People v. Sneed

• Decision Date: 21 May 1973
• Docket Number: Cr. 1301
• Citation: 32 Cal.App.3d 535,108 Cal.Rptr. 146
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Arthur SNEED, Defendant and Appellant. 5

Page 146

108 Cal.Rptr. 146

32 Cal.App.3d 535

The PEOPLE, Plaintiff and Respondent, v. Gregory Arthur SNEED, Defendant and Appellant.

5 Cr. 1301.

Court of Appeal, Fifth District, California.

May 21, 1973.

Hearing Denied Aug. 16, 1973.

[32 Cal.App.3d 538] Martin & Cole, Modesto, Dennis R. Watt, Berkeley, and William A. Martin, Modesto, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Sacramento, Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Edward W. Bergtholdt, and Garrick W. Chock, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Gregory Arthur Sneed appeals from a judgment of conviction of unlawful cultivation of marijuana in violation of Health & Safety Code section 11530.1. Appellant's purported appeal from the denial of his motion to suppress made pursuant to Penal Code section 1538.5 is dismissed. Review thereof is afforded upon appeal from the judgment of conviction. (Pen.Code, § 1538.5, subd. (m).)

He asserts two grounds for reversal: (1) That the officers' observations of the growing marijuana plants constituted an illegal search and their testimony and other evidence flowing from the search should have been suppressed pursuant to his pretrial motion under Penal Code section 1538.5, and (2) the evidence was insufficient to support his conviction.

Appellant and several youthful companions rented and lived in a house in a rural area at 19685 Fowler, near Hilmar, Merced County, California. The 20-care ranch upon which the house was located was known as the Fowler property.

In back of the house, in a corral and approximately 125 feet from the house, there were two watered and cared for marijuana plants. Between the house and the corral was a barn which was 18 to 20 feet high. One of the marijuana plants was approximately 10 to 20 feet to the rear of the barn and about 8 feet all, and the other was about 40 to 50 feet from the barn and about 10 feet tall. On the other three sides of the corral there was a growing corn crop which stood some 10 to 12 feet high. While it appears the marijuana plants could have been viewed from the edge of the corn crop next to the corral, the corral area was well shielded from public view from any public way or vantage point.

The entire premises, including the house, the barn, the corral and the cornfield, were owned by a third party. The corn was being grown by Hilmer Nyman, a neighboring farmer, on the premises pursuant to a lease with the third party.

Aside from the above factual information, there is a total absence of evidence as to whether or not Mr. Nyman, the appellant and his friends or another were actual lessees of the corral area where the marijuana plants were growing. Since the searches of the corral area involved herein were without a warrant, the burden was upon the People to show that the search did not violate appellant's constitutional rights, including the burden of showing that appellant did not have the right to possess and use the corral area. It has failed to carry that burden. (Horack v. Superior Court (1970), 3 Cal.3d 720, 725, 91 Cal.Rptr. 569, 478 P.2d 1; People v. Johnson (1968), 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921; Badillo v. Superior Court (1956), 46 Cal.2d 269, 272, 294 P.2d 23.) Inasmuch as appellant was utilizing the area, we presume he had the right to possess that area, at least by sufferance, and was clothed with whatever reasonable expectation of privacy from illegal searches a legal possessor of real property would normally have.

Moreover, wholly aside from appellant's legal right to possession of the corral area, he has the standing to challenge the legality of the searches as to a third party--whether that may have been the owner, Mr. Nyman or another. (People v. Martin (1955), 45 Cal.2d 755, 759--761, 290 P.2d 855.)

THE HELICOPTER OBSERVATIONS

The sheriff's office received a telephone tip that there was marijuana being grown somewhere on the 20-acre Fowler Street ranch. Upon driving to the premises, the officers readily determined that they could not see anything from the public roadway and that the only feasible method they could use to survey the entire 20-acre ranch was by air. The deputy sheriff arranged for a helicopter and caused it to be flown back and forth across the entire 20-acre ranch while he looked for marijuana plants. He finally spotted what he believed to be two marijuana plants growing in the corral. The helicopter hovered as low as 20 to 25 feet above the corral as the deputy made his observations.

