People v. Superior Court (Spielman)

• Decision Date: 21 February 1980
• Citation: 102 Cal.App.3d 342,162 Cal.Rptr. 295
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF MONTEREY COUNTY, Respondent; John Michael SPIELMAN et al., Real Parties in Interest. Civ. 47432.
• Court: California Court of Appeals Court of Appeals

Page 295

162 Cal.Rptr. 295

102 Cal.App.3d 342

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF MONTEREY COUNTY, Respondent John Michael SPIELMAN et al., Real Parties in Interest.

Civ. 47432.

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

Feb. 21, 1980.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for petitioner.

J. Michael Hogan, Monterey, for real party in interest Acosta.

ELKINGTON, Acting Presiding Justice.

We issued an alternative writ of mandate on application of the People, who seek reversal of a superior court order suppressing evidence (see Pen.Code, § 1538.5) essential to the prosecution of real parties in interest Spielman, Acosta and Tally.

The single question posed is whether a police officer who, acting Reasonably on Probable cause to investigate a burglary, Inadvertently Observes, through the nearby window of an adjoining building, a person's unrelated criminal conduct therein, has Unconstitutionally Violated that person's Reasonable expectation of Privacy.

The relevant evidence on the motion to suppress was uncontroverted.

Around 2 o'clock one morning a patrolling police officer observed two men somehow enter and close behind them a gate on a fence at the rear of a closed restaurant. Thinking that they might be a cleaning crew he waited a time for lights to come on. When they did not he decided to investigate a possible "illegal entry," and called over police radio for a backup. Four backup vehicles responded and, no lights in the restaurant premises having yet come on, some of the officers surrounded the area while others proceeded to the fence and gate, which were about nine feet high. No means of opening the gate from the outside were observed, but it appeared that there was an inside latch. With the aid of others, Officer Stine climbed the fence to "get to the other side and unlock the gate"; he had no other purpose. While momentarily balancing on top of the fence, he found himself "looking into the window" of an adjacent building about six feet away. The window's venetian blinds were down, but the slats were "open" or "horizontal." Inside what appeared to be an apartment, the officer observed real party in interest Spielman engaged in what he reasonably believed to be the packaging, and thus possession, of marijuana for sale in violation of Health and Safety Code section 11359.

It may properly be emphasized that the evidence conclusively established Officer Stine's observation to have been in good faith, unplanned and inadvertent, and not in the course of an investigation of real parties in interest.

In granting the motion to suppress evidence the superior court Expressly held that, "despite the fact that their (the police officers') Conduct was reasonable under the circumstances, it just seems to me that looking through a man's window at 2:00 a. m. in the morning, hanging from a ten-foot fence, is a violation of that person's reasonable expectation of privacy." (Emphasis added.)

The court had thus held that police officers, Acting reasonably, may nevertheless violate a person's Reasonable expectation of privacy. In this, we conclude, the court was in error.

The sole purpose of the Fourth Amendment is to protect the "right of the people to be secure in their persons, houses, papers, and effects, against Unreasonable searches and seizures, . . ." ¹ (Emphasis added.) For "what the Constitution forbids is not all searches and seizures, but Unreasonable searches and seizures." ² (Emphasis added.)

"There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances . . . and on the total atmosphere of the case." ³

But there are authoritative guidelines which trial courts, and this court, are obliged to follow. ⁴

It is significant that: "(T)he Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' " ⁵ " 'It is well established that the right of privacy guaranteed by the Fourth Amendment is not an absolute and may be abridged where a compelling public interest so requires.' " ⁶ The United States Supreme Court has recognized that the " 'requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement.' " ⁷

"(T)he standard for determining what is an illegal search is whether defendant's 'Reasonable expectation of privacy was violated by unreasonable governmental intrusion.' " ⁸ (Emphasis added.)

