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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Jeffrey C. REISS, Defendant and Appellant.

Cr. 11450.

Decided: March 08, 1982

David M. Shore, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Garrick W. Chock, Deputy Attys. Gen., for plaintiff and respondent.

Following denial of his search and seizure motion defendant pleaded guilty to possession of more than one ounce of marijuana (Health & Saf.Code, § 11357, subd. (c)) and possession of psilocybin (Health & Saf.Code, § 11377, subd. (a)), both misdemeanors.   In this appeal directed to the order denying suppression of evidence (Pen.Code, § 1538.5, subd. (m)), defendant advances two contentions:  (1) the information in the affidavit for search warrant did not constitute probable cause for a search of his house;  and (2) police observation of his backyard violated his reasonable expectation of privacy.   We reject these contentions and affirm the judgment.

A police narcotics officer received an anonymous phone tip indicating marijuana was being grown in defendant's backyard.   The officer went to a public alleyway adjacent to the yard.   The yard was surrounded by a picket-type fence approximately six feet high.   On the ground next to the fence was a six-inch high piece of concrete onto which the officer stepped.   Looking over the fence the officer saw several six-foot high marijuana plants under cultivation in a garden in the center of the yard.   The officer then walked along the fence and viewed the plants through cracks in the fence and a gap between the fence and the gate.   Based on this information the officer obtained a warrant to search defendant's house.   In the execution of the warrant, psilocybin and marijuana were seized.

 Defendant contends the officer's observations were insufficient to constitute probable cause for a warrant to search his house.   This contention is meritless.   Observation of growing marijuana obviously under cultivation in a backyard gives rise to probable cause to believe contraband will be found inside the adjacent residence.  (People v. Vermouth (1974) 42 Cal.App.3d 353, 362, 116 Cal.Rptr. 675.)

Defendant contends that he had a reasonable expectation of privacy in his backyard area.   He argues the officer's view over his fence violated this expectation resulting in an unreasonable search the fruits of which must be suppressed.   This contention is likewise without merit.

 In People v. Lovelace (1981) 116 Cal.App.3d 541, 172 Cal.Rptr. 65, the Court of Appeal for the Fifth District was confronted with strikingly similar facts.   There an officer in a public alleyway came within one or two inches of a fence around defendant's property, looked through gaps in the fence and observed marijuana growing in defendant's yard.   The court held the officer's observations were not made “from a sufficient public vantage point” notwithstanding the officer was in a public alleyway and that defendant's right to privacy was therefore violated.  (P. 551, 172 Cal.Rptr. 65.)   We are unpersuaded by this reasoning.   We believe an officer standing in a public alleyway has a perfect right to be there.   If from that point he can see through defendant's fence into his yard, defendant's subjective expectation of privacy is unreasonable.  “When ․ a person by his own action or neglect allows visual access to his residence by providing an aperture adjacent to a common area, he may not complain that police officers who were lawfully present in that area have utilized that aperture to detect the commission of crime within.”  (People v. Berutko (1969) 71 Cal.2d 84, 93–94, 77 Cal.Rptr. 217, 453 P.2d 721;  see also Hart v. Superior Court (1971) 21 Cal.App.3d 496, 98 Cal.Rptr. 565;  People v. Colvin (1971) 19 Cal.App.3d 14, 96 Cal.Rptr. 397.)

 The mere fact the officer stepped onto the cement block to look into defendant's yard does not affect his right to be where he was.  (See e.g. People v. Colvin, supra, 19 Cal.App.3d 14, 96 Cal.Rptr. 397.)   The officer was still in the public alleyway.   His vantage point was not obtained by trespass.  (Cf. Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33.)   Although looking over a fence or “ ‘[p]eering through a window or a crack in a door ․ is not, in the abstract, genteel behavior ․ the Fourth Amendment does not protect against all conduct unworthy of a good neighbor.’ ”  (People v. Berutko, supra, 71 Cal.2d at p. 93, 77 Cal.Rptr. 217, 453 P.2d 721.)

 In the present case the marijuana plants were plainly visible to the officer both over and through cracks in the fence from a vantage point in a public alleyway.   There was no search in the constitutional sense and any expectation of privacy on the part of defendant was not reasonable.

The judgment is affirmed.

I respectfully dissent.

Today the court holds that a police officer, acting without probable cause and solely for the purpose of detecting a rumored crime, may climb on top of a piece of concrete, peer over a solid six-foot backyard fence and then peek through a small crack in that fence without violating the owner's constitutional right of privacy.   The majority bases its holding on the plain view doctrine and relies upon People v. Berutko (1969) 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721.   In my opinion, the reliance is misplaced and that doctrine distended.

As Justice Grodin perceptively noted in his concurring opinion in People v. Superior Court (Spielman) (1980) 102 Cal.App.3d 342, 348, footnote 2, 162 Cal.Rptr. 295, “[w]hen the court in Lorenzana [v. Superior Court (1973) 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33] spoke of ‘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’ (9 Cal.3d at p. 634, [108 Cal.Rptr. 585, 511 P.2d 33] italics added), the kind of ‘place’ the court was referring to was a public vantage point.   The next sentence in the opinion reads, ‘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.’  (Ibid.)  Thus, Lorenzana does not provide precise focus upon the question presented here.   Also inapposite are cases like People v. Willard (1965) 238 Cal.App.2d 292 [47 Cal.Rptr. 734], People v. Berutko (1969) 71 Cal.2d 84 [77 Cal.Rptr. 217, 453 P.2d 721], and People v. Bradley (1969) 1 Cal.3d 80 [81 Cal.Rptr. 457, 460 P.2d 129], distinguished in Lorenzana as cases in which a ‘police officer, ․ acting without a warrant, observes activities in a private residence while standing upon a part of the surrounding property that has been opened, expressly or impliedly, to public use․’  (9 Cal.3d at p. 631 [108 Cal.Rptr. 585, 511 P.2d 33].)”

The top of a solid six-foot fence and a small crack in it simply are not public vantage points within the meaning of the plain view doctrine.   The thoughtful analysis in People v. Lovelace (1981) 116 Cal.App.3d 541, 172 Cal.Rptr. 65, in my opinion, correctly interpreted and applied the plain view rule and should be followed.

PUGLIA, Presiding Justice.

CARR, J., concurs.

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