Respondent contends that since the marijuana plants were growing in the corral in plain view of the neighbor, the neighbor's employees, crop dusting airplanes and mosquito abatement helicopters, appellant could not have entertained a reasonable expectation of privacy and that therefore the observation from the helicopter was not an illegal search. (Dillon v. Superior Court (1972), 7 Cal.3d 305, 309--311, 102 Cal.Rptr. 161, 497 P.2d 505; People v. Bradley (1969), 1 Cal.3d 80, 85, 81 Cal.Rptr. 457, 460 P.2d 129.) We first note that there was no evidence presented that any crop dusting planes or mosquito abatement helicopters had actually flown over the area nor that anyone had viewed the plants from the neighbor's cornfield.

The basic test as to whether there has been an unconstitutional invasion of privacy is whether the person has exhibited a subjective expectation of privacy which is objectively reasonable and, if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Bradley (1969), 1 Cal.3d 80, 84--86, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Edwards (1969), 71 Cal.2d 1096, 1100, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Berutko (1969), 71 Cal.2d 84, 93--94, 77 Cal.Rptr. 217, 453 P.2d 721.)

This test of reasonableness is dependent upon the totality of facts and circumstances involved in the context of each case. (North v. Superior Court (1972), 8 Cal.3d 301, 308--312, 104 Cal.Rptr. 833, 502 P.2d 1305; People v. Berutko, Supra, 71 Cal.2d 84, 93, 77 Cal.Rptr. 217, 453 P.2d 721; Cohen v. Superior Court (1970), 5 Cal.App.3d 429, 434--435, 85 Cal.Rptr. 354.)

A review of the numerous cases in this area of judicial confusion indicates that solutions in many instances have been sought and found in the application of certain rather fixed mechanical rules conveniently labeled; these include, among others, the so-called 'open fields' doctrine, the 'constitutionally protected area' doctrine, the doctrine of 'looking through an open window,' 'common passageway' doctrine, and 'minor trespass doctrine.' We do not believe, however, that since the advent of the 'reasonableness' test set forth in Edwards, Berutko and Bradley, supra, and other cases, answers can be found in a Procrustean application of these doctrinaire pronouncements. (See Katz v. United States (1967), 389 U.S. 347, 350--352, 88 S.Ct. 507, 510--512, 19 L.Ed.2d 576.)

Certainly, it cannot be said that one who has a backyard concealed from the view of the public from the public roadway has shown in all events a reasonable expectation of privacy for that area, no matter what other facts and circumstances may exist. There are countless thousands of permutations of factual situations, each presenting its own problems. Any effort to generalize is fraught with danger. However, it is readily apparent a number of factors must be considered, among which are the location of the premises, that is, whether in an urban or isolated area, the existence or nonexistence and height of natural or artificial structures adjacent to the premises, the height and sight-proof character of the fencing, the location of public or common private walkways adjacent to the premises, the type and character of invasion by the governmental authority, and other unforeseeable factors which will undoubtedly arise on a case by case basis.

In the case at bench, if the observation of the marijuana plants had been made from the neighbor's property by an officer with the neighbor's consent, there would have been no search. (Dillon v. Superior Court (1972), 7 Cal.3d 305, 309--311, 102 Cal.Rptr. 161, 497 P.2d 505.) There would have been no search if the viewing had been made from a position where tradesmen, deliverymen and members of the public had a right to be. (People v. Bradley (1969), 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129.)

However, recent Supreme Court cases make clear that though a person may have consented to observations from some sources and by some persons and therefore cannot have a reasonable expectation of privacy as to those sources or persons, he does not thereby forego his Fourth Amendment protection as to intrusions from all sources and by all persons, and particularly has not waived his right to privacy as to government agents. In People v. Triggs (1973), 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, the court held that a person in an open-stalled public rest room has a reasonable expectation of privacy from clandestine observations by police from a concealed position, though he could have no such expectation of privacy from observations through the open door, whether made by members of the public or the police. In People v. Krivda (1971), 5 Cal.3d 357, at page 367, 96 Cal.Rptr. 62, at page 69, 486 P.2d 1262, at page 1268, the court stated:

'. . . we hold that defendants had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant.

'Of course, one must reasonably anticipate that under certain circumstances third persons may invade his privacy to some extent. It is certainly not unforeseen that trash collectors or even vagrants or children may rummage through one's trash barrels and remove some of its contents.'

In People v. McGrew (1969), 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 (overruled on other grounds in People v. McKinnon,...