PEOPLE v. AGEE

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. David M. AGEE, Defendant and Appellant.

Cr. 11756.

Decided: March 30, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, George Bond, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, Garrett Beaumont, Deputy Attys. Gen., for plaintiff and respondent.

In this appeal we are confronted with the question of the constitutionality of random aerial surveillance by the police of private residential property.   Is such surveillance an acceptable intrusion on our privacy warranted by the need to ferret out criminal behavior?   Or, is it an unacceptable harbinger of a totalitarian future where Julia cautions Winston “Don't go out in the open.   There might be someone watching.   We're all right if we keep behind the boughs.”  (Orwell, Nineteen Eighty-Four (Harcourt, Brace and Company, Inc. 1949) p. 102.)

 Defendant was convicted upon a guilty plea of cultivation of marijuana (Health & Saf. Code, § 11358).   He appeals (Pen.Code, § 1538.5, subd. (m)) challenging the denial of his motion to suppress evidence obtained by the surveillance of his property adjacent to his residence by a police officer who was flying in an airplane.   We hold that aerial surveillance of residential property is a search subject to the Fourth Amendment to the United States Constitution and the cognate provisions of the California Constitution.1  We will reverse the judgment for violation of these provisions.

THE ISSUE

At the outset we emphasize the precise issue we reach and resolve.

Let us start by excluding what is not at issue.   This is not a case in which aircraft were used in the protection of person or property, to rescue persons or to aid in the exigent apprehension of criminals.   This is not a case in which there was cause, meeting constitutional requirements, to believe that marijuana would be found on defendant's property.   Nor is this a case in which the area searched was confined to non-residential property.   Rather, this is a case in which the state asserts an unlimited right to surveil residential property from the air.   The People seek to justify a completely random aerial search.   Since most people are innocent of criminal wrongdoing a random search necessarily involves the search of the property of innocent persons.   This is a case therefore, which concerns the innocent and the law which protects them.

The aircraft here was making a random search for marijuana under cultivation.   There was no reason to believe defendant's property or any other property was being so cultivated.   The defendant's residence and property, which was fortuitously happened upon, was surrounded by a thick cover of trees and foliage so that nothing could be seen from the ground without invading the property.   In these circumstances, a search from the ground under the settled law would require a particular cause to enter the property which meets the requirements of our constitutions.  (See People v. Fly (1973) 34 Cal.App.3d 665, 110 Cal.Rptr. 158.)   The People, however, claim that the search by airplane simply lifted the police above the law, either because of a supposed lawful vantage point or because it was contraband they were looking for.   The constitution is thereby tethered to the earth, or, perhaps like Antaeus, it loses all of its strength when hoisted off the ground.

 What is important to understand is that, by either of these rationales, the object of the search, marijuana under cultivation, plays no real part in the justification for the surveillance.   To say there is no privacy in the cultivation of marijuana misses the point.   Whether marijuana is observed or not is a fortuitous happenstance of the random search.   It cannot be determined if there is any to be found until after the aerial search has been conducted.   At that point, of course, the privacy of all who have been surveiled has already been invaded.   This is just a variation of the familiar argument that the end justifies the means.   This ploy is rejected by our constitutions;  it is a fundamental principle that a search cannot be justified by what it turns up.  (See United States v. Di Re (1948) 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210, 220.)

In Fourth Amendment terms, the claim of right to randomly search residential property from the air means there is no right of privacy in the enjoyment of the open air on residential property, for such privacy is wholly at the mercy of technology.   A family can build the highest fence to surround their house and yard but it provides no more guarantee of privacy than the availability of aircraft to lift the gaze of the state over it.   Both the hope for privacy and the sense of privacy are crushed by this result.

 It is the claim of unlimited right to aerial surveillance by the state that this opinion addresses and rejects.   In holding that aerial surveillance is limited by our constitutions we say no more (and no less) than that there is a constitutional right of privacy from state surveillance in our backyards and property adjacent to our homes, which cannot be invaded, by ground or air, unless the particularized standards of the Fourth Amendment and the cognate provisions of the California Constitution are met.

Facts

On September 23, 1980, Deputy Sheriff Charles Sanborn of the Trinity County Sheriff's Department was flying in an airplane 2,500 feet above the Trinity River near Junction City looking for marijuana under cultivation.   He saw, without the aid of optical equipment, a suspected marijuana patch about 200 feet from a residence on a piece of property known as Johnson's Point.   He informed the pilot.   The pilot turned the craft around and they flew over the property at an altitude of 1,500 feet above the river.   Sanborn took black and white photographs of the area but marijuana plants cannot be detected from them.   After they returned to base Sanborn checked the assessor's records for the name of the owner of the property.   He then obtained a search warrant, based solely upon observations from the flight, alleging he saw in excess of ten marijuana plants about 200 feet from the residence on the property.   The owner of the property is defendant.

