People v. Romo
| Decision Date | 11 February 1988 |
| Docket Number | No. A037010,A037010 |
| Citation | 198 Cal.App.3d 581,243 Cal.Rptr. 801 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 56 USLW 2522 The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Michael ROMO, Defendant and Appellant. |
R. Charles Johnson, San Anselmo, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Laurence K. Sullivan, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Defendant was charged with one count of cultivating marijuana (Health and Saf.Code, § 11358), one count of possessing marijuana for sale (Health and Saf.Code, § 11359) and one count of possessing cocaine. (Health and Saf.Code, § 11350.) He plead not guilty to each count. At his preliminary hearing he moved to suppress the evidence against him (Pen.Code, § 1538.5) arguing it was the fruit of an illegal aerial overflight. The motion was denied.
Defendant renewed his motion to suppress in the superior court, again raising the issue of the illegal aerial overflight, and further arguing the officers' subsequent entry into his house violated the "knock-notice" provisions of Penal Code section 1531. The motion was denied.
Defendant then withdrew his not guilty plea and plead guilty to the charges involving cultivating marijuana and possession of cocaine. The other count was dismissed. Defendant was granted three years probation on conditions which included serving a 180 day jail term in county jail.
On appeal he argues: (1) the police overflight of his home was unconstitutional; and (2) the search warrant obtained subsequent to the overflight was executed in an unlawful manner. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Based on anonymous reports of heavy foot traffic in and out of defendant's residence Officer Torres, on August 21, 1985, conducted a helicopter overflight of the city of Ukiah, including defendant's house. 1 The flight was at an altitude of no less than 500 feet. Without visual or optical aids he saw what he believed to be marijuana growing in a fenced-in area of the yard. He had the pilot circle back and pictures were taken. Officer Torres next obtained permission from the property owner north of defendant's residence to walk on his property. Standing in the neighbor's field the officer was able to see the tops of several marijuana plants over a five-foot wire fence which surrounded defendant's backyard. At the time he was approximately 35 feet from defendant's property. The officer also testified that the marijuana was covered on three sides by a six-foot bamboo fence, but the officer was able to view the plants through the gap on the south side. Based on this information the officer obtained a search warrant for the house.
On September 4th Officer Torres and his supervisor, Near, along with two uniformed officers arrived at defendant's home to execute the warrant. As they approached the house they encountered defendant's mother, who had just driven a car into the driveway. The two uniformed officers detained her while Torres and Near continued toward the house. As they approached, a young woman came out of the house and stood on the porch. She identified herself as defendant's sister, and said she lived there with her brother. Torres told her he was a police officer, had a search warrant for the house and wished to see defendant. She said "she would get him [i.e. her brother] or something along that line." The officers then followed her into the house. They encountered defendant as he entered the front room from the rear of the house. Torres told him they had a search warrant for the marijuana plants. Defendant directed them to the backyard. The subsequent search resulted in the seizure of 6 marijuana plants, approximately $1800 in cash, a small amount of cocaine, 15 ounces of marijuana, grow lights, bags and a triple beam scale.
Defendant, relying on People v. Sabo (1986) 185 Cal.App.3d 845, 230 Cal.Rptr. 170, argues the helicopter overflight of his backyard violated his Fourth Amendment rights. In Sabo a sheriff in a helicopter, hovering approximately 400-500 feet above the defendant's yard, spotted marijuana plants growing in a greenhouse. However, heavy vegetation prevented a direct view, and the sheriff had to peer through missing panels on the greenhouse to actually spot the plants. The court found this activity violated defendant's reasonable expectation of privacy. Thus, the contraband seized under the warrant issued pursuant to the helicopter surveillance was suppressed.
In reaching its conclusion the court found the United States Supreme Court case of California v. Ciraolo (1986) 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 to be inapplicable and thus applied the "traditional inquiry into reasonable privacy expectation," referring to the California Supreme Court case of People v. Cook (1985) 41 Cal.3d 373, 221 Cal.Rptr. 499, 710 P.2d 299.
