People v. Cook, Cr. 23651

• Citation: 221 Cal.Rptr. 499,41 Cal.3d 373,710 P.2d 299
• Decision Date: 31 December 1985
• Docket Number: Cr. 23651
• Court: United States State Supreme Court (California)
• Parties: , 710 P.2d 299, 54 USLW 2403 The PEOPLE, Plaintiff and Respondent, v. Larry Lynn COOK, Defendant and Appellant.

Page 499

221 Cal.Rptr. 499

41 Cal.3d 373, 710 P.2d 299, 54 USLW 2403

The PEOPLE, Plaintiff and Respondent, v. Larry Lynn COOK, Defendant and Appellant.

Cr. 23651.

Supreme Court of California.

Dec. 31, 1985.

Rehearing Denied Feb. 14, 1986. ^*

[710 P.2d 300] George S. Cooney and Patrick J. Briggs, San Diego, for defendant and appellant

Frank Bacon, Burbank, as amicus curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom, Steven H. Zeigen and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

John H. Darlington, Dist. Atty., Nevada City, Christopher N. Heard, San Jose, and Terry L. White, Sacramento, as amici curiae on behalf of plaintiff and respondent.

GRODIN, Justice.

This case requires us to examine the contours of California citizens' entitlement to be free from the intrusive gaze of the state, in an era when the instruments of surveillance at the disposal of the police are far more sophisticated than our nation's founders would have dared contemplate. Here, after law enforcement officials were frustrated in their effort to confirm from any land-based public vantage point an anonymous tip of possible marijuana cultivation at appellant's residence, they carefully surveyed appellant's fenced back yard from a fixed-wing aircraft without obtaining a warrant. We conclude that this warrantless scrutiny, which led to the acquisition of a search warrant under which marijuana growing in appellant' yard ultimately was seized, violated appellant's rights under article I, section 13 of the California Constitution. ¹ The issue is whether appellant enjoyed a so-called reasonable expectation that he could conduct affairs in his enclosed back yard in privacy. (People v. Crowson (1983) 33 Cal.3d 623, 629, 190 Cal.Rptr. 165, 660 P.2d 389; Burrows v. Superior Court, supra, 13 Cal.3d 238, 242-243, 118 Cal.Rptr. 166, 529 P.2d 590; see Katz v. United States (1967) 389 U.S. 347, 350-352, 88 S.Ct. 507, 510-511, 19 L.Ed.2d 576.) As employed in this context the term "reasonable expectation" possesses two meanings, one predictive, the other prescriptive. With respect to the first of these, the People concede appellant anticipated that what took place in his back yard would remain secluded from the view of outsiders. Thus the principle focus of our inquiry is whether, as an objective matter, appellant should have been entitled to demand the privacy he sought--even from airborne, arguably quite physically unobtrusive, observation by law enforcement officials.

The reasonable expectation of privacy test, by its nature, requires reconciliation of competing social interests, rather than rigid application of formalistic, judicially created rules. This is all the more true here, where the alleged challenge to individual security comes from a rather novel form of police investigation subject to little analysis in reported cases. Still, there is relevant precedent. The United States Supreme Court recently reaffirmed that, as with the home itself, those activities taking place within the dwelling's curtilage--"the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life' [citations omit ted] (Oliver v. United States, supra, 466 U.S. 170, ----, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225)--may reasonably be expected to remain private. (Ibid.) An enclosed back yard whose outer boundary was within yards of appellant's dwelling clearly satisfies this definition.

The People, however, point out that even with respect to those activities which occur in one's living room, one is not entitled to demand privacy from peering officers of the state if the activities are plainly visible to officers rightfully occupying a lawful public vantage point, or if an established exception to the warrant requirement is applicable. Given that the airspace occupied by the police here is a lawful public location, the People argue, the police observation of appellant's back yard is well within the plain view doctrine, and therefore no constitutional violation.

This contention holds superficial appeal, but, in the end, it must prove unavailing. While the skies are accessible to the public--and even though private air traffic may regularly wing over one's property--simply because one may have to put up with the occasional downward glance of a passing pilot or passenger does not abrogate the force of one's demand that police officers, acting as part of an investigation but without a warrant, refrain from examining from the air the details of one's back yard. (Compare, for example, People v. Krivda (1971) 5 Cal.3d 357, 367, 96 Cal.Rptr. 62, 486 P.2d 1262, vacated and remanded (1972) 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45, reiterated (1973) 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457.) A society where individuals are required to erect opaque cocoons within which to carry on any affairs they wish to conduct in private, and the concomitant chill such a requirement would place on lawful outdoor activity, would be inimical to the vision of legitimate privacy which underlies our state Constitution.

