Is evidence in "plain view" when an officer sees it from an airplane?

An officer who sees evidence from an airplane "fly-over" directed at a suspect's house or yard may testify as to what he has seen. He must have been in public air-space, and using equipment available to the general public. (California v. Ciraolo, U.S. Supreme Court, 1986.) Similarly, an officer may use binoculors or cameras with strong telephoto lenses, as long as the tools are available to the public.

Using high-tech tools to search a person's home, however, is another matter. Because of the legitimately strong expectation of privacy in one's home, a judge may rule that using tools that are not in general circulation is a search, for which a warrant would be required. For example, using a thermal imager on a home to detect the presence of a marijuana grow operation constitutes a search. (Kyllo v. United States, U.S. Supreme Court, 2001.) Importantly, the Supreme Court has not ruled on the question of using high-tech tools to search a business.

by: Janet Portman, Attorney