People v. Mayoff

Decision Date31 December 1986
Citation729 P.2d 166,42 Cal.3d 1302,233 Cal.Rptr. 2
CourtCalifornia Supreme Court
Parties, 729 P.2d 166 The PEOPLE, Plaintiff and Respondent, v. Allan Norman MAYOFF, Defendant and Appellant. Crim. 23608.
Marshall W. Krause, Krause, Timan, Baskin, Shell & Grant, Larkspur, and Thomas C. Peterson, Eureka, for defendant and appellant

Richard Jay Moller, Melvin B. Pearlston and Ronald M. Sinoway, Redway, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Eugene Kaster, Thomas Brady, Martin S. Kaye and Laurence K. Sullivan, Deputy Attys. Gen., for plaintiff and respondent.

John H. Darlington, Dist. Atty., Nevada City, as amicus curiae on behalf of plaintiff and respondent.

GRODIN, Justice.

We recently concluded that, unless a warrant is obtained, our state Constitution forbids intensive aerial inspection of an individual enclosed backyard based on prior suspicions that marijuana cultivation will be found within the enclosure. (People v. Cook (1985) 41 Cal.3d 373, 221 Cal.Rptr. 499, 710 P.2d 299.) 1 In this case, we confront a different type of police activity. Under a program designed to curb widespread commercial marijuana farming in rural and semirural areas, law enforcement officials took to the air, in fixed-wing aircraft, to identify the locations of marijuana crops being grown in open fields. Flying at elevations from which the details of human activity could not be observed, they saw indications of what they believed to be marijuana growing in a remote area. While there were signs of human habitation nearby, and the officers took photographs to show the relationship between that habitation and the growing crop, it was the crop in the open field, and not defendant's residence or curtilage, that was the principal focus of their attention. Under these circumstances we will conclude that defendant had no reasonable expectation that his land would be immune from such limited aerial surveillance, and that the surveillance was permissible under the United States and California Constitutions.

While we uphold the instant search on its facts, we recognize that a random surveillance and eradication program presents difficult constitutional and regulatory problems. Certain practices of the program operating in defendant's locale have already led to a successful class injunction suit. We invite the Legislature to participate in establishing standards which will balance the needs of law enforcement against the legitimate privacy expectations of affected citizens.


Aerial surveillance by the police revealed what they suspected were marijuana gardens growing on appellant Mayoff's land. Based on the aerial views, the police obtained a warrant for a ground search of the property. Under its authority, they seized a portion of appellant's marijuana crop. He was charged with one count of cultivation of marijuana. (Health & Saf. Code, § 11358.) He moved to set aside the information and suppress the evidence against him (Pen.Code, §§ 995, 1538.5), urging that the aerial surveillance of his property violated his constitutional rights of privacy, and against unreasonable searches and seizures. (U.S. Const., Amend. IV; Cal. Const., art. I, §§ 1, 13.) The trial court denied appellant's motions after a hearing, and he entered a plea of guilty. He was sentenced to six months in county jail and two years' probation. He now appeals, solely on the constitutional grounds rejected below.

The surveillance which led to discovery of appellant's crop was part of a program operated in several rural northern California counties where widespread commercial marijuana farming has taken root. The program is run jointly by local, state, and federal law enforcement personnel; it has been in effect in Humboldt County, where appellant resides, for approximately eight years. Fundamental to the scheme is a random pattern of warrantless flights over the entire county, focusing on rural areas. The flights are undertaken for the purpose of identifying plots of land on which it Much of Humboldt County's terrain is extremely rugged and isolated. Appellant, like roughly one-tenth of the county's rural population of about 29,000, lives in territory so remote that it can be examined only from the air. His 40-acre parcel is in a mountainous, wooded region, almost a mile from the nearest paved road. It cannot be seen from the road, and is connected to it by a dirt path which winds its way toward the portion of the property on which appellant resides. Only the top of one of appellant's buildings is visible from the path, which abruptly ends shortly after connecting with a turnoff to his residence. This turnoff is so rocky it is difficult to traverse without benefit of a four-wheel-drive vehicle.

