People v. Ciraolo

• Decision Date: 20 November 1984
• Citation: 161 Cal.App.3d 1081,208 Cal.Rptr. 93
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Dante Carlo CIRAOLO, Defendant and Appellant. A026048.

Page 93

208 Cal.Rptr. 93

161 Cal.App.3d 1081

PEOPLE of the State of California, Plaintiff and Respondent, v. Dante Carlo CIRAOLO, Defendant and Appellant.

A026048.

Court of Appeal, First District, Division 5, California.

Nov. 20, 1984.

Rehearing Denied Dec. 10, 1984.

Hearing Denied Jan. 23, 1985.

Pamela H. Duncan, Philip H. Pennypacker, San Jose, for defendant and appellant.

John K. Van de Kamp, State Atty. Gen., Eugene W. Kaster, Laurence K. Sullivan, Deputy State Attys. Gen., San Francisco, for plaintiff and respondent.

HANING, Associate Justice.

Defendant/appellant Dante Carlo Ciraolo appeals his conviction of cultivation of marijuana (Health & Saf. Code, § 11358) following his plea of guilty, contending the trial court erred in failing to suppress the evidence seized during a search of his residence. The search was conducted pursuant to a warrant obtained on the basis of information gathered in a warrantless overflight of defendant's residence. For reasons hereafter set forth, we conclude the evidence was inadmissible and reverse.

On September 2, 1982, Santa Clara police officer Shutz received an anonymous phone message that marijuana plants were seen growing in the back yard of a Santa Clara home, later identified as defendant's residence. Shutz initially went by the house on foot and conducted a ground level investigation. He was unable to observe anything because of two fences that completely enclosed defendant's back yard: a 6-foot outer fence, and an inner fence approximately 10 feet high. Officer Shutz undertook an airplane flight that same day with the express purpose of observing and photographing that portion of defendant's residence enclosed by his fence. The plane was flown at an altitude of 1000 feet. Without visual aids, Shutz observed and photographed a marijuana garden in defendant's back yard. On the basis of the information obtained from the overflight, Shutz procured a search warrant for defendant's home, and upon execution thereof, growing marijuana plants were discovered within the fenced area of the back yard and seized.

Defendant's motion under Penal Code section 1538.5 to suppress the plants was denied. He contends the aerial surveillance violated his reasonable expectation of privacy, protected by the Fourth Amendment and various provisions of the California Constitution. ¹ The People contend the aerial surveillance was reasonable, citing, inter alia, Oliver v. United States (1984) 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, United States v. Allen (9th Cir.1980) 675 F.2d 1373, cert. den. Allen v. United States (1981) 454 U.S. 838, 102 S.Ct. 133, 70 L.Ed.2d 112, and People v. Superior Court (Stroud) (1974) 37 Cal.App.3d 836, 112 Cal.Rptr. 764.

At our request both parties have discussed the applicability of United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. In Leon, the United States Supreme Court responded affirmatively to the issue of "whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." (Id., at p. ----, 104 S.Ct. at p. 3409, 82 L.Ed.2d at p. 684.) "[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case-in-chief." (Id., at p. ----, 104 S.Ct. at p. 3416, 82 L.Ed.2d at p. 692.) However, we conclude that Leon does not permit the use of the evidence seized in the instant case. "The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment ...." (United States v. Leon, supra, 468 U.S. at p. ----, 104 S.Ct. at p. 3422, 82 L.Ed.2d at p. 699; emphasis supplied.)

Defendant correctly notes that our primary focus must be directed to the warrantless search conducted during the overflight. Leon has no application to warrantless searches, nor does it overrule the "fruit of the poisonous tree" doctrine which first bloomed in Nardone v. United States (1939) 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, and ripened in Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This doctrine forbids the use of after-acquired evidence which is found to be the direct result of an unlawful search or other unlawful conduct. Such evidence may be used only if it can be established that it was acquired or discovered by independent means " '... sufficiently distinguishable to be purged of the primary taint.' [Citation.]" (Wong Sun v. United States, supra, at p. 488, 83 S.Ct. at p. 417, 9 L.Ed.2d at p. 455; see also Taylor v. Alabama (1982) 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314; Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.)

Further confirmation that the Wong Sun doctrine still controls is found in Segura v. United States (1984) 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 decided the same date as Leon. Segura held that a search of an apartment conducted pursuant to a valid search warrant was not invalidated by a previous illegal entry into the apartment, where the warrant and the information upon which it was based were unrelated to the illegal entry. Segura implicitly recognized that evidence seized pursuant to a warrant based on facts obtained from a prior unlawful search would be subject to suppression. "[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure [citation], but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.' [Citation.] It 'extends as well to the indirect as the direct products' of unconstitutional conduct. Wong Sun v. United States ... [p] Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." (Segura v. United States, supra, 468 U.S. at p. ----, 104 S.Ct. at p. 3386, 82 L.Ed.2d at p. 608.) In short, an unconstitutional search cannot be used as the basis for issuance of a search warrant or the Fourth Amendment would be rendered meaningless. ² (Segura v. United States, supra, 468 U.S. at p. ----, 104 S.Ct. at p. 3386, 82 L.Ed.2d at p. 608; Wong Sun v. United States, supra, 371 U.S. at p. 488, 83 S.Ct. at p. 417, 9 L.Ed.2d at p. 455; McGinnis v. United States (1st Cir.1955) 227 F.2d 598, 603-604.)

We thus refocus our attention on the aerial surveillance of defendant's residence, from which evidence was obtained to support the issuance of the search warrant. "The question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was ' "come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." ' " (Segura v. United States, supra, 468 U.S. at p. ----, 104 S.Ct. at p. 3386, 82 L.Ed.2d at p. 608, citing Wong Sun v. United States, supra, 371 U.S. at p. 488, 83 S.Ct. at p. 417, 9 L.Ed.2d at p. 455.) It is undisputed that the aerial surveillance provided the sole source of factual support for the warrant. ³

We disagree with the People's contention that the federal courts have condoned aerial surveillance of areas within the curtilage. Oliver v. United States (1984) 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, upon which the People rely, reaffirmed the "open fields" doctrine of Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 68 L.Ed. 898. Oliver held the Fourth Amendment did not preclude the use of evidence obtained through a warrantless search of secluded but open fields on private property, even though posted with "no trespassing" signs and secured with a locked gate. The court reasoned that open fields, although secluded, were not within the curtilage, and hence not within an area where one could reasonably entertain an expectation of privacy. However, the court made it clear that the area within the curtilage--"the land immediately surrounding and associated with the home" ⁴--was entitled to the "right to privacy embodied in the Fourth Amendment." ⁵ "[T]he rule of Hester v. United States, supra, that we affirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. [Citation.] This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Founders that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.' [Citations.]" (Oliver v. United States, supra, 466 U.S. at p. ----, 104 S.Ct. at p. 1741, 80 L.Ed.2d at p. 224, emphasis supplied.)

The Oliver court deemed its decision to be "consistent with the understanding of the right of privacy expressed in our Fourth Amendment jurisprudence [in] Katz v. United States (1967) 389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576] .... [T]he touchstone of [Fourth] Amendment analysis has been the question whether a person has a 'constitutionally protected reasonable expectation of privacy'." (Oliver v. United States, supra, 466 U.S. at p. ----, 104 S.Ct. at p. 1740, 80 L.Ed.2d at p. 223.)

In Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the high court emphasized that the Fourth Amendment protects people, not...