Phelan v. Superior Court

• Decision Date: 23 March 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Skeet Dewayne PHELAN et al., Petitioners, v. The SUPERIOR COURT OF MARIPOSA COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 4332.

Page 738

153 Cal.Rptr. 738

90 Cal.App.3d 1005

Skeet Dewayne PHELAN et al., Petitioners, v. The SUPERIOR COURT OF MARIPOSA COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

Civ. 4332.

Court of Appeal, Fifth District, California.

March 23, 1979.

Hearing Denied May 24, 1979.

Richard L. McMechan, Oakhurst, for petitioners

No appearance by respondent.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher, Jana L. Tuton and Gary A. Binkerd, Deputy Attys. Gen., for real party in interest.

OPINION AFTER REHEARING WITHOUT ORAL ARGUMENT

FRANSON, Associate Justice.

STATEMENT OF THE CASE

On May 16, 1978, a complaint was filed in the Mariposa Justice Court charging petitioners Skeet Dewayne Phelan and Carol Jean Phelan with cultivating marijuana in violation of Health and Safety Code section 11358. Petitioners pled not guilty and at the preliminary hearing moved to suppress the evidence of marijuana seized on their premises (Pen.Code, § 1538.5). The motion was denied. Petitioners renewed their motion to suppress in the superior court, and after a special hearing at which the transcript of the preliminary hearing was received in evidence along with oral testimony of witnesses, the motion again was denied.

Petitioners filed with this court a petition for writ of mandate. We stayed further proceedings of the action and issued an order to show cause why the writ should not be granted.

STATEMENT OF THE FACTS

Around May 1, 1978, Officer Wackerman of the Mariposa County Sheriff's Department received information from California Highway Patrol Officer Roger Matlock that he had received a report from an informant that a marijuana garden was located in a small ravine on the west side of the property located "straight across the road from Elliott's Corner and Chowchilla Mountain Road" in a rural area of Mariposa County. The informant had stated that the property had a new road leading into it. Wackerman went to the hall of records and obtained assessor parcel maps of the area and determined that the property on which the marijuana garden supposedly was located belonged to petitioners. The officer also determined that the property located to the west of petitioners' property belonged to Mr. Perkins. Since the parcel maps did not contain the dimensions of the property, Wackerman went back to the hall of records and obtained information concerning the acreage of the respective properties.

On May 8, 1978, Sergeant Richards of the sheriff's department also contacted Mr. Perkins and verified that his property bordered petitioners' property to the east. Richards asked Perkins for written permission to enter his property, explaining that he could not tell Perkins the true purpose of the investigation but would explain later. Perkins consented to the officers entering his property.

Later on May 8, Officer Wackerman and another officer went onto the Perkins' property for the purpose of engaging in a surveillance of petitioners' property to locate the marijuana garden. The officers walked to an area which they believed to be near the east property line of Perkins' property. They testified they spent several hours looking for the marijuana garden and also attempting to establish the precise location of the line separating petitioners' and Perkins' property. They were unable to find a corner or line marker but estimated the boundary location based on the assessor's map and Officer Wackerman's general familiarity with the land in that area. The officers finally observed what they suspected to be the marijuana garden from a vantage point atop a rocky knoll on the side of a hill above the narrow ravine in which the garden was located. The ravine and garden were to the east from where they stood and about 125 feet distant. The terrain was rocky, shrub-covered and difficult to traverse. There were no footpaths or roads in the area. The place on the hill where the officers stood was covered with large rocks and boulders.

The garden appeared to the officers to be bounded on the east side and on a part of the west side by a four-foot high chicken wire fence laced with branches from live oak trees and heavy shrubbery; large rocks made a natural barrier on the north and there was a wire gate through the trees on the south. Trees and brush also formed a natural barrier about the garden. Officer Wackerman testified that from the appearance of the enclosure, whoever had developed the garden intended that it be concealed from view. The garden was "pretty much" totally enclosed. The officers were able to see the marijuana plants through an opening in the trees and brush from their vantage point on the hill. Although the officers suspected the plants were marijuana when they first observed the garden, they were able to verify their suspicions only by examining the plants with the aid of binoculars. Subsequent investigation showed there were approximately 290 plants growing in the garden, from small plants one inch in height to full grown plants three feet in height.

