With technological advances in surveillance techniques, the privacy-protection question is no longer whether police have physically invaded a constitutionally protected area. Rather, the inquiry is whether the surveillance invaded a constitutionally protected legitimate expectation of privacy.    

In writing a partial dissent, Associate Justice John Dooley wrote:

The essential question is when aerial surveillance will be considered a search. We do not serve the public interest if the answer to that seemingly simple question can be determined only in hindsight, after evaluating myriad factors.    

It seems that a reasonable expectation of privacy is in the same realm of “myriad factors” that police deal with everyday when considering suspicious activity and alleged crimes. The Burlington Free Press published an editorial applauding the decision, calling it a common sense ruling and including the following apt comparison:

If someone were to climb on a ladder to peer over a fence into our yard, we would consider that an invasion of our privacy. Looking down into the yard from a helicopter hovering 100 feet above would be taking the act of peeking over the fence to the nth degree.   

source:Burlington Free Press