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

The PEOPLE, Plaintiff and Respondent, v. Cayetano Calderon CAMACHO, Defendant and Appellant.

No. B118008.

Decided: November 25, 1998

Marsha D. Kennedy,Port Hueneme, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Martin L. Pitha, Deputy Attorney General, for Plaintiff and Respondent.

Cayetano Calderon Camacho appeals from the judgment entered following his plea of guilty to possessing cocaine for sale.  (Health & Saf.Code, § 11351.)   He contends the trial court erroneously denied his suppression motion.  (Pen.Code, § 1538.5.)   We reverse the judgment and remand the cause to the trial court consistent with the views expressed herein.

At approximately 11 p.m. on June 26, 1997, Officer Wood and Officer Mora arrived at appellant's residence in response to a complaint concerning a loud party disturbance.   Upon hearing an audible but nonrecognizable noise coming from the rear or east side of the house, Officer Mora walked along the east side of the house.   He returned a short time later and told Officer Wood to look for himself to see what the person inside the back bedroom was doing.

Traveling along the east side of the house, which was covered with grass and had no pathways, Officer Wood stopped to look into one of the two clear-glass windows on the east side of the house that was furthest from the street.   The window was about 40 feet from the street, approximately 4 feet by 8 feet in dimension, and was not covered by anything.   The room was illuminated with a red light.

Standing about one foot from the slightly open bedroom window, Officer Wood observed appellant sitting on a bed with his back towards the window, manipulating several clear plastic baggies.   There were several clear plastic baggies containing a white powdery substance on the bed next to appellant, and on the dresser in front of appellant.   Officer Wood also observed a cellular telephone and a pager in the room.   There was music coming from the room, but it was not loud.

Appellant was subsequently charged with possessing cocaine for sale.   (Health & Saf.Code, § 11351.)   He later moved unsuccessfully to suppress the evidence seized from his bedroom.

 Relying upon Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33, appellant claims that the evidence seized from his bedroom should have been suppressed as the product of an unlawful search.  (U.S. Const., 4th Amend.)   He claims that the officers violated his reasonable expectation of privacy by treading onto the grassy side yard along the east side of the house to which members of the public had not been implicitly invited and peering into his bedroom.   We agree.

Although this court is bound by those factual findings of the trial court at the suppression hearing which are supported by substantial evidence, we independently determine how those facts measure up to the constitutional standard of reasonableness.  (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

In Lorenzana, the California Supreme Court discussed the boundary of lawful observations made by police while standing on private property without a search warrant.   As the Supreme Court explained, “the cases recognize the distinction between the observations of a police officer who has positioned himself upon property which has been opened to public common use, and the observations of an officer who ventures onto property which has not been so committed.   A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there ․”  (Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 629, 108 Cal.Rptr. 585, 511 P.2d 33, italics added.)

In Lorenzana, the court held that a six- to ten-foot strip of land covered with grass and dirt adjacent to the side of a house that had no doors or pathways could not be considered a common use or a normal access route to the dwelling to which members of the public had been implicitly invited.   The court consequently held unlawful the observations of a police officer who walked across such property in order to peer through a window that had a partially-drawn window shade that left a two-inch gap of visibility through which the officer was able to observe the defendant's illegal activities.   (Lorenzana v. Superior, supra, 9 Cal.3d 626, 629, 108 Cal.Rptr. 585, 511 P.2d 33.)

 In this case, Officer Wood similarly engaged in an unlawful search when he tread upon the grassy side yard adjacent to the east side of appellant's house, along which there were no doors, no pathways, and no outdoor lights, in order to view the interior of appellant's bedroom.   Respondent does not contend, nor could he, that appellant's illegal activities were visible from the street some 40 feet away.   Instead, Officer Wood testified that he first observed appellant's illegal activities when he was a mere foot away from appellant's window, at which point he had already traversed the grassy side yard to which members of the public cannot be said to have been implicitly invited.   Accordingly, respondent's reliance upon the plain view doctrine, which requires that the police be in a place where they have the right to be when they see incriminating evidence, is misplaced.  (Compare Vickery v. Superior Court (1970) 10 Cal.App.3d 110, 88 Cal.Rptr. 834 [no unlawful search by officer who observed illegal activity through kitchen window while standing a few feet from the rear door of defendant's residence].)

 We further reject respondent's contention that the officers' warrantless entry onto the grassy side yard outside appellant's window was justified as a means of determining the origin of the noise they heard.   Officer Wood testified that the noise audible from the front of the house was neither loud, nor disturbing.   Accordingly, the noise which the officers heard was neither the loud party disturbance which they were called to investigate, nor a noise giving rise to any exigent circumstances.  (Compare People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721 [moans overheard by officers coming from residence where they knew sick person resided justified warrantless entry into residence given exigent circumstances].)

