PEOPLE v. MAYOFF

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Court of Appeal, First District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Allan Norman MAYOFF, Defendant and Appellant.

A017997.

Decided: December 21, 1983

Marshall W. Krause, Krause, Timan, Baskin, Shell & Grant, Larkspur, Thomas C. Peterson, Arcata, for defendant and appellant Mayoff. John K. Van De Kamp, State Atty. Gen., Eugene Kaster, Thomas Brady, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent People.

Defendant was charged with one count of cultivation of marijuana, in violation of Health and Safety Code section 11358.   He moved, under Penal Code sections 995 and 1538.5, to set aside the information and suppress the evidence against him, challenging the search warrant and the aerial surveillance by which the information supporting it was obtained.   After hearing, the motions were denied, defendant entered a guilty plea and was sentenced.   He appeals on the basis that the affidavit supporting the search warrant was the product of unlawful aerial surveillance.

On July 23, 1980, Agent Brown of the California Department of Justice and Detective Vulich of the Humboldt County Sheriff's Department flew over southern Humboldt County in an effort to identify areas where marijuana was being cultivated.   The flight took place without a search warrant.   Prior to takeoff, neither officer had any indication that marijuana was growing on defendant's property, nor on any other specific property.

During the flight, from an altitude of 1000 to 1500 feet and a horizontal distance of at least 2000 feet, the officers saw with their naked eyes what they believed to be marijuana growing on defendant's property.   The factors leading to this belief were:  the color of the plants, the row-like fashion in which they were planted, the distance to the two trailers nearby, and Vulich's expertise in aerial identification of marijuana.

On August 4, 1980, Vulich flew over defendant's property to photograph it, again without a search warrant.   Vulich photographed the plants, the two trailers and the surrounding area.   Brown reviewed the photographs, then executed an affidavit in support of a search warrant.   The warrant was served on August 15, 1980, as a result of which marijuana was discovered in the garden and one of the trailers.

The July 23 overflight was part of a routine, annual law enforcement program involving flights over the entire county, concentrating on the rural areas.   The flights are made without search warrants, and at least 95% of them are undertaken without any prior information about the existence of marijuana at any particular location.   One detective who made many such flights described a typical flight as one of “looking constantly,” equipped with a telephoto lens, in whatever area the officer(s) might choose:  “There is no exact pattern.   I mean, I just fly wherever I feel like flying.”

Humboldt County's rural population is about 29,000.   About one-tenth of these people, including defendant, live in areas so isolated they cannot be observed but for the use of aircraft.   Defendant's land is in a rugged, mountainous, wooded area that is sparsely populated.   It is somewhere between one-third of a mile to a mile from the nearest paved road, and is not visible from that road.   A dirt road connects the paved road to the turnoff to defendant's property, a distance of about a mile, and then dead-ends a one-quarter mile further.   The only part of defendant's property visible from the dirt road is the upper part of one of the buildings.   From the dirt road, there is a rocky, rough turnoff to defendant's property, which is difficult to negotiate without a four-wheel drive vehicle.   A private investigator testified there was no public place to which he could walk or drive from which he could see the property surrounding the trailers.   The marijuana plants were growing in two gardens.   At least one garden was fenced.   Both were surrounded by trees and steep slopes.   There are no roads leading up to the two ridges that rise above the garden area.

 The Fourth Amendment protects persons from unreasonable searches and seizures.   For many years, courts held that no “search” could occur in the absence of a physical intrusion into a “constitutionally protected area.”   (Berger v. New York (1967) 388 U.S. 41, 57, 87 S.Ct. 1873, 1882, 18 L.Ed.2d 1040;  Olmstead v. United States (1928) 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944.)   In 1967, however, the Supreme Court recognized that evolving technology had limited the utility of the traditional analysis.   Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 dealt with electronic surveillance of a public telephone booth.   Declining to follow the protected areas doctrine, the court announced a new principle:  “the Fourth Amendment protects people, not places.”  (Id., at p. 351, 88 S.Ct. at p. 511.)   When a person has a reasonable expectation of privacy, even in an area accessible to the public, he or she is protected by the Fourth Amendment from unreasonable governmental intrusion.   This analysis was adopted by the California Supreme Court in People v. Edwards (1969) 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713.

Katz and its progeny coexist uncomfortably with the plain view doctrine, which developed along with the intrusion analysis of the Fourth Amendment.1  The plain view doctrine holds that if the police observe objects or activities in plain view from a public place or a place where they have a right to be, there is no search.  (Hester v. United States (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.)   The difficulty after Katz is that by using covert surveillance or technological aids, the police may invade a person's reasonable expectation of privacy while remaining physically in a place they have a right to be.

