Petitioner's Argument
Petitioner's Brief:
The People of the State of California
Counsel: John K. Van De Kamp, Attorney General;
Steve White, Chief Assistant Attorney General - Criminal Division;
Eugene Kaster, Deputy Attorney General
The People of the State of California
Counsel: John K. Van De Kamp, Attorney General;
Steve White, Chief Assistant Attorney General - Criminal Division;
Eugene Kaster, Deputy Attorney General
THE AERIAL OBSERVATION DID NOT INTRUDE INTO LEGITIMATE PRIVACY EXPECTATIONS AND, THEREFORE, DISCOVERY OF CIRAOLO'S MARIJUANA GARDEN DID NOT VIOLATE THE FOURTH AMENDMENT
A. Ciraolo's Expectation That Police Would Not See His Marijuana Garden Is Unreasonable
The term curtilage defines that area to which extends the “intimate activity” of the home. Oliver v. United States, 466 U.S. at ___, 80 L.Ed.2d at 225; 104 S.Ct. at 1742. The Fourth Amendment precludes warrantless physical entries by police into curtilage made with a purpose to indiscriminately seize items or rummage through goods and articles that were expectedly private. See, Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971) (car in driveway seized and contents searched); Taylor v. United States, 265 U.S. 57, 59 (1924) (entry into detached garage); Cf., Hester v. United States, 265 U.S. 57, 59 (1924) (abandoned containers). The Fourth Amendment's primary concern is with physical entry into the home which, by its nature, lays bare the “privacies of life”. Payton v. New York, 445 U.S. 573, 583 (1980), quoting Boyd v. United States, 116 U.S. 616, 630 (1886).
This Court has never held those privacies violated merely because police intentionally view curtilage. E.g., United States v. Santana, 427 U.S. 38, 42 (1976); Hester v. United States, 265 U.S. at 59. Nor does the Fourth Amendment prohibit police from entering navigable airspace to survey curtilage.
A. Ciraolo's Expectation That Police Would Not See His Marijuana Garden Is Unreasonable
The term curtilage defines that area to which extends the “intimate activity” of the home. Oliver v. United States, 466 U.S. at ___, 80 L.Ed.2d at 225; 104 S.Ct. at 1742. The Fourth Amendment precludes warrantless physical entries by police into curtilage made with a purpose to indiscriminately seize items or rummage through goods and articles that were expectedly private. See, Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971) (car in driveway seized and contents searched); Taylor v. United States, 265 U.S. 57, 59 (1924) (entry into detached garage); Cf., Hester v. United States, 265 U.S. 57, 59 (1924) (abandoned containers). The Fourth Amendment's primary concern is with physical entry into the home which, by its nature, lays bare the “privacies of life”. Payton v. New York, 445 U.S. 573, 583 (1980), quoting Boyd v. United States, 116 U.S. 616, 630 (1886).
This Court has never held those privacies violated merely because police intentionally view curtilage. E.g., United States v. Santana, 427 U.S. 38, 42 (1976); Hester v. United States, 265 U.S. at 59. Nor does the Fourth Amendment prohibit police from entering navigable airspace to survey curtilage.
The California court seemingly conceded that in contrasting this case with routine aerial patrol. Saying something is “in the curtilage” means only that protection may be demanded from warrantless physical intrusions which is not afforded in “open fields”. Oliver v. United States, 466 U.S. at ___, 80 L.Ed.2d at 224, 104 S.Ct. at 1741. Thus, physically nonintrusive aerial observation of curtilage does not, standing alone, violate the Constitution.
The California Court of Appeal, while not disputing this, believed that Ciraolo's fence precluded aerial observation directed at his curtilage. Because Ciraolo concealed his marijuana from ground observation he exhibited a legitimate expectation of privacy from such directed observations, according to the lower court. This theory will not fly.
The California Court of Appeal, while not disputing this, believed that Ciraolo's fence precluded aerial observation directed at his curtilage. Because Ciraolo concealed his marijuana from ground observation he exhibited a legitimate expectation of privacy from such directed observations, according to the lower court. This theory will not fly.
