Satellites and Municipalities: One Town's Use of Google Earth for

Touro Law Review Touro Law Review

Volume 28 Number 2 Article 6

July 2012

Satellites and Municipalities: One Town’s Use of Google Earth for Satellites and Municipalities: One Town’s Use of Google Earth for

Residential Surveillance Residential Surveillance

Edward Knoedler

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421

SATELLITES AND MUNICIPALITIES: ONE TOWN’S USE OF

GOOGLE EARTH FOR RESIDENTIAL SURVEILLANCE

by Edward Knoedler

I. INTRODUCTION

An August 1, 2010 article that ran in Newsday, a Long Island

based newspaper, created a firestorm of controversy when it told the

story of a municipality, the Town of Riverhead, utilizing Google

Earth to nab code violators.

This article was picked up by major

news databases and publications across the nation, sparked debates

on Good Morning America as well as Fox News with Sean Hannity,

and outraged civil libertarians who believe that the use of satellite

imaging by the government is another step towards an Orwellian

―Big Brother‖ society.

As a result of the national attention, the mu-

nicipality eventually ended its program.

Shortly thereafter, the

Town Board of Riverhead passed a resolution and adopted a policy

concerning the use of satellite imaging services, such as the internet

Juris Doctor Candidate, Touro College Jacob D. Fuchsberg Law Center, May 2012; B.S.,

St. Lawrence University, 2000. I would like to express my gratitude to my family and

friends for their love and support throughout my law school career.

Mitchell Freedman & Will Van Sant, Riverhead Tracks Pools with Google, NEWSDAY,

Aug. 1, 2010, at A6, available at 2010 WLNR 15272293 (explaining that the Town of

Riverhead‘s Chief Building Inspector utilized Google Earth to ―eyeball[] properties . . . and

identified those with pools, then compared the list to records of homes with pool permits.‖).

The Town was able to catch approximately 250 homeowners who had swimming pools

without the proper permits. Id.

See Good Morning America (ABC television broadcast Aug. 23, 2010), transcript

available at 2010 WLNR 16836740; Hannity Dismisses Patriot Act Concerns, Obsesses

About People Seeing Him In A Speedo Via Google Earth, NEWSHOUNDS.US (Aug. 7, 2010),

http://www.newshounds.us/2010/08/07/hannity_dismisses_patriot_act_concerns_obsesses_a

bout_people_seeing_him_in_a_speedo_via_google_earth.php.

See All Things Considered (National Public Radio broadcast Sept. 10, 2010), transcript

available at 2010 WLNR 18048428 (interviewing the Town of Riverhead‘s chief building

inspector and stating ―[t]he town of Riverhead has voted to stop using Google Earth satellite

images to find backyard pools that don‘t have proper permits‖).

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422 TOURO LAW REVIEW Vol. 28

application called Google Earth, prohibiting the use of satellite imag-

ing for prosecutorial purposes.

This Comment will address the legal issues and ramifications

of using satellite imaging, specifically, Google Earth, by a municipal-

ity on its citizens. This first section will give the reader a brief over-

view of the structure of the paper as well as an introduction to the is-

sues being broached by this comment. Section II will address the

history behind the web based satellite imaging product known as

Google Earth. Additionally, it will explore the ever broadening uses

and applications of satellite imaging in today‘s society and provide an

example of a municipality utilizing Google Earth.

Section III will discuss, what is in all probability, the most

significant issue surrounding the use of satellite technology by a mu-

nicipality on its citizens. The issue is whether the use of this technol-

ogy is an infringement of an individual‘s constitutional rights as set

forth in the Fourth Amendment.

The section will give a brief over-

view of the history of the Fourth Amendment and its adaptation

through the years as science has progressed. This Comment tries to

tackle the issue of whether the use of such technology without proba-

ble cause would constitute an unreasonable search. Section IV will

address the doctrines of ―Open Field‖ and ―Curtilage‖ and how they

play a role in determining what constitutes an invasion of privacy.

Additionally, two recent cases, Dow Chemical Company v. United

States

and California v. Ciraolo,

and their subsequent effect on the

issue at hand will be discussed. Section V will discuss the characte-

ristics of a municipality, the extent of a municipality‘s power to regu-

late its citizens and the scope of municipal liability. It will be ex-

plained that liability hinges upon whether a municipality owes a duty

to its citizens to use every legal means at its disposal to ensure a safe

environment. If this rings true, then not utilizing Google Earth could

be deemed negligence on the municipality‘s behalf.

This Comment will conclude that while the present use of

Riverhead, N.Y., Res. 709 (2010), available at http://www.riverheadli.com/TBM.09.

08.10.pdf (last visited Nov. 12, 2010).

U.S. CONST. amend. IV (guaranteeing ―[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause . . . and particularly

describing the place to be searched, and the persons or things to be seized‖).

Dow Chem. Co. v. United States, 476 U.S. 227 (1986).

California v. Ciraolo, 476 U.S. 207 (1986) [hereinafter Ciraolo I].

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2012 SATELLITES & MUNICIPALITIES 423

Google Earth by a municipality to regulate its‘ citizens may not be a

popular policy, it is not overly intrusive and not a violation of any

constitutional right.

II. GOOGLE EARTH: SATELLITE TECHNOLOGY & ITS

BROADENING SCOPE OF USE

A. A Brief History of Google Earth

Initially, satellite imagery was exclusively available and uti-

lized by the military and related government agencies.

However,

over the past several years, there have been major technological ad-

vances with regard to satellite based technology. Due to these ad-

vancements, the technology has become affordable and available to

the general public.

As a result, global positioning devices are now

commonplace among consumers and aerial imagery has been re-

placed by satellite imagery. Satellite images are now available on-

line, in most instances free of charge, and can be viewed by the pub-

lic on such websites as Yahoo, Bing, and Google.

These websites

utilize this tool as a way to draw traffic to their respective domains,

with the larger websites providing the most detailed and up-to-date

images.

Google, since its inception, has risen to become the world‘s

largest search engine.

In the United States alone, Google sites

Brian Craig, Online Satellite and Aerial Images: Issues and Analysis, 83 N.D. L. REV

547, 549 (2007) (stating that Google Earth ―started in the intelligence community, in a CIA-

backed firm called Keyhole that Google acquired in 2004‖).

United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007) (―Technological progress

poses a threat to privacy by enabling an extent of surveillance that in earlier times would

have been prohibitively expensive. Whether and what kind of restrictions should, in the

name of the Constitution, be placed on such surveillance when used in routine . . .

enforcement are momentous issues . . . .‖).

See YAHOO, http://maps.yahoo.com (last visited Nov. 12, 2010); BING,

http://www.bing.com/Maps (last visited Nov. 12, 2010); GOOGLE, http://maps.google.com

(last visited Nov. 12, 2010).

Press Release – comScore reports global search market growth of 46 percent in 2009,

COMSCORE.COM, http://www.comscore.com/Press_Events/Press_Releases/2010/1/Global_

Search_Market_Grows_46_Percent_in_2009 (last visited Nov. 12, 2010) (―Google Sites

ranked as the top search property worldwide with . . . 66.8 percent of the global search

market.‖).

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424 TOURO LAW REVIEW Vol. 28

owned a 65.4% market share of searches conducted.

As the com-

pany grew and technology expanded, new applications were added to

its inventory. In February 2005, Google Maps went live, and by

April this service provided satellite views.

A more advanced ver-

sion of Google Maps soon followed, aptly named Google Earth.

Google Earth is ―a satellite imagery-based mapping service

combining 3D buildings and terrain with mapping capabilities and

Google search.‖

The basic version is a free service that requires on-

ly a download of the application and is widely utilized by the public

with an estimated 200 million users.

An advanced version of

Google Earth, Google Earth Pro, can be purchased for a $399 annual

subscription.

However, both versions utilize the same image data-

base with most images being an aerial view about 800-1,500 feet

above ground.

The visual imagery in Google Earth is updated on a

rolling basis, not in real time, with new additions monthly, and typi-

cally one to three years old.

Google Maps and its progeny are con-

sidered the ―most popular source of web-based free satellite im-

ages.‖

A new add-on to Google Maps and Google Earth is called

Street View. Street View, which launched in April 2008, depicts pa-

noramic images along roadways and in public places.

