PEOPLE v. CHAVEZ (1980)

This appeal presents the question whether police officers, having lawfully observed marijuana growing in a fenced residential backyard, may, in the absence of express or implied consent or exigent circumstances, enter the yard and seize the contraband without a search warrant. We have concluded that they may not.

Following the denial of his motion to suppress evidence, defendant Robert Chavez pleaded guilty to cultivation of marijuana, in violation of section 11358 of the Health and Safety Code; possession of LSD, in violation of section 11377, subdivision (a), of the Health and Safety Code; and possession of a destructive device, in violation of section 12303 of the Penal Code. Defendant has appealed from the order placing him on probation,¹ pursuant to section 1538.5, subdivision (m) and rule 31(d) of the California Rules of Court, he now seeks review of the denial of his motion to suppress evidence.

Defendant's suppression motion was decided upon the basis of the evidence produced at the preliminary hearing, supplemented by additional testimony given at the suppression hearing. The relevant facts are that on July 27, 1978, defendant was residing in a three—bedroom house located in the City of Santa Clara. The backyard of the house was surrounded by a six—foot—high fence which was completely covered by ivy. The ivy grew an additional one and one—half to three feet above the fence. Other than through the back door of the house, the only access to the yard was by means of a gate which was nailed shut.² Two motels, the Casa Clara Motel and the Capri Motel, were located adjacent to defendant's backyard.

At 2:30 p. m. on July 27, the Santa Clara police were advised that a large number of marijuana plants were being grown at a house located behind the Casa Clara and Capri motels and that the plants had grown so tall that they were visible from the motels. Officer Wells proceeded to the area in question and obtained permission from the owners or managers of the two motels to enter their premises. The Capri Motel was a two—story structure and had a second—floor balcony accessible to occupants of all second—floor units. From this balcony, Officer Wells was able to look into defendant's backyard and observe plants which he identified as marijuana, based upon his training and experience as a police officer.

Officer Wells and another officer then proceeded to defendant's house and ascertained that there was no one at home. Wells and several other officers then entered defendant's backyard by means of the gate and found 38 marijuana plants ranging in height from 8 feet to 10 feet 8 inches. The officers dug up all of the plants and hauled them away in a truck. While the officers were at work in the yard, they observed three stalks of marijuana which appeared to have been cut to the ground sometime in the past.

When the officers had just finished gathering the marijuana, defendant returned home. One of the officers asked defendant for permission to search the house, advising him that the officers had found three marijuana stalks in the backyard and wanted to locate the marijuana which had been harvested from the three plants. When defendant declined to consent to the search, Sergeant Zerger departed to obtain a search warrant, while two other officers remained outside the house to secure the premises.

Sergeant Zerger obtained a search warrant, based upon an affidavit which stated that approximately 40 marijuana plants had been confiscated in defendant's backyard and that the discovery of three broken—off stumps of marijuana made it probable that evidence of marijuana processing or selling activities would be found in defendant's house.

At 7:40 p. m., Zerger returned to defendant's house with the search warrant. Defendant had already been arrested and transported to the police station. Zerger knocked on the door of defendant's house, identified himself as a police officer and gave notice of his intention to execute the search warrant. When there was no response, the officers gained entry to the house through an unlocked garage door and began searching the house. The search resulted in the discovery of a substantial amount of marijuana, an unspecified quantity of LSD and a destructive device (tracer ammunition).

Defendant contends that the warrantless seizure of the marijuana in his backyard was unlawful and that the illegality of this seizure tainted the search warrant which was subsequently obtained. We agree.

At the outset of our discussion, we note that Officer Wells' view of the marijuana plants from the second—floor balcony of the Capri Motel was proper and resulted in no infringement of defendant's reasonable expectation of privacy. The officer's testimony that he could observe the plants from that vantage point and recognize them as marijuana was entirely credible. Since the motel balcony was generally accessible to the public and Officer Wells had a right to be there, there was nothing unlawful in his observation of the plants.³

However, our inquiry cannot stop at that point. We must now concern ourselves with the more troublesome question of whether such lawful observation of contraband was in itself sufficient to justify the warrantless seizure.