“[A]n expectation of privacy, strictly speaking, consists of a belief that uninvited people will not intrude in a particular way.” United States v. Lyons, 706 F.2d 321, 326 (D.C. Cir. 1983) (emphasis orig.); accord, Dow Chemical Co. v. United States, 749 F.2d 307, 312-313 (6th Cir. 1984), cert. granted, ___ U.S. ___, 86 L.Ed.2d 716, 105 S.Ct. 2700. Thus, a fence protects against a roving peeping tom, but not against a citizen on a nearby hillside, or police in the air, following a report of suspicious activity within. That an individual “chooses to conceal assertedly ‘private’ activity”, Oliver v. United States, 466 U.S. at ___, 80 L.Ed.2d at 227, 104 S.Ct. at 1743, does not establish that an observation by police works an infringement “upon the personal and societal values protected by the Fourth Amendment.” Id. This is as true of curtilage as it is open fields, [5]
A residential fence is a reference useful to assess initially whether privacy was expected at all, and, if so, from what. It is one thing to say that police cannot climb a residential fence, State v. Boynton, 574 P.2d 1330, 1333-1334 (Haw. 1978), or peer through a narrow aperture in it. People v. Lovelace, 116 Cal.App.3d 541, 548-555, 172 Cal.Rptr. 65, 68-73 (1981). It is quite another thing to say that police cannot fly and look down. The difference is that the former activities invades expectations that are recognized, endorsed and permitted by society. The latter activity ordinarily does not.
A residential fence is a reference useful to assess initially whether privacy was expected at all, and, if so, from what. It is one thing to say that police cannot climb a residential fence, State v. Boynton, 574 P.2d 1330, 1333-1334 (Haw. 1978), or peer through a narrow aperture in it. People v. Lovelace, 116 Cal.App.3d 541, 548-555, 172 Cal.Rptr. 65, 68-73 (1981). It is quite another thing to say that police cannot fly and look down. The difference is that the former activities invades expectations that are recognized, endorsed and permitted by society. The latter activity ordinarily does not.
This Court stated in Oliver:
“Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a ‘constitutionally protected reasonable expectations of privacy’. 389 U.S. at 360(Harlan, J., concurring.) The Amendment does not protect the merely subjective expectation of privacy, but only ‘those expectations that society is prepared to recognize as “reasonable”’ Id. at 361. See also, Smith v. Maryland, 442 U.S. 735, 740-7??1 (1979).” 466 U.S. at ___, 80 L.Ed.2d at 223; 104 S.Ct. at 1740.
“Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of [Fourth] Amendment analysis has been the question whether a person has a ‘constitutionally protected reasonable expectations of privacy’. 389 U.S. at 360(Harlan, J., concurring.) The Amendment does not protect the merely subjective expectation of privacy, but only ‘those expectations that society is prepared to recognize as “reasonable”’ Id. at 361. See also, Smith v. Maryland, 442 U.S. 735, 740-7??1 (1979).” 466 U.S. at ___, 80 L.Ed.2d at 223; 104 S.Ct. at 1740.
Tested by this measure, Ciraolo did not have a legitimate expectation of privacy from the aerial observation of his garden. First, Ciraolo could not have rationally believed the existence of an item the size of his garden was private from air observation. Rather, he subjectively assumed that its exposure to aircraft risked casual observation but not its identification as marijuana. Katz, however, expected his phone conversation would be undisclosed to all outsiders just as Coolidge did not expect that his automobile would be inventoried by police or anyone else trespassing his driveway.
“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.” United States v. Jacobsen, 466 U.S. 109, ___, 80 L.Ed.2d 85, 100, 104 S.Ct. 1652, 1661 (1984)[fn. omitted.] Ciraolo's personal expectation lacks any basis in “concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144, fn. 12 (1978). His hope that a garden “clearly and contemporaneously visible from the same aerial vantage point”, United States v. Bassford, 601 F.Supp. 1324, 1332 (D. Maine 1985), as occupied by police would not attract attention, is no different than any other expectation of nondiscovery. What “a person knowingly exposes, even in his home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. at 351.
When police flying in navigable airspace in a physically nonintrusive manner see readily discernable objects in the curtilage, the observation involves no deprivation of the home's security. Exposure of such things as 8-10 foot plants in an open air garden by their very nature, renders them visible to police like anyone else.
The video below illustrates just how tall and obvious marijuana plants can be
“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.” United States v. Jacobsen, 466 U.S. 109, ___, 80 L.Ed.2d 85, 100, 104 S.Ct. 1652, 1661 (1984)[fn. omitted.] Ciraolo's personal expectation lacks any basis in “concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144, fn. 12 (1978). His hope that a garden “clearly and contemporaneously visible from the same aerial vantage point”, United States v. Bassford, 601 F.Supp. 1324, 1332 (D. Maine 1985), as occupied by police would not attract attention, is no different than any other expectation of nondiscovery. What “a person knowingly exposes, even in his home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. at 351.