Google uti-

lizes cars equipped with cameras that take pictures as they drive

Press Release – comScore releases August 2010 US search engine rankings,

COMSCORE.COM, http://www.comscore.com/Press_Events/Press_Releases/2010/9/comScore

_Releases_August_2010_U.S._Search_Engine_Rankings (last visited Oct. 2, 2010).

Corporate Information: Google Milestones, GOOGLE, http://www.google.com/

corporate/history.html (last visited Oct. 2, 2010).

Id.

Craig, supra note 8.

GOOGLE EARTH, http://earth.google.com/support/bin/answer.py?hl=en&answer=21406

(last visited Oct. 2, 2010). The support section of Google Earth explains how Google Earth

Pro utilizes higher resolution imagery, 4,800 pixels, as opposed to the 1,000 pixels utilized

by the basic version of Google Earth; furthermore, the Pro version is faster, automatically

geo-locates import images and designed for use by consultants and businesses by including

site-wide installations. Id.

GOOGLE EARTH, http://earth.google.com/support/bin/answer.py?answer=176172&cbid=

3vu7gqxvryud&src=cb&lev=%20answer (last visited Oct. 2, 2010).

Id.

Where to See Free Satellite Images, TOPBITS.COM,http://www.tech-faq.com/where-to-

see-free-satellite-images.html (last visited Oct. 2, 2010) (stating that this product does not

have to be downloaded but ―can be directly used from the web browser‖).

Google Milestones, supra note 13.

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2012 SATELLITES & MUNICIPALITIES 425

along public thoroughfares.

This allows the user of Street View to

see the image of a particular place as if they were standing on the

street. This application has created a lot of controversy and even

sparked litigation, most notably the case Boring v. Google Inc.

The

Borings, a couple living in Pennsylvania, sued Google over its ―Street

View‖ application claiming, among other things, invasion of priva-

cy.

The court granted Google‘s motion to dismiss the Borings‘ in-

vasion of privacy claim.

In defending the lawsuit, Google asserted

that this imagery is no different from what one can observe by walk-

ing or driving down a street.

It is important to note that this holding

could have a direct effect on cases pertaining to imagery found on

Google Maps or Google Earth. While these applications do not de-

pict images that are readily observable from a roadway, they do,

however, depict images that are readily observable from anyone with-

in publicly navigable airspace.

B. Google Earth: Uses and Applications

The availability and accessibility of programs that utilize sa-

tellite imagery has led to a burgeoning new market that has affected

many industries.

Users of Google Earth, both public and private,

are finding and implementing this technology in new and creative

ways.

Law enforcement agencies have increasingly utilized satel-

Boring v. Google Inc., 362 F. App‘x 273, 276 (3d Cir. 2010).

Id. at 273.

Id. at 276 (―The Borings, who live on a private road in Pittsburgh, discovered that

Google had taken ‗colored imagery of their residence . . . without obtaining any privacy

waiver or authorization‘ . . . [and] assert[ed] claims for invasion of privacy, trespass,

injunctive relief, negligence, and conversion.‖).

Id. at 283.

Id. at 276 (asserting that ―the scope of Street View is public roads‖) (internal quotation

marks omitted).

Craig, supra note 8, at 553 (―Some of the industries that can . . . benefit from Google

Earth . . . include commercial real estate, residential real estate, architecture/engineering,

insurance, media, defense/intelligence, homeland security, public sector, and state and local

government.‖).

See, e.g., Muhammed v. Martoccio, No. 3:06-cv-1137 (WWE), 2010 WL 3718560, at

*3 (D. Conn. Sept. 13, 2010) (explaining how the court utilized Google Maps to determine

the driving distance between attorney‘s offices for the purpose of figuring out fees for

driving time); People v. Appice, No. A118369, 2009 WL 2634758, at *3 (Cal. Ct. App. Aug.

27, 2009) (describing how an accident reconstruction expert utilized Google Earth to

determine speed of impact of car at time of crash and the distances where the driver lost

control); Egyptian Desert Expedition Confirms Spectacular Meteorite Impact, SCIENTIFIC

COMPUTING, http://www.scientificcomputing.com/news-DS-Egyptian-Desert-Expedition-

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426 TOURO LAW REVIEW Vol. 28

lite imaging in their enforcement of laws and apprehension of crimi-

nals. It stands to reason that, with corporations and law enforcement

agencies employing this technology, it was only a matter of time be-

fore municipalities and their departments would find uses for it as

well.

Recently, there have been three notable examples of munici-

palities utilizing satellite imaging, namely Google Earth, to enforce

their laws. First, as an alternative to helicopters, officials in Greece

were reportedly using satellite imagery to locate homes with undec-

lared pools as a means to find tax evaders.

Second, code enforce-

ment officials in Mecklenburg County, North Carolina were said to

be utilizing aerial images and services, such as Google Earth, to veri-

fy complaints concerning code violations.

Third, the Town of Ri-

verhead was noted as using Google Earth to sweep the town for illeg-

al pools.

Of these news stories, the use of satellite imaging by the

Town of Riverhead seemed to generate the most controversy. This is

partly because the policy of Greek officials has no bearing on Ameri-

can citizens, as it is far from the confines of an American home and is

not subject to the United States Constitution. On the other hand,

Mecklenburg County is located in the United States; however, its pol-

Confirms-Spectacular-Meteorite-Impact-092710.aspx (last visited Oct. 2, 2010) (stating that

a mineralogist spotted a meteorite impact site while doing a Google Earth study); GOOGLE,

http://www.google.com/enterprise/earthmaps/industries.html#utm_campaign=en&utm_sourc

e=earth-en-biz-gep-ind (last visited Oct. 2, 2010) (describing how Google Earth can be

utilized by different businesses, including site surveying by engineering firms, urban

planning and infrastructure maintenance by state and local entities, underwriting and claim

management for insurance companies and overlay site plans by architecture firms).

Frank Eltman, How Governments are Using Public Images to Spy on You, CHICAGO

DAILY HERALD, Aug. 15, 2010, available at 2010 WLNR 16362319 (―High tech eyes in the

sky – from satellite imagery to sophisticated aerial photography that maps entire

communities – are being employed in creative new ways by government officials, a trend

that civil libertarians and others fear are eroding privacy rights.‖).

Seth Weintraub, Greek Government using Google Maps to Find Tax Cheats with Pools,

CNNMONEY.COM (Aug. 2, 2010), http://tech.fortune.cnn.com/2010/08/02/greek-government-

using-google-maps-to-find-tax-cheats-with-pools (utilizing Google Maps as a way to help

solve their financial crisis because Greek citizens are hiding their assets). Having a pool is a

sign of wealth, and while only 324 pools were properly documented, the government found

close to 17,000 pools in the suburbs. Id.

Russell Nichols, Google Earth Helps Identify Code Violators in Mecklenburg County,

N.C., GOVERNMENT TECHNOLOGY (Sep. 2, 2010), http://www.govtech.com/e-

government/102484274.html (quoting a county code enforcement manager as saying ―[t]he

majority of our complaints come in from neighbors complaining about somebody . . . [w]e

just use the technology to prove or disprove what‘s going on in a particular location‖).

Freedman & Van Sant, supra note 1.

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2012 SATELLITES & MUNICIPALITIES 427

icy did not spark controversy because officials in Mecklenburg only

utilized Google Earth to ―verify‖ complaints, whereby Riverhead of-

ficials used it to sweep the entire town.

A ―sweep‖ of all the citi-

zens has a different feel to it, a feeling of regulation and that ―big

brother is watching,‖ which society is obviously not ready to accept.

This is evidenced by the fact that after the Riverhead contro-

versy brought light to Mecklenburg County‘s policy, officials there

were quick to point out that they do not ―snoop around randomly,‖

but use Google Earth to verify complaints from neighbors.

In the

case of Riverhead, a ―sweep‖ of the entire town was conducted utiliz-

ing Google Earth to locate homes with pools.

These homes were

then cross-referenced with the permits on file with the town to deter-

mine if they were conforming to the Town Code.

Utilizing this

technology, the town caught 250 homeowners who had swimming

pools without ever filing the proper permits.

Town officials de-

fended this practice on the basis that pool safety is a legitimate con-

cern.

On the other hand, opponents of the practice have stated that

the motive for the policy was financial.

