It was not surprising that the majority opinion in Ciraolo provoked an impassioned dissent. The decision was unprecedented in sanctioning aerial surveillance as a police strategy for evading Fourth Amendment prohibitions of surveillance on the ground. The officers rented a plane because they did not have probable cause to obtain a warrant to enter and search the backyard, and because their attempts to peer into the yard were stymied by a tall fence. They could not crawl over the fence because that intrusion would violate the householder's protected expectation of privacy in his curtilage, the Fourth Amendment buffer zone of land associated with the sanctity of a dwelling and the privacies of home life. Even in the absence of a high fence around the yard, the officers could not have crossed a smaller curtilage marker, such as a mow-line around a manicured lawn, in order to inspect the garden or peer into the windows of the house. With the curtilage boundary as the first constitutional line of defense for both the yard and the home, the police would never get to the windows without a warrant or exigent circumstances. Yet, the Ciraolo Court implicitly discarded the personal and societal values embodied in the curtilage barrier on the ground, by making the judgment that the same values did not justify the protection of the same home and garden privacy interest from a different point of police access. Part II.A of this Article describes Justice Powell - first principles that framed his judgments in Ciraolo, and explores their significance by comparing them to the majority's premises. Part II.B focuses on Powell's explication of the Katz framework and its relationship to the curtilage-home privacy doctrines established before Katz. Part III describes the defining moments for the back story of Ciraolo. Part IV presents speculations as to how Justice Powell would have resolved privacy issues in cases after Ciraolo, based on the views in his dissent.
Justice Powell's Garden: The Ciraolo Dissent and Fourth Amendment Protection for Curtilage-Home Privacy,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol44/iss3/10