In the case of Florida v. Riley, the U.S. Supreme Court ruled in 1988 that police surveillance from a helicopter flying at an altitude of 400 feet did not violate the Fourth Amendment rights of Michael A. Riley, who was growing marijuana in a greenhouse on his property partially covered by panels with two missing sections revealing plants inside. The police had used this observation to obtain a search warrant and subsequently arrested him for possession of marijuana with intent to sell it. The court held that since any member of public could legally have been flying over Riley's property in a helicopter at the height from which observations were made, there was no reasonable expectation of privacy violated by such aerial inspection without warrant.

In the dissenting opinion for Florida v. Riley, Justice Brennan, joined by Justice Marshall and Justice Stevens, argued that a helicopter surveillance of a private property without warrant violated the Fourth Amendment's protection against unreasonable searches. They contended that an individual has reasonable expectation of privacy in their own home and its curtilage - areas surrounding it like yards or fenced-off spaces - from government intrusion not only at ground level but also from public airspace. The majority’s reliance on FAA regulations to determine societal expectations was seen as misplaced because these rules were designed for air safety rather than privacy concerns. Furthermore, they disagreed with the notion that police could freely observe what is visible to any member of public flying overhead since this would allow law enforcement agencies to conduct unrestricted aerial observation which most citizens cannot do due to lack of resources or technical capability.