When police flying in navigable airspace in a physically nonintrusive manner see readily discernable objects in the curtilage, the observation involves no deprivation of the home's security. Exposure of such things as 8-10 foot plants in an open air garden by their very nature, renders them visible to police like anyone else.
The video below illustrates just how tall and obvious marijuana plants can be
Such an observation is no different than cases where police position themselves on a raised embankment, United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S. 936; a neighbor's porch, United States v. McMillon, 350 F.Supp. 593, 596-597 (D.C. 1972); a neighboring upper story window, Dillon v. Superior Court, 7 Cal.3d 305, 309-312, 102 Cal.Rptr. 161, 164-165, 497 P.2d 505, 508-509 (1972); Commonwealth v. Williams, 396 A.2d 1286, 1290-1291 (Pa.Super. 1978), rev'd on related ground, 431 A.2d 964, 966 (Pa.1981) (use of “startron”); an adjacent public tennis court and hill, State v. Holbron, 648 P.2d 194, 196 (Haw. 1982); or just off a front sidewalk. United States v. Johnson, 561 F.2d 832, 840-842 (D.C. Cir. 1977) (en banc), cert. denied, 432 U.S. 907.The view from police aircraft is generally no more invasive than one from any other position outside curtilage. There is nothing outrageous or unacceptable in the fact that police see what is obvious and patent.
B. Police Were In A Public Place Open To Their Use
The Court of Appeal did not challenge the right of police to use navigable airspace. Congress has provided that every citizen has a public right of transit through that space. 49 U.S.C., § 1304. [6]
Ciraolo's fence does not make the airways any less open to police. The fact that police found it necessary to reposition themselves in order to obtain a view is immaterial.
In Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861 (1974), a health inspector without warrant entered the outdoor premises of a plant to observe smoke emanating from the chimneys. This Court found no search. It distinguished entries into private spaces to inspect equipment or papers. Id., at 864-865. The inspector was not in an area “from which the public was excluded” and observed what “anyone in the city . . . near the plant could see.” Id., at 865. The Court did not rest its conclusion on whether the observations would have been possible “but for” the inspector's position on plant property: “Depending upon the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the ‘open fields' exception . . .” Id.
The same result follows where officers look into enclosures. In Texas v. Brown, 460 U.S. 730 (1983) (plurality opinion), a policeman “shifted his position in order to obtain a better view” and “bent down at an angle so [he] could see what was inside” the glove compartment of an automobile. Id., at 734, 740. This activity was held to be “irrelevant to Fourth Amendment analysis”. Id., at 740. The officer was properly in a position from which he could view the compartment:
“The general public could peer into the interior of Brown's automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U.S. 735, 739-745 (1979); shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown's car and of his open glove compartment was not a search . . .” Id., at 740.
Here, as in Western Alfalfa and Brown, investigators went to an open place from which they and the public alike could see Ciraolo's garden. The fact that police used an airplane, without which Ciraolo's garden might have remained unseen, makes no difference.
In United States v. Knotts, 460 U.S. 276 (1983), police located a container of chloroform outside the defendant's cabin by monitoring a beeper in the container from a helicopter after losing sight of a vehicle transporting the chemical. [7] While recognizing that Knotts had the “traditional expectation of privacy within a dwelling place”, Id., at 282, the dispositive fact was that “no indication [existed] that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin.” Id., at 285. Since visual surveillance “from public places . . . adjoining Knott's premises” could have revealed the presence of the chemicals on the property, the use of the beeper to determine the location of the chloroform was not a search. Id., at 282, 284.
This Court soon after Knotts ruled beeper-monitoring of a container inside the home unlawful. United States v. Karo, 468 U.S. 705, 82 L.Ed.2d 530, 104 S.Ct. 3296 (1984). In Karo, the Court explained that officers could not make a warrantless entry to verify the container's presence there. “For purposes of the [Fourth] Amendment, the result is the same where, without a warrant, the Government employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.” 468 U.S. at ____, 82 L.Ed.2d at 541, 104 S.Ct. at 3303. “The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts' cabin.” 468 U.S. at ____, 82 L.Ed.2d at 542, 104 S.Ct. at 3304.
The airplane here, like the beeper monitoring in Knotts, revealed something outside defendant's residence that was “‘voluntarily conveyed to anyone who wanted to look”’. Id., quoting, United States v. Knotts, 460 U.S. at 281.[8] Conversely, it revealed nothing inside Ciraolo's house. Ciraolo's fence, necessitating aerial survey, is no more relevant than the failure of the visual surveillance in Knotts, where police found an object on the defendant's premises “when they would not have been able to do so had they relied solely on their naked eyes.” United States v. Knotts, 460 U.S. at 285.