In Coolidge v. New Hampshire (1971) 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564, the United States Supreme Court held that “plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle … that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”

The Coolidge reasoning was followed in United States v. Coplen (9th Cir. 1976) 541 F.2d 211. There, United States customs agents searched an aircraft after one of the agents had looked through the window of the aircraft and observed marijuana debris in plain view. The court of appeals concluded that the observations through the window of the plane were lawful and did not violate the defendants' reasonable expectation of privacy. Further, the court concluded that upon viewing the marijuana debris through the window, the agents had probable cause to search the aircraft (pp. 214-215); however, under the Coolidge reasoning, a warrantless search of the aircraft could by upheld only if there were exigent circumstances. (p. 215.) The court found that this requirement was met because the plane was parked on a runway, readily available to anyone who might want access, and there was a very real possibility that the plane might be removed and the marijuana debris destroyed. (p. 215.)

In State v. O'Herron (App.Div.1977), 153 N.J.Super. 570, 380 A.2d 728, the appellate division of the New Jersey Superior Court applied the Coolidge reasoning to a factual situation similar to that which exists in this case. In O'Herron, the police received an anonymous call advising them that marijuana plants were growing in a vegetable garden. Upon proceeding to the address in question, the officers viewed the defendants' garden from a vantage point outside their property and were able to observe and identify two marijuana plants. The officers then entered the defendants' garden, further examined the plants and gathered them as evidence. After quoting at length from the Coolidge decision (Coolidge v. New Hampshire, supra, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564), the O'Herron court held that a “plain view” observation made without intrusion into a constitutionally protected location does not, itself, justify a warrantless intrusion and seizure. (380 A.2d at pp. 730-733.) The court concluded that here the intrusion was into defendants' backyard, a place which has long been recognized as enjoying constitutional protection, at least in the absence of any showing of some invited or authorized access to the public. (380 A.2d at p. 733.) The court further held that the Coolidge requirement of exigent circumstances as a justification for a warrantless seizure could not be found to exist, since the marijuana was planted and growing, and there was no suggestion that the defendants were at home or that the plants were in imminent danger of being harvested. (380 A.2d at p. 734.)

Research discloses no California cases which have applied the Coolidge principles to a factual situation similar to that here present. In support of his position that the seizure in this case was proper, the Attorney General relies upon two cases, People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129, and Dillon v. Superior Court (1972) 7 Cal.3d 305, 102 Cal.Rptr. 161, 497 P.2d 505, both of which were decided before Coolidge v. New Hampshire, supra, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. In Bradley, a sheriff's deputy observed marijuana growing in a yard which was fenced “to an undisclosed extent.” (p. 85, 81 Cal.Rptr. 457, 460 P.2d 129.) The plants were located 20 feet from the defendant's door, to which deliverymen and others presumably came. In addition, the house in front of the defendant's apparently had access to the yard. The Bradley court confined its inquiry to determining whether the defendant had exhibited a reasonable expectation of privacy and, if so, whether it had been violated by unreasonable governmental intrusion when the officers entered the yard without a warrant and seized the marijuana. (p. 84, 81 Cal.Rptr. 457, 460 P.2d 129.) Answering both questions in the negative, the court upheld the seizure of the plants. (p. 85, 81 Cal.Rptr. 457, 460 P.2d 129.)

Dillon v. Superior Court, supra, 7 Cal.3d 305, 102 Cal.Rptr. 161, 497 P.2d 505 (which we have previously cited as authority for the legality of the police observations made from the balcony of the Capri Motel) involved a situation where the defendant's neighbor had complained to the police that she had observed what appeared to be marijuana plants growing in the defendant's yard. Although the defendant's yard was separated from her neighbor's yard by a fence, the police were able to observe the marijuana plants from the second—story bedroom window of the neighbor's house. The Dillon court upheld both the propriety of the officer's observations and the right of the police to enter the yard to make a warrantless seizure of the marijuana plants. It must be noted, however, that such holding appears to have been based upon two facts: (1) the growing plants were vulnerable to observation by any of the defendant's neighbors; and (2) the defendant voluntarily agreed to accompany the officers into the yard.⁴

People v. Bradley, supra, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129, and Dillon v. Superior Court, supra, 7 Cal.3d 305, 102 Cal.Rptr. 161, 497 P.2d 505, appear to stand for the proposition that a warrantless seizure of contraband is lawful if a defendant has made no effort to conceal his felonious activities from public view.⁵ Assuming this principle to be valid in the light of the Coolidge holding (Coolidge v. New Hampshire, supra, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564), it is nevertheless evident that, in this instance, the facts of the case are readily distinguishable from those in Bradley and Dillon. The fact that the marijuana plants growing in defendant Chavez' backyard could be observed from the second—floor balcony of the Capri Motel does not establish that defendant had necessarily abandoned all reasonable expectation of privacy so as to render his backyard vulnerable to a warrantless search and seizure. In State v. O'Herron, supra, 153 N.J.Super. 570, 380 A.2d 728, 733, the court expressly rejected the state's contention that, by permitting visual observation of the marijuana plants from outside the premises, the defendant had abandoned any expectation of privacy from physical intrusion. The O'Herron court stated, “This contention, if adopted, would necessarily overrule the principle summarized in Coolidge that ‘plain view alone is never enough to justify the warrantless seizure of evidence’; for if ‘reasonable expectation of privacy’ dissipates upon ‘plain view,’ then every warrantless intrusion following a ‘plain view’ observation is lawful.” (State v. O'Herron, supra, 153 N.J.Super. 570, 380 A.2d 728, 733.)