In an affidavit accompanying the warrant, Sanborn averred that he had received training in aerial searches for marijuana and had flown over one-half of 96 hours (48 hours) on flights in search of marijuana during which he observed 25 marijuana gardens.   Sanborn testified at the 1538.5 hearing that he was taught to look for certain “signatures” of marijuana cultivation “such as waterlines, camouflage, the contrast in color from the surrounding area ․ water supply such as swimming pools, water tanks, trails.”

On September 26, 1980, a police raid was conducted on defendant's property.   Sanborn served the search warrant on the residence on the property.   The police found numerous marijuana plants growing in a garden surrounded by a dense perimeter of fir, madrone, and pine trees ranging from seven to fifty feet in height.   Interspersed in the garden for camouflage were trees growing in buckets.   The marijuana plot was not visible until after the deputies had penetrated well into defendant's property.

The search warrant was based exclusively upon the random aerial search.   Accordingly, if this random search is invalid the search pursuant to the warrant is invalid.  (See People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130.)

Discussion

I

This is a case born of technological innovation—the availability of aircraft to surveil private residential property.   Where such innovations threaten the constitutional balance between privacy and government inquisitiveness we must take care that legal doctrines implementing the constitutional prohibitions against unreasonable search and seizure are not rendered sterile.   Innovative encroachments on privacy require a return to first principles.   In appraising the constitutional balance we must determine if:  “the questioned police procedure too closely resembles the process of the police state, too dangerously intrudes upon the individual's reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle.”  (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629, 108 Cal.Rptr. 585, 511 P.2d 33.)

The seminal authority on privacy and technology is Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.   Before Katz, the resolution of Fourth Amendment questions primarily turned on the question of “trespass” by the searcher, whether there was physical penetration of a “constitutionally protected area.”  Katz rejected this formulation as in complete on the ground “the Fourth Amendment protects people—and not simply ‘areas'—against unreasonable searches and seizures.”  (Id., at p. 353, 88 S.Ct. at p. 512;  emphasis added.)  Katz teaches the Archimedean point from which to measure constitutional guarantees of privacy is the person searched, not the searcher.  Katz holds:  “a person in a telephone booth may rely upon the protection of the Fourth Amendment.   One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”  (Id., at p. 352, 88 S.Ct. at p. 511–12;  emphasis added.)   The pertinent question which follows is:  should people be “entitled” to enjoy the domain of their backyards without being seen, heard, or noted by their government?

We believe the answer is yes.  “We think it too clear for extended discussion that the principles enunciated in Katz are applicable to situations involving visual, as well as auditory, surveillance.”  (United States v. Taborda (2d Cir.1980) 635 F.2d 131, 138, fn. 7;  see also Lorenzana, supra, 9 Cal.3d at pp. 637–639, 108 Cal.Rptr. 585, 511 P.2d 33.)  Katz reveals the flaw in reliance upon mere physical inviolability of “constitutionally protected areas” as a sufficient measure to preserve privacy.   These traditional zones of privacy, rooted in common law conceptions of private property,2 are increasingly vulnerable to violation without the crudity of physical trespass.   However, Katz does not herald a brave new world in which the common law concepts of “constitutionally protected areas” are discarded as a measure of entitlement to privacy.   If they are, the very meaning of privacy in our homes would be at risk.  Katz rather adds to these traditional entitlements the perspective needed to provide them continuing vitality in a technologically evolving society.   The marking out of a privacy preserve in property remains as one cornerstone of the constitutional edifice.  (See e.g. Steagald v. United States, supra, 451 U.S. at pp. 216–217, 101 S.Ct. at pp. 1649–1650, 68 L.Ed.2d at pp. 48–49;  United States v. Taborda, supra, 635 F.2d at pp. 137–138.)

Here the domain under consideration is the unroofed areas of private residential property, areas traditionally accorded an entitlement to privacy.   The challenged police practice is random aerial surveillance.   The People assert the startling proposition there is no privacy to be protected in the open on a person's property, whether in a backyard or a field, from aerial surveillance, no matter what the ground-based indicia of privacy, if the surveillance occurs from an aircraft operating at a lawful altitude.3  All that is open to such aerial surveillance may be viewed without limitation.   Such a claim of unlimited authority necessarily means there is no privacy in the open air and only a life under impenetrable cover is given constitutional recognition.

The People's claim is made notwithstanding our pronouncement ten years ago, in an opinion widely regarded as the leading case in the area:  “Expectations of privacy are not earthbound.   The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion.   At a recent but relatively primitive time, an X–2 plane could spy on ground activities from a height of 50,000 feet.   Today's sophisticated technology permits overflights by vehicles orbiting at an altitude of several hundred miles.   Tomorrow's sophisticated technology will supply optic and photographic devices for minute observations from extended heights.   Judicial implementations of the Fourth Amendment need constant accommodation to the ever-intensifying technology of surveillance.   In analyzing claims of immunity from aerial surveillance by agents of government, the observer's altitude is a minor factor.   Horizontal extensions of the occupant's terrestrial activity form a more realistic and reliable measure of privacy than the vertical dimension of altitude.   At any rate, we expressly avow ․:  Reasonable expectations of privacy may ascend into the airspace and claim Fourth Amendment protection.”  (Dean v. Superior Court (1973) 35 Cal.App.3d 112, 116, 110 Cal.Rptr. 585.)