In reality, a reasonable per-

son can see that the policy effectuated both ends. It made the viola-

tors comply with the town‘s safety standards while charging them

fees for the proper permits. Furthermore, a home with a pool will

have higher real estate taxes, which is a residual monetary benefit to

the town. However, an argument can be made that the monetary ben-

efit is trivial when considering the estimated budget for the town in

2011 was $88,637,642.00.

Regardless, officials in surrounding mu-

nicipalities have taken note of this practice.

While officers in

―[l]arger communities, with more parcels and permits to check, ex-

press[] greater reluctance‖ and prefer to catch code violators the

Compare Freedman & Van Sant, supra note 1, with Nichols, supra note 31.

Nichols, supra note 31 (stating that ―[t]his is public information‖).

Freedman & Van Sant, supra note 1.

Id.

Id. (stating that they only looked at pools ―because of safety concerns. Without permits

and the required inspections, pools can be hazards . . . because there‘s no way to tell whether

. . . such pools meets code and state safety regulations‖).

Id. (noting that Lillie Coney, an associate director of the Electronic Privacy Information

Center, believes ―Google Earth . . . has become, like other satellite image services, a prying

eye for cash-hungry local governments‖).

TOWN OF RIVERHEAD, http://www.riverheadli.com (last visited Oct. 2, 2010) (click on

Tentative Budget 2011 link; then go to Page E for the itemized budget).

Freedman & Van Sant, supra note 1.

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complaint driven way,

others see it as a creative adaptation to the

current policies. Either way, ―[g]overnment officials claim anyone

can use these tools, and aerial imaging helps detect violations and

solve problems faster.‖

Thus, the real debatable issue is not the mo-

tive of the policy, but the constitutionality of the practice.

Many municipalities utilize some sort of aerial photography

tool, typically GIS (geographic information system), that incorporates

satellite imaging.

These systems are generally used by the tax as-

sessor or planning department.

These are departments within a mu-

nicipality which utilize satellite technology daily, albeit without the

controversy attached to its use. This is probably a result of the fact

that these GIS programs are utilized for informational purposes and

not for regulatory purposes. It should be noted that these GIS pro-

grams cost thousands of dollars to implement and maintain. In con-

trast, the basic version of Google Earth is a free web-based applica-

tion, available to anyone with a computer and an internet connection.

Therefore, it does not appear that one can contend that utilizing

Google Earth is in effect a misappropriation of tax dollars. Hence, it

must be the use of satellite imagery for regulatory purposes that does

not appeal to society. Therefore, when the code enforcement division

of a municipality utilized satellite imagery, via a free service (Google

Earth), it was inevitable that a debate about invasion of privacy and

the Fourth Amendment sprung to life.

Id.

Nichols, supra note 31.

See, e.g., Nassau County Land Records Viewer, NASSAU COUNTY,

http://www.nassaucountyny.gov/mynassauproperty/main.jsp (last visited Oct. 18, 2010)

(providing public records, including photos and satellite images, for properties located in

Nassau County, New York); Town of Huntington Land Mgmt. Info., TOWN OF HUNTINGTON,

http://tohgis.town.huntington.ny.us/landmenu.asp (last visited Oct. 18, 2010) (providing a

GIS system for the Town of Huntington located in Suffolk County, New York that depicts,

among other things, satellite imagery of properties located within the town); Southampton

Town Geographic Information Systems, TOWN OF SOUTHAMPTON,

http://www.southamptontownny.gov/content/760/762/2601/2725/798/1001/3070/default.

aspx (last visited Oct. 18, 2010) (providing a free service as well as a more advanced paid

service to users, allowing access to a variety of GIS web mapping applications that contain

detailed information and satellite imagery for properties located in the Town of

Southampton, Suffolk County, New York).

California GIS Map & Information Sites, COORDINATED LEGAL,

http://www.coordinatedlegal.com/gis.html (last visited Nov. 12, 2010).

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2012 SATELLITES & MUNICIPALITIES 429

III. FOURTH AMENDMENT: KEEPING PACE WITH

TECHNOLOGY

Throughout the past century, the United States Supreme Court

has had to grapple with the effects of the increase in technology, its

use and its subsequent effect on the Fourth Amendment. The Fourth

Amendment guarantees ―[t]he right of the people to be secure in their

persons [and] houses . . . against unreasonable searches and seizures,

shall not be violated.‖

However, with the advent of new and in-

creasingly more sophisticated technology, there was a shift in what is

considered an unreasonable search and seizure. Thus, throughout the

years, the Supreme Court has had to determine the ―limits there are

upon . . . technology to shrink the realm of guaranteed privacy.‖

Typically, the cases concerning this issue involved the use of tech-

nology by law enforcement.

One of the earliest Supreme Court cases illustrating the ef-

fects of technology on the Fourth Amendment was Olmstead v. Unit-

ed States.

Olmstead suggested ―that the Fourth Amendment‘s reach

. . . ‗turn[ed] upon the presence or absence of a physical intrusion into

any given enclosure.‘ ‖

Olmstead was decided in 1928 and it was

not until 1967 that the Court revisited this issue and determined that a

physical trespass was not a required element to prove an invasion of

privacy.

In Katz v. United States,

the Supreme Court overruled

earlier precedent regarding technology and the Fourth Amendment

when it discarded the physical intrusion approach in favor of the pri-

vacy interest approach.

The writing was on the wall, as it was noted

―that the meaning of [the] Fourth Amendment . . . must change to

U.S. CONST. amend IV.

Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (noting ―[f]or example . . . the

technology enabling human flight has exposed to public view . . . uncovered portions of the

house and its curtilage that once were private‖).

277 U.S. 438, 466 (1928) (holding that the wiretapping of a telephone line was not a

violation of the Fourth Amendment).

United States v. Knotts, 460 U.S. 276, 280 (1983) (quoting Katz v. United States, 389

U.S. 347, 353 (1967)).

Knotts, 460 U.S. at 280 (overruling Olmstead by stating ―that the Fourth Amendment‘s

reach ‗cannot turn upon the presence or absence of a physical intrusion into any given

enclosure‘ ‖) (quoting Katz, 389 U.S. at 353).

389 U.S. 347 (1967).

Id. at 352-53.

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keep pace with the march of science.‖

Additionally, the Court set forth the two part test, still fol-

lowed today, for determining if there has been a Fourth Amendment

violation.

The first part is whether ―the individual has shown that

‗he seeks to preserve something as private.‘ ‖

The second part is

whether ―the individual‘s expectation [of privacy], viewed objective-

ly, is justifiable under the circumstances.‖

This two part test must

be satisfied in the affirmative for an individual to have a meritorious

cause of action for a Fourth Amendment invasion of privacy claim.

However, with the advent of new technology and the multitude of

scenarios that may arise from its use, the Katz test must be utilized in

concert with other Supreme Court decisions and case law.

At first glance, it would appear that a Riverhead citizen‘s

claim of invasion of privacy against the municipality may have merit.

For instance, if the citizen put up a fence, hedge row or arborvitaes

hiding the view of his backyard, from public view, this could prove

that he or she intended the pool area to be private, thus, satisfying

Part I of the Katz test.

Furthermore, a reasonable argument can be

made that society, or an objective person, would regard the backyard,

especially the pool area, as an area where one would have an expecta-

tion of privacy; thus, satisfying Part II of the Katz test. However, the

determination of the constitutionality of this policy would not simply

begin and end with the Katz test. Due to the existence of other rele-

vant and more recent case law, this test would be but one facet of the

inquiry. Furthermore, the claim would be against the Town of River-

head and its code enforcement division, which would add another

dimension to the analysis.

While the majority of case law focuses on ―law enforcement‖

United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007) (commenting on the fact that

this has been the credence of the Supreme Court ever since Katz v. United States).

Knotts, 460 U.S. at 280-81.

Id. at 281 (alteration in original) (quoting Katz, 389 U.S. at 351). The Court pointed out

that ―[w]hat a person knowingly exposes to the public, even in his own home . . . is not a

subject of Fourth Amendment protection . . . [b]ut what he seeks to preserve as private, even

in an area accessible to the public, may be constitutionally protected.‖ Katz, 389 U.S. at 351.

