Fourth Amendment Searches, Drones, and the Privacy of Your Backyard: The Need to Build a Fence and a Roof

When it comes to what kind of searches are protected under the Fourth Amendment of the United States Constitution, the Open Field Doctrine and the Supreme Court’s current view of aerial surveillance leaves much to be desired. With the advent of drones, people may have to do more than ever to protect their privacy in the areas immediately surrounding their homes.

The Open Field Doctrine was created by the Supreme Court in Hester v. United States, and it provides that the government is free to search any open field, or any “unoccupied or undeveloped area outside the curtilage,” on an individual’s private property because it is not protected under the Fourth Amendment. This is true even if there are fences or “no trespassing” signs because the Court held that there is no reasonable or legitimate expectation of privacy in an open field.

On its face this doctrine seems to protect the curtilage, or “the area immediately surrounding a dwelling.” Imagine a pool and its deck, for example, connected to the back of a house and concealed from anyone’s vision with an eight-foot high fence. This would be considered part of the curtilage and thus protected from a search, so long as the search was on foot. But what about aerial surveillance?

Under the Supreme Court’s current approach to aerial surveillance, the answer is unsettling. In California v. Ciraolo, the Court held that police securing a private plane and flying over a private property at 1000 ft. while taking photos was not considered a Fourth Amendment search, even though they were photographing part of the curtilage that was blocked off from the public by a six-foot fence. Similarly, in Florida v. Riley, the Court held that police circling the defendant’s back yard in a helicopter at 400 ft. and observing it with the naked eye was not a violation of the Fourth Amendment.

Taking the cases together, it would seem that the curtilage is not protected from the use of aerial surveillance so long as the aircraft used are in navigable airspace and not overly intrusive. However, these minor limitations apply to aircraft, not drones. Drones with cameras are easily available, and they stand to make it easier than ever for both police and private entities to observe what should be a private space.

While Kyllo v. United States may seem to offer some protection because it holds that using sense-enhancing technology to obtain information about the home that otherwise could not have been obtained without physical instruction constitutes a search, it limited those protections to sense-enhancing technology that is not in general public use. Courts will thus have to first decide whether they consider drones sense-enhancing technology, and then determine whether drones are used by the general public.

Considering drones are already available for public purchase, and that as more enhanced versions are released earlier versions become easily affordable, the time to contemplate these questions is now.

But for now, to be certain that your home’s curtilage is secure from any prying eyes, build a tall fence and a roof.