[265 NJSuper Page 210] Is the warrantless use of binoculars by a police officer to observe objects not visible to the naked eye an unreasonable search under the Fourth Amendment to the U.S. Constitution? We hold it is not.*fn1 The only comment on this issue which we could find in a U.S. Supreme Court decision was dicta in On Lee v. United States, 343 U.S. 747, 754, 72 S. Ct. 967, 972, 96 L. Ed. 1270, 1276 (1952) stating that "[the] use of bifocals, field glasses or the telescope to magnify the object of a witness' vision is not a forbidden search or seizure, even if they focus without his knowledge
or consent upon what one supposes to be private indiscretions".
On September 12, 1988 an anonymous telephone call was received at police headquarters on their drug hotline stating that marijuana plants were being grown in the backyard of premises at 402A Amwell Road in Franklin Township. The caller described a mail box and two cars parked on the premises. No names were given.
The next day two police officers drove past the premises several times and on one occasion stopped their vehicle in the road to look into the backyard of defendant's private residence. They testified that the information as to the mail box and parked cars was accurate. Although there were many trees and shrubs in the side yard, the officers were able to see through the open spaces of the foliage to observe many cultivated plants about six feet tall in the backyard which they could not identify with the naked eye but with binoculars they were able to identify as marijuana plants.*fn2 With this information they obtained a search warrant and seized twenty-seven marijuana plants growing in the backyard, together with a large quantity of marijuana within the house.
The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures". These are words of limitation which proscribe unreasonable investigative procedures only if they are "searches and seizures" within the intent of the Fourth Amendment. While the Fourth Amendment is couched in the conjunctive pursuant to general statutory construction principles the proscription applies as well disjunctively to "searches" or
The meaning of the word "seizures" has not presented any difficulty for our courts. A seizure is deemed to occur whenever there is a physical taking or removal of personal property. Any meaningful interference with a person's possessory interest in personal property is deemed to be a seizure. On the other hand the meaning of the word "searches" is not easily described. We are unaware of any comprehensive definition but as commonly used a search implies intentional conduct, as opposed to casual conduct, to discover something that has been concealed. It is the antithesis of observing an object which is in open view. For instance, we do not describe an observation of the sun or the sky as being a "search". Obviously the use of a device to enhance vision indicates an intent to observe something not clearly visible to the naked eye and would imply more than a casual observation. Although there are many cases involving the use of binoculars, we are unaware of any case which has held their use is not a search. Accordingly, we conclude that the use of binoculars to enhance vision is a search.*fn3 Consequently, the issue in this case is not whether there was a search but whether the use of binoculars without a search warrant constitutes an unreasonable search in violation of the Fourth Amendment?
Early analysis of Fourth Amendment violations relied heavily on property and tort law and generally focused on whether a physical trespass occurred. See Olmstead v. U.S., 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928) and Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). But in Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), where the police overheard the defendant's end of a telephone conversation without committing a physical trespass by attaching an electronic
listening device to the outside of a public telephone booth, the foundation of the Fourth Amendment shield was significantly expanded.
The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [citations omitted] But what he seeks to preserve as private, even in an area accessible to the public, ...