FACTS

On September 2, 1981, an anonymous citizen gave local narcotics officers information One of the officers took color photographs of the plants with a 200 millimeter lens (which magnifies the subject of a photograph taken with a standard 35-millimeter camera by about 4 times), and the pair returned to police headquarters. One of them executed an affidavit in support of a search warrant, and a warrant was issued, though the photographs were dim and failed to reveal the purportedly striking difference in color between the alleged marijuana and the surrounding plants. A search conducted pursuant to the warrant disclosed that marijuana indeed was growing behind appellant's residence. The area in which it was found was surrounded on three sides by an eight-foot high solid wood fence. The house itself provided a barrier on the fourth side. The fence was covered at the top with wood beams and chicken wire. Surrounding the house, as well as this enclosure, was a six-foot high fence.

suggesting marijuana was being cultivated at appellant's residence in Bonsall, a town in northern San Diego County. An officer went to the property, located in a semirural area, ² but was unable to verify the tip, because a high wooden fence surrounded appellant's land. There was no other location accessible to the public from which to make further observations. Undeterred, the officer returned two days later in an airplane piloted by a fellow member of the San Diego Narcotics Task Force. The two flew over the property at an altitude of roughly 1,600 feet, hoping to spot evidence of the alleged growth of the marijuana. Their labors were rewarded[41 Cal.3d 378] when they saw what they believed to be marijuana plants growing in an enclosed area behind appellant's house. Their belief was based on the "lush green" color of the plants, which contrasted with the less vivid pigmentation of the surrounding lawn and trees, and the fact the suspicious vegetation was growing in uniformly spaced rows.

Appellant was charged with unlawfully cultivating marijuana, in violation of Health and Safety Code section 11358. He moved to suppress the evidence of his commission of this offense, contending that the warrant pursuant to which the marijuana was discovered was itself obtained as a result of an unlawful search, and therefore invalid, rendering the search in which the evidence was found unlawful. The trial court ruled that the overflight did not constitute a search because any expectation of privacy appellant may have had in his back yard was unreasonable, and it denied appellant's motion. Appellant entered a negotiated plea of guilty, and he now appeals the denial of his suppression motion.

DISCUSSION

Determining the legality of warrantless police forays into allegedly private zones of activity was once almost exclusively a matter of ascertaining the scope of the property interests of the individual whose privacy was purportedly invaded. (See Goldman v. United States (1942) 316 U.S. 129, 134-136, 62 S.Ct. 993, 995-996, 86 L.Ed. 1322; see also People v. Edwards (1969) 71 Cal.2d 1096, 1102-1107, 80 Cal.Rptr. 633, 458 P.2d 713, citing People v. Shields (1965) 232 Cal.App.2d 716, 719, 43 Cal.Rptr. 188; People v. Willard (1965) 238 Cal.App.2d 292, 47 Cal.Rptr. 734; People v. Jackson (1962) 198 Cal.App.2d 698, 701, 702, 18 Cal.Rptr. 214.) However, in 1967, Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, affirmed that constitutional limitations on police searches and seizures protect "people, not places." (P. 351, 88 S.Ct. at 511.)

Under the Katz standard as applied in California, the propriety of a warrantless governmental surveillance has come to encompass an assessment of the reasonableness of the individual's expectation of privacy in a particular situation, wherever he is, and whether or not government agents trespassed physically on his property interests. (E.g., Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 638, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Edwards, supra, 71 Cal.2d 1096, 1103, 80 Cal.Rptr. 633, 458 P.2d 713.) The inquiry is whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid. (People v. Chapman (1984) 36 Cal.3d 98, 106, 201 Cal.Rptr. 628, 679 P.2d 62.)

Though location is no longer the sine qua non of search-and-seizure analysis, it remains relevant under the Katz test. The privacy one is entitled to expect in a particular place is governed primarily by common habits in the use of such property. (E.g., In re Deborah C. (1981) 30 Cal.3d 125, 137, 177 Cal.Rptr. 852, 635 P.2d 446; see North v. Superior Court (1972) 8 Cal.3d 301, 311, 104 Cal.Rptr. 833, 502 P.2d 1305; Dean v. Superior Court (1973) 35 Cal.App.3d 112, 117, 110 Cal.Rptr. 585.)

Th...