Knotts is clear: nothing in the Fourth Amendment requires police to forego aids which render perceptible to them what was exposed to everyone. To the extent an airplane is simply another aid, like binoculars or telescopes, its use was unobjectionable.
In United States v. Lee, 274 U.S. 559, 563 (1927), this Court indicated that magnification tools generally involve no Fourth Amendment violation. Lee was cited in Katz, 389 U.S. at 351, and has since been quoted in Texas v. Brown, 460 U.S. at 740 and United States v. Knotts, 460 U.S. at 283. Accordingly, using binoculars or telescopes to view grounds, including fenced residential yards, from outside curtilage is not ordinarily a search.[9] In the absence of a legitimate expectation of privacy, police may use binoculars to view objects inside homes or other structures.[10] Where, however, it is legitimately expected that nobody could otherwise see the minute items and activities within a home that were revealed by binoculars and telescopes, courts have found a search.[11] The latter cases, whatever their merit may be, are concerned with visual aids revealing things inside the home that were demonstrably private to all outsiders. Ciraolo's garden, outside the home, was just the opposite.
C. Both The Protected Area And Directed Search Rationales Of The Court Of Appeal Should Be Rejected
The California court found that Ciraolo's fence established a legitimate expectation of privacy “by any standard”. (Pet.App. A17.) It was a protected area. The court then qualified the legitimacy it had just conferred by emphasizing that the observation was directed at Ciraolo's yard and not the result of “routine patrol”. (Pet.App. A18-19.) Neither of these “tests” should be adopted.
Protected Area
This Court recognized in Oliver v. United States, 466 U.S. at ____, 80 L.Ed. at 224, 104 S.Ct. at 1741 that both the “public and police lawfully may survey lands from the air [citations]”. As to aerial observation, Oliver drew no distinction between open fields and curtilage. Land of each type is frequently fenced.[12] Whether marijuana crops are fenced in open fields or curtilage, they are equally visible to police from aircraft.
Moreover, “[i]n most cases it would be impracticable to view one without contemporaneously viewing the other.”United States v. Bassford, 601 F.Supp. at 1332. Likewise, in many cases, police will “have to guess . . . whether landowners had erected fences sufficiently high . . . to establish a right of privacy.” Oliver v. United States, 466 U.S. at ____, 80 L.Ed.2d at 226, 104 S.Ct. at 1742-1743.
The lower courts have consistently upheld unobtrusive aerial observation of curtilage closed to ground view.[13] These decisions repeatedly emphasize that it is, ultimately, the nature of the government's activity, not the measures taken to conceal objects from ground view, which controls.[14] Police should be permitted to observe “conspicuous and readily identifiable” evidence of crime in a residential yard. People v. Superior Court (Stroud), 37 Cal.App.3d 836, 839, 112 Cal.Rptr. 764, 765 (1974).
Directed Search
The analytic basis for the directed search rationale is unclear. Neither Ciraolo nor the California court have offered authority for it.[15]
Its source may be the plurality portion of the opinion in Coolidge v. New Hampshire, 403 U.S. 443 which states that “the discovery of evidence in plain view must be inadvertent.” Id., at 470. However, that language distinguished two sorts of seizures and has no application here:
“It is important to distinguish ‘plain view’, as used in Coolidge to justify seizure of an object, from an officer's mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search [citations], the former generally does implicate the Amendment's limitations upon seizures of personal property. The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity. In turn, these levels of suspicion may, in some cases, [citations], justify police conduct affording them access to a particular item.” Texas v. Brown, 460 U.S. at 738, n. 4 (emphasis orig.); see also,Id., at 751, n. 4 (Stevens, J., concurring in judgment); 1 LaFave, Search and Seizure, § 2.2(a) 241-243.
