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Telescopes, Binoculars, and the Fourth Amendment

NCJ Number
Cornell Law Review Volume: 67 Issue: 2 Dated: (January 1982) Pages: 379-395
L K Marks
Date Published
17 pages
This note critically reviews the reasonable expectation of privacy standard as applied to evidence obtained through telescope and binocular surveillance.
It suggests that police use of telescopes and binoculars to observe activities or objects unobservable from a proper location by the 'naked eye' violates an individual's expectation of privacy. The U.S. Supreme Court's landmark decision in Boyd v. United States triggered the ultimate development of the reasonable expectation of privacy standard. The Court emphasized the function and spirit of the fourth amendment and stressed the need to construe liberally constitutional provisions protecting the security of persons and property. The Court's decision in Olmstead v. United States signaled a retreat from the expansive doctrine set forth in Boyd. Justice Brandeis, dissenting, maintained that the majority erred in restricting the fourth amendment to physical trespasses on constitutionally protected areas. Nearly 40 years later, in Katz v. United States, the Court repudiated the Olmstead trespass doctrine. This decision requires that courts determine whether government activity has violated a defendant's reasonable expectation of privacy. This means that the use of telescopes or binoculars to observe activity or objects that a person could not have viewed from a lawful location without the use of these aids violates reasonable expectations of privacy and that evidence so obtained must be excluded. The note argues that courts should weigh the threat to a free and open society posed by visual enhancement devices against the techiques' utility to law enforcement.