Gleaves v. Waters

• Decision Date: 06 December 1985
• Citation: 220 Cal.Rptr. 621,175 Cal.App.3d 413
• Court: California Court of Appeals Court of Appeals
• Parties: Leroy GLEAVES et al., Plaintiffs and Appellants, v. Robbie WATERS, as Sheriff, etc., et al., Defendants and Respondents. Civ. 24444.

Page 621

220 Cal.Rptr. 621

175 Cal.App.3d 413

Leroy GLEAVES et al., Plaintiffs and Appellants, v. Robbie WATERS, as Sheriff, etc., et al., Defendants and Respondents.

Civ. 24444.

Court of Appeal, Third District, California.

Dec. 6, 1985.

Miller & Rolfe, Duane C. Miller, Sacramento, for plaintiffs and appellants.

L.B. Elam, County Counsel, Melvyn W. Price, Supervising Deputy County Counsel, Sacramento, John K. Van de Kamp, Atty. Gen., Roderick E. Walston and Charles W. Getz IV, Deputy Attys. Gen., for defendants and respondents.

PUGLIA, Presiding Justice.

In this appeal we decide that, absent exigent circumstances, the need summarily to abate a public nuisance does not of itself justify state invasion of legitimate privacy interests without consent or a warrant.

Plaintiffs petitioned the superior court for a writ of prohibition to restrain the execution of administrative inspection warrants directed to their properties which did not comply with the governing statute. (Code Civ.Proc., § 1822.50 et seq.) The trial court declared the issue moot because, although defective, the warrants had expired and an ancillary contempt citation against plaintiff Gleaves had been dismissed. Plaintiffs then amended their petition to seek injunctive, mandatory, and declaratory relief in respect to future governmental intrusions. The amended petition contested the authority of state agricultural control officers assisted by Sacramento County Sheriff's deputies to enter, without consent or a valid warrant, plaintiffs' private yards in order to abate a declared public nuisance, namely the Japanese beetle.

The trial court denied plaintiffs' application for a preliminary injunction after making the following findings: "1. State of California has determined that there is an infestation of Japanese Beetles in the County of Sacramento. The presence of the Japanese Beetle thus has been determined to be a nuisance subject to all laws and remedies relating to the prevention of public nuisances. [p] 2. State proposes to apply chemicals on private residential property in the infested area to summarily abate the Japanese Beetle nuisance. This proposed course of action would require entry into enclosed back yards, but not into the homes of the owners. [p ] 3. This court finds that the application of chemicals on private residential property does not constitute an inspection requiring an inspection warrant. [p ] 4. Based on the foregoing, it is the judgment of this court that summary abatement can occur without a prior court order or warrant."

Plaintiffs appeal from the denial of the preliminary injunction.

The granting or denial of a preliminary injunction rests in the sound discretion of the trial court and may not be disturbed on appeal absent an abuse of discretion. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121; California Satellite Systems, Inc. v. Nichols (1985) 170 Cal.App.3d 56, 63, 216 Cal.Rptr. 180.) Where the evidence with respect to the right to a preliminary injunction is conflicting, the reviewing court must "interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order." (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 247, 167 Cal.Rptr. 610.)

An injunction is an extraordinary remedy which requires a showing of threatened irreparable injury and the inadequacy of other remedies at law. (Code Civ.Proc., § 526.) Plaintiffs' entitlement to injunctive relief is dependent upon some showing they are in immediate danger of sustaining real injury as the result of the challenged official conduct. (Uptown Enterprises v. Strand (1961) 195 Cal.App.2d 45, 52, 15 Cal.Rptr. 486; see also Los Angeles v. Lyons (1983) 461 U.S. 95, 102-103, 103 S.Ct. 1660, 1665-1666, 75 L.Ed.2d 675, 684-685.) Past exposure to illegal conduct does not itself establish a right to injunctive relief; the prospect of future injury is gauged by the continuing nature of the past illegal conduct or the likelihood it will be repeated. (Uptown Enterprises, 195 Cal.App.2d at p. 52, 15 Cal.Rptr. 486; see also Rosicrucian Fellow. v. Rosicrucian Etc. Ch. (1952) 39 Cal.2d 121, 144, 245 P.2d 481; Los Angeles v. Lyons, supra, 461 U.S. at p. 102, 103 S.Ct. at p. 1665, 75 L.Ed.2d at p. 684.)

The parties do not dispute that the Japanese beetle constitutes a public nuisance. A member of the scarab beetle family, the Japanese beetle has the capacity rapidly to generate overwhelming numbers. It is a general feeder which attacks over 250 plant varieties, including valuable ornamental plants and food crops such as corn, grapes, and stone fruits.

