People v. Bradley

• Decision Date: 31 October 1969
• Docket Number: Cr. 12806
• Citation: 1 Cal.3d 80,81 Cal.Rptr. 457
• Court: California Supreme Court
• Parties: , 460 P.2d 129 The PEOPLE, Plaintiff and Respondent, v. Dwight Wilbur BRADLEY, Defendant and Appellant.

Page 457

81 Cal.Rptr. 457

1 Cal.3d 80, 460 P.2d 129

The PEOPLE, Plaintiff and Respondent, v. Dwight Wilbur BRADLEY, Defendant and Appellant.

Cr. 12806.

Supreme Court of California In Bank.

Oct. 31, 1969.

Peter Clarke, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

A court, sitting without a jury, found defendant guilty of possession of marijuana (Health & Saf.Code, § 11530) and possession of marijuana for sale (Health & Saf.Code, § 11530.5). He admitted prior felony convictions for possession of narcotics (Health & Saf.Code, § 11500) and possession of marijuana (Health & Saf.Code, § 11530).

Defendant appeals from the judgment, contending that the court erred in admitting, over objection, evidence of marijuana plants found in the yard adjacent to his residence and marijuana and narcotics paraphernalia found inside his house. We have concluded that the evidence of the marijuana plants was properly admitted but that the evidence found inside his house should have been excluded because the officers' entry into the house was unlawful and that the error in admitting this evidence was prejudicial.

On July 28, 1967, Deputy Sheriff Narron, an experienced narcotics officer, was told by an informer of unknown reliability that defendant had marijuana in his house, was engaged in selling it, and was on parole for its possession. The informer also gave information concerning defendant's car. The next evening the same informer told Narron that defendant was growing marijuana by a fig tree at the rear of his residence.

After receiving this second report, Narron went to defendant's address about 9 p.m. on July 29, 1967. The premises included a house that faced the street; a driveway that ran along the east of the house and terminated in a garage at the rear and east of the house; defendant's residence which was attached to the rear of the garage; and a large 'fenced in yard' to the west of defendant's residence. The extent and the manner of the fencing are not disclosed by the record.

Narron, noticing that defendant's car was gone, believed he was away and went into the 'rear yard area' to investigate. There he saw a marijuana plant in a keg two or three feet from the base of a fig tree that was about 20 feet from defendant's door. The officer did not know if the tree was in the backyard of the owner (who presumably lived in the front house) or of defendant. It was necessary for the officer to be within almost a foot of the tree of distinguish the marijuana plant. According to the officer, the keg was 'partially covered by the leaves and the limbs of the fig tree.' When later asked if the 'marijuana plant was hidden under the fig tree,' the officer replied, 'I don't believe you could say exactly hidden, however, it was covered by foliage.' He did not have a search warrant.

After leaving defendant's premises Narron went to the sheriff's office where he obtained a photograph of defendant and from a record check ascertained he had been, but was no longer, on parole for 'narcotics.' Narron tried to obtain a search warrant but was unsuccessful due to the unavailability of a judge.

Narron, accompanied by four other officers, then returned to defendant's residence about 3:15 a.m. on July 30, 1967. At this time Narron ascertained that there were three marijuana plants in the keg. The largest one was about two and a half feet tall; the others about a foot and a half tall. One of the officers stayed to guard the plants.

Narron and the other officers approached defendant's residence. The door was fully open. From the outside Narron, with the aid of a flashlight, saw a man who appeared to be asleep on a bed. Without asking permission or speaking to defendant, the officers entered. Narron testified that 'as I went into the living room area, the defendant * * * raised on his side as I was approximately half way across the room.' Narron showed his 'I.D.,' illuminated by a flashlight, and identified himself. Another officer in uniform was by him. The officers told defendant he was under arrest for possession of marijuana and informed him of his 'constitutional rights.' When asked whether he minded if a search was made of the house, defendant replied, 'No, go ahead.' An ensuing search disclosed marijuana and specified narcotics paraphernalia.

