Defining the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis

A recent, illustrated version of the United States Constitution,issued in commemoration of its bicentennial, portrays the fourth amendment with a drawing of a home sitting atop the turret of a castle. The artistic statement aptly captures the common understanding of fourth amendment protections: A man's home is his castle, at least when it comes to governmental intrusions. Two recent Supreme Court decisions, however, that uphold the aerial surveillance of a suburban backyard and a commercial manufacturing facility, appear to challenge this popular perception. The home may be a castle-but that castle is impregnable only when nothing photogenic is occurring in the courtyard.The aerial surveillance decisions raise anew a continually perplexing fourth amendment issue: When has a "search" occurred?The issue is important because "searches are presumptively improper unless authorized in advance by a warrant."' The question,moreover, has been a heated one since the inception of the Republic.

Supreme Court briefs filed in the recent aerial surveillance cases, for example, raised the spectre of George Orwell's airborne Police Patrols to counter assertions that warrantless aerial surveillance is a necessary and legitimate tool in the eradication of societal crime.' The earnest debate of these questions, almost 200 years after the adoption of the Bill of Rights, demonstrates the amorphous nature of fourth amendment jurisprudence; doctrine evolves continually to meet the needs of changing circumstances.