People v. Sabo

• Decision Date: 19 September 1986
• Citation: 230 Cal.Rptr. 170,185 Cal.App.3d 845
• Court: California Court of Appeals Court of Appeals
• Parties: , 55 USLW 2261 The PEOPLE, Plaintiff and Appellant, v. Ronald Lee SABO et al., Defendant and Respondent. D002860.

Page 170

230 Cal.Rptr. 170

185 Cal.App.3d 845, 55 USLW 2261

The PEOPLE, Plaintiff and Appellant, v. Ronald Lee SABO et al., Defendant and Respondent.

D002860.

Court of Appeal, Fourth District, Division 1, California.

Sept. 19, 1986.

Review Denied Nov. 26, 1986.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman, Les W. Dubow, D. Michael Ebert and Anthony Lovett, Deputy Dist. Attys., for plaintiff and appellant.

Robert F. Gusky, Poway, and Christopher Blake, San Diego, under appointments by the Court of Appeal, for defendants and respondents.

BUTLER, Associate Justice.

The People appeal an order dismissing criminal proceedings against Ronald Lee Sabo and Angela Marie Zizzo (respondents) after the court sustained their motions to suppress evidence seized in a search authorized by a warrant issued following a helicopter flight observation of marijuana growing in a backyard greenhouse. Distinguishing California v. Ciraolo (1986) 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210, validating a search based on fixed wing aircraft observations from an altitude of 1,000 feet of marijuana in plain view growing in a backyard, we affirm.

I

Sabo and Zizzo lived together in a residence on El Capitan Drive in La Mesa, California. During a routine helicopter patrol mission, Deputy Sheriff Wilson observed what he believed to be marijuana plants growing inside a 15 by 20 foot greenhouse located in the backyard, directly west of respondents' house. Deputy Larry Martin of the narcotics squad then joined Wilson in the helicopter.

Hovering at 400-500 feet, Martin saw the greenhouse. Several roof and side panels were missing. A tall pine tree and heavy vegetation inhibited a direct view into the structure. However, as Wilson circled the helicopter, Martin was able to see marijuana plants growing inside the greenhouse.

Based on Martin's information, a search warrant issued and sheriff's deputies found marijuana in the greenhouse. The court granted respondents' motion to suppress the seized marijuana, holding the aerial surveillance violated their Fourth Amendment rights, and dismissed the action.

II

At the suppression hearing, the People argued the motion should be denied because aerial overflights and observations do not violate a person's legitimate privacy expectation, Deputies Martin and Wilson were in a public place open to their use at the time of the search, respondents' curtilage is not a protected area, and respondents' expectation the police would not see the marijuana growing in their greenhouse is unreasonable. The court granted the motion, finding: "The area searched (greenhouse) was within the defendant's curtilage. A reasonable expectation of privacy existed. A warrantless overflight constituted an unreasonable search in violation of the Fourth Amendment. The fruits of that unconstitutional search cannot support a warrant."

The court's finding was based on People v. Ciraolo (1984) 161 Cal.App.3d 1081, 208 Cal.Rptr. 93, to the effect a warrantless aerial surveillance of residences and curtilages wherein a defendant could reasonably entertain an expectation of privacy violated the Fourth Amendment. (See People v. Cook (1985) 41 Cal.3d 373, 221 Cal.Rptr. 499, 710 P.2d 299.)

Following oral argument on this appeal, the Supreme Court issued its opinion May 19, 1986, in California v. Ciraolo, supra, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (hereafter Ciraolo ), reversing People v. Ciraolo, supra, 161 Cal.App.3d 1081, 208 Cal.Rptr. 93. We asked the parties to submit additional briefs on the impact of Ciraolo here. We examine the record in light of Ciraolo. ¹

A.

Ciraolo reaffirms the standard of Fourth Amendment analysis set forth in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576:

"The touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.' Katz v. United States, 389 U.S. 347, 360 [88 S.Ct. 507, 516, 19 L.Ed.2d 576] ... (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? [Citation.]" (Ciraolo, supra, 476 U.S. at p. ----, 106 S.Ct. at p. 1811, 90 L.Ed.2d at p. 215.)