This fundamental observation bears repeating:  “Reasonable expectations of privacy may ascend into the airspace and claim Fourth Amendment protection.”   We did conclude on the facts in Dean there was no improper infringement on these expectations.   But no residential property was involved.   The defendant had cultivated a three-quarter-acre tract in a forest clearing, and we noted the orthodox view that searches of such “open fields” do not transgress privacy rights.  Dean grafted the “open fields” doctrine onto the Katz methodology.  (We will address this implantation at some length, infra.)   As to those “open fields” Dean said there is no reasonable expectation of [entitlement to] privacy because that would be inconsistent with “the common habits of mankind in the use of agricultural and woodland areas.”  (35 Cal.App.3d at p. 118, 110 Cal.Rptr. 585.)   However, we carefully excepted from the ambit of this holding areas used in ordinary business operations and backyards, in which immunity from aerial inspection would obtain.  (Id., at p. 117, 110 Cal.Rptr. 585.) 4  A backyard is manifestly not an open field in any lexicon save Newspeak.

The subsequent decisions of the Courts of Appeal, while purporting to follow Dean, have eroded this preserve of privacy;  in two cases by disregarding it, and in several other cases by failing to consider the implications of the language employed.   The extent of this deterioration is manifest in the curtness of the Attorney General's four sentence brief in this case.   He simply cites the case law in support of the assertion:  “those who cultivate marijuana have no reasonable expectation of privacy from overflight observation of the marijuana.”

This position is devoid of constitutional principle for it rests on a simple and fatal flaw.   It assumes that the rights of the innocent are not at stake.   It makes sense only on the false assumption that the sense of sight used in an aerial search, whether amplified or not, which is refined enough to see marijuana, does not see other things as well.   It assumes, what is manifestly not the case, a technology that reveals only marijuana.5  Aerial searches for marijuana necessarily require looking at vast areas, most of which contain no marijuana.   As Sargeant Sanborn revealed in his affidavit in this case, in training for aerial searches for marijuana he spent over 48 hours in aerial search to find 25 marijuana patches, a ratio of almost two hours of aerial surveillance for each patch.   It is precisely this indiscriminate character of random aerial searches which engenders the unlimited surveillance of vast areas containing residences, backyards and other places entitled to privacy protection.

People v. Superior Court (Stroud) (1974) 37 Cal.App.3d 836, 112 Cal.Rptr. 764 is the first case which claims Dean parentage and, ironically, the most glaring departure from its reasoning.  Stroud is remarkable chiefly for the ease with which the privacy preserve staked out by Dean is discarded while giving lip service to it.  “Patrol by police helicopter has been a part of the protection afforded the citizens of the Los Angeles metropolitan area for some time.   The observations made from the air in this case must be regarded as routine.   An article as conspicuous and readily identifiable as an automobile hood in a residential yard hardly can be regarded as hidden from such a view.   Our conclusion here is supported by the reasoning and decision in Dean v. Superior Court (1973) 35 Cal.App.3d 112 [110 Cal.Rptr. 585], upholding an aerial observation of a field of marijuana plants.”  (Stroud, supra, 37 Cal.App.3d at p. 839, 112 Cal.Rptr. 764;  emphasis added.)   Aside from ignoring the text of Dean, the palpable defect in this reasoning is that it permits the police by aerial means to routinely control the sphere of privacy afforded to the citizens.   Such bootstrapping utterly fails to address the underlying issue.

Then came Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 158 Cal.Rptr. 86.   It holds an aerial surveillance of 1,500 feet aided with binoculars does not transgress the Fourth Amendment because it is an “unobtrusive” observation.  (Id., at p. 426, 158 Cal.Rptr. 86.)   What was unobtrusive, however, was the airplane, not the observation.   But that is not the constitutional issue we face.   It is the surveillance which counts, not the extent of our perception of the object from which the surveillance occurs.   Burkholder provides a perfect rationale for discrete surveillance, which may be all the more effective in destroying privacy for its secrecy.   This is a hallmark of the police state;  the term secret police is not without content.

Secrecy of surveillance was the very heart of the privacy issue addressed by Katz.   Nonetheless, Burkholder recites Dean 's holding as a formula, “a possessor of land devoted to the cultivation of contraband can exhibit no reasonable expectation of privacy from an overflight consistent with the common habits of persons engaged in agrarian pursuits.”  (Id., at p. 425, 158 Cal.Rptr. 86.)  (But see fn. 6, infra.)   This holding was followed in three subsequent decisions.6  (See People v. St. Amour (1980) 104 Cal.App.3d 886, 163 Cal.Rptr. 187;  People v. Joubert (1981) 118 Cal.App.3d 637, 173 Cal.Rptr. 428;  Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 174 Cal.Rptr. 576.) 7  The redeeming fact of these cases is that none, other than Stroud, supra, appears to have been called upon to address the aerial surveillance of secluded areas of residential property.8  To the extent these cases have fostered unfettered aerial surveillance of areas adjacent to residences we must take issue with them and reiterate Dean 's contrary teaching.

