Burkholder v. Superior Court

• Decision Date: 28 August 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Richard Benjamin BURKHOLDER, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF SANTA CRUZ, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 45879.

Page 86

158 Cal.Rptr. 86

96 Cal.App.3d 421

Richard Benjamin BURKHOLDER, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF SANTA CRUZ, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 45879.

Court of Appeal, First District, Division 1, California.

Aug. 28, 1979.

Rodger N. Bolles, Ludlow, Thompson, Fitzwater & Bolles, Santa Cruz, for petitioner.

George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, John H. Sugiyama, Deputy Attys. Gen., San Francisco, for real party in interest.

RACANELLI, Presiding Justice.

This petition for writ of prohibition or mandamus arises against the following factual background as disclosed in the record. ¹

In early August 1978, deputy Till, assigned to a special narcotics unit of the Santa Cruz County Sheriff's department, was engaged in a daytime flight over a rural county area in an aircraft jointly owned by a private flying club and the sheriff's office. ² From an absolute altitude estimated at 1,500 to 2,000 feet, deputy Till aided by 7 X 50 mm. binoculars observed what he believed to be a marijuana patch situated in a heavily wooded, mountainous area; deputy Till had identified similar growths from aerial observations on three earlier, unrelated occasions. Using a camera equipped with 135 mm. telephoto lens, photographs taken by deputy Till depicted a clearing surrounded by chicken wire enclosing bright, green plant life readily distinguishable from the surrounding foliage. The patch was situated on the south side of a steep canyon enclosed by trees.

On September 10, 1978, ³ deputy Till made a second overflight and again observed the suspected marijuana patch. Two days later, accompanied by fellow officers and two newspaper reporters, deputy Till "proceeded to the location" of the patch on the property leased by petitioner without any previous attempt or necessity to ascertain either the geographical location, description or ownership of the real property. Ignoring posted "no trespassing" signs, deputy Till used a master key to unlock a gate across the dirt access road leading to the property; encountering a second padlocked gate about three-fourths of a mile farther on, the party simply skirted the unfenced gate and entered upon petitioner's property without permission. While petitioner stood silently next to a pickup truck and travel trailer on the other side of the gate, deputy Till continued up the road to the wire-enclosed clearing in conducting a warrantless search resulting in the discovery of over 200 growing marijuana plants ranging to a height of approximately 10 feet.

Following petitioner's arrest, the uprooted contraband was seized by the officers and later analyzed as marijuana. ⁴

Contentions

Petitioner's Fourth Amendment claim is two-pronged: the optically-aided surveillance by aerial overflight and the subsequent nonconsensual entry and warrantless search constituted impermissible intrusions into constitutionally protected areas. Resisting that claim, respondent argues that no right of privacy attaches to objects in plain view, whether observed by the naked eye or artificial devices; further, that commission of a technical trespass does not vitiate an otherwise reasonable investigatory search conducted without a warrant.

I. Scope of Review

Preliminarily, we recognize that in reviewing a challenged warrantless search, we must defer to the findings of the trier of fact where supported by substantial evidence. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.) However, where as here the evidence is uncontradicted and no contrary inferences may be reasonably drawn, such findings are not binding and we are obliged to review the undisputed record as a matter of law. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 271, 294 P.2d 23; People v. Superior Court (1976) 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771.)

II. The Overflights

The basic test to be applied in determining the nature of the right of privacy protected under the warrant clauses of the federal and state Constitutions has been consistently stated as whether the person has exhibited a subjective expectation of privacy which is objectively reasonable and, if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Bradley (1969) 1 Cal.3d 80, 84-86, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Edwards (1969) 71 Cal.2d 1096, 1100, 80 Cal.App. 633, 458 P.2d 713; People v. Berutko (1969) 71 Cal.2d 84, 93-94, 77 Cal.Rptr. 217, 453 P.2d 721; People v. Sneed (1973) 32 Cal.App.3d 535, 541, 108 Cal.Rptr. 146.) However, while privacy expectations are not "earthbound" and "may ascend into the airspace and claim Fourth Amendment protection" (Dean v. Superior Court (1973) 35 Cal.App.3d 112, 116, 110 Cal.Rptr. 585, 589; see also People v. Sneed, supra, at p. 541, 108 Cal.Rptr. 146), a possessor of land devoted to the cultivation of contraband can exhibit no reasonable expectation of privacy from an overflight consistent with the common habits of persons engaged in agrarian pursuits. (See Dean v. Superior Court, supra, at p. 118, 110 Cal.Rptr. 585.) When such contraband is plainly visible from a vantage point where law officers had a right to be (People v. Bradley,supra, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129) there can be no reasonable expectation of privacy and no search in the constitutional sense. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33; cf. People v. Superior Court (Stroud) (1974) 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (helicopter surveillance of open yard from height of 25 feet revealing distinctively colored stolen automobile parts).)

