People v. Stanley

• Decision Date: 24 June 1999
• Docket Number: No. B123700,B123700
• Citation: 72 Cal.App.4th 1547,86 Cal.Rptr.2d 89
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 5073, 1999 Daily Journal D.A.R. 6529 The PEOPLE, Plaintiff and Respondent, v. Jack Mace STANLEY et al., Defendants and Appellants.

Page 89

86 Cal.Rptr.2d 89

72 Cal.App.4th 1547, 99 Cal. Daily Op. Serv. 5073,

1999 Daily Journal D.A.R. 6529

The PEOPLE, Plaintiff and Respondent, v. Jack Mace STANLEY et al., Defendants and Appellants.

No. B123700.

Court of Appeal, Second District, Division 6, California.

June 24, 1999.

Marcia A. Morrissey, Santa Monica, and Roger Teich, for Defendant and Appellant Stanley.

Susan Pochter Stone, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant Singerman.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Victoria Bedrossian and Ruth L. Wei, Deputy Attorneys General, for Plaintiff and Respondent.

BURKE, J. ^*

Jack Stanley and David Singerman appeal from the judgment following guilty pleas to a charge of cultivating marijuana. (Health & Saf.Code, § 11358.) Probation was granted on various terms and conditions including the service of 120 and 90 days in the county jail, respectively. Appellants contend the trial court erred in denying their motions to suppress evidence.

We conclude that a search warrant was not required to install a surveillance meter to monitor electrical consumption at Stanley's house. We also conclude that the affidavit in support of the search warrant contained sufficient legally obtained information to provide probable cause. Accordingly, we affirm the trial court's denial of appellants' motions to suppress.

FACTS

About two months before Singerman and Stanley were arrested, an informant told Deputy Sheriff Lori Erickson that Singerman said he was illegally growing marijuana inside a residence in Ventura County. The informant accurately described Singerman and identified the make, model, and license number of the truck he drove. Erickson and another deputy followed Singerman from his home in North Hollywood to a house in Ventura owned by Stanley.

Deputies watched Stanley's house for several weeks. The residence was surrounded by overgrown trees and shrubs. It did not have a lawn, swimming pool, or Jacuzzi. Erickson noted that the drapes and blinds on the front windows were always drawn. There was very little activity Without first obtaining a search warrant, deputies scanned the house with a thermal imaging device. The thermal image showed significantly more heat escaping from the roof, the roof vents and eves of the house than from similar structures on other houses in the neighborhood.

at the house other than Stanley and Singerman coming and going. Deputies noted that Stanley did not place a household trash receptacle at curbside for pickup for three weeks. They concluded that the house was not being used as a residence.

Four days after the thermal scan, deputies consulted the electric company about the usage of electricity at the house. Billing records showed normal usage of power. Without a search warrant, deputies asked the electric company to install a surveillance meter on the utility pole on Stanley's property to determine if electricity was being stolen and diverted into the home. Electric company employees accessed the pole by leaning a ladder against it from a neighbor's yard.

The surveillance meter revealed that electricity was being stolen and diverted into Stanley's house. The electric company's metering records documented normal household usage of 11 kilowatts per day while the surveillance meter on the pole showed 411 kilowatts per day were being delivered.

Deputy Erickson applied for a search warrant based upon these facts and her opinion that excessive consumption of electricity was consistent with a marijuana growing operation using thirty 1000 watt grow lights. The warrant was issued and executed. Growing marijuana was seized from the house.

DISCUSSION

We review the trial court's denial of appellants' motion to suppress by deferring to factual findings by the trial court that are supported by substantial evidence. We independently review questions of law. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)

In Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 the Supreme Court declared that unconstitutional searches are not limited to physical invasions or trespasses. In Katz, a warrantless interception of a telephone call from a glass enclosed telephone booth was held to be an unlawful invasion of a protected privacy interest. Justice Harlan explained that the appropriate test to determine if a person's legitimate privacy rights have been violated is twofold: first, the person must demonstrate an actual, subjective expectation of privacy in that which is searched, and second, that expectation must be one our society recognizes to be reasonable. (Id., at p. 361, 88 S.Ct. 507 (conc. opn. of Harlan, J.).)

The home is a place where privacy is expected, and this expectation is one society recognizes as justifiable. (Katz v. United States, supra, 389 U.S. at p. 361, 88 S.Ct. 507 (conc. opn. of Harlan, J.); United States v. Karo (1984) 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530.) But where activities, statements, or objects are exposed to public view, the protection of the amendment does not apply. Thus, a telephone company's list of calls made from inside a home is not protected. (Smith v. Maryland (1979) 442 U.S. 735, 743-744, 99 S.Ct. 2577, 61 L.Ed.2d 220.) Nor is Fourth Amendment protection extended to high resolution aerial photographs of structures in an industrial complex (Dow Chemical Co. v. United States (1986) 476 U.S. 227, 237, fn. 4, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226) or garbage set out at curbside (California v. Greenwood (1988) 486 U.S. 35, 40, 108 S.Ct. 1625, 100 L.Ed.2d 30).

On the other hand, searches and seizures inside a private residence without a warrant are presumptively unreasonable absent exigent circumstances. (Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749, 104 S.Ct. 2091, 80 L.Ed.2d 732; Steagald v. United States (1981) 451 U.S. 204, 211-212, 101 S.Ct. 1642, 68 L.Ed.2d 38.) The rule is the same where, without a warrant, law enforcement surreptitiously employs one form or another of surveillance technology to obtain information that it could not have obtained by observation from outside the curtilage of the house. (United States v. Karo, supra, 468 U.S. at p. 715, 104 S.Ct. 3296.) In Karo, drug enforcement officers inserted a signal locator (beeper) into a drum of ether they believed would be used to extract cocaine from drug-impregnated clothing. The movements of the can were traced to a private residence, two storage facilities, and a second residence. The court concluded that monitoring the beeper while it was inside the home was an unreasonable search because it disclosed the article was in the house and in the possession of the person whose home was being watched. (Ibid.; cf. United States v. Knotts (1983) 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 [monitoring a beeper only on its journey over public roads is not a search].)

Appellants argue that the utility pole was located within the curtilage of Stanley's house and that they have an expectation of privacy in all things within the curtilage. They emphasize the secluded manner in which the property was maintained. But appellants demonstrated no actual, subjective expectation of privacy in the devices used by the utility to deliver electricity to Stanley's house. The poles, wires, transformers, and meters were owned and maintained by the utility. These devices are in plain view. There can be no expectation of privacy in the equipment used by the utility to deliver power to the house. Moreover, the electricity delivered by the utility is measured by a meter routinely monitored by its employees. The usage reflected by the meter is recorded in utility company records and billed to Stanley.

Nevertheless, appellants assert they had a reasonable expectation of privacy in the quantity of electricity delivered by the utility. They claim the surveillance meter attached to the utility pole in Stanley's back yard is constitutionally offensive because it reveals information to police about intimate activities within the house which they could not have learned without obtaining a search warrant. We disagree.

The crucial inquiry is whether the technology employed by the government reveals intimate details about objects or activities inside the home. (Dow Chemical Co. v. United States, supra, 476 U.S. at p. 238, 106 S.Ct. 1819.) The technology used here did not peer inside Stanley's house or otherwise penetrate its inner sanctum. It cannot be equated to the beeper that found its way into the defendant's home (United States v. Karo, supra, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530) or to the listening device that revealed what the defendant said in a closed telephone booth (Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576).

Appellants rely upon People v. Deutsch (1996) 44 Cal.App.4th 1224, 52 Cal.Rptr.2d 366, as authority for their argument that the...