Those cases and their out-of-state brethren have been panned by a chorus of academic critics.   The commentators complain the cases do not comply with the spirit of Katz.   They argue that the “open fields” and plain view doctrine have been uncritically applied to the inapposite context presented by the technological innovations of aerial surveillance.  (See Comment, Police Helicopter Surveillance and Other Aided Observations:  The Shrinking Reasonable Expectation of Privacy (1975) 11 Cal.Western L.Rev. 505;  Comment, Open Air Searches and Enhanced Surveillance in California (1981) 21 Santa Clara L.Rev. 779;  Note, Aerial Surveillance:  Overlooking the Fourth Amendment (1981) 50 Fordham L.Rev. 271;  Note, Warrantless Aerial Surveillance:  A Constitutional Analysis (1982) 35 Vanderbilt L.Rev. 409, see fn. 7, p. 410 for a collection of the California and out-of-state case law;  see also Granberg, Is Warrantless Aerial Surveillance Constitutional (1980) 55 State Bar J. 451;  but see Kaye, Aerial Surveillance:  Private Versus Public Expectations (1981) 56 State Bar J. 258, a reply to the Granberg article by the deputy attorney general of record in St. Amour, supra.)   We agree.

This brings us to the examination of two doctrinal justifications—open fields and plain sight—which provide the quicksand upon which the claim of right to randomly search is built.

II

 The concept of “open fields” was introduced in Hester v. United States (1924) 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900.   It said:  “the special protection accorded by the 4th Amendment to the people in their ‘persons, houses, papers, and effects' is not extended to the open fields.”   This notion proved highly elastic in the pre-Katz case law.  “In applying the Hester doctrine over the years, lower courts have applied the open fields characterization to virtually any lands which do not fall within the curtilage.”  (La Fave, Search and Seizure (1978) § 2.4, p. 332.)   Despite the conceptual laxity of the open fields doctrine, it did preserve a domain of privacy in areas surrounding a residence (the curtilage).   This law remains.   Unwarranted visual surveillance of the area within the curtilage, unless open to ordinary public view, is impermissible.  (See e.g. People v. Lovelace (1981) 116 Cal.App.3d 541, 172 Cal.Rptr. 65;  People v. Fly, supra, 34 Cal.App.3d 665, 110 Cal.Rptr. 158.)

Two considerations bar the application of the “open fields” doctrine to validate random aerial surveillance.   First, being random, such surveillance is heedless of the niceties of the boundary of the curtilage of any residence in the zone of search.   Even if the aerial observers wished (here they do not) scrupulously to avoid such surveillance when traversing residential areas they transgress willy-nilly, given the indiscriminate nature of the technology, such scruples cannot be applied until the very privacy to be protected has been violated.   In order to determine if they may lawfully peruse a strip of ground the airborne officers must determine if it is an “open field” or alternatively within the curtilage of a residence.   Given the subject of the search, marijuana plants, the field of view must be sufficiently resolved, whether by enhanced or unenhanced vision, to view objects of the size, shape and color of the plants.9  Ineluctably, in this process the officers must invade the very zone of privacy Dean sought to establish as impenetrable.   The area must be searched in order to determine if it may be searched.   This is an illusory protection of privacy.   Since the determination is necessarily post hoc, no privacy right can be served.   It is an essential predicate of a constitutional rule which prevents an inexcusable search that a search cannot be justified by what it turns up.  (See e.g. United States v. Di Re, supra, 332 U.S. 581 at p. 595, 68 S.Ct. 222 at p. 228, 92 L.Ed. 210, at p. 220.)

The inexorability of invasion of privacy is starkly revealed by testimony in this case.  Dean states:  “One who builds a swimming pool and sun-bathing area in his backyard expects privacy (hence immunity) from aerial inspection.”  (35 Cal.App.3d at p. 117, 110 Cal.Rptr. 585.)   A necessary implication is that this land use should preclude aerial observation.   But Deputy Sanborn testified his training for aerial surveillance included instructions to look for secondary indications of marijuana cultivation.   He was told to look for “[c]ertain signatures that a marijuana plantation will give from the air, such as waterlines, camouflage, the contrast in color from the surrounding area—it's not native to the area—water supply such as swimming pools, water tanks, trails.”  (Emphasis added.)

The second consideration barring use of the “open fields” doctrine to validate random searches is it cannot be viewed after Katz as extending to every unroofed area outside the curtilage of a dwelling.10  (People v. Ramsey (1969) 272 Cal.App.2d 302, 308–309, 77 Cal.Rptr. 249.)   We recently rejected a blanket “open fields” exception concerning woodland areas in our holding in People v. Salzman (1982) 131 Cal.App.3d 676, 182 Cal.Rptr. 748.   This holding is not an anomoly.  (See Burkholder, supra, 96 Cal.App.3d, at pp. 427–429, 158 Cal.Rptr. 86, ironically rejecting Dean ' s premise and simultaneously relying on its holding;  Phelan v. Superior Court (1979) 90 Cal.App.3d 1005, 1011, 153 Cal.Rptr. 738.)   In addition to the zone within the curtilage, to avoid searching areas in which citizens are entitled to privacy an aerial observer must blank out numerous other areas.   But the same problem obtains concerning these areas as with the identification of the curtilage.   The area to be preserved from scrutiny cannot be identified from the air without first invading the privacy of the holder.

