Annual Survey of Virginia Law: Virginia Criminal Procedure

Reversing a recent trend, the past year was relatively quiet with respect to search and seizure cases. The United States Supreme Court decided two cases dealing with open fields and the curtilage of a dwelling. Dow Chemical Co. v. United States held that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; such an industrial complex "is more comparable to an open field and as such is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras." In California v. Ciraolo, the Court explained that even areas within the curtilage are not protected from all police observation. While erecting ten foot fences around the defendant's backyard may have shielded the yard from ground surveillance, the fences did not protect the yard from aerial observation.