Here, it cannot be said that defendant exhibited so minimal an expectation of privacy as to waive his Fourth Amendment rights and thereby extend to the police an implied invitation to enter his backyard and effect a warrantless seizure of the marijuana plants. It is undisputed that defendant's backyard was surrounded by a six—foot—high fence and that ivy grew an additional one and one—half to three feet above the fence. Entry to the yard could be gained only through defendant's house or through a gate which was nailed shut. The marijuana plants were concealed from view by anyone on ground level or, indeed, anyone who had not had occasion to visit the Capri Motel and observe the plants from the second—floor balcony. Given these circumstances, it appears to us that defendant exhibited a reasonable expectation of privacy. It follows that the warrantless seizure of the plants cannot be justified on any implied invitation theory and that, absent exigent circumstances, such seizure was unlawful.

It is clear from the record that no exigent circumstances existed. Before entering the yard to harvest the marijuana plants, the officers had determined that no one was present at defendant's home. There was nothing to suggest the possibility of an immediate harvest. The marijuana plants had obviously been under cultivation for an extended period of time, since the 38 plants ranged in height from 8 feet to well over 10 feet. It is reasonable to assume, therefore, that the officers would have had ample time to obtain a search warrant without fear that the crop would have been harvested or destroyed.

Our conclusion that the warrantless seizure of the marijuana plants was illegal compels the further conclusion that the search of defendant's house was likewise illegal. Although the officers did obtain a warrant to search the house, the supporting affidavit, as above noted, was based entirely upon the officers' observations in defendant's backyard while harvesting the plants. No mention was made, in that affidavit, of the officers' valid visual observation of the marijuana plants. Thus, the warrant to search the house was based solely upon an unconstitutional seizure which rendered all articles obtained as a result of that seizure permanently beyond the pale of admissibility. (People v. Coffman (1969) 2 Cal.App.3d 681, 689, 82 Cal.Rptr. 782.)

The judgment (order granting probation) is reversed.

FOOTNOTES

1.  Pursuant to section 1237, subdivision 1, of the Penal Code, an order granting probation shall be deemed a final appealable judgment.

2.  Defendant's wife testified that the gate was nailed shut, and the record is devoid of any evidence to the contrary. Police Officer Wells, who was the only other witness to testify concerning the condition of the gate, stated only that he could not recall whether or not it was locked when he entered the yard. He also admitted that he did not believe that he was the first officer to enter the yard through the gate.

3.  See Dillon v. Superior Court (1972) 7 Cal.3d 305, 102 Cal.Rptr. 161, 497 P.2d 505, where the California Supreme Court upheld a similar observation which took place when a police officer, at the invitation of the defendant's neighbor, looked into the defendant's yard from the window of the neighbor's second floor bedroom.

4.  “[P]etitioner agreed to walking around to the back of the house with the officers. Her consent to this action would clearly seem to prevent her from complaining of the alleged illegal search.” (Dillon v. Superior Court, supra, 7 Cal.3d 305, 311, 102 Cal.Rptr. 161, 497 P.2d 505.)

5.  In Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 632 634, 108 Cal.Rptr. 585, 511 P.2d 33, the California Supreme Court expressed the view that the Bradley case and certain other California cases involved situations where a defendant had conducted his felonious activity in an area so open to public view that he could be deemed to have “implicitly invited” the police to observe and seize the contraband.In People v. Sneed (1973) 32 Cal.App.3d 535, 541 542, 108 Cal.Rptr. 146, the court noted that California Supreme Court cases decided subsequent to Bradley and Dillon had made it clear that an individual, by his conduct, might consent to observations from some sources, while retaining his right to privacy as to other sources, including government agents.

ROUSE, Associate Justice.

TAYLOR, P. J., and MILLER, J., concur. Hearing denied; RICHARDSON, J., dissenting.