Ken was growing marijuana in his back yard in what was once his in-ground swimming pool. His entire yard is surrounded by a 6 foot high wooden privacy fence, and there is a 6 foot high fence around the former pool area inside the fenced yard. Officer Smith was conducting aerial surveillance of another property when his aircraft flew over Ken’s home and yard, and he spotted Ken’s marijuana garden. Officer Smith took photos, which he used to secure a warrant. The warrant was executed, the marijuana plants were seized, and Ken was arrested. Can Ken have the marijuana plants suppressed?

Question

a. Yes, Ken had a reasonable expectation of privacy in his backyard, evidenced by the “garden” having two fences to prevent intrusion from others.
b. No, the plants were in plain view from Officer Smith’s vantage point in the aircraft, and therefore Ken had no reasonable expectation of privacy in the area.
c. Yes, the plants were in growing in the curtilage of Ken’s home, an area where Ken had a higher expectation of privacy.
d. No, the plants were in the open, and there was no expectation of privacy since they lacked any form of coverage to obscure them from aerial observation.

Answer 1

b. No, the plants were in plain view from Officer Smith’s vantage point in the aircraft, and therefore Ken had no reasonable expectation of privacy in the area.