This line of reasoning is flawed. Respondent argues that because his yard was in the curtilage of his home, no governmental aerial observation is permissible under the Fourth Amendment without a warrant. In pursuing this inquiry, we must keep in mind that "[t]he test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity," but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." The indiscriminate nature of aerial surveillance, illustrated by Officer Shutz' photograph of respondent's home and enclosed yard as well as those of his neighbors, poses "far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight." 93 (1984). Such covering, he argues, would defeat its purpose as an outside living area; he asserts he has not "knowingly" exposed himself to aerial views. In my view, the Court's holding rests on only one obvious fact, namely, that the airspace generally is open to all persons for travel in airplanes. Since Officer Shutz could not see into this private family area from the street, the Court certainly would agree that he would have conducted an unreasonable search had he climbed over the fence, or used a ladder to peer into the yard without first securing a warrant. ^ . The Court's holding, therefore, must rest solely on the fact that members of the public fly in planes and may look down at homes as they fly over them. While no single consideration has been regarded as dispositive, "the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment,...the uses to which the individual has put a location,...and our societal understanding that certain areas deserve the most scrupulous protection from government invasion. This close nexus to the home would appear to encompass this small area within the curtilage. The dissent contends that the Court ignores Justice Harlan's warning in his concurrence in Katz v. United States, 389 U.S., at 361 -362, that the Fourth Amendment should not be limited to proscribing only physical intrusions onto private property. United States v. Miller, 425 U.S. 435, 443 (1976). The trial court refused to consider that evidence. Since 1942, science has developed even more sophisticated means of surveillance. The Court begins its analysis of the Fourth Amendment issue posed here by deciding that respondent had an expectation of privacy in his backyard. Boyd v. United *226 States, 116 U. S., at 635. E. g., Oliver v. United States, 466 U.S. 170 (1984); Rakas v. Illinois, 439 U.S. 128, 143-144, n. 12 (1978). In Dow Chemical Co. v. United States, decided today, the Court reaffirms that the "curtilage doctrine evolved to protect much the same kind of privacy as that covering the interior of a structure." Because the Court today ignores that warning in an opinion that departs significantly from the standard developed in Katz for deciding when a Fourth Amendment violation has occurred, I dissent. 476 U.S. 207. The Court rejects that contention, holding that respondent's expectation of privacy in the curtilage of his home, although reasonable as to intrusions on the ground, was unreasonable as to surveillance from the navigable airspace. Id., at 217, n. 10, quoting Payton v. New York, 445 U.S. 573, 591, n. 33 (1980). The answer turns on "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Observing marijuana plants growing in the fenced-in yard, Shutz photographed respondent's home and yard, as well as homes and yards of neighbors. The Court argues that respondent had no reasonable expectation of privacy from aerial observation. ^ . Therefore, I would affirm the judgment of the California Court of Appeal ordering suppression of the marijuana plants. The claimed area here was immediately adjacent to a suburban home, surrounded by high double fences. "The first is whether the individual, by his conduct, has `exhibited an actual (subjective) expectation of privacy.' Therefore, contrary to the Court's suggestion, ante, at 213, people do not "'knowingly expos[e]'" their residential yards "'to the public'" merely by failing to build barriers that prevent aerial surveillance. Since that choice was made by the Framers of the Constitution, our cases construing the Fourth Amendment have relied in part on the common law for instruction on "what sorts of searches the Framers . Shutz proceeded, without obtaining a warrant, to charter a plane and fly over the home at an altitude of 1,000 feet. Justice Powell, with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, dissenting. I agree with that conclusion because of the close proximity of the yard to the house, the nature of some of the activities respondent conducted there,[7] and because he had taken steps to shield those activities from the view of passersby. E. g., Oliver v. United States, 466 U.S. 170 (1984); Rakas v. Illinois, 439 U.S. 128, 143-144, n. 12 (1978).
[2] The California Court of Appeal recognized that police have the right to use navigable airspace, but made a pointed distinction between police aircraft focusing on a particular home and police aircraft engaged in a "routine patrol." "[5] Id., at 178. As all of us know from personal experience, at least in passenger aircrafts, there rarely--if ever--is an opportunity for a practical observation and photographing of unlawful activity similar to that obtained by Officer Shutz in this case.
We Tr. Warren Earl Burger. 36. "At the very core [of the Fourth Amendment] stands the right of a [person] to retreat into his own home and there be free from unreasonable governmental intrusion." Oliver v. United States, supra, at 180. Rptr., at 98 (footnote omitted). [2] See, e. g., Payton v. New York, 445 U.S. 573, 583-585, n. 20 (1980). The Court does not explain why it finds this fact to be significant. The activity in this case, by contrast, took place within the private area immediately adjacent to a home. Filed: Concurring in Katz v. United States, 389 U.S. 347 (1967), Justice Harlan warned that any decision to construe the Fourth Amendment as proscribing only physical intrusions by police onto private property "is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion." At the suppression hearing, respondent sought to introduce evidence showing that he did use his yard for domestic activities. Both officers were trained in marijuana identification. Ibid., quoting Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring).