Should somebody `up there' be allowed to keep an eye on you? Issue of privacy vs. aerial crime prevention heading for a showdown

UNITED States law enforcement, beleaguered by rampant crime, is looking for help from on high. It would come from aerial surveillance of suspected illegal activities.

However, the whole idea of police or government regulators peering down on private citizens from aircraft to detect misdeeds is headed for a constitutional showdown.

The issue is an old one: effective control of crime vs. privacy guarantees and other rights protections for criminal suspects. But some of the questions are new -- and they have earned an airing before the United States Supreme Court next fall.

Among them: Does inspection from the air constitute the type of ``unreasonable search'' banned by the Fourth Amendment to the Constitution? Must those engaging in this kind of surveillance be armed with warrants, similar to those required for admittance into a private home? Do ``privacy'' guarantees afforded to individuals extend to factories and other work facilities?

Predictably, most law officers -- both federal and local -- answer these queries with a resounding ``no.'' They stress that much crime goes unchecked due to excessive protections for the accused. Civil libertarians, on the other hand, reply in the affirmative -- pointing to a chipping away of individual rights by the courts in the name of ``necessary'' clampdowns on lawlessness.

One of the new cases tests the 60-year-old so-called ``open fields'' doctrine, which holds that unfenced and unprotected areas are not constitutionally protected from warrantless searches.

Last year, the Supreme Court, by a 6-to-3 vote, reinforced this concept in a drug-related matter by declaring that police could even ignore a ``no trespassing'' sign on private property to enter an area where they suspected a crime had been committed.

Protecting illegal activity by forcing police to obtain a search warrant before raiding a field to look for marijuana is not a privacy right that society deems reasonable, the court's majority held.

The current case also involves a warrantless police search for marijuana in California. But this time, the area under surveillance was a fenced-in yard in a private home. And the police watch was an aerial one.

The other new case also pertains to an aerial inspection effort. But this time, surveillance was not by police but by the federal Environmental Protection Agency (EPA) at a Dow Chemical Company industrial plant in Michigan. Suspecting violations of pollution regulations, EPA contracted a private company to fly over the factory and take photographs that might show evidence of illegal emissions. Dow subsequently sued the government to suppress any enforcement action based on the pictures.

A federal district court in Michigan ruled that such aerial photography violated the Fourth Amendment. But the US Sixth Circuit Court of Appeals overturned that decision, holding that a company does not have a ``reasonable expectation of privacy'' in outdoor areas of a factory that can be seen from the open air.

In its petition to the Supreme Court, Dow now argues that ``a secure and developed industrial facility has never been held to be an open field.'' The company stresses that its round-the-clock security proves that its plant occupies ``private'' rather than ``public'' space.

Among other things, the court must decide whether airplane surveillance is the same as ``walking in,'' explains American Civil Liberties Union (ACLU) lawyer, Charles Sims.

ACLU had previously urged the Supreme Court to reject the ``open fields'' doctrine as applied to fenced areas, which it sees as private property that requires a warrant to be searched.

Now it wants searches from above to be subject to the same restrictions as those from the ground. This would include a warrant requirement.

However, law enforcement officials insist that the emphasis should be on ``reasonableness,'' rather than the searches themselves. This may sometimes dictate warrantless entry (ground-based or aerial) when there is strong evidence of criminal activity, they allege.

Recent Supreme Court decisions show a decided leaning in the latter direction -- a setting aside of the warrant requirement in extraordinary circumstances -- particularly where the court has deemed that ``public safety'' is at stake.

A Thursday column