirement here, I can't see how it could frustrate the police purpose. It would prevent an arbitrary intrusion into the privacies of life. The words from the Katz case which Justice Stewart wrote, "What a person knowingly exposes to the public is exposed," I think that word, "knowingly," is important. Mr. Ciraolo did not knowingly expose his back yard.

Then Justice Stewart went on to say, "But what he seeks to preserve as private even in an area accessible to the public may be constitutionally protected." That is what we have here.

There is an atmosphere of security, Your Honors, necessary for the freedom we treasure, and it is threatened in this case as it would be by parabolic microphones or satellite surveillance in great detail. This case is not just the foot in the door. This is the whole monster let loose, if there is no control on the police.

Our citizens are not to be seen as ants from an airplane but people who need their repose and their privacy to be the free people that they are. The Fourth Amendment, we submit, protects them from the shroud of darkness which the government is attempting to place upon them in this case.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Sullivan?

ORAL ARGUMENT OF LAURENCE K. SULLIVAN, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. SULLIVAN: Just very briefly, Your Honor. I do agree with one thing that Mr. Krause does say in this case, and that is that Fourth Amendment cases are decided by reality and not hypotheticals, but what he keeps talking about seems to be some distinction between intense looking and non-intense looking, and routine and focusing, and for the life of me I don't understand those arguments, because -- I mean I know what air patrol involves, and air patrol involves focusing.

You don't look at the whole world from an airplane. You look at something specific, and you go from place to place looking. That is what air patrol is. So, in terms of focusing, I just don't understand what the practical difference Mr. Krause is speaking of.

The only other thing I wanted to say is, the tenor or the sound that I get from the respondent in this case is that there is something really oppressive and egregious and perhaps subjective but nonetheless there, and I know the Court doesn't like to listen to quotes, but to get the flavor of this case, the fellow's name involved in this is Officer Schutz, Detective John Schutz, and he was the only witness at the suppression hearing, and this is the officer as he makes -- describing his intensive scrutinizing, his focus.

"We were extremely busy with plotting our direction. We had a number of different places to go. We had to watch for other aircraft. We were in a flight line with the San Jose Airport. And all I recall was plotting these various locations on my map attempting to get one point after another without tying up air traffic too long."

Now, I don't know. I mean, maybe I'm wrong. But it doesn't sound like to me this guy is an airborne spy. It sounds to me like he is a guy who wants to get home to the wife and kids.

QUESTION: All he had to do was to get a warrant.

MR. SULLIVAN: Your Honor, he couldn't get a warrant. He didn't have probable cause. And the question here is, do you ground the aircraft because they don't have probable cause? If you say that, well, then, you know, what we are really talking about here is the marijuana dealers or growers will do whatever you say. If you say a fence acts as a roof under the Constitution, they will all build a fence. I mean, that is really what it comes down to. They will do exactly what you tell them to do. They will adapt their ways to whatever is appropriate to get protection.

QUESTION: You really mean that they will do what I tell them to do?

(General laughter.)

QUESTION: You really mean that?

MR. SULLIVAN: I mean that they --

QUESTION: You really mean that?

MR. SULLIVAN: I mean --

QUESTION: Do you really mean it or not?

(General laughter.)

QUESTION: Do you or do you not?

MR. SULLIVAN: No, Your Honor.

QUESTION: Thank you.

MR. SULLIVAN: I simply mean that they read opinions carefully, and I didn't mean it in any other way but that.

Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:28 o'clock p.m., the case in the above-entitled matter was submitted.)