Florida V. Riley - Justice Blackmun's Dissent

Justice Blackmun's Dissent

Justice Blackmun recognized that five of the nine justices (O'Connor and the four dissenters) had agreed that "the reasonableness of Riley's expectation depends, in large measure, on the frequency of non-police helicopter flights at an altitude of 400 feet." Like Brennan, Blackmun noticed that the main disagreement among these five justices was whether the government or the defendant had the burden of proof in establishing whether public flights above Riley's home were common or rare. Blackmun thought it was likely that such flights were quite rare, supporting Riley's case, so the government had to show they occurred with some regularity. He wrote that "burdens of proof relevant to Fourth Amendment issues may be based on a judicial estimate of the probabilities involved."