It was our opinion in Dean which first employed the “open fields” doctrine to uphold a challenged aerial surveillance.   We relied upon the premise that agriculturists have no expectation of privacy nor entitlement to privacy in the cultivation of a three-quarter acre plot.   We have no reason to re-examine the factual underpinnings of that conclusion.11  On the elephantine facts in Dean it was possible for the aerial observer to identify the area as one devoted to this traditionally “public” activity without intruding on the more personal activities of the ground dwellers.   No comparable facts are to be found here.

III

The alternative basis proffered for upholding random aerial surveillance is the doctrine of “plain view.”   To say that anything which can be seen from a lawful vantage point in the air is in “plain view” simply confuses what could be seen with what should be seen.   That a police officer occupies a non-trespassorial vantage point at the time of a search is not a sufficient ground for the search.   Such a benighted view, focusing solely on the position of the officer, is exactly the perspective discarded in Katz.   The fundamental doctrinal change which occurred in Katz was to shift the judicial focus from the police officer who searches to the citizen who is searched.  Katz implicitly recognizes that only by holding certain domains inviolate can the Fourth Amendment hope to keep pace with technological advances.

If limitations on privacy can be technologically leaped, as by the use of aircraft to lift the state's gaze above a restrictive fence, the extent of one's privacy is no greater than the sophistication of equipment possessed by the state.   If privacy is left at the mercy of technology the Fourth Amendment will soon be moribund.   To avoid this consequence Katz compels the conclusion “plain view” must be informed with a further question:  should the officers be permitted to use their vantage point for surveillance purposes?   (See People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, clandestine observation of doorless stalls in public restrooms is a search and taints its products;  People v. Fly, supra, 34 Cal.App.3d 665, 110 Cal.Rptr. 158, observation of marijuana plants through thick vines covering fence from neighbor's yard is improper;  People v. Lovelace, supra, 116 Cal.App.3d 541, 172 Cal.Rptr. 65, observation by officer from alleyway of marijuana through knotholes in a six-foot fence is improper.)

Katz acknowledges that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”  (Id., 389 U.S. at p. 351, 88 S.Ct. at p. 511, 19 L.Ed.2d at p. 582.)   No gain on privacy for innocent citizens is made by honoring such artificial claims to privacy.   But to say that I knowingly expose my backyard to the public because I have not roofed it with opaque cover is to say that I have no privacy in the open air in my backyard.   Knowing exposure is not the same as any exposure, however remote the likelihood that members of the general public will avail themselves of it.  (See People v. Arno (1979) 90 Cal.App.3d 505, 153 Cal.Rptr. 624;  Lovelace, supra.)

“This is a perversion of the reasoning underlying Katz.   As Professor Amsterdam has aptly put it, ‘this approach raises the question of how tightly the fourth amendment permits people to be driven back into the recesses of their lives by the risk of surveillance.   Mr. Katz could, of course, have protected himself against surveillance by forebearing to use the phone;  and—so far as I am presently advised of the state of the mechanical arts—anyone can protect himself against surveillance by retiring to the cellar, cloaking all the windows with thick caulking, turning off the lights and remaining absolutely quiet.   This much withdrawal is not required in order to claim the benefit of the amendment because, if it were, the amendment's benefit would be too stingy to preserve the kind of open society to which we are committed and in which the amendment is supposed to function.   What kind of society is that?   Is it one in which a homeowner is put to the choice of shuttering up his windows or of having a policeman look in?’ ”  (LaFave, Search and Seizure, § 2.2, pp. 260–261;  quoting from Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 402.)

Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 recites:  “the 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.   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.”  (Id., at p. 634, 108 Cal.Rptr. 585, 511 P.2d 33.)   It is immediately apparent that this formulation is specific to its context.   It depends upon the ability of a ground-dwelling property owner to control the horizontal approaches to any area desired to be maintained as a preserve for private conduct.

Lorenzana 's language does not fit the circumstance of vertical vantage points, for which no mechanism of exclusion to retain privacy in the open has yet been developed.   The owner of land cannot exclude all air traffic from the air space above private property.  (See e.g. United States v. Causby (1946) 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.)   Mere entry of the air space at a lawful altitude is not a trespass.  (See e.g. Rest.2d Torts, § 159.)   Nonetheless this does not mean there has been a mass, involuntary waiver of all reasonable expectations of privacy out-of-doors.12  We explicitly rejected this thesis in Dean.

This brings us to the claim the number of overflights and the level of scrutiny that members of the public in private airplanes impose on the earthbound are such that we can no longer reasonably expect to avoid public disclosure of outdoor activities.   We reject this claim because it is premised on a fallacy.