Moreover, no amount of curiosity or suspicion on the officers' part could transform an otherwise illegal search into a legal one.   None of the cases relied upon by respondent allow an officer to ignore the requirements of the Fourth Amendment because he or she is “investigating” a complaint.   Here, other lawful means of investigation existed.

 Finally, we reject respondent's contention that the absence of a window covering negated appellant's reasonable expectation of privacy.   As appellant points out, his bedroom activities were shielded from view by the significant distance between the bedroom and the street in front of the house, and by the nine-foot, six-inch block wall directly opposite appellant's bedroom window that stretched alongside the outer edge of the grassy side yard.   Notwithstanding, therefore, that appellant's bedroom window had no covering, the fact remains that Officer Wood was only able to see into appellant's bedroom by walking along an area not committed to public use.   Accordingly, we find the facts here indistinguishable from those in Lorenzana.

We reject the “common grass” exception suggested by the dissent.   Only by virtue of a trespass were the officers in a position to make the “reasonable expectation of privacy” analysis of Lorenzana relevant.   What is so “sacred about common grass” is the private property upon which it is growing.

We reverse the judgment and remand the cause to the trial court.   The trial court is directed, on motion of appellant within 30 days of the finality of this opinion, to vacate appellant's guilty plea and to suppress the observations made by Officer Mora and Officer Wood into appellant's bedroom window and any testimony resulting from, or evidence seized, as the fruit of the officers' actions in walking to, and looking into that bedroom window.   Should appellant not so move, or waive his right to so move, the trial court is directed to reinstate the judgment.

Consistent with the views expressed herein the judgment is reversed and the case remanded.

I respectfully dissent.   The majority opinion gives new meaning to the phrase, “Keep Off The Grass,” the net result being the suppression of evidence and reversal of appellant's conviction.

The case is governed by the principles articulated in Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33 (Lorenzana ), which held:  “[O]bservations 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.   On the other hand, when observations are made from a position to which the officer has not been expressly or implicitly invited, the intrusion is unlawful unless executed pursuant to a warrant or one of the established exceptions to the warrant requirement.”

It must be emphasized that Lorenzana's underpinning is the constitutionally protected right to privacy.  (U.S. Const., 4th Amend.;  Cal.Const., art. I, § 13.)   A man's home is his castle but he who reasonably expects privacy therein should keep the drawbridge closed or at least his windows covered.   The fair import of the majority opinion is that an officer has no implicit invitation to walk on grass in an open side yard and make observations therefrom.   I ask, “what is so sacred about common grass that precludes foot traffic?”

The California Supreme Court's statements of law are binding on this court but there is a recognized exception to this rule.   Such statements of law are not binding on this court if the facts of the case are fairly distinguishable from the facts of the case in which the Supreme Court has declared the principle of law.  (People v. Triggs (1973) 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232.)  “When the reason of a rule ceases, so should the rule itself.”   (Civ.Code, § 3510.)   As I shall explain, here the facts are distinguishable as recognized by the trial court.   The otherwise salutary rule of Lorenzana should not here result in suppression of evidence.

In Lorenzana, supra, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33, an officer went to a residence to investigate heroin trafficking.   He trespassed on an area of dirt, grass, and bushes.   He “placed his face within an inch of the window․ and stood there for approximately 15 minutes.”  (Id., at p. 630, 108 Cal.Rptr. 585, 511 P.2d 33.)  “The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade.   Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window.”   (Id., at p. 630, 108 Cal.Rptr. 585, 511 P.2d 33.)   From this vantage point, the officer overheard a telephone conversation concerning narcotics.   Then he saw through the aperture at the bottom of the window what he believed were narcotics emptied from a tied-off rubber balloon.   The officer forcibly entered the dwelling and seized the heroin.   In these circumstances, it is not surprising that the California Supreme Court ordered suppression of the evidence.   However, that is not what happened in the instant case.

This is what is referred to as a “luck out” arrest.   The officers did not go to appellant's residence to investigate narcotics violations or to spy on appellant in his home.   At approximately 11:00 p.m. two officers were dispatched to appellant's residence to investigate a “loud party” complaint.   The front of the house is parallel to the street.   There are four windows on the front and two windows on the east side of the house.   The door to the front of the house is on the west side of the house.

