WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment

WaPo: Volokh Conspiracy: Helicopter (and drone?) surveillance and the Fourth Amendment by Eugene Volokh:

The Supreme Court has held that observing and photographing people’s homes and surrounding areas from an airplane, flying at 1,000 feet, doesn’t violate the Fourth Amendment (see California v. Ciraolo (1986)). It also held the same as to a helicopter overflight at 400 feet (Florida v. Riley (1989)), though there one of the justices whose vote was necessary for upholding the government action (Justice O’Connor) noted that “public use of altitudes lower than that — particularly public observations from helicopters circling over the curtilage of a home — may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.”

Monday, the New Mexico Supreme Court (in State v. Davis [posted here]) held that an overflight by a helicopter at 50 feet violated the Fourth Amendment. But its analysis focused less on the usual inquiry in Fourth Amendment cases — the gathering of information that a person would have liked to keep hidden — and more on the physical intrusiveness of the helicopter: …