                appears marijuana is being cultivated. 2  The viewing officers note such factors as the [42 Cal.3d 1309] color and spacing of plants, their relationship to nearby structures, signs of cultivation, and the location and general characteristics of the terrain under scrutiny.  The vast majority of flights are made without prior information about the existence of marijuana at a particular location.  The areas surveyed during a particular flight are selected almost entirely at random.  "There is no exact pattern," one of the participating officers said at a preliminary hearing.  "I mean, I just fly wherever I feel like flying.... No set pattern."   During each flight, the viewing officer is "looking constantly" at the ground below

On July 23, 1980, Agent Brown of the California Department of Justice and Detective Vulich of the Humboldt County Sheriff's Department made an antimarijuana surveillance flight from Eureka to the Garberville area in southern Humboldt County. They had no search warrant and no prior suspicion marijuana was being grown on appellant's property. From an altitude of at least 1,000 feet, one of the officers noticed what he believed to be marijuana growing on appellant's land.

Nearly two weeks later, on August 4, 1980, Detective Vulich flew again over appellant's property in order to photograph the land below. Again, it appears that an altitude between 1,000 and 2,000 feet was maintained. Vulich still had no search warrant. Apparently using an 80-200 millimeter telephoto lens, he photographed the suspicious vegetation, two trailers parked on the property, and the surrounding area. On his return to police headquarters he showed the snapshots to Agent Brown, who then executed an affidavit in support of a search warrant. On August 15, 1980, the warrant was served, and marijuana was in fact discovered on appellant's property, in two separate gardens and in one of the inhabited trailers. At least one garden was fenced, and both were surrounded by steep slopes and wilderness. There was no public vantage point on land from which the gardens or the trailers could be seen.

The aerial photographs introduced in evidence indicate that the gardens were at least 200 feet from the closest of the trailers. No fences formed a common enclosure around the trailers and the garden area.

1. Warrantless aerial surveillance.

In California, the legality of a warrantless police intrusion into allegedly private zones of activity depends on whether the government has "unreasonably" invaded an actual expectation of privacy which society is prepared to recognize as reasonable. (E.g., Cook, supra, 41 Cal.3d at p. 379, 221 Cal.Rptr. 499, 710 P.2d 299; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 638, 108 Cal.Rptr. 585, 511 P.2d 33; see Katz v. United States (1967) 389 U.S. 347, 350-352, 88 S.Ct. 507, 510-512, 19 L.Ed.2d 576.) All parties concede that defendant sought privacy for his residence and his marijuana gardens. They were on his private property in a remote area, away from ground-level vantage points open to the public. The gardens themselves, while not immediately adjacent to the residential structures, were carefully enclosed by fences and trees. The only issues, therefore, are whether defendant's wishes were objectively reasonable and, if so, whether the warrantless aerial observation invaded his expectations unreasonably.

Three recent cases bear on these questions but do not resolve them. The first such decision is Oliver v. United States (1984) 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214. In two separate incidents there under review, law enforcement agents, acting without warrants or probable cause, entered remote rural private property to look for marijuana cultivation. Noting that the land inspected in each instance was some distance from any home or business, the high court found no violation of the Fourth Amendment.

The Oliver majority conceded that the Fourth Amendment provides a high degree of privacy protection to the "curtilage" of a residence--"the land immediately surrounding and associated with the home." (466 U.S. at p. 180, 104 S.Ct. at p. 1742.) However, it affirmed the long-standing rule (see Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898) that the federal Constitution allows the authorities to inspect areas beyond the curtilage--so-called "open fields"--at will, even where they trespass on private property which was clearly intended to be shielded from the view of outsiders. (466 U.S. at pp. 176-184, 104 S.Ct. at pp. 1740-1744.)

The five majority justices concluded that open fields are not among the "persons, houses, papers, and effects" described in the Fourth Amendment. (Pp. 176-177, 104 S.Ct. at p. 1740; see Hester, supra, 265 U.S. at p. 59, 44 S.Ct. at p. 446.) Moreover, the Oliver majority reasoned, society is not prepared to recognize such areas as protected zones of intimate privacy, even where the individuals who seek privacy in such places have made that intention clear. (466 U.S. at pp. 179-184, 104 S.Ct. at pp. 1741-1744.) 3 Under Oliver,...

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