Knotts, 460 U.S. at 281 (quoting Katz, 389 U.S. at 353) (explaining that the second part

of the test can also be understood as ―whether the individual‘s subjective expectation of

privacy is one that society is prepared to recognize as reasonable‖).

Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (holding that when dealing with the

expectation of privacy, a court must look at if the one who is claiming a violation ―took

normal precautions to maintain his privacy‖).

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and the Fourth Amendment, there does not appear to be any reason

why the letter of the law would be applied differently to other gov-

ernment agencies. The code enforcement division is an integral part

of local government and plays a significant part in ―protecting the

health, safety and welfare of the community.‖

Accordingly, this

mantra is followed by the Town of Riverhead‘s code enforcement di-

vision.

The Town‘s website states that ―Code Enforcement Offic-

er[s] . . . enforce the Town Code, Property Maintenance Code and

Parking Regulations through measures and procedures that emphas-

ize compliance.‖

The ultimate goal is the utilization of ―fair, con-

sistent and equitable enforcement measures while protecting the con-

stitutional rights of all Americans.‖

The Fourth Amendment does not prohibit law enforcement

―from augmenting the sensory faculties bestowed upon them at birth

with such enhancement as science and technology [can] afford[].‖

The problem arises when the advancement of technology has a signif-

icant impact on the application of a constitutional right.

The Su-

preme Court has ―held that the application of the Fourth Amendment

depends on whether the person invoking its protection can claim a

justifiable, a reasonable, or a legitimate expectation of privacy that

has been invaded by government action.‖

In 2001, the Supreme Court decided Kyllo v. United States,

Harry M. Hipler, Special Magistrates in Code Enforcement Proceedings: Local

Government Agents or Arbiters of Fairness and Justice?, 38 STETSON L. REV 519, 519, 539

(2009) (―Code violations . . . can affect . . . neighborhoods‘ aesthetics, stability, and property

value. If code violations remain unchecked and uncorrected, a once-solid neighborhood can

turn into vacant buildings and foreclosed properties. If property values decline, there can be

a drop in tax revenue and spending for schools, non-school services, and local

development.‖).

Code Enforcement, TOWN OF RIVERHEAD, http://www.riverheadli.com/code.html (last

visited Oct. 2, 2010) (regarding the Code Enforcement Division, its purpose is to ―ensure[]

public safety and promote[] the highest achievable quality of life for the Town of

Riverhead‘s residents, business owners and tourists‖).

Id.

Knotts, 460 U.S. at 282.

Kyllo, 533 U.S. at 33, 34 (―It would be foolish to contend that the degree of privacy

secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of

technology.‖).

Knotts, 460 U.S. at 280 (internal citations omitted).

533 U.S at 40 (holding that the use of sense enhancing technology to gather information

regarding the interior of a home that could not have been obtained through visual

surveillance constituted a search under the Fourth Amendment).

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in which the Court stated that ―[w]here . . . the Government uses a

device that is not in general public use, to explore details of a private

home that‖ could not be obtained by visual surveillance, it constitutes

a search.

The implications of this statement, which ambiguously

favors technology, leaves open the possibility of the Court revisiting

the tension between technology and the right to privacy as surveil-

lance devices become more available.

Furthermore, this open-

ended statement creates confusion as to what new devices could be

utilized for surveillance purposes, as technology is ever increasing.

Eight years ago, the satellite technology now accessible on the web

was not available to the public; it was utilized by our military and in-

telligence agencies. However, now it is in general public use, offered

for free on the internet. Therefore, shouldn‘t its use be deemed con-

stitutional? For example, Riverhead utilized Google Earth, a device

in general public use, to explore details of a private home (back-

yards). Under Kyllo, it would appear that Riverhead‘s use of Google

Earth would be constitutional. However, this conclusion contradicts

earlier Supreme Court case law.

Riverhead‘s use of Google Earth to locate illegal pools would

appear to be an invasion of privacy under the Katz standard, but not

according to the Kyllo standard. Therefore, the issue becomes which

standard should govern. In this instance, the Kyllo standard should

govern because it is the more recent case law on Fourth Amendment

jurisprudence. Additionally, it is more analogous to the situation in

Riverhead with regard to technology and privacy interests. However,

further inquiry is needed to determine how this policy comports with

other recent case law and well-settled doctrines.

In a recent Seventh Circuit Court of Appeals case, the court

acknowledged the ever-changing relationship between technology

and the Fourth Amendment when it noted, ―[s]hould government

someday decide to institute programs of mass surveillance . . . it will

be time . . . to decide whether the Fourth Amendment should be in-

terpreted to treat such surveillance as a search.‖

Would the policy

by Riverhead Town utilizing Google Earth to ―sweep‖ the town for

Id. at 27.

Kyllo, 533 U.S. at 47 (Stevens, J., dissenting) (―[I]t seems likely that the threat to

privacy will grow, rather than recede, as the use of intrusive equipment becomes more

readily available.‖).

Garcia, 474 F.3d at 998 (stating, however, that currently ―[t]here is a tradeoff between

security and privacy, and often it favors security‖).

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illegal pools constitute ―mass surveillance?‖ A definition for ―mass

surveillance‖ was not given by the court; however, Black‘s Law Dic-

tionary defines surveillance as ―observation . . . of a person or place

in the hope of gathering evidence.‖

Thus, mass surveillance would

be surveillance on a grand scale. There is a plausible argument that

Riverhead‘s policy would fall within the meaning of that term.

Historically, the Supreme Court has had to redefine the scope

of the Fourth Amendment to keep pace with technology.

The Court

switched from the physical intrusion approach in favor of the privacy

approach.

Furthermore, the Court has adopted standards, Kyllo and

Katz, in order to determine whether a particular action is considered

an unreasonable search and seizure. However, with the growth of

technology came an escalation of ambiguity as to what would be con-

sidered unconstitutional. Is the use of satellite imaging by a govern-

mental agency to regulate its citizens constitutional? The Supreme

Court has yet to decide a case on point, so there is no governing

precedent for lower courts to follow and as such it is open for debate.

Nonetheless, if the surveillance is of a residence, one should consider

the longstanding doctrines of open fields and curtilage.

IV. PROTECTING THE CASTLE: OPEN FIELDS OR

CURTILAGE

It is well settled that the home warrants the utmost privacy

and is protected under the Fourth Amendment.

However, the home

has been considered to go beyond the four walls of the actual dwel-

ling and include surrounding areas.

Not all of these areas surround-

ing the home are considered protected for Fourth Amendment pur-

poses, but only those within the curtilage.

BLACK‘S LAW DICTIONARY (9th ed. 2009).

See Katz, 389 U.S. at 352-53 (discarding the physical intrusion approach and adopting

the privacy approach).

Id.

See Oliver v. United States, 466 U.S. 170, 178 (1984) (recognizing that the Framers

intended that the sanctity of the home ―be free from arbitrary government interference‖).

Id. at 180 (noting that the curtilage ―has been considered part of home itself for Fourth

Amendment purposes‖).

Id. (reaffirming that ―no expectation of privacy legitimately attaches to open fields‖).

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A. Curtilage

Curtilage is defined as ―[t]he land or yard adjoining a house,

usu[ally] within an enclosure.‖

This is a broad definition, as the

―land or yard adjoining the house‖ can be construed vaguely and can

include large swathes of land. The Supreme Court stated that ―[a]t

common law, the curtilage is the area to which extends the intimate

activity associated with the ‗sanctity of a man‘s home and the priva-

cies of life.‘ ‖

The scope of curtilage has been refined but it is still

the same in principle. Today, curtilage is considered ―an area of do-

mestic use immediately surrounding a dwelling and usually but not

always fenced in with the dwelling.‖

In an effort to clear up any ambiguities with regard to the

scope of curtilage, the Court in United States v. Dunn

laid out a four

part analysis.

In determining whether a particular search took place

within the curtilage, a court must analyze:

(1) the proximity of the area claimed to be curtilage to

the home; (2) whether the area is included within an

enclosure surrounding the home; (3) the nature of the

uses to which the area is put; and (4) the steps taken

by the resident to protect the area from observation by

people passing by.

The analysis starts with the first prong which is the proximity

test.

With regard to swimming pools, these are typically proximate

to a house. However, at what distance is an improvement considered

proximate? Would a shed, detached garage or barn be considered

proximate? In certain circumstances it has been held that a barn,

physically separate from the house, does not enjoy Fourth Amend-

ment protection because it is not within the curtilage of the home.

BLACK‘S LAW DICTIONARY (9th ed. 2009). Further defining curtilage, as it pertains to

the Fourth Amendment, as ―an area usu[ally] protected from warrantless searches.‖ Id.

Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

United States v. LaBerge, 267 F. Supp. 686, 692 (D. Md. 1967).

480 U.S. 294 (1987).

Id. at 301.

United States v. Pace, 955 F.2d 270, 274 n.2 (5th Cir. 1992) (quoting Dunn, 480 U.S. at

301).

Dunn, 480 U.S. at 301.

Pace, 955 F.2d at 272.

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This is because it did not pass the other prongs of the analysis.

such, there are exceptions to the proximity factor, as each factor in

the analysis must be considered.

The second prong of the analysis is ―whether the area is in-

cluded within an enclosure surrounding the home.‖

As noted by the

Supreme Court, ―for most homes, the boundaries of the curtilage will

be clearly marked; and the conception defining the cartilage—as the

area around the home to which the activity of home life extends—is a

familiar one easily understood from our daily experience.‖

One ex-

ample of such a boundary is a fence. A fence is considered signifi-

cant ―as . . . fences generally ‗serve[] to demark a specific area of

land immediately adjacent to the house that is readily identifiable as

part and parcel of the house.‘ ‖

This prong can correlate and some-

times overlap the fourth prong of the analysis. Examples of this

would be the erection of a fence or installation of a natural hedge

row. These features will tend to demarcate an area one would con-

sider within the curtilage as well as protect the area from the observa-

tion of people walking by.

The third prong hinges on the ―nature of the uses to which the

area is put.‖

Typically, these uses include ―intimate activit[ies] as-

sociated with the sanctity of a man‘s home and privacies of life.‖

would appear reasonable to say that the use of a swimming pool

would fall within the intimate activities category. Families tend to

spend a lot of time around their swimming pools, especially in the

summer months, to which a reasonable person would expect privacy.

The swimming pool is an amenity utilized for many activities such as

swimming, sun bathing, relaxing and socializing with friends and

family. These activities as well as other legal activities that occur

within the curtilage should enjoy the protection of the doctrine. On

the other hand, if an area is utilized for illegal activities, then one

cannot presume to be protected by the doctrine of curtilage.

There-

Id. at 274 (explaining that in Pace, ―the officers had evidence that the barn was not

being used in connection with the ‗intimacies of the home,‘ ‖ but rather it was being used for

illegal purposes).

Id. at 274 n.2 (quoting Dunn, 480 U.S. at 301).

Dunn, 480 U.S. at 302 (quoting Oliver, 466 U.S. at 182 n.12).

Pace, 955 F.2d at 275 (alteration in original) (quoting Dunn, 480 U.S. at 302).

Id. at 274 n.2 (quoting Dunn, 480 U.S. at 301).

Id. at 275 (quoting Oliver, 466 U.S. at 180) (internal quotation marks omitted).

Id. at 275-76.

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fore, if having an illegal pool constitutes an illegal activity under this

principle, then the violator would have no recourse.

The fourth prong analyzes ―the steps taken by the resident to

protect the area from observation by people passing by.‖

As men-

tioned previously, this prong can work in concert with the second

prong of the analysis such that some courts utilize three elements by

combining the second and fourth elements. Typically, satisfying the

fourth prong will satisfy the second prong. The steps taken by resi-

dents to protect the area from observation from people passing by in-

clude erecting fences and installing hedges, bushes and trees which,

in addition, typically delineate an area considered intimately asso-

ciated with the home. There is an implied intent to maintain privacy

when such steps are taken. However, the problem with this prong is

that it is vague in its meaning of who constitutes a passerby. There is

no elaboration between whether this embodies all passersby or just

ones at street level.

The Court pointed out that these factors are not a strict guide-

line but yet an ―analytical tool[]‖ to help determine ―whether the area

in question is so intimately tied to the home itself that it should be

placed under the home‘s ‗umbrella‘ of Fourth Amendment protec-

tion.‖

It is noted that ―[t]he extent of the curtilage to which the

Fourth Amendment protection attaches is not unlimited[,]‖ and that

the boundaries are determined ―by ‗factors that bear upon whether an

individual reasonably may expect that the area in question should be

treated as the home itself.‘ ‖

However, the main consideration in

these cases concerns ―whether the area harbors the intimate activity

associated with the sanctity of a man‘s home and privacies of life.‖

Accordingly, it appears that, at the very least, a swimming

pool would be considered to fall within the area known as curtilage

and be afforded Fourth Amendment protection.

However, there are

holes in the Dunn analysis. As previously discussed, it is not specifi-

cally mentioned whether the fourth prong of the analysis applies to

observation from publicly navigable airspace. Therefore, this doc-

Id. at 274 n.2 (quoting Dunn, 480 U.S. at 301).

Dunn, 480 U.S. at 301.

Pace, 955 F.2d at 275 (quoting Dunn, 480 U.S. at 300).

Id. (quoting Oliver, 466 U.S. at 180) (internal quotation marks omitted).

Dunn, 480 U.S. at 300 (―[T]he Fourth Amendment protects the curtilage of a house and

. . . the curtilage is determined by factors that bear upon whether an individual reasonably

may expect that the area in question should be treated as the home itself.‖).

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trine cannot be utilized in a vacuum. In addition to the Dunn test,

there is other case law and doctrines that apply and need to be consi-

dered.

Furthermore, the doctrine of curtilage is limited in scope as

not all areas of one‘s property fall within its protection. Property that

falls outside the curtilage may be subject to the open fields doctrine.

The Court has shown that ―government[] intrusion upon the open

fields is not one of those ‗unreasonable‘ searches proscribed by the

text of the Fourth Amendment.‖

The doctrine of curtilage typically

cannot be invoked when the ―open fields‖ or ―plain view‖ doctrines

are in play.

B. Open Fields

The open fields doctrine is a ―rule [that] permit[s] a warrant-

less search of the area outside a property owner‘s curtilage.‖

The

Supreme Court first articulated this doctrine in Hester v. United

States.

In Hester, the Court stated that ―the special protection ac-

corded by the Fourth Amendment to the people . . . is not extended to

the open fields.‖

The distinction between ―open fields‖ and the cur-

tilage of the home was laid out in Oliver v. United States,

where the

Court stated that ―[o]pen fields are [not] protected [ ] under the text

of the Fourth Amendment . . . [because it] protect[s only] those areas

in which individuals have a ‗reasonable expectation of privacy.‘ ‖

100

In essence, open fields are considered to be outside the realm of pri-

vacy, in areas in which a reasonable person would not expect to have

privacy. These ―open fields‖ may or may not be within the public

view.

On the other hand, ―[t]he curtilage of the home . . . was dis-

tinguished from open fields in the common law, a distinction the

Court in Oliver took to mean that ‗only the curtilage, not the neigh-

boring open fields, warrants the Fourth Amendment protections that

attach to the home.‘ ‖

101

This is premised on the fact that ―open

Id. at 303-04 (quoting Oliver, 466 U.S. at 177).

BLACK‘S LAW DICTIONARY (9th ed. 2009).

265 U.S. 57, 59 (1924).

Id.

466 U.S. 170 (1984).

100

Pace, 955 F.2d at 274-75 (quoting Oliver, 466 U.S. at 176 n.6).

101

Id. at 275 (quoting Oliver, 466 U.S. at 180).

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fields do not provide the setting for those intimate activities that the

Amendment is intended to shelter from government interference or

surveillance.‖

102

Furthermore, ―the rule of Hester v. United States . . . may be

understood as providing that an individual may not legitimately de-

mand privacy for activities conducted out of doors in fields, except in

the area immediately surrounding the home.‖

103

Accordingly, there is

―no constitutional difference between [ ] observations conducted

while in a public place and while standing in the open fields.‖

104

Fol-

lowing this methodology, there would be no constitutional infringe-

ment when satellite technology is utilized to search ―open fields,‖ as

they are afforded less protection than that of the area constituting cur-

tilage.

In conclusion, if the area subject to surveillance is located in

―open fields‖ then no privacy interest exists. On the other hand, if

the area is located in the ―curtilage‖ then a privacy interest does exist.