Although the result in Sabo appears correct, we find its reasoning questionable. In particular, its reading of Ciraolo seems unduly limiting. 2 In Ciraolo the police flew in a fixed wing aircraft over the defendant's yard after receiving an anonymous tip he was growing marijuana there. From an altitude of 1000 feet the officers identified marijuana plants. Pictures were taken, and a search warrant was later obtained. Defendant argued the warrantless aerial observation of his yard violated the Fourth Amendment.
The court applied the two-part test of Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. ( California v. Ciraolo, supra, 106 S.Ct. at p. 1811.) The Court first found that defendant had manifested a subjective expectation of privacy in the yard simply by erecting a 10 foot fence which obscured a public view of his yard from the ground. However, it held that this expectation was not one society would be willing to accept as reasonable. As the court stated, "Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed." ( California v. Ciraolo, supra, 106 S.Ct. at p. 1813.) Furthermore, the observations were done "in a physically nonintrusive manner" and with the "naked eye." (Ibid.)
The Sabo court found the fact that the Supreme Court stated the plane was in "navigable airspace" when the observations were made to be a crucial factor in the high court's holding. It concluded that Ciraolo "does not declare a rule to govern aerial surveillance of the curtilage in all circumstances and at any altitude and from any platform." Rather it simply pronounces that "the naked-eye view from navigable airspace does not offend the Fourth Amendment, whatever the circumstances of the view." ( People v. Sabo, supra, 185 Cal.App.3d at p. 853, 230 Cal.Rptr. 170.) (Emphasis added.)
Although the Ciraolo court did state that the plane was in navigable airspace, we do not read the opinion to mean that the case only applies to helicopters if they are flying at an altitude of 1000 feet. Rather the court appeared to emphasize this fact to make the point that the plane had a right to be where it was in observing the plants. As was stated in the opinion, "Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible." ( California v. Ciraolo, supra, 106 S.Ct. at p. 1812.) (Emphasis added.)
We also question the Sabo court's conclusion that a helicopter flying at 400-500 feet is not within "navigable airspace." The court began For a fixed wing aircraft over a congested area this is 1000 feet. (14 C.F.R. § 91.79(b).) However, helicopters may be operated at less than the minimum altitude "if the operation is conducted without hazard to persons or property on the surface." (14 C.F.R. § 91.79(d).) The court concluded "the plain meaning of the statutes defining navigable airspace as that airspace above specified altitudes compels the conclusion helicopters operated below the minimum are not in navigable airspace." (People v. Sabo, supra, 185 Cal.App.3d at pp. 852-853, 230 Cal.Rptr. 170.) This conclusion is in part based on the court's conclusion that a helicopter flying at 400-500 feet is not in airspace dedicated to public use as defined under eminent domain law. ( Id. at p. 852, fn. 3, 230 Cal.Rptr. 170.)
The court's conclusion, that because helicopters do not have minimum altitude limitations, they are not flying in navigable space when operating lawfully, is puzzling. In fact certain minimum altitudes do exist for helicopters. For example 14 C.F.R. § 135.203 reads "Except when necessary for takeoff and landing, no person may operate under VFR-- ... (b) A helicopter over a congested area at an altitude less than 300 feet above the surface." (See also the dissenting opinion of Elkington, J. in People v. Roberts (1987) 195 Cal.App.3d 479, 483-486, 240 Cal.Rptr. 658.) Also there is no question, as even the Sabo court admitted, that the helicopter was operating lawfully. As just mentioned, Ciraolo requires no more.
Lastly we question the Sabo court's citation to People v. Cook, supra. In concluding, the court in reference to the helicopter, stated "Surely, its subsequent antics are subject to the kind of scrutiny called for by People v. Cook, supra, 41 Cal.3d 373 at pp. 376-377 [221 Cal.Rptr....
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Aerial Trespass and the Fourth Amendment.
...1987); United States v. Breza, 308 F.3d 430 (4th Cir. 2002); United States v. Broadhurst, 805 F.2d 849 (9th Cir. 1986); People v. Romo, 243 Cal. Rptr. 801 (Ct. App. 1988); People v. Reynolds, 523 N.E.2d 291 (N.Y. 1988); State v. Vogel, 428 N.W.2d 272 (S.D. 1988); United States v. Wilson, No......