PEOPLE v. COOK (1984)

After unsuccessfully moving to traverse the search warrant and to suppress evidence, Larry Lynn Cook entered a negotiated guilty plea to unlawfully cultivating marijuana.  (Health & Saf.Code, § 11358.)   On appeal Cook challenges the validity of the aerial search of his backyard.   We conclude the search violated Cook's Fourth Amendment rights and reverse.

Factual and Procedural Background

An anonymous tip from a concerned citizen informed the police of possible marijuana cultivation at Cook's house.   Cook lived in a semi-rural area where there were 8 to 10 houses on the same street and about 15 residences within 1000 feet.   A six-foot high wooden fence ran across the front and completely down the south side of his property with a gate for the driveway in the front fence.   Inside the fence was a second wooden fence about five to six feet high.   Large pine trees about 30 feet tall grew between the two fences and many other large trees grew along the south side of the property.

Officer Johnson was unable to see any marijuana plants at the residence from any land-based public access point.   Consequently, to pursue his investigation from a better position Johnson and two other officers flew over Cook's residence at an altitude of about 1600 feet.   Johnson and another officer believed they saw marijuana plants in a fenced area adjacent to Cook's house.   The officers based their opinion on the distinctive “lush green” color of the plants which contrasted with the surrounding lawn, pine trees and other vegetation.   With this information Johnson obtained a search warrant and in executing it found and seized marijuana plants.

Johnson found the marijuana growing in an area enclosed on one side by the residence and on the other three sides by an eight-foot high solid wood fence.   Wood beams and chicken wire covered the top of the enclosure which was located within the six-foot high fence surrounding the residence.

 Cook exhibited a subjective expectation of privacy because he had fenced his property.   In denying the suppression motion the court determined the expectation was unreasonable, however, because the officers had a right to be in an airplane at 1600 feet over his property.

Discussion

Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 emphatically rejected the notion Fourth Amendment problems can be resolved simply by designating the area searched as “constitutionally protected.”   (Id., at p. 350, 88 S.Ct. at p. 510.)

“[An] effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case.   For the Fourth Amendment protects people, not places.   What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.  [Citations.]  But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.  [Citations.]”  (Id., at pp. 351–352, 88 S.Ct. at p. 511, fn. omitted.)

 Our Supreme Court in People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129 has also warned against the doctrinaire use of the “constitutionally protected area” label as affording a solution to every case involving a claim of illegal search and seizure.  (See also People v. Sneed (1973) 32 Cal.App.3d 535, 541, 108 Cal.Rptr. 146.)   The “appropriate test is whether the person has exhibited a reasonable expectation of privacy, and if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Edwards, 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713], and cases cited therein).”  (People v. Bradley, supra, 1 Cal.3d at p. 84, 81 Cal.Rptr. 457, 460 P.2d 129.)

 We have repeated these basic and fundamental principles governing analysis of search and seizure issues to avoid placing this case in the pigeonhole that seems to have been created justifying aerial surveillance in rural and relatively unpopulated areas.  (See People v. Mayoff (1983) 150 Cal.App.3d 7, 197 Cal.Rptr. 450;  People v. Egan (1983) 141 Cal.App.3d 798, 806, 190 Cal.Rptr. 546;  Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 327, 174 Cal.Rptr. 576;  People v. Joubert (1981) 118 Cal.App.3d 637, 642–645, 173 Cal.Rptr. 428;  People v. St. Amour (1980) 104 Cal.App.3d 886, 891, 163 Cal.Rptr. 187;  Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 425–426, 158 Cal.Rptr. 86;  Dean v. Superior Court (1973) 35 Cal.App.3d 112, 118–119, 110 Cal.Rptr. 585.)   The process of determining the legality of the search by categorizing the property as rural is an unfortunate reversion to the rejected concept of deciding the issue by merely labeling the area.   The reasonableness of an individual's expectation of privacy turns on the totality of facts and circumstances in each case.   The rural character of the property is only one factor among many which must be considered.   The court must evaluate “the existence or nonexistence and height of natural or artificial structures adjacent to the premises, the height and sight-proof character of the fencing, the location of public or common private walkways adjacent to the premises, the type and character of invasion by the governmental authority, and other unforeseeable factors which will undoubtedly arise on a case by case basis.”  (People v. Sneed, supra, 32 Cal.App.3d at p. 541, 108 Cal.Rptr. 146.)