Pursuant to statutory authority (Food and Agr. Code, §§ 407, 5322, 5401), in 1983 the director of the state Department of Food and Agriculture proclaimed Sacramento County an eradication area known to be infested with the Japanese beetle. (Cal.Admin.Code, tit. 3, § 3589.) At the time they filed their amended petition, plaintiffs' homes were within the targeted area of actual infestation and their yards were scheduled to be treated with a series of pesticide applications.

Plaintiffs do not contest the Department of Food and Agriculture's authority summarily to abate a public nuisance. Rather, they maintain that abatement officers cannot enter their private, enclosed yards without first obtaining consent or a warrant. Defendants rejoin that, once a public nuisance has been established and declared, summary abatement measures may be taken under the State's police power without an administrative warrant authorizing entry into plaintiffs' private yards. Defendants' position is predicated on alternative theories that (1) summary abatement of a declared public nuisance does not constitute a search in any constitutional sense or, if it does, (2) there are exigent circumstances here which justify the intrusion into plaintiffs' private yards without a warrant. We shall reject each of defendants' arguments in turn.

Underlying defendants' position is the assertion that treatment of the infested area with pesticides constitutes "abatement" as distinguished from "inspection." The significance of this distinction resides in the fact the statutory scheme for administrative warrants provides only for inspection warrants. Code of Civil Procedure section 1822.50 authorizes issuance of "An inspection warrant ... signed by a judge ... directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor or zoning."

However, the record shows that where consent to enter cannot be obtained, inspection and abatement activities are conducted at the same time. Approximately two weeks prior to treatment defendants undertake to inspect the affected properties to identify the presence of "host material" and to plan for safety measures ("e.g. removal of dog dishes, children's toys, laundry, etc."); where pretreatment inspection occurs, it is conducted with the consent of the property owner; where consent is refused or cannot otherwise be obtained, defendants obtain an inspection warrant authorizing entry into the property to inspect; all inspections carried out pursuant to warrants occur simultaneously with the actual treatment. The trial court's finding "that the application of chemicals on private residential property does not constitute an inspection requiring an inspection warrant" may be correct as a generalization. However, because the state relies on inspection warrants simultaneously to enter, inspect and abate, it is irrelevant to the disposition of this case.

Quite apart from the inspection/abatement quibble, we disagree with the trial court's conclusion that Fourth Amendment protection against unreasonable governmental intrusion upon individual privacy is not implicated under the circumstances of this case. Entries onto private property by administrative functionaries of the government, like searches pursuant to a criminal investigation, are governed by the warrant requirement of the Fourth Amendment. (Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; Michigan v. Tyler (1978) 436 U.S. 499, 504-508, 98 S.Ct. 1942, 1947-1949, 56 L.Ed.2d 486, 494-498; Michigan v. Clifford (1984) 464 U.S. 287, ----, 104 S.Ct. 641, 646, .) Thus, where there is a legitimate privacy interest in the property entered, a warrantless and nonconsensual entry is permissible only where exigent circumstances justify the intrusion. (Michigan v. Clifford, supra, 464 U.S. at p. ----, 104 S.Ct. at p. 646, 78 L.Ed.2d at p. 483.) Depending on the circumstances, a reasonable expectation of privacy may be recognized in certain of the areas surrounding one's home which are, perforce, protected from nonexigent warrantless intrusions by governmental officers. (See generally, Witkin, Cal. Criminal Procedure (1985 supp., Part 2, ch. IX) Exclusion of Illegally Obtained Evidence, § 921, pp. 120-121.)

" 'A "search," as that term is used in the Fourth Amendment ... and in our own Constitution, implies some exploratory investigation or an invasion and a quest, a looking for or seeking out [citation].' " (People v. Haugland (1981) 115 Cal.App.3d 248, 257, 171 Cal.Rptr. 237, quoting People v. Ammons (1980) 103 Cal.App.3d 20, 26, 162 Cal.Rptr. 772.) "The essence of a search is the viewing of that which was ... intended to be private or hidden, ..." (People v. Holloway (1964) 230 Cal.App.2d 834, 839, 41 Cal.Rptr. 325.) "Succinctly stated, a search within the meaning of the Fourth Amendment occurs whenever one's reasonable expectation of privacy is violated by unreasonable governmental intrusion." (People v. Smith (1977) 67 Cal.App.3d 638, 651, 136 Cal.Rptr. 764; see also Haugland, 115 Cal.App.3d at p. 257, 171 Cal.Rptr. 237; Katz v. United States (1967) 389 U.S. 347, 353...