NCJ Number
17734
Journal
Arizona Law Review Volume: 15 Issue: 1 Dated: (1973) Pages: 145-171
Date Published
1973
Length
27 pages
Annotation
THIS COMMENT CONSIDERS WHETHER THIS TYPE OF SURVEILLANCE VIOLATES A GENERAL CONSTITUTIONAL RIGHT OF PRIVACY OR CONSTITUTES A TAKING OF PROPERTY UNDER THE FIFTH AMENDMENT.
Abstract
ALSO EXPLORED IS WHETHER IT INFRINGES UPON THE CONSTITUTIONAL RIGHT OF CITIZENS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH AMENDMENT. THREE HELICOPTER SURVEILLANCE PROGRAMS (TWO IN LOS ANGELES AND ONE IN TUCSON, ARIZONA) ARE EXAMINED IN ORDER TO ASCERTAIN WHAT BENEFITS ARE CLAIMED TO RESULT FROM THE PRACTICE. THE AUTHOR INDICATES THAT STUDIES ARE INCONCLUSIVE AS TO THE EFFECTIVENESS OF POLICE HELICOPTER SURVEILLANCE PROGRAMS AND CLAIM MOST BENEFITS FROM POLICE USE OF HELICOPTERS TO BE RELATED TO SPECIFIC TASKS SUCH AS RESCUE OPERATION OR PURSUIT, U.S. SUPREME COURT RULINGS CONCERNING THE CONSTITUTIONAL RIGHT OF PRIVACY AS IT RELATES TO THE HOME AND FAMILY LIFE ARE CITED. ALSO DISCUSSED IS THE QUESTION OF WHETHER THE USE OF HELICOPTER PATROLS, WITH THEIR ATTENDANT LIGHT AND NOISE, MAY CONSTITUTE A TAKING OR DAMAGING OF PROPERTY RIGHTS UNDER THE DOCTRINE OF INVERSE CONDEMNATION. STATE AND U.S. SUPREME COURT DECISIONS RELATING TO AIRSPACE AND PRIVACY AS PROPERTY AND TO CONDEMNATION OF PROPERTY BY NUISANCE (NOTABLY UNITED STATES V. CAUSBY) ARE CITED. (IN CAUSBY THE SUPREME COURT RECOGNIZED THAT A LANDOWNER HAD A RIGHT TO THE REASONABLE USE OF HIS LAND AND THAT THE GOVERNMENT COULD BE CONSTITUTIONALLY LIABLE FOR OVERFLIGHT OF ITS AIRCRAFT.) AN EXAMINATION OF THE FOURTH AMENDMENT IMPLICATIONS OF POLICE HELICOPTER SURVEILLANCE OF PRIVATE, RESIDENTIAL PROPERTY, ESPECIALLY USING SOPHISTICATED OPTICAL AND ACOUSTICAL DEVICES, REVOLVES AROUND THE 1967 SUPREME COURT RULING IN KATL V. UNITED STATES THAT THE FOURTH AMENDMENT PROTECTS PEOPLE NOT PLACES, THE 'PLAIN VIEW' DOCTRINE, AND THE 'REASONABLE EXPECTATION OF PRIVACY' TEST. THE AUTHOR CONCLUDES THAT THE USE OF HELICOPTERS AND THEIR SUPPORT EQUIPMENT TO EFFECT AERIAL SURVEILLANCE OF ACTIVITY ON PRIVATE PROPERTY MAY CONSTITUTE STATE INVASION OF A REASONABLE EXPECTATION OF PRIVACY AND THUS A SEARCH WITHOUT WARRANT IN VIOLATION OF THE FOURTH AMENDMENT. HE DISCUSSES AVAILABLE STATUTORY AND CONSTITUTIONAL METHODS OF ATTACK TO SECURE JUDICIAL REDRESS OR ABATEMENT OF HELICOPTER SURVEILLANCE, INCLUDING THE DOCTRINE OF LESS DRASTIC MEANS (THE PROPOSITION THAT 'EVEN THOUGH THE GOVERNMENTAL PURPOSE BE LEGITIMATE AND SUBSTANTIAL, THAT PURPOSE CANNOT BE PURSUED BY MEANS THAT BROADLY STIFLE FUNDAMENTAL PERSONAL LIBERTIES WHEN THE END CAN BE MORE NARROWLY ACHIEVED'). (AUTHOR ABSTRACT MODIFIED)