Not to interrupt as Homebrew guts the plain view doctrine…
…but how would you feel if the police were flying around pursuant to a warrant to check out Bricker Estates for marijuana growing, and they happened to glance down and notice large fields of pot as they were flying over Homebrew Hills?
Me too. 
As a “liberal” you might think I just loooove the government. I don’t. I distrust it more than anything on earth. Its limits should be clear. Its foundation should be clear: a government derives its power from its citizens. What they do not explicitly grant it, it cannot have.
Not at all. If they were already flying for other reasons–like in execution of another warrant–and it was reasonable that they would have seen what they saw (say, in Bricker’s example, Homebrew and he lived next door, or Bricker had acres and acres of crops that made it plain to discover), then I would hardly fault them for discovering this. The next warrant should be a piece of cake, then.
Still need a warrant to use any evidence found on my property.
If you are not advancing a distinction between “device that produces vague fuzzy images” and “device lets the cops watch as if you lived in a glass house” as a standard, then you can hardly object when the former is treated as indistinguishable from the latter, and subject to the same level of strict scrutiny.
OK - but in support of the warrant request, to establish probable cause, can the cops mention that while they were flying over Bricker Estates to execute another warrant, they happened to glance down at Hombrew Hills and saw the pot growing there, plain as day?
Since those facts (given that the record would show that they already had legitimate business flying over Homebrew Hills, as opposed to having targeted it for a search) make this an example of “plain sight”, yes.
If the general environment changed to one in which a lerge percentage of people wore themal imaging goggles as routinely as a large number of people wear glasses, the I’d conclude that there would be no expectation of privacy in anything that would be “in plain sight” to someone wearing thermal imaging goggles.
The bottom line is that a “search” is a deliberate act, and there are situations in which the police can legitimately get information that is “in plain sight” without conducting a “search” (and hence without having to comply with the limitations on when and where they may “search”).
And if I, with my private pilot’s license, rented a Cessna in an effort to get my wife to join the Mile High Club, and between bouts of ecstasy we happened to see Homebrew’s pot as we’re flying around, and reported it to the police? Would that report be sufficient basis to sustain probable cause and let a search warrant issue?
Well, this is a subject for another debate. To distrust something to which you seek o give more and more power to seems a contradiction to me. 
Ok, but what if they simply wanted to fly over a large area of land in order to look for marijuana? Are you saying that this is forbidden, or not granted?
I agree entirely. The whole point of contention regarding thermal imaging seems to be whether or not it constitutes a search.
I think Bricker’s (I hope) formulation that as long as it is not intrusive it is likely not a search has some merit. At least in deciding on issues where older rules may not be so clear.
I’m still mulling over the thought of whether police executing a warrant to fly over Bricker Estates can use what they see over Homebrew Hills in route; but I do have an answer for this question.
I wouldn’t think your affidavit by itself would be enough to be probable cause. What expertise do you have in distinguishing Weed from weeds or bamboo while flying in a plane? Why should the court believe you saw what you say you saw?
I think the “plain view doctrine” needs, if not gutted, then curtailed a little.
Really so only eyewitness testimony from experts counts as probable cause for a search?
Well, you raise a good point.
My question assumes that the nature of the growth was obvious. But I agree that if the affiant says, “Well, of course it was marijuana! It was green! With leaves!” then there’s no established probable cause.
On the other hand, if the affiant says, “Well, I have a bachelor’s and master’s degree in botany, and the subject of my PhD dissertation was historical identification of pistillate hemp plants, and what I saw was marijuana,” then I’d say probable cause has been established.
Since the key element here is whether a fly-over without a warrant can produce probable cause for a warrant, let’s assume that the observer has the requisite expertise.
Probably, depending on whether you could credibly claim to distinguish The Demon Weed With Roots In Hell from random vegetation. Private citizens are not subject to the same constraints as police.
(Property-rights issues don’t really enter into it unless you were flying low enough to represent a nuisance to Homebrew, in which case he could sue you.)
Shoot. I hoped to avoid that question by my earlier response.
First let me say that I think vice laws are overreaching. I don’t think the government should be able to ban the use of any recreational drugs or prostitution or porn or gambling. I’ll grant that the courts have accepted that authority on Commerce Clause or other grounds, so we’re stuck with it. (I might buy the arguments for a regulation but not prohibition.) I think that point is relevant when considering what I think the police should be allowed to do under the plain view doctrine.
I think that a different standard should be required for vice, property or violent crimes. Vice crimes should have to meet a higher threshold to obtain a warrant than violent crimes. A simple affidavit from an observer should not be enough for vice crimes, while it could be enough for property crimes, on a case by case basis, and certainly for violent crimes. Although police can reasonably act on violent crimes even without a warrant.
So no, I don’t think your, even expert, affidavit should be enough to obtain a warrant to search Homebrew Hills. I also don’t think the police should be able to use the information they gain in route to Bricker Estates to get a warrant. Reasonably, of course, they now know to start looking for evidence I’m up to my ears in grow-your-own; but they have to play by the rules. Aerial views by artifical flight are not plain view, IMHO.