Therefore, some areas of an improved parcel would be given greater

protection depending on whether it constitutes open fields or curti-

lage. In general, the pool area would appear to be within the curti-

lage of a home, thereby, warranting a heightened sense of privacy.

However, with regard to curtilage, there is no hard and fast rule that

applies to observation of the curtilage from publicly navigable air-

space which is what one can observe utilizing Google Earth. There-

fore, it appears that the doctrine of curtilage has limitations with re-

gard to the matter at hand.

C. Recent Case Law – Dow Chemical Company &

Ciraolo

The Supreme Court in two recent cases, Dow Chemical Com-

pany v. United States and California v. Ciraolo, decided on the same

day, tackled the issues regarding advanced methods of surveillance,

102

Oliver, 466 U.S. at 179.

103

Id. at 178; see, e.g., Air Pollution Variance Bd. of the State of Colorado v. Western

Alfalfa Corp., 416 U.S. 861, 865 (1974) (finding that a field inspector who made

observations and took readings of the smoke emanating from a building‘s smoke stacks was

not a violation of the company‘s Fourth Amendment rights; the Court ―refused to extend the

Fourth Amendment to sights seen in the open fields,‖ noting that anyone in the city could see

the same thing).

104

Dunn, 480 U.S. at 304.

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particularly aerial photography, and their relationship to the Fourth

Amendment.

105

1. Dow Chemical Company v. United States

Dow Chemical operated a facility that manufactured chemi-

cals and, as a result, was subject to inspections by the Environmental

Protection Agency (EPA).

106

The EPA requested such an inspection

of the facility, which encompassed approximately 2,000 acres, and

Dow Chemical denied the request.

107

Subsequently, the EPA hired a

commercial aerial photographer to fly over the facility and take aerial

pictures.

108

The photographer utilized a standard aerial mapping

camera to take pictures from as close as 1,200 feet above the facility,

in publicly navigable airspace.

109

Dow Chemical brought suit ―con-

ten[ding] that taking aerial photographs constituted a search without a

warrant, thereby violating [their] rights under the Fourth Amend-

ment.‖

110

The Court held that Dow Chemical‘s Fourth Amendment

rights were not violated.

111

It was reasoned that ―[a]ny person with

an airplane and an aerial camera‖ could have conducted similar sur-

veillance.

112

Applying this to the current problem, there would be no

violation of the Fourth Amendment because the same surveillance

that a municipality was using on its citizens could be conducted by

any person with a computer and the internet.

Dow Chemical claimed that it had a reasonable expectation of

privacy and that the prongs of the Oliver test were satisfied, as evi-

denced by the existence of fencing and security details that made

105

See Dow Chem. Co., 476 U.S. at 229 (granting certiorari to hear a case concerning

aerial photography without a warrant of a commercial property and its relationship with the

Fourth Amendment); Ciraolo I, 476 U.S. at 209 (granting certiorari to hear a case

concerning aerial photography of a residential property without a warrant and its relationship

with the Fourth Amendment).

106

Dow Chem. Co., 476 U.S. at 229.

107

Id.

108

Id.

109

Id.

110

Id. at 234.

111

Dow Chem. Co., 476 U.S. at 239 (―[T]he taking of aerial photographs of an industrial

plant complex from navigable airspace is not a search prohibited by the Fourth

Amendment.‖).

112

Id. at 231.

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ground level observation of the premises obsolete.

113

However, the

Court‘s rebuttal was that they did not take any precautions against

aerial intrusion. Some might argue that this is an unreasonable con-

tention because preventing aerial intrusion, especially when this in-

trusion takes place in public airspace, would be difficult. For proper-

ty owners who would want to shield their curtilage, such as a

backyard or pool area, they would have to install some sort of cover-

ing. First, this could prove to be a financial burden. Second, there

could be an aesthetic issue that accompanies such structures. Finally,

permanent structures would have to be approved by the building de-

partment of the local municipality,

114

so in essence the municipality

would still be the final decision maker in a citizen‘s effort to maintain

privacy.

Dow Chemical claimed that the EPA lacked the authority to

utilize tools such as aerial photography for site inspections.

115

How-

ever, the Court disagreed, stating that ―[r]egulatory or enforcement

authority generally carries with it all the modes of inquiry and inves-

tigation traditionally employed or useful to execute the authority

granted.‖

116

Additionally, the Court made it a point to mention that

―[t]he Government [was] seeking these photographs in order to regu-

late . . . Dow.‖

117

Similarly, a municipality‘s code enforcement de-

partment would utilize satellite technology to regulate the codes of

their respective municipality.

The Court added a side note to its holding, possibly realizing

that the next step past aerial photography would be satellite imaging.

The Court stated ―[i]t may well be, as the Government concedes, that

surveillance of private property by using highly sophisticated surveil-

lance equipment not generally available to the public, such as satellite

technology, might be constitutionally proscribed, absent a war-

113

Id. at 229 (stating that Dow, in addition to elaborate ground level security, investigates

any low level aircraft that fly over the complex).

114

See, e.g., Washington Commons, LLC v. City of Jersey City, 7 A.3d 225, 228 (N.J.

Super. Ct. App. Div. 2010) (stating that New Jersey‘s municipal law allows governing

municipal bodies the discretion to oversee and require permits for construction of structures

and may even pursue action to frustrate construction of structures not in compliance with

their local laws).

115

Dow Chem. Co., 476 U.S. at 230 (alleging that the EPA‘s use of aerial photography

was not only a violation of the Fourth Amendment but beyond its investigative authority).

116

Id. at 233.

117

Id. at 232.

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rant.‖

118

Thus, in 1986, one could have contended, based on this dic-

ta, that warrantless satellite surveillance constituted an unconstitu-

tional search. However, it should be noted that when this case was

settled, satellite technology was not available to the public and was

used primarily by the military and intelligence agencies. Currently,

satellite technology is easily accessible by the public, therefore, ap-

plying the holding from Dow Chemical, the use of it by a regulatory

agency could be construed as constitutional.

A significant attribute of the Dow Chemical case is the fact

that it involves a commercial property as opposed to a residential

property. In Dow Chemical, it is reasoned that commercial property

is afforded less protection than a private house.

119

Furthermore, regu-

lation of a commercial property is afforded ―greater latitude‖ with re-

gard to searches.

120

This ―reflects the fact that the expectation of pri-

vacy that the owner of commercial property enjoys . . . differs

significantly from the sanctity accorded an individual‘s home.‖

121

Thus, it follows that if the Court were to find that satellite surveil-

lance of a commercial property was a violation of the Fourth

Amendment, then satellite surveillance of a residential property

would also be unconstitutional. However, the Court found in this

case that aerial photography of a commercial property was not a vi-

olation of the Fourth Amendment.

122

Therefore, as it applies to

commercial properties, it would appear that satellite surveillance of

these properties within a municipality‘s jurisdiction does not violate

the Fourth Amendment.

2. California v. Ciraolo

The other case, decided on the same day as Dow Chemical,

was California v. Ciraolo.

123

This case involved aerial observation,

similar to the aforementioned case, with the major difference being

118

Id. at 238.

119

Id. (―[U]nlike a homeowner‘s interest in his dwelling, ‗the interest of the owner of

commercial property is not one in being free from any inspections.‘ ‖ (quoting Donovan v.

Dewey, 452 U.S. 594, 599 (1981)))

120

Dow Chem. Co., 476 U.S. at 237 (pointing out ―that the Government has ‗greater

latitude to conduct warrantless inspections of commercial property‘ ‖ (Dewey, 452 U.S. at

598)).

121

Dewey, 452 U.S. at 598-99.

122

Dow Chem. Co., 476 U.S. at 239.

123

Ciraolo I, 476 U.S. 207 (1986).

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that it involved observation of a residential dwelling as opposed to a

commercial property.

124

The issue in Ciraolo was ―whether the

Fourth Amendment [was] violated by aerial observation without a

warrant from an altitude of 1,000 feet of a fenced-in backyard within

the curtilage of a home.‖

125

The Supreme Court, reversing the Court

of Appeals, held that warrantless aerial observation of a home did not

violate the Fourth Amendment.