The officers also observed a camp-type trailer some distance from the garden. The officers concealed themselves behind large rocks on the side of the mountain and observed two people later identified as petitioners walk into and tend the garden. It appeared to the officers that the people probably resided in the camp trailer. On May 9th the officers returned and continued their surveillance from their hiding place on the hillside for about two and one-half hours but saw no activity. On May 10th the officers returned to their hiding place where they again saw petitioners tending their garden. The officers made a video tape for positive identification. Subsequently, petitioners were arrested for cultivation of marijuana.

The officers testified that when they first observed the marijuana garden from the rocky knoll on the side of the hill they believed they were still on Mr. Perkins' property; however, it was later determined that they had trespassed 30 to 80 feet onto petitioners' property. ¹

DISCUSSION

It has been said that when observations are made by an officer from a location to which he has not been invited the intrusion is an unlawful search unless made pursuant to a warrant (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33). It also has been said that the Fourth Amendment does not prohibit trespasses, but only unreasonable searches and seizures (People v. Terry (1969) 70 Cal.2d 410, 427, 77 Cal.Rptr. 460, 454 P.2d 36, approved in People v. Edwards (1969) 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 458 P.2d 713). From these apparently conflicting statements, a fundamental point emerges: whether a search is unreasonable for Fourth Amendment purposes is not determined by strict property law concepts. Thus, a simple trespass does not necessarily foreclose a reasonable search, and the absence of a trespass does not save an otherwise unreasonable one (People v. Fly (1973) 34 Cal.App.3d 665, 110 Cal.Rptr. 158).

Historically, the Fourth Amendment was held applicable only to lands within the curtilage, i. e., the enclosed or fenced land about the house. In Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, the United States Supreme Court speaking through Justice Holmes stated, ". . . the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." (265 U.S. at p. 59, 44 S.Ct. at p. 446.) Nonetheless, in People v. Edwards, supra, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, the California Supreme Court abandoned the Hester approach by emphasizing what the United States Supreme Court had repeatedly recognized since Hester: " 'the security of one's privacy against arbitrary intrusion by the police' is 'at the core of the Fourth Amendment.' " (People v. Edwards, supra, 71 Cal.3d at p. 1103, 80 Cal.Rptr. at p. 637, 458 P.2d at p. 717, quoting from Berger v. New York (1967) 388 U.S. 41, 53, 87 S.Ct. 1873, 18 L.Ed.2d 1040.) The Edwards court also followed the United States Supreme Court in holding that the Fourth Amendment protects people, not places, and that wherever an individual may harbor a reasonable expectation of privacy he is entitled to be free from unreasonable governmental intrusion (People v. Edwards, supra; Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576).

In Edwards, supra, the court articulated the test for determining whether a warrantless search of open fields violates the Fourth Amendment:

"(A) number of cases involving claims of unconstitutional searches or seizures in open fields . . . have stated their conclusions in terms of whether the place was a 'constitutionally protected area.' That phrase, however, does not serve as a solution in all cases involving such claims, and we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion." (People v. Edwards, supra, 71 Cal.2d at p. 1100, 80 Cal.Rptr. at p. 635, 458 P.2d at p. 715; see also Dean v. Superior Court (1973) 35 Cal.App.3d 112, 110 Cal.Rptr. 585; People v. Little (1973) 33 Cal.App.3d 552, 109 Cal.Rptr. 196; People v. Sneed (1973) 32 Cal.App.3d 535, 540, 108 Cal.Rptr. 146.)

The 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. Sneed, supra, 32 Cal.App.3d 535, 540, 108 Cal.Rptr. 146).

In the present case, petitioners clearly entertained a subjective expectation of privacy in the...