“[T]he purpose of the Fourth Amendment is to guard against arbitrary governmental invasions of the home . . . regardless of the purpose for which that entry is sought.” Payton v. New York, 455 U.S. at 582, n. 17 (1980). It is a strange rule which recognizes legitimate privacy expectations “by any standard” (Pet.App. A17), but excuses their violation if police intrude on a “routine”, i.e., arbitrary, basis.[16]
Inadvertence is routinely rejected as a requirement for a lawful aerial observation. Randall v. State, 458 So.2d at 825; State v. Stachler, 570 P.2d at 1327; State v. Layne, 623 S.W.2d 629, 635 (Tenn.Cr.App. 1981). Indeed, receipt of information causing police to focus on specific property adds to the flight's justification. United States v. Marbury, 732 F.2d 390, 399 (5th Cir., 1984); United States v. Allen, 675 F.2d at 1381; United States v. DeBacker, 493 F.Supp. 1078, 1081 (W.D. Mich. 1980); State v. Rogers, 673 P.2d at 144.
D. Police Did Not Violate A Legitimate Privacy Expectation
Our society expects police to survey residential areas from aircraft to enforce criminal laws. In no sense, does society acknowledge that crime flourishing in view of everyone leaves police helpless to act whenever a fence is built.
Absent invasive procedures, no privacy interest is advanced by fictionally protecting what can readily be seen by anyone in an aircraft in navigable space, including police on patrol. Once it is seen, every reason permits the officer to scrutinize it with every means at hand.[17] “[W]hat is observable by the public is observable without a warrant, by the Government . . . as well.” Marshall v. Barlow's Inc., 436 U.S. 307, 315 (1978).
The potential abuses that Ciraolo says cry out for a magistrate's Fourth Amendment flight plan resonate soundlessly in their absence here. This Court has “never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.” United States v. Karo, 468 U.S. at ___, 82 L.Ed. 2d at 539, 104 S.Ct. at 3302.
No sophisticated technology exposed intimate secrets of Ciraolo's life, much less imperceptible features of his yard. No physically intrusive activity threatened his private affairs. Police flew in a flight path (J.A. 38), did not swoop low (J.A. 31) nor even use binoculars (J.A. 32). The observation was nothing more than the view to be had by any other aircraft.
The view of Ciraolo's yard could not have been plainer, the position of police more open, nor their actions more reasonable. There was no search. The Court of Appeal erred.
Footnotes
[5] Even in the context of physical intrusions into curtilage, the fact that one's surroundings afford some measure of privacy does not mean that, absent exigent circumstances, police can never enter nor that they must blind themselves when they do. See, United States v. Roberts, 747 F.2d 537, 542-543 (9th Cir. 1984); United States v. Magana, 512 F.2d 1169, 1170-1171 (9th Cir. 1975), cert. denied, 423 U.S. 826;United States v. Ventling, 678 F.2d 63, 65-66 (8th Cir. 1982); Ellison v. United States, 206 F.2d 476, 478 (D.C. Cir. 1953); People v. Bradley, 1 Cal.3d 80, 85, 81 Cal.Rptr. 457, 459, 460 P.2d 129, 131 (1969);State v. Lyons, 307 S.E.2d 285, 286 (Ga.App. 1983); State v. Nine, 315 So.2d 667, 670-672 (La. 1975);State v. Crea, 233 N.W.2d 736, 739 (Minn. 1975); People v. Smith, 487 N.Y.S.2d 210, 213 (A.D. 4 Dept. 1985).
[6] Where the federal government has not been granted or assumed sovereignty in the airspace, California exercises sovereignty. (Cal.Pub.Util. Code, § 21401.) State law provides for a public right to use airspace for flight. (Cal.Pub.Util Code, § 21401-21403.) The Federal Aviation Administration provides for altitude regulation of aircraft in airspace. As pertinent to this case, the regulations require a minimum altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. (14 C.F.R., § 91.79(b).) The fact that the officer is in a public place is not the whole answer. It is, however, relevant to the initial determination of whether that seen was expectedly private.
“[W]hen police surveillance takes place at a position which cannot be called a ‘public vantage point’, i.e., when the police--though not trespassing upon the defendant's curtilage--resort to the extraordinary step of positioning themselves where neither neighbors nor the general public would ordinarily be expected to be, the observation or overhearing of what is occuring within a dwelling constitutes a Fourth Amendment search. This is really what Katz is all about.” 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3, 304-305 (1978) (fn. omitted) (emphasis added). Certainly no greater rights attach to the curtilage than to the interior of the home.
[7] The Court of Appeal's decision reflects that the chloroform drum was beneath a wooden barrel in the cabin's yard. United States v. Knotts, 662 F.2d 515, 518 (8th Cir. 1981), rev'd, 460 U.S. 276, 285.