Unlike the factual circumstances disclosed in Sneed, upon which petitioner heavily relies, neither of the flights herein involved a purposeful and intensive (helicopter) overflight at an unreasonable and unlawful altitude (20 feet) during a random search for contraband. It cannot be reasonably argued that the unobtrusive observations by deputy Till of the area below from an otherwise lawful altitude parallels the type of unreasonable governmental intrusion condemned in Sneed. On the contrary, similar to the factual circumstances reflected in Dean (three overflights from a minimum altitude of 300 feet disclosing a marijuana field half the size of a football field), it clearly appears that "the aerial overflights which revealed petitioner's open marijuana field did not violate Fourth Amendment restrictions." (Dean v. Superior Court, supra, 35 Cal.App.3d 112, 118, 110 Cal.Rptr. 585, 590.)

Nor does the fact that Till's observations were optically aided compel a contrary conclusion. The evidence revealed that the patch was visible to the naked eye and under the circumstances reasonably supported an inference that it was cultivated marijuana. Till testified that his use of the binoculars simply aided his visual observations by providing greater detail. In such cases, the determinative factor is whether a reasonable expectation of privacy existed entitling the claimant to be free from clandestine surveillance, whether by natural Or artificial means. (See People v. Arno (1979) 90 Cal.App.3d 505, 512, 153 Cal.Rptr. 624; Dean v. Superior Court, supra, 35 Cal.App.3d 112, 116, 110 Cal.Rptr. 585.) As succinctly stated by the Arno court (at p. 509, 153 Cal.Rptr. at p. 626): ". . . if the purpose of the optically aided view is to permit clandestine police surveillance of that which could be seen from a more obvious vantage point without the optical aid, there is no unconstitutional intrusion; and . . . if the purpose of the optical aid is to view that which could not be seen without it, there is." ⁵

We conclude that both the aided and unaided observations, achieved during unobtrusive overflights, violated no privacy rights of petitioner since none under the circumstances shown could reasonably exist.

III. The Ground Search

The more critical inquiry herein concerns the validity of the warrantless search conducted by the Till foot party involving the nonconsensual entry upon private property. Under applicable Fourth Amendment principles, we believe the record unmistakably demonstrates that petitioner possessed a protectable right of privacy impermissibly transgressed by the police incursion requiring suppression of the contraband so seized. We discuss the controlling principles and explain our reasons.

It is now well established that in defining the nature of the protectable interest, it is " 'the security of one's privacy against arbitrary intrusion by the police' (that) is 'at the core of the Fourth Amendment.' " (People v. Edwards, supra, 71 Cal.2d 1096, 1103, 80 Cal.Rptr. 633, 637, 458 P.2d 713, 717, quoting Berger v. New York (1967) 388 U.S. 41, 53, 87 S.Ct. 1873, 18 L.Ed.2d 1040.) As the Edwards court underscores, the constitutional protection is accorded to People and not Places, and if the person's expectation of privacy is reasonable such person is entitled to be free from unreasonable governmental intrusion. (Id.; see also Terry v. Ohio (1968)392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; Katz v. United States (1967)389 U.S. 347, 351, 88 S.Ct 507, 19 L.Ed.2d 576.) The absolute limitation placed upon Fourth Amendment protection under the "open fields" doctrine of another era (see Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898) is no longer viable. As earlier noted, the modern standard has been stated by our highest state court in the following manner: "(A) number of cases involving claims of unconstitutional searches or seizures in open fields . . . have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' That phrase, however, does not serve as a solution in all cases involving such claims, and we...