Dean v. Superior Court

• Decision Date: 05 November 1973
• Citation: 35 Cal.App.3d 112,110 Cal.Rptr. 585
• Court: California Court of Appeals Court of Appeals
• Parties: Peter Stephen DEAN, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF NEVADA, Respondent; The PEOPLE of the State of Californla, Real Party in Interest. Civ. 13988.

Page 585

110 Cal.Rptr. 585

35 Cal.App.3d 112

Peter Stephen DEAN, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF NEVADA, Respondent The PEOPLE of the State of Californla, Real Party in Interest.

Civ. 13988.

Court of Appeal, Third District, California.

Nov. 5, 1973.

Rehearing Denied Nov. 20, 1973.

Hearing Denied Jan. 3, 1974.

Nason & Goldfarb by Brian Sax, Berkeley, for petitioner.

Evelle J. Younger, Atty. Gen. by James T. McNally and Eddie T. Keller, Deputy Attys. Gen., Sacramento, for real party in interest.

FRIEDMAN, Associate Justice.

According to evidence before the grand jury of Nevada County, a letter from an anonymous informant tipped off the authorities to the possibility of commercial marijuana cultivation in an isolated area of the Sierra foothills, an activity hidden from view by the surrounding hills and woods. The county sheriff dispatched an airplane and a binocular-equipped deputy to the general area indicated by the informant. On its first 'pass' the plane flew at an altitude of 700 feet. Among the trees the deputy saw a sizeable green patch near a dirt road. From a second pass, at an altitude of 400 to 500 feet, the deputy formed the belief that the patch was a field of growing marijuana. The plane dropped to an altitude of 300 feet and made a third pass. Using his binoculars, the officer was now able to discern the leaves' shape and their growth habit in clusters of five, typical of Cannabis sativa. The cultivated area seemed to be about half the size of a football field. The surrounding trees had been topped to increase the plants' exposure to the beneficent rays of the sum. The marijuana plants had grown to heights of 15 to 20 feet.

A few days later sheriff's personnel in plain clothes conducted two foot expeditions in an attempt to locate the field by ground travel. They traversed a 'well worn' footpath mentioned in the anonymous letter; they didn't know whether they were on public or private land; the area was not 'posted' against trespassers and there were no fences; nearby was a homemade sign indicating the existence of a game refuge. The first expedition was fruitless. The next day, on their second expedition, the deputies reached a point where they could see the tops of plants which they believed to be the marijuana previously seen from the air. At that point petitioner came down the path. One officer 'believed' that petitioner told them they were trespassing. They identified themselves as law officers and, in response to petitioner's question, acknowledged their lack of a search warrant. Nevertheless, the officers continued up the path, petitioner accompanying them but manifesting no consent. They came to a tent and encountered two men, one of whom picked up a rifle. Petitioner shouted, 'No, no, no' and the two men ran into the brush. After confirming the character of the agricultural produce, the officers arrested petitioner.

Petitioner held the land under an agreement to purchase. The marijuana occupied more than three-quarters' acre. The plants were arranged in neat rows along irrigation ditches, which could be watered from a nearby creek. The field contained approximately 400 plants with an estimated crop weight of 4,000 pounds and a commercial value exceeding $100,000. The evidence does not disclose whether the $100,000 figure is a wholesale or retail valuation. In the nearby tent the officers found weighing scales, a plastic bag containing 20 pounds of marijuana and a photographic copy of a printed study of marijuana inflorescence.

With this evidence before it, the grand jury indicted petitioner for possession of marijuana for the purpose of sale. (Health & Saf. Code, 11359.) He seeks to quash the indictment on the ground that the evidence against him was acquired by search methods violative of the Fourth Amendment. Initially, he argues that aerial surveillance of his land was an invasion of constitutionally protected privacy.