Defendant contends that Officer Narron's discovery and seizure of the marijuana plants in the yard violated the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655--657, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) The Fourth Amendment provides, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.' An essentially identical guarantee of personal privacy is contained in article I, section 19, of the California Constitution.

A number of cases in upholding searches in open fields or grounds around a house have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' (See e.g., cases cited in People v. Edwards, 71 A.C. 1141, 80 Cal.Rptr. 633, 458 P.2d 713). That phrase, however, does not afford a solution to every case involving a claim of an illegal search and seizure (see Katz v. United States, 389 U.S. 347, 350--352, 88 S.Ct. 507, 19 L.Ed.2d 576), and we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Edwards, 71 A.C. 1141, 80 Cal.Rptr. 633, 458 P.2d 713, and cases cited therein).

Measured by that test we are satisfied that the officer's discovery and seizure of the marijuana plants in the yard adjacent to defendant's residence did not violate the constitutional prohibitions against unreasonable searches and seizures. From the recited evidence it may be inferred that the marijuana plants were partially but not totally covered by foliage. It does not appear that the plants were covered by nontransparent material, and it may be inferred that at least part of the plants were in plain sight of anyone within a foot of the tree. Although they were in a rear yard that was fenced to an undisclosed extent, they were located a scant 20 feet from defendant's door to which presumably delivery men and others came, and the front house, as well as defendant's house, apparently had access to the yard. Under the circumstances it does not appear that defendant exhibited a subjective expectation of privacy as to the plants. Furthermore, any such expectation would have been unreasonable. (Cf., e.g., Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; People v. Terry, 71 A.C. 101, 103--104, 77 Cal.Rptr. 460, 454 P.2d 36; People v. Alexander, 253 Cal.App.2d 691, 700, 61 Cal.Rptr. 814; see Katz v. United States, Supra, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (concurring opinion by Harlan, J., containing statements to the effect that there is no reasonable expectation of privacy in an open field or with respect to 'conversations in the open').)

Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, and Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817, cited by defendant, differ from the instant cases. In the cited cases unlawful conduct of the petitioners in public toilets, which were enclosed by three walls and a door, was observed by officers through a pipe installed through the roof in one case and through vents in the other, and this court condemned the officers' conduct as constituting exploratory searches. There the officers' surveillance, because of the character of the place to which it was directed, violated the petitioners' right of privacy. The character of the place here in question (i.e., the yard near the defendant's door) manifestly is totally dissimilar to an enclosed toilet stall.

Defendant's reliance on Wattenburg v. United States, 9 Cir., 388 F.2d 853, 857, is misplaced. He points to the statement in Wattenburg that 'it seems to us a more appropriate test (than one based on curtilage) in determining if a search and seizure adjacent to a house is constitutionally forbidden is whether it constitutes an intrusion upon what the resident seeks to preserve as private even in an area which, although adjacent to his home, is accessible to the public.' The court applied this test and concluded that Wattenburg, in placing a stockpile of Christmas trees in the backyard of the motel where he resided, not more than 35 feet therefrom, sought to protect it from the search and that the search and the seizure of trees from the stockpile were therefore illegal as to him. In Wattenburg, unlike the instant case, the recited facts do not show that any part of the objects seized was visible to a person nearby on the premises. Rather it appears that the objects (i.e. trees) 'were seized from the stockpile' during a search which lasted over six hours. The seized trees thus apparently were covered by other trees, evidence that Wattenburg exhibited a subjective expectation of privacy. Furthermore, although we are bound by decisions of the United States Supreme Court interpreting the federal Constitution (Moon v. Martin, 185 Cal. 361, 366, 197 P. 77; Mackenzie v. Hare, 165 Cal. 776, 779, 134 P. 713, L.R.A.1916D, 127, affd. 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297), we are not bound by the decisions of the lower federal courts even on federal questions. However, they are persuasive and entitled to great weight. (Rohr Aircraft Corp. v. County of San Diego, 51 Cal.2d 759, 764--765, 336 P.2d 521, revd., without comment on this point, 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002; Stock...