State v. Kender, 6145

• Decision Date: 29 December 1978
• Docket Number: No. 6145,6145
• Citation: 60 Haw. 301,588 P.2d 447
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Joseph Jeffery KENDER, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 447

588 P.2d 447

60 Haw. 301

STATE of Hawaii, Plaintiff-Appellee, v. Joseph Jeffery KENDER, Defendant-Appellant.

No. 6145.

Supreme Court of Hawai'i.

Dec. 29, 1978.

As Amended Jan. 5, 1979.

Syllabus by the Court

1. This court has stated that whether particular governmental conduct is a search and seizure is determined by asking whether the defendant had exhibited a reasonable expectation of privacy which was unreasonably invaded.

2. In attempting to develop criteria to determine under what circumstances the expectation of privacy is reasonable, we must consider the nature of the place involved, the precautions taken by the defendant to insure his privacy and the position of the government officer.

3. Fourth Amendment protection extends not only to one's home but also to one's "curtilage."

4. The growth of California grass in profusion by appellant in his backyard created a natural barrier behind which he could reasonably expect privacy from his neighbor's gaze.

William L. Kohne, Wailuku, Maui, for defendant-appellant.

Boyd P. Mossman, Asst. Pros. Atty., Wailuku, Maui, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Defendant-appellant, Joseph Jeffery Kender (hereinafter "Kender" or "appellant") was convicted by the trial court of promoting a detrimental drug in the first degree in violation of HRS § 712-1247(1)(e) (1976) and promoting a detrimental drug in the third degree in violation of HRS § 712-1243 (1976) based upon evidence which the trial court had refused to suppress. The appellant has taken this appeal from the trial court's denial of the motion to suppress.

The events in question took place on October 8, 1975. After receiving a tip that marijuana plants were growing in front of a lean-to in Kender's backyard, Officer Segundo of the Maui Police Department went to Kender's neighbor, Okazaki, and obtained his permission to enter his backyard. There are no neighboring homes except for Okazaki's. The evidence showed that Kender's backyard was not visible from the main road because of the house. The marijuana plants were located in the back of Kender's house, in front of the lean-to, approximately fifty-three feet from the house. One side of the backyard was bordered by a steep hillside which prevented any view of the backyard from the road; another side was blocked with heavy vegetation and on the neighbor's side were banana trees, berry trees, a coconut tree and a thick growth of three to four feet high California grass. A hog wire fence separated Kender's property from Okazaki's. Okazaki maintained a small strip of mowed grass on Kender's side of the fence so that the California grass would not grow onto his land. The distance from Officer Segundo's vantage point in Okazaki's property and the marijuana plants was approximately one-hundred fifty-one feet.

Officer Segundo testified that from his position in Okazaki's yard he could see only the lean-to but could not see the ground area below the lean-to because of the height of the California grass. He further testified that after he saw the lean-to, he climbed three-fourths of the way up the hog wire fence and bracing himself on a fellow officer's shoulder, used a 60-power telescope through which he saw, on the ground in front of the lean-to, five one-gallon tin cans with six inch tall marijuana plants growing in them.

After viewing the marijuana, Officer Segundo obtained a warrant the sufficiency of which the appellant does not challenge. Appellant argues on appeal that the police officer's visual observation of the marijuana growing in his backyard obtained only by climbing the neighbor's fence and using a telescope was an unreasonable search and seizure subject to the warrant requirement of the Fourth Amendment of the United States Constitution and Article I, Section 5 of the Constitution of the State of Hawaii.

Application of the Fourth Amendment to visual surveillance is an unsettled area in the law. The United States Supreme Court has not yet applied the "reasonable expectation of privacy" standard enunciated in Katz v. United States, 389 U.S. 347, 83 S.Ct. 507, 19 L.Ed.2d 576 (1967), which dealt with electronic aural surveillance to the area of visual surveillance, and none of the cases have indicated that visual surveillance would be excepted from the warrant requirement. As in the area of aural surveillance, the same factors are present in visual surveillance. That is, the information obtained is intangible and the observation may be conducted without a trespass. Thus, it would seem logical to extend the Katz reasonable expectation of privacy test to visual observation. Indeed, this court has stated that whether particular governmental conduct is a search and seizure is determined by asking whether the defendant had exhibited a reasonable expectation of privacy which was unreasonably invaded. State v. Stachler, 58 Haw. 412, 416, 570 P.2d 1323, 1326 (1977).

In attempting to develop criteria to determine under what circumstances the expectation of privacy is reasonable, we have considered the nature of the place involved, the precautions taken by the defendant to insure his privacy and the position of the government officer. See State v. Kaaheena,59 Haw. 23, 575 P.2d 462 (1978); State v. Boynton, 58 Haw. 530, 574 P.2d 1330 (1978); State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977); State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970).

Traditionally, the courts have spoken in terms of constitutionally protected places because of the trespass formerly necessary for the Fourth Amendment to apply. While it is true that Katz rejected the slavish adherence to the trespass requirement, the "reasonable expectation of privacy" test requires reference to a place. 389 U.S. at 361, 83 S.Ct. 507 (concurring opinion of Justice Harlan). Fourth Amendment protection extends not only to one's home but also to one's "curtilage." Curtilage is usually defined as a small piece of land, not necessarily enclosed, around a dwelling house and generally includes buildings used for domestic purposes in the conduct of family affairs. United States v. Wolfe,375 F.Supp. 949, 958 (E.D.Pa.1974); State v. Hanson, 113 N.H. 689, 691, 313 A.2d 730, 732 (1973). Thus, one's back yard may be part of one's curtilage which may be a constitutionally protected area. In light of the "reasonable expectation of privacy" test laid down in Katz, a mechanical application of the curtilage doctrine will not suffice. As the court said in People v. Sneed,32 Cal.App.3d 535, 541, 108 Cal.Rptr. 146, 150 (1973):

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. * * * (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 its brief the State argues that the appellant had no reasonable expectation of privacy because "(n)o privacy fence had been erected, no screens placed up." The existence or nonexistence of a fence or screen is not, by itself, controlling. The issue is whether the defendant sufficiently demonstrated an expectation of privacy from a particular point of surveillance. In State v. Kaaheena, supra, we held that the defendant, by drawing the drapes, exhibited a reasonable expectation of privacy and that the existence of a one-inch aperture did not negate that expectation so that the police officer's conduct in placing a crate on a bench below the window violated the reasonable expectation of privacy. In State v. Boynton, supra, we held that the defendant, by erecting a six and one-half feet lapped fence which "effectively prevented peeking" exhibited a reasonable expectation of privacy from a person positioned in his neighbor's yard so that the government agent's conduct in climbing the fence violated his reasonable expectation of privacy. In the instant case, the growth of California grass in appellant's backyard...