The letter from an informant of unknown reliability did not supply probable cause for a search of private property; it furnished no more than a basis for further investigation. (Mann v. Superior Court, 3 Cal.3d 1, 6--7, 88 Cal.Rptr. 380, 472 P.2d 468.) Fourth Amendment principles permit officers to make observations of suspicious activities on private property from a place where they have a right to be, for example, from a part of the suspect's premises open to the public or from the property of a cooperating neighbor; the same principles are violated by a warrantless entry into the suspect's property as to which he has exhibited a 'reasonable expectation of privacy.' Recent expression of these principles appear in People v. Dumas, 9 Cal.3d 871, 881--883, 109 Cal.Rptr. 304, 512 P.2d 1208, and Lorenzana v. Superior Court, 9 Cal.3d 626, 631--634, 108 Cal.Rptr. 585, 511 P.2d 33. Here the officers' aerial surveillance intruded on the airspace above defendant's land.

The Attorney General contends that a property holder has no Fourth Amendment right of privacy in the air corridor above his land. The contention was impliedly rejected in People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146. There the sheriff dispatched a helicopter to the defendant's 20-acre ranch; hovering 25 feet over the defendant's backyard, the helicopter occupants observed two marijuana plants growing in a corral 125 feet from the dwelling house. The court viewed the flight as an unconstitutional entry into an area covered by reasonable expectations of privacy.

In Sneed the court did not discuss the problem of private airspace raised by the Attorney General. As a matter of property law a landowner may claim exclusive possession of as much overlying airspace as he can occupy or use, immune from interference by low-flying aircraft. (United States v. Causby, 328 U.S. 256, 264--265, 66 S.Ct. 1062, 90 L.Ed. 1206; Annot. 25 A.L.R.2d 1454; see Pacific Gas & Elec. Co. v. Peterson, 270 Cal.App.2d 434, 437, 75 Cal.Rptr. 673.) Doctrines of property law do not necessarily parallel Fourth Amendment purposes. The latter are designed to assure personal privacy, not the sanctity of property. '(T)he Fourth Amendment protects people, not places.' (Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576.)

Expectations of privacy are not earthbound. The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion. At a recent but relatively primitive time, an X--2 plane could spy on ground activities from a height of 50,000 feet. Today's sophisticated technology permits overflights by vehicles orbiting at an altitude of several hundred miles. Tomorrow's sophisticated technology will supply optic and photographic devices for minute observations from extended heights. Judicial implementations of the Fourth Amendment need constant accommodation to the ever-intensifying technology of surveillance. In analyzing claims of immunity from aerial surveillance by agents of government, the observer's altitude is a minor factor. Horizontal extensions of the occupant's terrestrial activity form a more realistic and reliable measure of privacy than the vertical dimension of altitude. At any rate, we expressly avow what the Sneed case implies: Reasonable expectations of privacy may ascend into the airspace and claim Fourth Amendment protection.

A generalized expression of Fourth Amendment doctrine usually excludes 'open fields' from the scope of constitutional protection. (Hester v. United States, 265 U.S. 57, 58--59, 44 S.Ct. 445, 68 L.Ed. 898; People v. Dumas, supra, 9 Cal.3d at p. 882, fn. 10, 109 Cal.Rptr. 304, 512 P.2d 1208.) Consistently with Katz v. United States, supra, the courts recognize that a test phrased in terms of 'constitutionally protected areas' often falls short; that a more fundamental test is whether the person has exhibited a reasonable expectation of privacy covering the area of the search or seizure. (People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Edwards, 71 Cal.2d 1096, 1099--1104, 80 Cal.Rptr. 633, 458 P.2d 713.) The immediate question, then, is whether the marijuana field lay within the owner's reasonable expectations of privacy.

Had petitioner's crop been wheat or oats, the open fields rule would have supplied a sufficient answer, for agriculturists do not expect their wheat or oat fields' concealment from aerial view. Petitioner, on the other hand, claims that reasonable expectations of privacy blanketed his field of Cannabis sativa. Was not the crop contraband? Did not its cultivation and possession expose the owner to prison? What more was needed to stimulate his strenuous insistence on privacy?

Petitioner erroneously gives identity to two unlike notions--an internal, uncommunicated need for privacy and a reasonable, exhibited expectation of privacy. Only the latter qualifies as a Fourth Amendment determinant. 'The courts have implicitly recognized that man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute. . . . Certain other places carry with them an expectation of privacy which, although considerable is less intense and insistent....