[8] See also, Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (telephone numbers); United States v. Miller, 425 U.S. 435, 442-444 (1976) (bank records); United States v. Choate, 576 F.2d 165, 175-180 (9th Cir. 1978), cert. denied, 439 U.S. 953; reiterated, 619 F.2d 21, 22 (9th Cir. 1980), cert. denied, 449 U.S. 951(mail cover); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970); cert. denied, 400 U.S. 1000(mobile telephone unit call over public frequency).
[9] United States v. Lace, 669 F.2d 46, 50-51 (2d Cir. 1982); cert. denied, 455 U.S. 854; United States v. Minton, 488 F.2d at 38 (barn); People v. Vermouth, 42 Cal.App.3d 353, 361-362, 116 Cal.Rptr. 675, 680 (1974) (sun deck); Sims v. State, 425 So.2d 563, 567 (Fla.App. 1982) (yard), pet. for reversal denied,436 So.2d 100 (Fla. 1983); State v. Holbron, 648 P.2d at 196-197 (fenced backyard), see also, United States v. Hensel, 699 F.2d 18, 41 (1st Cir. 1983); cert. denied, 461 U.S. 958 (cases cited but point waived.)
[10] Fullbright v. United States, 392 F.2d 432, 433-436 (10 Cir. 1968), cert. denied, 393 U.S. 830 (shed);United States v. Christensen, 524 F.Supp. 344, 346-348 (N.D. Ill. 1981) (business); United States v. Bifield, 498 F.Supp. 497, 506-508 (D. Conn. 1980), aff'd, 659 F.2d 1063 (2d Cir. 1981) (unpublished) (gas station); Cooper v. Superior Court, 118 Cal.App.3d 499, 509-510, 173 Cal.Rptr. 520, 525-526 (1981) (home); People v. Hicks, 364 N.E.2d 440, 444 (Ill.App. 1977) (hotel room); State v. Thompson241 N.W.2d 511, 513 (Neb. 1976) (house); Commonwealth v. Hernley, 263 A.2d 904, 906-907 (Pa.Super. 1970), cert. denied, 401 U.S. 914 (printshop); Commonwealth v. Williams, 396 A.2d at 1290-1291(apartment); State v. Manly, 530 P.2d 306, 309 (Wash., 1975) (apartment).
[11] United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980); United States v. Kim, 415 F.Supp. 1252, 1256 (D. Haw. 1976); People v. Arno, 90 Cal.App.3d 505, 509-512, 153 Cal.Rptr. 624, 626-628 (1979);State v. Ward, 617 P.2d 568, 570-573 (Haw. 1980); State v. Blacker, 630 P.2d 413, 414-415 (Or.App. 1981); see also, People v. Ciochon, 319 N.E.2d 332, 334-336 (Ill.App. 1974) (remanded for evidentiary hearing).
[12] “An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Oliver v. United States, 466 U.S. at ____, n. 11, 80 L.Ed.2d at 225, n. 11, 104 S.Ct. at 1742, n. 11.
[13] United States v. Bassford, 601 F.Supp. at 1328-1332, 1334-1335 (D. Maine 1985) (marijuana gardens 10 and 5 feet from two homes in a heavily wooded, posted, 30-acre property); Randall v. State, 458 So.2d 822, 824-826 (Fla.App. 2 Dist. 1984) (marijuana in backyard of duplex apartment behind reed fence);State v. Stachler, 570 P.2d 1321, 1326-1329 (Haw. 1977) (8 to 10 foot tall marijuana patch 15 feet from secluded home in remote area); State v. Rogers, 673 P.2d 142, 143-144 (N.M.App. 1983) (plants protruding from greenhouse near house within fence); Cf. People v. Sneed, 32 Cal.App.3d 535, 540-543, 108 Cal.Rptr. 146, 149-151 (1973) (helicopter hovered 20 to 25 feet over corral 125 feet behind house;rev'd.)
Other cases have affirmed without stopping to examine whether the area was curtilage although the facts did not preclude that possibility. E.g., United States v. Allen, 675 F.2d 1373, 1380-1381 (9th Cir. 1980),cert. denied, 454 U.S. 833 (aerial photography of modifications to a barn not observable outside 200 acre ranch on sea coast); United States v. Hensel, 699 F.2d 18, 41 (1st Cir. 1983), cert. denied 461 U.S. 958(air observation of property containing several buildings, garage and deep water dock), State v. Davis, 627 P.2d 492, 493-494 (Or.App. 1981), pet. denied, 634 P.2d 1346 (Or. 1981) (marijuana 150 to 300 feet from secluded residences with signs and locked gate); see also, State v. Cockrell, 689 P.2d 32, 33-34 (Wash. 1984) (state constitution).