It is true airplanes have become a more-or-less common sight from the ground.   We acknowledge that members of the public flying in airplanes can be expected on occasion to look at the panorama arrayed below.   However, this potential for casual scenic scrutiny does not divest those on the ground of reasonable expectations of privacy from surveillance by the state.

 The point which is missed by the analogy is that the privacy which is the special concern of our constitution is a freedom from intrusion by the state.   The line between citizen and state is the very boundary which distinguishes totalitarian from democratic states.  “The modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for all other groups․  The democratic society relies on publicity as a control over government, and on privacy as a shield for group and individual life.”  (Westin, Privacy and Freedom (1967) pp. 23–24;  fn. omitted.)   The constitution is a shield against the exercise of unwarranted power by the state.   The chilling effect on privacy of the observation of behavior by public authorities is categorically different in kind from the casual visibility of the protected area by some limited segment of the public.  (See Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, areas of an industrial plant open to the view of the employer's workforce are not open to government agents for health and safety inspection without a warrant;  Salwasser Manufacturing Co. v. Municipal Court (1979) 94 Cal.App.3d 223, 156 Cal.Rptr. 292, far reaching penal consequences of Cal-OSHA inspections mandate probable cause requirement for inspection warrants;  see generally Aerial Surveillance, Fordham L.Rev., supra, at pp. 284–285.)

If the “plain view” argument carries the day for random aerial police surveillance, the consequences for privacy are stark.   Aerial surveillance is then not a search.   The government may gather any information it may find of interest by this means.   That cannot be the case.  “Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum of privacy, would be compelled to encase himself in a light-tight, air-proof box.”  (Lorenzana, supra, 9 Cal.3d at pp. 636–637, 108 Cal.Rptr. 585, 511 P.2d 33.)

IV

 Absent the doctrinal fig leaves of “open fields” and “plain view” random aerial police surveillance cannot withstand constitutional scrutiny.   In Fourth Amendment parlance a search “is a governmental intrusion upon, or invasion of, a citizen's personal security in an area in which he has a reasonable expectation of privacy.”  (Mayberry, supra, 31 Cal.3d at p. 341, 182 Cal.Rptr. 617, 644 P.2d 810;  see also United States v. Place, supra, 462 U.S. at pp. –––– – ––––, 103 S.Ct. at pp. 2644–2645, 77 L.Ed.2d at pp. 120–121.)   The area in the immediate surrounds of defendant's home is an area in which he has a reasonable expectation of privacy.  (See Ramsey, supra, 272 Cal.App.2d 302, 77 Cal.Rptr. 249.)   It is an area of his private property he kept opaque to public view from any vantage point on the ground.   No terrestrial observer could have obtained access to it for a visual intrusion without trespass.   Nor can the airborne.   The fact that defendant's house was in a rural area is of no constitutional significance.   A farmhouse dweller is entitled to no less privacy than a townhouse dweller.

The search in issue is of the most odious variety, a general search.13  A general search is conducted without any particularized cause to justify it.   The vast majority of our citizens do not engage in criminal activity anywhere let alone on the private confines of their land.   Random aerial police surveillance necessarily intrudes upon the privacy of these innocents.   However polite an altitude from which this surveillance is conducted, we cannot view the “intrusion” as de minimus.   It is no less intrusive than the prohibited viewing in Lovelace and Fly.  (See also Jacobs v. Superior Court (1973) 36 Cal.App.3d 489, 111 Cal.Rptr. 449.)

In particular situations the law of search and seizure may permit aerial surveillance.   For example, police may use a helicopter to transport officers to the scene of a recent crime, e.g. an armed robbery.   If on approach the culprits flee on foot through adjacent yards the police cannot be expected to forego following them until they have obtained a warrant.   However, such exceptions cannot be spun into a wholesale avoidance of the requirements of the Fourth Amendment.   The utility of a search as an interdiction measure is not the litmus test to determine if it is unreasonable.   Although there is here no appeal to necessity, if there were it would be unavailing.  “It [might be] said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain.   But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.”  (Di Re, supra, 332 U.S. at p. 595, 68 S.Ct. at p. 229, 92 L.Ed. at pp. 220–221.)

The routine surveillance by police observers in aircraft of the areas adjacent to residences is an intolerable imposition upon our liberty and privacy.   It is a sure and certain path to totalitarian control, however benevolent the motives of its current proponents.

The judgment is reversed.

I dissent.

The majority opinion, by semantic manipulation of philosophy and fact, conjures a conclusion that routine aerial surveillance of open areas adjacent to places of residence by police observers while searching for illicit activity is an unconstitutional intrusion into personal privacy.

I view the majority conclusion that such surveillance is “an unacceptable harbinger of a totalitarian future” in which the Orwellian character Julia cautioned Winston “[d]on't go out in the open[,] [t]here might be someone watching” to be as fictional and ill-founded in reason or fact as was the society forecast and described by Orwell in “Nineteen Eighty-Four” (Harcourt, Brace and Company, Inc. (1949) p. 102).

