Respondent

Intro: Mr. Chief Justice and may it please the Court, my name is Ronen Wyrick and I represent
the Respondent, the state of Olympus, on the Fourth Amendment issue. My co-counsel, Mr.
Nikolas Frey, will address the Eighth Amendment issue. Rule: We ask this Court to rule that
Mr. Denolf did not have an objective expectation of privacy because his actions were
viewed from a public place of observation using publicly available technology. To this, two
arguments: First, Denolf did not have an objective expectation of privacy because his actions
were viewed from a public place of observation. Second, the officer’s use of aerial surveillance
was permitted and consistent with the general public use test in Kyllo v. United States.

I. According to this Court’s ruling in California versus Ciraolo and Florida versus Riley,
individuals do not have an objective expectation of privacy when their actions can be
visually observed from a public point of view.
1. Ciraolo and Riley have a similar fact pattern to today’s case. They deal with aerial
observation of private property.
2. They show us what should be considered an objective expectation of privacy
within this context.
1. Ciraolo dealt with observation within the respondent’s curtilage. He built
2 fences (one 25 ft tall), but this court rules he had no expectation of
privacy from what could be seen from an airplane.
1. Here, the trees are akin to the fence but have no bearing on
what can be seen from public airspace.
2. In Riley, this court went even further and allowed the police to peer
through a slit in a 90% covered roof. An aerial vantage point is allowed
and openings in a structure do not confer an expectation of privacy.
1. Similarly, here the windows were open, the curtains removed,
no blinds, and he stepped out.
2. The vantage point was similar to that of a helicopter if not less
intrusive because they weren’t hovering directly over the property.
3. Conclusion: The Court has never protected what can be seen through a
window that’s left open to public view. As justice Harlan noted in Katz,
law enforcement should not be required to shield their eyes from what
members of the public can see.

II. Not a home but a greenhouse

1. Not a home
1. Didn’t live here (residence vs. property)
2. Never spent the night here
2. More consistent with a greenhouse
1. Growing marijuana
2. That is why the police were surveilling them in the first place
3. The police believed it was a greenhouse
4. In actuality, they were growing pepper plants
 5. No evidence they had spent the night in the greenhouse

III. The officers’ use of aerial surveillance using equipment in general public use is allowed
and satisfies the two-part test in Kyllo.
1. General public use
2. In Florida versus riley, this court found that helicopters were in general public use
because 10,000 were owned across the united states. Here we know that 8% of
Americans own drones which is a number far greater than 10,000
1. Never drew a distinction between different kinds of Aircraft or helicopters
– more and less stealthy variants
3. The officers used technology within the general public use
1. “General public use” is a vague term in the Court’s writings. While there
is no clear standard, the court considered 3 things.
2. Availability
1. Although expensive, the Stealth Eagle is available to members
of the general public
3. Usage
1. Paparazzi, hunters, and wildlife enthusiasts. (pg. 4 paragraph
1)
4. features

4. Anyone using a form of aerial surveillance could have observed what the officers
saw. No physical intrusion was necessary to obtain the information the officers
saw.
1. In kyllo this court considered a case where police officers used infrared
imaging to look through walls into the interior of the home
2. The court found that this amounted to looking through walls
3. However, in today’s case physical intrusion was not necessary. Anyone
flying with binoculars could have seen him (aerial surveillance).
4. Likewise anyone who was standing in the property – like a mailman –
could have seen in
5. Therefore, the second part of the kyllo test does not apply.

Your honor, this court has never ruled that an optical zoom device is unconstitutional. In fact, in
California versus Ciraolo, police used a camera to survey the property and nearly all cameras are
equipped with optical zoom.

In dow chemical versus the united states (cited within kyllo versus the united states) this court
held that a professional grade mapping camera did not constitute a search but instead fell into the
category of visual observation. This category also includes observations with the naked eye such
as what was seen in ciraolo and riley. Nevertheless this court has held that “visual eye
observation is no search at all.” Whether the form of observation was naked eye surveillance
standard camera, or professional grade aerial mapping camera, this court has held that so long as
the object being observed is in plain public view no search has occurred.

We don’t poll. Instead we use the precedents this court has set in the past. Ciraolo and riley

Riley: confusing go with majority opinion. Was it flown in faa regulations. Routine. Boundaries
set by the faa. Plurality.

10,000 helicopters at the time of florida versus riley.

The court never distinguished between different types of planes or different types of helicopters

Functional equivalent or physical trespass in the area

Footnote 2 about 10,000 helicopters

Caselaw about what makes something a home – spending the night there
Carney – exception; it was being used as a home already.