In Ciraolo, the Supreme Court found and the state did not challenge, the defendant clearly had manifested his subjective intent and desire to maintain privacy as to his "unlawful agricultural pursuits" (id. 476 U.S. at p. ----, 106 S.Ct. at p. 1811, 90 L.Ed.2d at p. 215). The high court noted:

"It can reasonably be assumed that the 10-foot fence was placed to conceal the marijuana crop from at least street level views. So far as the normal sidewalk traffic was concerned, this fence served that purpose, because [defendant] 'took normal precautions to maintain his privacy.' [Citation.]" (Ciraolo, supra, at 476 U.S. at p. ----, 106 S.Ct. at p. 1811, 90 L.Ed.2d at p. 215.)

Ciraolo then turns to the second inquiry, whether the expectation of privacy is reasonable. After concluding the yard in Ciraolo was part of the curtilage, the high court commented the Fourth Amendment has never been extended "to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares ..." (id. 476 U.S. at p. ----, 106 S.Ct. at p. 1812, 90 L.Ed.2d at p. 216) and held:

"The observations by Officers Shutz and Rodriquez in this case took place within public navigable airspace, see 49 U.S.C.App § 1304 ... in a physically nonintrusive manner; from this point they were able to observe plants readily discernable to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent's expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor." (Ciraolo, supra, 476 U.S. at p. ----, 106 S.Ct. at p. 1812, 90 L.Ed.2d at p. 217, fn. omitted.)

We examine the facts in our case.

B.

As in Ciraolo, the facts here satisfy the first Katz inquiry: the respondents had a subjective expectation of privacy in their greenhouse within the curtilage. We turn to the second, the reasonableness of their expectation of privacy.

In Ciraolo, the marijuana growing in the backyard was clearly visible to the naked eye peering from a fixed wing aircraft flying at a 1,000-foot altitude. While the fenced yard effectively shielded the marijuana from the view of the earthbound constable, as well as that of the casual passerby, the eye in the sky is not so inhibited.

"In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye." (Ciraolo, supra, 476 U.S. at p. ----, 106 S.Ct. at p. 1813, 90 L.Ed.2d at p. 218, fn. omitted.)

Here, the marijuana was cultivated in a greenhouse partially screened by evergreens and from which some roof and side panels were missing. The officer circled the helicopter at an altitude of some 400 feet over the greenhouse and saw, with unaided eye, through the gaps in the roof, the marijuana plants.

There are factual differences. Ciraolo has a fenced backyard open to the skies; marijuana easily visible to an observer from a fixed wing aircraft flying at 1,000 feet in navigable airspace. Here, the greenhoused marijuana was visible only to an eye in a circling helicopter positioned such as to enable a peek at the pot through the gaps.

Respondents argue these factual differences demonstrate a reasonable expectation of privacy, contending Dow Chemical Co. v. United States (1986) 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (hereafter Dow ), decided the same date as Ciraolo, narrows the holding in that case in its application here. Dow considered a 2,000-acre, tightly secured chemical manufacturing complex including numerous covered buildings with manufacturing equipment and piping conduits exposed to aerial visual observation. Concluding the open areas of an industrial plant complex with numerous structures spread over an area of 2,000 acres was not analogous to the curtilage of a dwelling and more comparable to an open field, the court held the complex "is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras." (Dow, supra, 476 U.S. at p. ----, 106 S.Ct. at p. 1827, 90 L.Ed.2d at p. 238.) The taking of aerial photographs of the complex from navigable airspace "is not a search prohibited by the Fourth Amendment." (Ibid.) Ciraolo' § narrow reading is said to be compelled by footnote 4 in the Dow opinion referring to the aerial observation of the 2,000-acre complex without physical entry:

"We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened. Nor is this an area where Dow has made any effort to protect against aerial surveillance. Contrary to the partial dissent's understanding, post, at [----], 90 L.Ed.2d 241 , the Court of Appeals emphasized that 'Dow did not take any precautions against aerial intrusions, even though the plant was near an airport and within the pattern of planes landing and taking off. If elaborate and expensive measures for ground security show...