Apparently, the majority believe that “Nineteen Eighty-Four is upon us.”   By their opinion, we are cliched into a potential “totalitarian society” in which “routine surveillance by police observers in aircraft ․ is a sure and certain path to totalitarian control, ․”  I view the opinion, its rationale, and conclusion as the result of an exercise of abandoned legal minds.   In its way it is awesome, wrong, but awesome in its abandonment of reconciliation of various needs and rights.   The conclusion and its extension of expectation of privacy effectively sells out public policy and public interest, especially in the right to a society reasonably free from criminal activity.   I perceive within the majority opinion a feeling by the authors of achievement of communion with what has been blithely described as “Enlightened Opinion.”

I totally reject the attack upon, and rejection by the majority of, the reasoning and conclusion of prior appellate decisions, 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;  and Dean v. Superior Court (1973) 35 Cal.App.3d 112, 110 Cal.Rptr. 585, which have objectively considered the issue discussed.   I view the result as one of strained alarmism carried to an extreme.   The depiction of the aerial surveillance as wholesale indiscriminate and fine tuned makes one wonder how we will be required to treat and consider future observations produced by sophisticated space satellites or devices such as those presently utilized by military observation aircraft such as the SR–71, which reputedly has the capability of photographing and clearly reproducing from upper tropospheric heights license numbers of vehicles parked upon a public street.   I find it inconceivable that defendant or any person similarly situated would reasonably and objectively expect privacy against aerial observation in the circumstances surrounding defendant's activities.   I detect an implied and unjustified differentiation between an over-flying aircraft which may inadvertently observe the illegal activity in an open space near a place of residence and one which is legally in the air space but there for the specific purpose of seeking out the illegal production of marijuana.   Such a distinction, if carried to its logical conclusion, foretells consequences of catastrophic dimension to police protection activities for members of society from criminal intrusion.   Legal use of air space to detect criminal activity conducted on an open space is no more obtrusive into privacy than is observation from public streets by patrolling officers through open windows or doorways to detect and prevent criminal activity.

The dispositive aspect of the question presented is the constitutional meaning of reasonable expectation of privacy.   Reason and existing authority compel the conclusion that absent an Orwellian analysis, the Fourth Amendment is meant to protect persons from unreasonable searches and seizures.   In this case as in other recent decisions on the subject, the concept of a person's objective and reasonable expectation of privacy from optically aided aerial surveillance of activities on open land adjacent to a residence must be determined in light of articulated public policy.

The majority conveniently ignore and reject existing constitutional analysis of the well-conceived doctrine that “the Fourth Amendment protects people, not places.”  (Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.)   Until such time as the California Supreme Court states to the contrary.1  I am constrained to follow the clear, well-reasoned mandate of published decisions which have dealt with the subject and which the majority seek to overturn.   I conclude that if a police officer in an aircraft which is properly in the air space at a legal altitude utilizes his position for observation purposes, one who cultivates marijuana is in no better position than one who farms a lawful crop insofar as the constitutional right of privacy is concerned.   If a person was engaged in cultivation of alfalfa, wheat, barley, sugar beets, rice, or similar legal crops, he surely would not have any objection to aerial observation or harbor a subjective concept of expectation of right of privacy for the crop from aerial observation.   Society as a whole would not find such an expectation of privacy objectively reasonable by present acceptable societal standards.   It is conceivable that defendant subjectively hoped his illegal crop of marijuana would be free from aerial observation or police detection.   The majority conclude that such an expectation by the defendant was both objective and reasonable.   I consider the reasoning utilized to achieve that result a novel manipulation of logic, fact, and law.   The result is simply incredulous.

I would conclude in this instance the defendant could not have had a reasonable expectation of privacy from aerial observation from a lawful aerial position as to the exposed marijuana patch.   I would conclude that anyone who openly grows marijuana does so at the risk of detection by aerial observation.   Only by shielding the crop from such aerial observation (hot house or otherwise covering the crop) would the cultivator be deemed to have demonstrated an objectively reasonable expectation of privacy from overflight observation.

I would affirm the judgment.

FOOTNOTES

1.   The Fourth Amendment of the United States Constitution provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or thing to be seized.”   California's Constitution grammatically repeats this restraint on the power of our government.  (Cal. Const., art. I, § 13.)

2.   See e.g. Steagald v. United States (1981) 451 U.S. 204, 216–217, 101 S.Ct. 1642, 1649–1650, 68 L.Ed.2d 38, 48–49.

3.   If the aircraft is a helicopter no minimum altitude is set, as long as the helicopter may operate safely.  (See 14 C.F.R. § 91.79.)