126

The Court of Appeals based its

decision on the fact that the backyard was within the curtilage and

that the ―fence[] constituted ‗objective criteria from which we may

conclude . . . manifested a reasonable expectation of privacy by any

standard.‘ ‖

127

Overruling this basis, the Supreme Court made the

distinction that the fence did not shield the backyard from some ob-

servations, but that ―[i]t can reasonably be assumed that the . . . fence

was placed to conceal the [backyard] from at least street level views‖

and it served this purpose as far as ground level traffic was con-

cerned.

128

Furthermore, it is held ―[t]hat [just because] the area is

within the curtilage does not itself bar all police observation.‖

129

In Ciraolo, the police had a reasonable belief that the defen-

dant was growing marijuana in his fenced in backyard.

130

As a result

of the view restricting nature of the fence, the police flew a plane,

within navigable airspace, over the backyard in question to perform

aerial observation.

131

A warrant was then issued based upon photo-

graphs taken during the aerial observation.

132

Defense argued that

this warrant was based on an illegal search and as such was invalid,

124

Compare Ciraolo I, 476 U.S. at 209, with Dow Chem. Co., 476 U.S. at 229.

125

Ciraolo I, 476 U.S. at 209.

126

Id. at 210. The California Court of Appeals reversed the trial court‘s denial of

respondent‘s motion to suppress the evidence of the search and held that the warrantless

aerial observation of his home violated the Fourth Amendment. Id.

127

Id. (quoting People v. Ciraolo, 161 Cal. App. 3d 1081, 1089 (1st Dist., Div. 5 1984)

[hereinafter Ciraolo II]).

128

Id. at 211.

129

Ciraolo I, 476 U.S. at 213.

130

Id. at 209. The local police received a tip that respondent was growing marijuana in

his backyard and upon investigating the tip they went to the property but were unable to

observe the backyard because it was enclosed with two fences. Id.

131

Id. The plane was commissioned by the officer assigned to the case who subsequently

observed the respondent‘s backyard from the plane at an altitude of 1,000 feet, which is

within navigable airspace. Id.

132

Ciraolo I, 476 U.S. at 209. The police used a 35mm camera to photograph the

backyard in question and were able to obtain a search warrant in part due to the photographs

taken during the flyover. Ciraolo I, 476 U.S. at 209.

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rendering all the evidence inadmissible.

133

The Court of Appeals made it a point to mention ―that the

flyover ‗was not the result of a routine patrol conducted for any other

legitimate law enforcement or public safety objective, but was under-

taken for the specific purpose of observing this particular enclosure

within . . . curtilage.‘ ‖

134

This statement tends to show that the Court

of Appeals would have found the aerial observation constitutional if

it was routine and conducted for a public safety objective. Thus,

while the Court of Appeals and the Supreme Court had a difference

of opinion with regard to this case, it appears from their opinions that

they would have agreed that it is not a constitutional violation for a

municipality to routinely utilize a form of aerial photography for the

furtherance of a public safety objective.

V. MUNICIPALITY: CASE STUDY AND THEORY OF

LIABILITY

A municipality is defined as ―a primarily urban political unit

having corporate status and usually powers of self-government.‖

135

In essence, a municipality is government on a small, localized

scale.

136

When news broke of a municipality utilizing Google Earth

to look for code violations within its jurisdiction, people not only in

that specific municipality were outraged, but individuals from around

the nation voiced their concerns. The fervor could be traced to the

fact that if one municipality could implement such a policy, then oth-

ers may follow. Moreover, what would stop the United States Gov-

ernment from utilizing a similar policy? That is assuming it does not

employ similar policies already. The difference here is the scope of

the inquiry. While United States citizens can take solace in the fact

that the government probably will not perform an ―aerial sweep‖ of

all the homes within its borders, a municipality may and, as history

dictates, has.

133

Id. at 210, 212.

134

Id. at 210 (quoting Ciraolo II, 161 Cal. App. 3d at 1089).

135

MERRIAM WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/

municipality (last visited Nov. 12, 2010).

136

Jericho Water Dist. v. One Call Users Council, Inc., 887 N.E.2d 1142, 1143 (N.Y.

2008) (noting that a municipality ―denotes a unit of local government‖ and when construed

narrowly can ―include only entities exercising general governmental functions-i.e., counties,

cities, towns and villages‖).

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A. Municipal Inspections

In the past, the Supreme Court has found in favor of allowing

municipal inspections on the basis that there was no infringement of

an individual‘s Fourth Amendment rights.

137

In one case, the Court

based its decision on the fact that the ―routine inspection of the phys-

ical condition of private property is a less hostile intrusion than the

typical policeman‘s search for the fruits and instrumentalities of

crime.‖

138

In another case, the majority held that ―municipal . . .

housing inspection programs ‗touch at most upon the periphery of the

important interests safeguarded by the Fourth Amendment‘s protec-

tion against official intrusion‘ because the inspections are merely to

determine whether physical conditions exist which do not comply

with minimum standards prescribed in local regulatory ordin-

ances.‖

139

However, recently the Court has changed its position.

140

In Camara v. Municipal Court of City and County of San Francis-

co,

141

the Court held ―that administrative searches . . . are significant

intrusions upon the interests protected by the Fourth Amendment.‖

142

Furthermore, the Court noted that it cannot be stated that these ad-

ministrative searches are less intrusive than, for example, a police

search because in many cases a discovery of a code violation may

lead to a criminal complaint.

143

Current case law dictates that the Supreme Court has sided

with the ―privacy and security of individuals against arbitrary inva-

sions by governmental officials,‖ especially in one‘s home.

144

How-

ever, it should be noted that this line of case law involves a munici-

137

Camara v. Mun. Court of the City and Cnty. of San Francisco, 387 U.S. 523, 525

(1967) (citing Frank v. Maryland, 359 U.S. 360, 367, 373 (1959)) (stating that in Frank,

―this Court upheld . . . a state court conviction of a homeowner who refused to permit a

municipal health inspector to enter and inspect his premises without a search warrant‖).

138

Id. at 530.

139

Id. (quoting Frank, 359 U.S. at 367).

140

Id. at 530-31 (―We may agree that a routine inspection . . . is a less hostile intrusion

than the typical policeman‘s search . . . [b]ut we cannot agree that the Fourth Amendment

interests at stake in these inspection cases are merely peripheral.‖).

141

387 U.S. 523 (1967).

142

Id. at 534. ―[W]e hold that administrative searches . . . when authorized and conducted

without a warrant procedure lack the traditional safeguards which the Fourth Amendment

guarantees to the individual.‖ Id.

143

Camara, 387 U.S. at 531 (―Even in cities where discovery of a violation produces only

an administrative compliance order, refusal to comply is a criminal offense . . . [and] refusal

to permit an inspection is itself a crime. . . .‖).

144

Id. at 528.

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pality‘s physical intrusion upon an individual‘s dwelling and is not

analogous to the mere observation of the ―curtilage‖ of one‘s home

from a public viewpoint, namely aerial imagery that could be viewed

from public navigable airspace. Furthermore, instead of a building

inspector physically intruding upon one‘s property, the inspectors

could use the less intrusive satellite imaging to achieve the same

ends.

B. Case Study – Riverhead

The municipality which started this controversy is the Town

of Riverhead (―the Town‖), located on Long Island, in Suffolk Coun-

ty, in the State of New York. According to a 2008 American Com-

munity Survey, there were 14,604 housing units in Riverhead.

145

However, it took only one town employee and the program known as

Google Earth to search the entire township for illegal pools.

146

In-

itially, before the media attention, this practice did not seem to be an

issue. However, after news broke about this program of surveillance,

the Town stated ―many residents, together with local and regional

community groups, have expressed their objection to and fear of

eroding privacy rights by the Town of Riverhead Building Dept. use

of virtual globe map and geographic information programs.‖

147

On September 8, 2010, within weeks of the story making na-

tional headlines, the Town passed a resolution ―restricting the use of

virtual globe map and geographic information programs.‖

148

Fur-

thermore, this resolution implemented a policy that ―restrict[ed the]

use of satellite imagery as the basis or foundation of prosecutions in

areas not readily observable from public locations and restricting use

of satellite imagery to conduct ‗sweeps‘ in place of field inspections

and investigations without [the] approval of the Town Board.‖

149

145

American Community Survey, U.S. CENSUS BUREAU, http://www.factfinder.census.gov/

servlet/ACSSAFFFacts?_event=Search&_name=riverhead&_state=04000US36&_county=ri

verhead&_cityTown=riverhead&_zip=&_sse=on&_lang=en&pctxt=fph&_submenuId=facts

heet_1 (last visited Nov. 12, 2010).