[14] “There is almost uniform agreement, among those who have considered the question, that an attempt to exclude ground-based observation fails to demonstrate an expectation of privacy from the air.” Comment,Aerial Surveillance: A Plane View of the Fourth Amendment, 18 Gonz.L.Rev. 307, 324, n. 100 (1982-83) (cases cited.)
[15] It is unclear whether Ciraolo is disengaging himself on this point, however slightly, from the California court's holding. In his most recent briefs, Ciraolo emphasizes that the tip was “nonspecific”, “unvalidated” and “anonymous”. (Ans. to Pet. for Hg. [filed Jan. 8, 1985] 3; Cert. Opp. 5). This may only be rhetoric to obscure the fact that police acted on particularized suspicion that a specific crime was taking place rather than on random curiousity to see inside this yard. On the other hand, it may signal Ciraolo's discomfort with the logical endpoint of the Court of Appeal's analysis: acting on suspicion to observe one yard from the air is bad while acting on none to observe all is good. Whatever Ciraolo means, we take the lower court's opinion holding “the warrantless overflight . . . an unreasonable search” (Pet.App. A20) at face value. If looking at a particular yard is the real evil, then a specific, validated and known tip, i.e., probable cause, will not excuse a warrant.
[16] If preservation from disclosure to government of objects enclosed in fenced yards is the key value, the intention of police to see those objects on routine air patrol surely precludes achieving that goal. Thus, contrary to the California court, the intention of government to see into a specific enclosure is irrelevant, unless we indulge the peculiar notion that residents will be idiosyncratically comforted knowing that police are not looking because of a tip. It is due to this logically irreconcilable aspect of the California court's decision, plus the fact that it ambiguously characterized the directed nature of the flyover to be “significant” (Pet. App. A18), not necessarily dispositive, that we suspect exclusionary rule concerns lurk beneath a mask of privacy expectation analysis. The California court might just as well have said that all aerial observations of fenced residential yards are searches but only directed flyovers can be deterred by a warrant requirement.
That the court did not render its holding in such form is probably more meaningful than what it did say. First, it would imply that Ciraolo's expectation of privacy is, at best, so abstract and theoretical that, in general, the cost to society of its enforcement through exclusion of evidence is prohibitive. Second, it would leave open the possibility of civil remedies against routine air patrol that are unacceptable to anyone except criminals. Third, it would make crystal clear that police could avoid exclusion if they dissemble about the degree to which they focused on a specific fenced yard; a puzzle this Court avoided solving by keeping a gnomic silence on just how significant directed flyovers are. Fourth, it would render the uncomfortable implications of its decision too plain to require closer scrutiny: something has gone very wrong with the Fourth Amendment when the eminently reasonable police activity in this case is outlawed but, by only modest logical extension, legitimacy is conferred on “random” enhanced viewing of a whole neighborhood of unfenced yards from a government satellite in geosynchronous orbit.
[17] In the proper discharge of his duty, such activity serves to avoid the risk of misdescription of what has been already seen, a risk in which there is no cognizable interest. United States v. Jacobsen, 466 U.S. at ______, 80 L.Ed.2d at 98, 104 S.Ct. at 1659. In this case, for example, the photograph of Ciraolo's neighborhood served to preserve what police had already lawfully seen. Such action violates no legitimate expectation of privacy. State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981); Annot., Employment of Photographic Equipment to Record Presence and Nature of Items as Constituting Unreasonable Search, 27 A.L.R. 4th 532 (1984); see, United States v. Allen, 675 F.2d at 1380; Cf. United States v. White, 401 U.S. 745, 748-753 (1971) (plurality opinion) (recording in home by informant); United States v. Miller, 753 F.2d 1475, 1480 (9th Cir. 1985) (informant corroborated by aerial photo.)
[5] Even in the context of physical intrusions into curtilage, the fact that one's surroundings afford some measure of privacy does not mean that, absent exigent circumstances, police can never enter nor that they must blind themselves when they do. See, United States v. Roberts, 747 F.2d 537, 542-543 (9th Cir. 1984); United States v. Magana, 512 F.2d 1169, 1170-1171 (9th Cir. 1975), cert. denied, 423 U.S. 826;United States v. Ventling, 678 F.2d 63, 65-66 (8th Cir. 1982); Ellison v. United States, 206 F.2d 476, 478 (D.C. Cir. 1953); People v. Bradley, 1 Cal.3d 80, 85, 81 Cal.Rptr. 457, 459, 460 P.2d 129, 131 (1969);State v. Lyons, 307 S.E.2d 285, 286 (Ga.App. 1983); State v. Nine, 315 So.2d 667, 670-672 (La. 1975);State v. Crea, 233 N.W.2d 736, 739 (Minn. 1975); People v. Smith, 487 N.Y.S.2d 210, 213 (A.D. 4 Dept. 1985).
