Lewis Franklin Powell, Jr.

“ Whether the search of private quarters is accomplished by placing on the outer walls of the sanctum a detectaphone that transmits to the outside listener the intimate details of a private conversation, or by new methods of photography that penetrate walls or overcome distances, the privacy of the citizen is equally invaded by the Government and intimate personal matters are laid bare to view. ”

“ The Court does not explain why this single fact deprives citizens of their privacy interest in outdoor activities in an enclosed curtilage.
II A The Fourth Amendment protects " [t] he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." While the familiar history of the Amendment need not be recounted here, [2] we should remember that it reflects a choice that our society should be one in which citizens "dwell in reasonable security and freedom from surveillance." ”

“ One may assume that the Court believes that citizens bear the risk that air travelers will observe activities occurring within backyards that are open to the sun and air. This risk, the Court appears to hold, nullifies expectations of privacy in those yards even as to purposeful police surveillance from the air. ”

“ Technological advances have enabled police to see people's activities and associations, and to hear their conversations, without being in physical proximity. Moreover, the capability now exists for police to conduct intrusive surveillance without any physical penetration of the walls of homes or other structures that citizens may believe shelters their privacy. ”

“ The risk that a passenger on such a plane might observe private activities, and might connect those activities with particular people, is simply too trivial to protect against. It is no accident that, as a matter of common experience, many people build fences around their residential areas, but few build roofs over their backyards. 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. ”

“ B This case involves surveillance of a home, for as we stated in Oliver v. United States, the curtilage "has been considered part of the home itself for Fourth Amendment purposes." 466 U.S., at 180. 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." Post, at 235. The Court in Dow emphasizes, moreover, that society accepts as reasonable citizens' expectations of privacy in the area immediately surrounding their homes. ”

“ None of the prior decisions of this Court is a precedent for today's decision. As Justice Marshall has observed, it is our duty to be sensitive to the risks that a citizen "should be forced to assume in a free and open society." ”

“ United States, supra, at 217, n. 10, quoting Payton v. New York, supra, at 591, n. 33, in order to prevent "any stealthy encroachments" on our citizens' right to be free of arbitrary official intrusion, Boyd v. United States, 116 U.S. 616, 635 (1886) . ”