Except for a paved cement walkway to the front door, the entirety of the front landscaping of the house is common grass.   The entirety of the east side landscaping, which is at least 20 feet wide, is also common grass.   There are no physical impediments, e.g., shrubs, bushes, or fences blocking access to the east side yard.

One of the officers heard noise coming from the east side of the house at the rear of the house.   The officers walked on the grass 20 feet to the east front of the house to investigate.   They walked another 20 feet further on the east side of the house to a 4 foot by 8 foot window.   Less than one minute had transpired from the time the officers arrived until they saw through the window.

The four by eight foot window was uncovered and a light illuminated the interior of the room.   It did not take an expert to determine what appellant was doing.   Even an officer with myopia could see that appellant was filling clear plastic bags with white powder.   The officers contacted appellant, arrested him, and seized the cocaine.

In denying the suppression motion, the trial court said:  “Well, I think the key to the analysis, the important key, and that's using Lorenzana, is the expectation of privacy.

“And I don't think there can be an expectation of privacy on the initial threshold because, in looking at this window, even with the lights on, to me, an expectation of privacy is what the defendant Lorenzana had because he had his window really covered and the officer had to get within five to six inches and look through a little, tiny slot.   In other words, the window was opaque.

“Here, the window was closed, pretty much.   There is nothing covering up the defendant's activity, which is clearly drug-type activity.   And the only other question is the intrusion issue.   And I don't know whether it's close or not, but the officer was on a legitimate call for a legitimate reason.

“And I think you can probably argue, explicitly, they had a right to try to look to find the music.   So I think the key to the defendant's expectation of privacy-I think he gave it away by at least not having the blinds closed.

“If in fact, the blinds were closed-I would look at it differently․”

The trial court's comments demonstrate that it fully appreciated the core teaching of Lorenzana, i.e., that suppression is required only where the officers actions violate the reasonable expectations of privacy of the home owner.  (Lorenzana, supra, 9 Cal.3d at pp. 629, 636, 637, 638, 108 Cal.Rptr. 585, 511 P.2d 33.)   The issue is “whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid.”  (People v. Edelbacher (1989) 47 Cal.3d 983, 1015, 254 Cal.Rptr. 586, 766 P.2d 1.)  “The reasonable expectation of privacy test, by its nature, requires reconciliation of competing societal interests, rather than rigid application of formalistic, judicially created rules.”  (People v. Cook (1985) 41 Cal.3d 373, 376, 221 Cal.Rptr. 499, 710 P.2d 299.)   Here the majority rigidly applies the Lorenzana rule:  looking into an open window from a grassed side yard for less than one minute is unreasonable as a matter of law because there is no implicit invitation to walk on such grass.

Had appellant or a similarly situated homeowner been so concerned with privacy, all he or she would have to do is pull the window shade or otherwise cover the window.   Although there is no sidewalk on the east side of the house, can it be the rule that a police officer ordered to investigate a “loud party” call may not walk on common grass along the side of a house?   While the officers did not hear a “loud party” when they arrived, they nevertheless had the power to conduct a reasonable investigation by walking on the lawn.   Is it unreasonable to follow one's ear to the source of the noise when investigating a loud noise complaint?   I agree with the trial court that remarked that “․ the officer was on a legitimate call for a legitimate reason.”

“ ‘ “[T]he test of reasonableness is dependent upon the totality of facts and circumstances involved in the context of each case [citations] and does not turn merely upon whether a physical trespass is manifested [citations].” ’ ”  (People v. Thompson (1990) 221 Cal.App.3d 923, 942, 270 Cal.Rptr. 863.)   Like the trial court, I cannot say, as a matter of law, that officers may not walk upon common grass in a side yard to investigate a “loud party” complaint.

Fortunately, most criminals are not rocket scientists.   They make foolish decisions which aid police officers in ferreting out crime.   That is what happened here.   Those who package their narcotics for sale in front of large, open, lighted windows cannot be said to have a reasonable expectation of privacy, even if the window is on the side of the house.  “ ‘[I]t is the duty of a policeman to investigate, and [I] cannot say that in striking a balance between the rights of the individual and the needs of law enforcement, the Fourth Amendment itself draws the blinds the occupant could have drawn but did not.’  (Italics added).  [Citations.]”  (People v. Berutko (1969) 71 Cal.2d 84, 93, 77 Cal.Rptr. 217, 453 P.2d 721.)   Here, the majority opinion has drawn appellant's blinds.   In my opinion, the constable has not blundered and the criminal should not go free.   The suppression motion was properly denied.


GILBERT, Acting P.J., concurs.

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