 Moreover, reasonable expectations of privacy are not earthbound.  “The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion․  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.”  (Dean v. Superior Court, supra, 35 Cal.App.3d at p. 116, 110 Cal.Rptr. 585.)   The fact police officers using aircraft can see things otherwise hidden from view cannot justify the search itself.¹  If a search were to be justified based on its effectiveness there would be no Fourth Amendment protection in this technologically advanced society.   The Fourth Amendment establishes the standard against which the reasonableness of both the individual's expectation of privacy and the governmental intrusion are measured and not vice versa.   If a contrary approach were adopted and the reasonableness of an individual's expectation of privacy were to be gauged against the norm established by the prevalence of unlawful intrusions the Fourth Amendment would become meaningless.   Under such circumstances there could never be a reasonable expectation of privacy because individual privacy would no longer exist.   Thus an airplane may not merely be called an officer's airborne patrol car thereby permitting a search and seizure of all of those items which come into “plain view.”

 Whether something is in plain view does not answer the constitutional question of whether the police had the right to be in the position from which the plain view observation was made.  (Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067;  1 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (1978) § 2.2, p. 240 et seq.)   Here, the court's finding the police had the right to view Cook's property from the air is correct only if there is an adequate factual basis for the finding Cook's belief he was entitled to privacy from air surveillance was unreasonable.

Here, Cook meticulously constructed a private enclave screened from public view by high fences and tall trees.   The hidden plot of property on which the marijuana was growing was not near any private or public walkways nor near a place where invitees or members of the public had a right to be.  (Cf. People v. Bradley, supra, 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129.)

The aerial surveillance of Cook's residence was directed and not part of “routine” overflights.  (Compare People v. Superior Court (Stroud) (1974) 37 Cal.App.3d 836, 838–839, 112 Cal.Rptr. 764.)   The evidence observed was hidden from all expected viewers.  (Compare ibid.)   Cook's property was not located in an area with a lack of good roads resulting in the increased frequency of overflight by “commercial carriers, private planes, Forest Service planes, [or] livestock investigators ․ [or where] the only practical method of law enforcement ․ is through the use of aircraft patrol.”  (Compare People v. Mayoff, supra, 150 Cal.App.3d at p. 11, 197 Cal.Rptr. 450.)   Cook's marijuana plot was also different than agricultural acreage separated from a primary residence and open to public view.  (Compare People v. Joubert, supra, 118 Cal.App.3d 637, 173 Cal.Rptr. 428;  People v. St. Amour, supra, 104 Cal.App.3d 886, 163 Cal.Rptr. 187;  Burkholder v. Superior Court, supra, 96 Cal.App.3d 421, 158 Cal.Rptr. 86;  Dean v. Superior Court, supra, 35 Cal.App.3d 112, 110 Cal.Rptr. 585.)

 We therefore conclude under the circumstances of this case there is insufficient evidence to support the court's finding Cook did not have a reasonable expectation of privacy from air surveillance as to the plot of property adjacent to his home.   In conducting the aerial search the police acted unreasonably and the search was illegal.

Disposition

The judgment is reversed and the cause remanded to the superior court.   That court is directed to vacate the guilty plea if Cook makes an appropriate motion within 30 days after this opinion becomes final.   In that event the court shall reinstate the original charges contained in the information, if the State so moves, and proceed to trial or make other appropriate disposition.   If Cook does not so move, the trial court is directed to reinstate the original judgment.²

FOOTNOTES

1.   We agree with the reasoning in People v. Arno (1979) 90 Cal.App.3d 505, 153 Cal.Rptr. 624.   In deciding the legality of a binocular-aided search the court held the primary determinative factor is whether a reasonable expectation of privacy exists.   Where the optically-aided view permitted police surveillance of something which they could not see otherwise the governmental intrusion was unconstitutional.  (Id., at p. 509, 153 Cal.Rptr. 624.)   Similarly here the aerial surveillance enabled the police to observe the marijuana plants which were hidden from any other viewpoint.

2.   People v. Miller (1983) 33 Cal.3d 545, 556, 189 Cal.Rptr. 519, 658 P.2d 1320.

WIENER, Associate Justice.

BROWN, P.J., and WORK, J., concur.