Florida V. Riley - Justice O'Connor's Concurrence

Justice O'Connor's Concurrence

Justice O'Connor felt that the plurality focused too much upon FAA regulations, "whose purpose is to promote air safety, not to protect ." She deviated from the plurality opinion in arguing that the frequency of public flight in the airspace was a necessary concern, and that the mere legality of such flights was insufficient to determine whether the defendant had a reasonable expectation of privacy:

t is not conclusive to observe, as the plurality does, that "ny member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse." Nor is it conclusive that police helicopters may often fly at 400 feet. If the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public and Riley cannot be said to have "knowingly expose" his greenhouse to public view.

Nevertheless, O'Connor concurred with the plurality opinion because she thought the defendant still needed to show that public use of the relevant airspace was uncommon. The Justice closed by saying flights less than 400 feet (120 m) in altitude "may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy."