People v. Agee

Citation153 Cal.App.3d 1169,200 Cal.Rptr. 827
Decision Date30 March 1984
Docket NumberCr. 11756
PartiesThe PEOPLE, Plaintiff and Respondent, v. David M. AGEE, Defendant and Appellant.
CourtCalifornia Court of Appeals

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, George Bond, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, Garrett Beaumont, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

In this appeal we are confronted with the question of the constitutionality of random aerial surveillance by the police of private residential property. Is such surveillance an acceptable intrusion on our privacy warranted by the need to ferret out criminal behavior? Or, is it an unacceptable harbinger of a totalitarian future where Julia cautions Winston "Don't go out in the open. There might be someone watching. We're all right if we keep behind the boughs." (Orwell, Nineteen Eighty-Four (Harcourt, Brace and Company, Inc. 1949) p. 102.)

Defendant was convicted upon a guilty plea of cultivation of marijuana (Health & Saf. Code, § 11358). He appeals

(Pen.Code, § 1538.5, subd. (m)) challenging the denial of his motion to suppress evidence obtained by the surveillance of his property adjacent to his residence by a police officer who was flying in an airplane. We hold that aerial surveillance of residential property is a search subject to the Fourth Amendment to the United States Constitution and the cognate provisions of the California Constitution. 1 We will reverse the judgment for violation of these provisions.


At the outset we emphasize the precise issue we reach and resolve.

Let us start by excluding what is not at issue. This is not a case in which aircraft were used in the protection of person or property, to rescue persons or to aid in the exigent apprehension of criminals. This is not a case in which there was cause, meeting constitutional requirements, to believe that marijuana would be found on defendant's property. Nor is this a case in which the area searched was confined to non-residential property. Rather, this is a case in which the state asserts an unlimited right to surveil residential property from the air. The People seek to justify a completely random aerial search. Since most people are innocent of criminal wrongdoing a random search necessarily involves the search of the property of innocent persons. This is a case therefore, which concerns the innocent and the law which protects them.

The aircraft here was making a random search for marijuana under cultivation. There was no reason to believe defendant's property or any other property was being so cultivated. The defendant's residence and property, which was fortuitously happened upon, was surrounded by a thick cover of trees and foliage so that nothing could be seen from the ground without invading the property. In these circumstances, a search from the ground under the settled law would require a particular cause to enter the property which meets the requirements of our constitutions. (See People v. Fly (1973) 34 Cal.App.3d 665, 110 Cal.Rptr. 158.) The People, however, claim that the search by airplane simply lifted the police above the law, either because of a supposed lawful vantage point or because it was contraband they were looking for. The constitution is thereby tethered to the earth, or, perhaps like Antaeus, it loses all of its strength when hoisted off the ground.

What is important to understand is that, by either of these rationales, the object of the search, marijuana under cultivation, plays no real part in the justification for the surveillance. To say there is no privacy in the cultivation of marijuana misses the point. Whether marijuana is observed or not is a fortuitous happenstance of the random search. It cannot be determined if there is any to be found until after the aerial search has been conducted. At that point, of course, the privacy of all who have been surveiled has already been invaded. This is just a variation of the familiar argument that the end justifies the means. This ploy is rejected by our constitutions; it is a fundamental principle that a search cannot be justified by what it turns up. (See United States v. Di Re (1948) 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210, 220.)

In Fourth Amendment terms, the claim of right to randomly search residential property from the air means there is no right of privacy in the enjoyment of the open air on residential property, for such privacy is wholly at the mercy of technology. A family can build the highest fence to surround their house and yard but it provides no more guarantee of privacy than the availability of aircraft to lift the gaze of the state over it. Both the hope for privacy and the sense of privacy are crushed by this result.

It is the claim of unlimited right to aerial surveillance by the state that this opinion addresses and rejects. In holding that aerial surveillance is limited by our constitutions we say no more (and no less) than that there is a constitutional right of privacy from state surveillance in our backyards and property adjacent to our homes, which cannot be invaded, by ground or air, unless the particularized standards of the Fourth Amendment and the cognate provisions of the California Constitution are met.


On September 23, 1980, Deputy Sheriff Charles Sanborn of the Trinity County Sheriff's Department was flying in an airplane 2,500 feet above the Trinity River near Junction City looking for marijuana under cultivation. He saw, without the aid of optical equipment, a suspected marijuana patch about 200 feet from a residence on a piece of property known as Johnson's Point. He informed the pilot. The pilot turned the craft around and they flew over the property at an altitude of 1,500 feet above the river. Sanborn took black and white photographs of the area but marijuana plants cannot be detected from them. After they returned to base Sanborn checked the assessor's records for the name of the owner of the property. He then obtained a search warrant, based solely upon observations from the flight, alleging he saw in excess of ten marijuana plants about 200 feet from the residence on the property. The owner of the property is defendant.

In an affidavit accompanying the warrant, Sanborn averred that he had received training in aerial searches for marijuana and had flown over one-half of 96 hours (48 hours) on flights in search of marijuana during which he observed 25 marijuana gardens. Sanborn testified at the 1538.5 hearing that he was taught to look for certain "signatures" of marijuana cultivation "such as waterlines, camouflage, the contrast in color from the surrounding area ... water supply such as swimming pools, water tanks, trails."

On September 26, 1980, a police raid was conducted on defendant's property. Sanborn served the search warrant on the residence on the property. The police found numerous marijuana plants growing in a garden surrounded by a dense perimeter of fir, madrone, and pine trees ranging from seven to fifty feet in height. Interspersed in the garden for camouflage were trees growing in buckets. The marijuana plot was not visible until after the deputies had penetrated well into defendant's property.

The search warrant was based exclusively upon the random aerial search. Accordingly, if this random search is invalid the search pursuant to the warrant is invalid. (See People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130.)


This is a case born of technological innovation--the availability of aircraft to surveil private residential property. Where such innovations threaten the constitutional balance between privacy and government inquisitiveness we must take care that legal doctrines implementing the constitutional prohibitions against unreasonable search and seizure are not rendered sterile. Innovative encroachments on privacy require a return to first principles. In appraising the constitutional balance we must determine if: "the questioned police procedure too closely resembles the process of the police state, too dangerously intrudes upon the individual's reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle." (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629, 108 Cal.Rptr. 585, 511 P.2d 33.)

The seminal authority on privacy and technology is Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Before Katz, the resolution of Fourth Amendment questions primarily turned on the question of "trespass" by the searcher, whether there was physical penetration of a "constitutionally protected area." Katz rejected this formulation as in complete on the ground "the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures." (Id., at p. 353, 88 S.Ct. at p. 512; emphasis added.) Katz teaches the Archimedean point from which to measure constitutional guarantees of privacy is the person searched, not the searcher. Katz holds: "a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." (Id., at p. 352, 88 S.Ct. at p. 511-12; emphasis added.) The pertinent question which follows is: should people be "entitled" to enjoy the domain of their backyards without being seen, heard, or noted by their government?

We believe the answer is yes. "We think it too clear for extended discussion that the principles enunciated in Katz are applicable to situations involving visual, as well as auditory,...

To continue reading

Request your trial
2 cases
  • State v. Grawien
    • United States
    • Wisconsin Court of Appeals
    • March 7, 1985
    ...purpose. Even if he did so, the area could still be viewed from the cornfield to the south. Grawien's reliance on People v. Agee, 153 Cal.App.3d 1169, 200 Cal.Rptr. 827 (1984), is similarly misplaced. Agee also presented a case in which the owner had erected barriers to prevent a view from ......
  • People v. Agee
    • United States
    • California Supreme Court
    • June 18, 1987
    ...Cal.Rptr. 374 738 P.2d 720 PEOPLE v. David M. AGEE. Crim. 23738. Supreme Court of California. June 18, 1987. Prior report: Cal.App., 200 Cal.Rptr. 827. The above entitled cause is retransferred to the Court of Appeal, Third Appellate District, for reconsideration in light of People v. Cook,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT