BINOCULARS, TELESCOPE, TELESCOPIC LENS, PHOTO ENLARGEMENT
Use of a bifocals, binoculars, field glass telescope or a similar device to magnify does not constitute an illegal search. United States v. Lee, 274 U.S. 559, 71 L.Ed. 1202 (1927).
Under Katz, the focus will be whether one has an expectation of privacy, and if that expectation is reasonable. See:
State v. Abislaiman, 437 So.2d 181 (Fla. App. 1983) (hospital emergency room parking lot surveillance camera zoomed on automobile - man with gun - lawful - diminished expectation of privacy in vehicle.) A marijuana plant observed in the window would be different than a marijuana plant in a place in the interior where one would expect it to be secreted from view.
United States v. Kim, 415 F.Supp 1252 (D.Haw. 1976). FBI agents 1/4 mile away, viewed defendant's reading material through a 60 mm opening via an 800 mm telescope - held to be a search.
Use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impairs a legitimate expectation of privacy")
Held in Sundheim v. Board of Cty. Comm'rs, 904 P.2d 1337 (Colo. App. 1995): It is undisputed that some of the investigator's observations were made from a public road outside plaintiffs' property. Because there is no invasion of privacy involved in observing that which is plainly visible to the public, a person's real property is not protected from observations lawfully made from outside its perimeter. Hoffman v. People, 780 P.2d 471 (Colo. 1989). Neither are we persuaded that the use of a camera with a telescopic lens transforms this lawful observation into an unreasonable search. See United States v. Rucinski, 658 F.2d 741 (10th Cir. 1981); cf. United States v. Bassford, 601 F. Supp. 1324 (D. Me. 1985), aff'd, 812 F.2d 16 (1st Cir. 1987) (use of binoculars to enhance view of readily visible marijuana plants did not constitute unreasonable search); State v. Rogers, 100 N.M. 517, 673 P.2d 142 (N.M.App. 1983) (use of binoculars does not render aerial surveillance unconstitutionally intrusive).
See:
State v. Lewis, 296 Or. 57, 672 P.2d 708 (1983), where the court held that no invasion of any private interest occurred when the police used a telescopic lens to photograph the defendant through the living room window of his residence, merely amplifying the view that would have been visible from the public sidewalk.
State v. Wacker, 317 Or. 419, 856 P.2d 1029 (1993), the court held that the use of a starlight scope to observe the defendant's activities in a car in the parking lot of a tavern, where patrons of the tavern were regularly passing within a few feet, was not a search. The use of the light-enhancing device merely aided the police in seeing activities that otherwise could have been seen with the naked eye by a bystander. In each of those cases, the character of the scrutiny by the government was held not to be sufficiently intrusive so as to constitute a "search."
A dissenting judge in United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) stated: I recognize that the use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); United States v. Lee, 274 U.S. 559, 563 (1927); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impair a legitimate expectation of privacy").
Whether the search with visual aid is lawful without a warrant will depend upon the facts and circumstances