146

Freedman & Van Sant, supra note 1.

147

Riverhead, N.Y., Res. 709 (2010), available at http://www.riverheadli.com/

TBM.09.08.10.pdf (last visited Nov. 12, 2010).

148

Id. (adopting, by a 5-0 vote, a policy titled ―Policy Regarding Use of Virtual Globe

Map and Geographic Information to Initiate or Commence Prosecution for Violation of the

Provisions of the Town Code of the Town of Riverhead by Town Departments‖).

149

Id.

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However, the Town did state that it ―recognize[d] the need to

balance the Town‘s right to use satellite imagery, particularly in areas

of public view . . . for which individuals do not have a reasonable ex-

pectation of privacy under the Town‘s police powers with a resident‘s

right and expectation of privacy in their homes or areas not readily

observable from a public location.‖

150

According to recent case law, the use of satellite imaging by a

municipality to regulate its citizens would be constitutional. River-

head utilized this method of surveillance, citing safety concerns, to

search for the existence of illegal pools but due to public scrutiny de-

cided to discontinue this practice. Looking for pools that are non-

compliant in order to bring them into compliance to reduce the possi-

ble risk of injury or death appears to be a plausible public safety ob-

jective. Thus, this policy should pass constitutional muster, nonethe-

less, the Town discontinued this practice. Additionally, a

conceivable argument can be made that since this tool is available, a

municipality should use it. However, by not using this tool does a

municipality subject themselves to liability? The code enforcement

and building divisions in a municipality are typically responsible for

safeguarding its citizens. Therefore, if a person is injured in, for ex-

ample, an illegal pool and the municipality failed to use all available

tools to locate the pool and make it compliant, could it be possible to

bring a claim of liability against the municipality?

C. Municipal Liability

―A municipality is a governmental entity entitled to sovereign

immunity, but only for some of its functions.‖

151

This section mainly

relates to the functions of the enforcement divisions of a municipali-

ty, namely the building and code enforcement departments. As socie-

ty progresses and the powers exerted by municipalities increase, so

do the number of cases brought against municipalities for their roles

in safeguarding the public.

152

In addition, more and more courts are

150

Id.

151

Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 388 (Tex. App.

2008).

152

Deborah L. Markowitz, Esq., Municipal Liability for Negligent Inspection and Failure

to Enforce Safety Codes, 15 HAMLINE J. PUB. L. & POL‘Y 181, 182 (Spring 1994) (―Since the

late 1970‘s, there have been numerous examples of municipalities that, having undertaken to

conduct inspections, are charged for their negligence in failing to uncover violations.‖).

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hearing these cases instead of dismissing them at the outset.

In a recent New York case, the court denied the State‘s mo-

tion for summary judgment, dismissing the claim concerning damag-

es for common law negligence.

153

In this case, New York State con-

ducted investigations of a property which included taking aerial

photographs.

154

Subsequently, the claimant was injured and brought

suit against the state for failure to perform a reasonable investiga-

tion.

155

In the opinion, the court referred to the responsibility of the

municipality to perform a ―reasonable investigation‖ and ―diligent in-

spection.‖

156

In another case, a municipality was ―found liable for

both compensatory and punitive damages for its failure to inspect . . .

and its consequent failure to enforce the [] code.‖

157

Based on these

decisions, it seems that a municipality could be held liable for not

performing reasonable, diligent inspections. Can a case be made by a

parent of a child who drowns in a neighbor‘s pool, a pool that is not

up to code, on the premise that the Town did not perform their due

diligence in finding that this pool existed, thus requiring it to comply

with the code? This scenario is not a stretch of reality by any means.

As evidenced above, it could be argued that a municipality was neg-

ligent for failing to perform a reasonable investigation. Furthermore,

an objective person would tend to assume a ―reasonable investiga-

tion‖ would have included all the tools at their disposal, including

Google Earth. Moreover, in Riverhead‘s case, their liability is heigh-

tened because they have already opened the door to utilizing Google

Earth, notwithstanding the fact that they have since adopted a resolu-

tion to cease use of this application.

VI. CONCLUSION

Satellite imagery, once an application only available to and

utilized by military and intelligence agencies, has become main-

stream and available free to the public via multiple web-based servic-

153

Wynne v. New York, 863 N.Y.S.2d 222, 224 (App. Div. 2d Dep‘t 2008).

154

Id. at 657 (―Prior to the commencement of the construction, the State conducted

investigations of the property to determine if the property was suitable to construct the exit

ramp, which consisted of . . . taking aerial photographs.‖).

155

Id.

156

Id. at 658 (―[T]he claimant raised a triable issue of fact as to whether the State

performed a reasonable investigation of the property . . . [and] that a diligent inspection

would have disclosed the tank that caused the . . . injury.‖).

157

Markowitz, supra note 142.

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448 TOURO LAW REVIEW Vol. 28

es such as Google Earth. The transition from private to public use

brought with it a surge in new and creative ways to utilize and im-

plement this technology in multiple arenas. Law enforcement agen-

cies have been utilizing satellite imaging in furtherance of their du-

ties, including the regulation of crime. It was only a matter of time

before municipalities and their respective departments started using

satellite imaging to regulate their citizens. This latest trend, as exhi-

bited by the Town of Riverhead, has created a national controversy.

Many people feel that their privacy rights are being eroded. Civil li-

bertarians are left wondering at what point technology infringes on

our Fourth Amendment rights. Currently, there is no answer to this

question. The Supreme Court has yet to decide a case on point with

regard to this issue.

Throughout the years, Fourth Amendment jurisprudence has

evolved to keep pace with technology. As technology progressed

throughout the 20th century, the Court switched from a physical in-

trusion approach to a privacy interest approach. However, it appears

that technology, for the time being, has outpaced case law. The stan-

dards set forth in Katz for determining if a Fourth Amendment viola-

tion has occurred could be construed as antiquated in today‘s tech-

nologically savvy society. The Court in Kyllo acknowledged the fact

that Fourth Amendment jurisprudence needs to carefully adapt to the

changing times.

The most analogous Supreme Court cases regarding the con-

stitutionality of the use of satellite imagery by a municipality for reg-

ulatory purposes are Dow Chemical Company v. United States and

California v. Ciraolo. These cases tackled the issues regarding ad-

vanced methods of surveillance, particularly aerial photography, and

its relationship with the Fourth Amendment. In Dow Chemical, the

Court held that aerial surveillance of a commercial property did not

violate the property owner‘s constitutional rights.

158

Furthermore, in

Ciraolo, the Court held that the warrantless aerial observation of the

curtilage of a residence did not violate the Fourth Amendment.

159

Thus, applying the respective holdings of these cases to the current

issue, it would be constitutional for a municipality to utilize satellite

imagery to regulate its citizens.

Furthermore, it is important to acknowledge the doctrine of

158

Dow Chem. Co., 476 U.S. at 239.

159

Ciraolo I, 476 U.S. at 215.

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curtilage. It is arguable that most backyards, especially the pool area,

would be considered within the curtilage of the home and afforded

Fourth Amendment protection. However, these areas are generally

visible from publicly navigable airspace and, as such, would not be

constitutionally protected from aerial surveillance, including satellite

imaging. Thus, the majority of recent case law shows that surveil-

lance accomplished by satellite imagery, even within a house‘s curti-

lage, is constitutional.

Despite the fact that the present use of Google Earth by a mu-

nicipality to regulate its citizens may not be a popular policy, it is not

a violation of a constitutional right. However, the Supreme Court

should address this issue because it is a slippery slope and has be-

come an area of concern. As technology increases, many more ex-

amples regarding municipalities employing satellite based technology

will arise, which in turn, will spark more debates about invasion of

privacy. A decision on point would obviate such debates and alle-

viate concerns by municipalities using satellite based technology.

Furthermore, it will allow municipalities to utilize tools at their dis-

posal, bringing them in line with the Twenty-First century and at the

same time making government more efficient.

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