The rule iterated by People v. Triggs, supra, 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232, has been expressed in many ways. A person's reasonable expectation of privacy will be violated Only by "Unreasonable governmental intrusion," ⁹ or "Arbitrary " invasions by government officials, ¹⁰ or "Lawless " invasions, ¹¹ or "Unwarranted " intrusions, ¹² or "Unreasonable " searches and seizures, ¹³ or "Impermissible " intrusions. ¹⁴ We find no authority holding that one's reasonable expectation of privacy might be violated by Reasonable Police conduct. (The emphasis of this paragraph is ours.)

It is a "salutary rule of law that observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense." ¹⁵ And more particularly, there will in such a case be no Fourth Amendment offense where the observation was unplanned and inadvertent, ¹⁶ as where "a law enforcement officer lawfully engaged in a search for evidence of one crime inadvertently comes upon evidence of another crime . . . ." ¹⁷

"The (14th) amendment protects the citizen against invasion of privacy. Once that interest is invaded Legally by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of the invasion." ¹⁸ (Emphasis added.)

Here the evidence conclusively established as found by the superior court that Officer Stine, while lawfully investigating an apparent burglary and at a place where he had a right to be, inadvertently observed criminal activity through the nearby window of an adjoining building. The superior court properly found that his "conduct was reasonable under the circumstances, . . ." Under the authority we have cited, it follows as a matter of law that there was no unconstitutional violation of the right of privacy of the real parties in interest, or otherwise. The superior court erred in granting the motion to suppress.

The several authorities relied upon by real parties in interest concern planned and ongoing police investigations of persons suspected of criminal activity, in the course of which unlawful and unconstitutional means of surveillance of their activity were engaged in. They are wholly inapposite to the case before us.

The peremptory writ of mandate will issue.

NEWSOM, Judge, concurs.

GRODIN, Associate Justice, concurring in the result.

I concur in the result, but by a somewhat different line of reasoning. What is at issue in this proceeding (given the ruling of the trial court) is the lawfulness of the observation which the police officer made from the fence and not the lawfulness of any subsequent intrusion or seizure. ¹ The top of the fence was most certainly not a "public vantage point" (cf. Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 724, 89 Cal.Rptr. 893), such as a "sidewalk, pathway, common entrance or similar passageway . . . which necessarily negates any reasonable expectancy of privacy in regard to observations made there." (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629, 100 Cal.Rptr. 585, 587, 5ll P.2d 33, 35.) ² The trial court was therefore, quite correct in concluding that real parties had a reasonable expectation of privacy protectible under the Fourth Amendment as interpreted in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

The fact (as determined by the trial court) that the police officer was not on top of the fence for the purpose of making any observation serves to distinguish this situation from cases like People v. Triggs (1973) 8 Cal.3d 884, 887, 106 Cal.Rptr. 408, 506 P.2d 232 (disapproved on other grounds, People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal. Rptr. 910, 587 P.2d 706) (condemning deliberate observations into a public restroom from a "clandestine vantage point"), and Jacobs v. Superior Court (1973) 36 Cal.App.3d 489, 498, 111 Cal.Rptr. 449 (characterizing as "unreasonable" the conduct of a police officer who, investigating suspicious after-hours activity, stood on a planter box and peeked through the venetian blinds of a retail building). Still, I believe we are obliged to inquire whether the presence of the police officer at the vantage point from which he made the observation was justified by one of the "established exceptions to the warrant requirement." (People v. Lorenzana, supra, 9 Cal.3d at p. 634, 108 Cal.Rptr. at p. 591, 511 P.2d at p. 39.) ³ It appears to be accepted that police may enter private property "for the purpose of protecting the property of the owner or occupant or some other person . . . (as) where the police reasonably believe that the premises have recently been or are being burglarized (or) . . . when commercial premises are found to be unlocked and unattended in the evening hours." (2 LaFave, Search and Seizure (1978) § 6.6, pp. 473-474.) In People v. Parra (1973) 30 Cal.App.3d 729, 106 Cal.Rptr. 531, the court held admissible evidence of contraband observed by police when, in response to a citizen's report that the door of a florist shop was open on a Sunday evening, they entered the shop for the purpose of securing it and obtaining information as to the owner's identity. The court noted that there was "nothing in the record to suggest" that the police entered the florist shop for any other purpose (id., at p. 732, 106 Cal.Rptr. at p....