4.   “Judicial statements like the foregoing disclose that mankind's common habits in the use of domestic and business property supply a prime measure of the reasonableness of expectations of privacy.  (See also, cases summarized in Lorenzana v. Superior Court, supra, 9 Cal.3d at pp. 631–634, 108 Cal.Rptr. 585, 511 P.2d 33, and People v. Sneed, supra, 32 Cal.App.3d at pp. [535] 541–542 [108 Cal.Rptr. 146].)   One who builds a swimming pool and sun-bathing area in his backyard expects privacy (hence immunity) from aerial inspection.   Areas reasonably used in ordinary business operations are assumedly entitled to similar immunity.   Such areas are expectedly private according to the common habits of mankind.   So was the area exposed to helicopter surveillance in People v. Sneed, supra;  to the Sneed court, the area was the occupant's ‘backyard.’   (32 Cal.App.3d at p. 542 [108 Cal.Rptr. 146].)”  (Dean, supra, 35 Cal.App.3d at p. 117, 110 Cal.Rptr. 585;  emphasis added.)

5.   If by technology there was developed a means by which only marijuana could be seen from the air, this position would be pertinent.   (See United States v. Place (1983) ––– U.S. ––––, ––––, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110, 121;  and see Doe v. Renfrow (7th Cir.1980) 631 F.2d 91, cert. den., 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395;  Annot. (1977) 31 A.L.R.Fed. 931;  compare People v. Mayberry (1982) 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810.)

6.   There is a recent reported decision to the contrary, People v. Cook (1984) 151 Cal.App.3d 1121, 199 Cal.Rptr. 204.)   Petition for hearing is reportedly pending and the time for determination has been extended.  Cook distinguishes the existing case law in part on the odd ground that “routine” surveillance is okay while surveillance of a backyard with some cause less than probable cause is not.   The analytic predicate for its holding is less than clear.

7.   Only in Joubert, supra, 118 Cal.App.3d 637 at pp. 647–648, 173 Cal.Rptr. 428, are misgivings expressed about the privacy that is impinged by carte blanche authorization of aerial surveillance.   However, these misgiving are stilled by obeisance to the perceived weight of precedent.

8.   In Joubert, supra, the plants were seen growing 15 feet from a house trailer.   It is unclear whether the trailer was a residence.   (Id., at p. 642, 173 Cal.Rptr. 428.)

9.   For example, the resolution must be sufficient to discriminate between marijuana and tomato plants.   At this level of discrimination many innocent private facts will also be revealed.

10.   The only authority for the conclusion provided in Hester is a discussion in Blackstone's Commentaries of the element of the common law crime of burglary, i.e. that the structure entered must be the dwelling house or within its curtilage.   Justice Holmes' statement and his authority reveal the “open fields” doctrine was based on the strict property concepts of the scope of the Fourth Amendment discredited in Katz.  “[I]t is to be hoped that courts will come to accept the fact ‘that Hester no longer has any independent meaning but merely indicates that open fields are not areas in which one traditionally might reasonably expect privacy.’  [citing to U.S. v. Freie (9th Cir.1976) 545 F.2d 1217]  This is because a direct and unthinking application of the Hester ‘open fields' doctrine will on occasion produce a result which is offensive to the theory underlying Katz.   Katz, in the last analysis, calls for the making of an important value judgment:  ‘whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.’  [citing to Amsterdam, supra, at p. 403.]  Hester, on the other hand, at least as it has often been applied, arbitrarily declares land beyond the curtilage subject to scrutiny by the police at their whim no matter how careful the occupant has been to keep those lands private.”  (LaFave, Search and Seizure, § 2.4, p. 336;  fn. omitted.)

11.   Given the advent of agribusiness and the increasingly “industrial” nature of agriculture differentiation concerning its entitlement to privacy may be questionable.  (But see Joseph v. Masonite Corp. (1983) 148 Cal.App.3d 6, 195 Cal.Rptr. 629.)   Similarly, the absence of need for an entitlement to privacy in use of “woodland areas” may well be suspect in light of the back-to-the-land ethos that has some to settle in remote areas for the avowed purpose of obtaining privacy.  (See Joubert, supra, 118 Cal.App.3d at pp. 647–648, 173 Cal.Rptr. 428.)

12.   The operation of an aircraft is a privilege subject to the laws of the state.  (See Pub.Util.Code, § 21401.)   Use of an aircraft by the police or any other party to the invading of privacy of secluded areas of private property is a violation of the laws of this state.  (See Cory v. Physical Culture Hotel (W.D.N.Y.1936) 14 F.Supp. 977, 982–983;  c.f. Rest.2d Torts, §§ 159, com. m, 652B, 822;  see generally Anderson v. Souza (1952) 38 Cal.2d 825, 838, 243 P.2d 497;  Annot. (1977) 79 A.L.R.3d 253.)

13.   The primacy of general warrants as the archetypical abuse of government power engendering the Fourth Amendment is everywhere acknowledged.  (See, e.g., Marshall v. Barlow's, Inc., supra, 436 U.S. at pp. 311–313, 98 S.Ct. at pp. 1819–1820, citing to Dickerson, Writs of Assistance as a Cause of the Revolution, in the Era of the American Revolution 40 (R. Morris ed. 1939).)

1.   In Burkholder, St. Amour, Joubert, and Dean, supra, the California Supreme Court denied petitions for hearing thus tacitly approving the concept of objective expectation of privacy which I deem to be the proper standard.

BLEASE, Associate Justice.

CARR, J., concurs.