The California Supreme Court has refused to apply the plain view doctrine over the reasonable expectation of privacy analysis in situations where both are applicable.   In People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, the court held that a person may reasonably expect privacy in an area open to public view.   In that case, an open toilet stall in a public restroom was viewed from above by a policeman.   The court held that although the area may have been visible to the public, the method of observation used by the police was one from which the restroom patrons had a reasonable expectation of privacy.   Following Triggs, then, we employ an analysis that is concerned primarily with the defendant's expectation of privacy on his property;  the land's accessibility to “plain view” (or, more accurately here, “plane view”) comes into play only in determining whether defendant reasonably expected the state to be in a position to have such a view.

We note that several cases reported by our Courts of Appeal in other marijuana cultivation situations have held that the growers had no reasonable expectation of privacy from aircraft overflight.  (People v. Joubert (1981) 118 Cal.App.3d 637, 173 Cal.Rptr. 428;  People v. St. Amour (1980) 104 Cal.App.3d 886, 163 Cal.Rptr. 187;  Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 158 Cal.Rptr. 86;  Dean v. Superior Court (1973) 35 Cal.App.3d 112, 110 Cal.Rptr. 585.)

 In the instant case it is difficult to sustain the concept of a reasonable expectation of privacy due to the other private and official flights passing over the land.   The record indicates that commercial carriers, private planes, Forest Service planes, and livestock investigators have been seen flying over Humboldt County.   The Humboldt tax assessor flew over the entire county.   Humboldt County admittedly has a paucity of good roads in its remote, wooded rural areas.   However, these areas are also subject to forest fires;  they contain game hunters and fishermen, river boaters, backpackers, campers and other recreational users.   The only practical method of law enforcement and assistance is through the use of aircraft patrol.   Under these circumstances an airborne law officer is in no different posture than his counterpart patrolling public streets in an urban area.   He is making an observation from a lawful vantage point where he can be expected to be and, as such, is not conducting a search in the constitutional sense.  (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33;  People v. Triggs (1973) 8 Cal.3d 884, 894, fn. 7, 106 Cal.Rptr. 408, 506 P.2d 232.)

Like the court in People v. Joubert, supra, 118 Cal.App.3d 637, 173 Cal.Rptr. 428, we are aware that “[g]ood arguments can be made that a citizen should be able to possess a few acres of mountainous land in a rural area and be protected from governmental intrusion into his activities thereon, short of the necessity to preserve human life or property.”  (Id. at p. 647, 173 Cal.Rptr. 428.)   However, we share the further sentiments of the Joubert court concerning our role in the law-making process:  “Nevertheless, whether a citizen should be deemed to have an objective right of privacy from optically aided aerial surveillance of his activity on isolated rural mountain land is a question of public policy.   Until such time as the Supreme Court speaks to the contrary, we feel constrained to follow the clear mandate of the published decisions which have spoken on the point.”  (Id., at p. 648, 173 Cal.Rptr. 428.)

 Defendant next contends the search warrant was not based on probable cause.   First, he argues, marijuana cannot possibly be identified from the air without optical aids as the officers here claim to have done.   This is a factual issue and the trial court's decision is supported by substantial evidence.  (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)

 Second, defendant contends the warrant did not establish probable cause to search each of the inhabited dwellings.   The primary authority set forth by defendant is People v. Sheehan (1972) 28 Cal.App.3d 21, 103 Cal.Rptr. 201, in which a search warrant purported to allow police to search for marijuana in over 125 structures spread over a 315-acre ranch.   We find the circumstances in the instant case to differ enough from those in Sheehan to justify the trial court's finding that the warrant was valid for both structures.   Defendant lived on a 40-acre parcel.   The two structures were in the same flat area at the top of the dirt driveway, and paths connected both trailers to the gardens.   Photographs appended to the affidavit showed the relationship of the structures, the path, and the gardens.   The affidavit indicated that structures near marijuana gardens are frequently used to process and store marijuana.   The magistrate could reasonably find probable cause to suspect that marijuana or evidence of its cultivation might be found in either or both of the structures.

The judgment is affirmed.

FOOTNOTES

1.   Judge J. Skelly Wright recognized this conflict in a dissenting opinion in United States v. Wright (D.C.Cir.1971) 449 F.2d 1355:  “If Katz is still the law and everyone concedes that it is, it is difficult to understand how the ‘plain view’ doctrine ․ can be taken seriously ․”  (Id., at p. 1365, fn. 1.)

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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