[6] Where the federal government has not been granted or assumed sovereignty in the airspace, California exercises sovereignty. (Cal.Pub.Util. Code, § 21401.) State law provides for a public right to use airspace for flight. (Cal.Pub.Util Code, § 21401-21403.) The Federal Aviation Administration provides for altitude regulation of aircraft in airspace. As pertinent to this case, the regulations require a minimum altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. (14 C.F.R., § 91.79(b).) The fact that the officer is in a public place is not the whole answer. It is, however, relevant to the initial determination of whether that seen was expectedly private.
“[W]hen police surveillance takes place at a position which cannot be called a ‘public vantage point’, i.e., when the police--though not trespassing upon the defendant's curtilage--resort to the extraordinary step of positioning themselves where neither neighbors nor the general public would ordinarily be expected to be, the observation or overhearing of what is occuring within a dwelling constitutes a Fourth Amendment search. This is really what Katz is all about.” 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3, 304-305 (1978) (fn. omitted) (emphasis added). Certainly no greater rights attach to the curtilage than to the interior of the home.
[7] The Court of Appeal's decision reflects that the chloroform drum was beneath a wooden barrel in the cabin's yard. United States v. Knotts, 662 F.2d 515, 518 (8th Cir. 1981), rev'd, 460 U.S. 276, 285.
[8] See also, Smith v. Maryland, 442 U.S. 735, 743-744 (1979) (telephone numbers); United States v. Miller, 425 U.S. 435, 442-444 (1976) (bank records); United States v. Choate, 576 F.2d 165, 175-180 (9th Cir. 1978), cert. denied, 439 U.S. 953; reiterated, 619 F.2d 21, 22 (9th Cir. 1980), cert. denied, 449 U.S. 951(mail cover); United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970); cert. denied, 400 U.S. 1000(mobile telephone unit call over public frequency).
[9] United States v. Lace, 669 F.2d 46, 50-51 (2d Cir. 1982); cert. denied, 455 U.S. 854; United States v. Minton, 488 F.2d at 38 (barn); People v. Vermouth, 42 Cal.App.3d 353, 361-362, 116 Cal.Rptr. 675, 680 (1974) (sun deck); Sims v. State, 425 So.2d 563, 567 (Fla.App. 1982) (yard), pet. for reversal denied,436 So.2d 100 (Fla. 1983); State v. Holbron, 648 P.2d at 196-197 (fenced backyard), see also, United States v. Hensel, 699 F.2d 18, 41 (1st Cir. 1983); cert. denied, 461 U.S. 958 (cases cited but point waived.)
[10] Fullbright v. United States, 392 F.2d 432, 433-436 (10 Cir. 1968), cert. denied, 393 U.S. 830 (shed);United States v. Christensen, 524 F.Supp. 344, 346-348 (N.D. Ill. 1981) (business); United States v. Bifield, 498 F.Supp. 497, 506-508 (D. Conn. 1980), aff'd, 659 F.2d 1063 (2d Cir. 1981) (unpublished) (gas station); Cooper v. Superior Court, 118 Cal.App.3d 499, 509-510, 173 Cal.Rptr. 520, 525-526 (1981) (home); People v. Hicks, 364 N.E.2d 440, 444 (Ill.App. 1977) (hotel room); State v. Thompson241 N.W.2d 511, 513 (Neb. 1976) (house); Commonwealth v. Hernley, 263 A.2d 904, 906-907 (Pa.Super. 1970), cert. denied, 401 U.S. 914 (printshop); Commonwealth v. Williams, 396 A.2d at 1290-1291(apartment); State v. Manly, 530 P.2d 306, 309 (Wash., 1975) (apartment).
[11] United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980); United States v. Kim, 415 F.Supp. 1252, 1256 (D. Haw. 1976); People v. Arno, 90 Cal.App.3d 505, 509-512, 153 Cal.Rptr. 624, 626-628 (1979);State v. Ward, 617 P.2d 568, 570-573 (Haw. 1980); State v. Blacker, 630 P.2d 413, 414-415 (Or.App. 1981); see also, People v. Ciochon, 319 N.E.2d 332, 334-336 (Ill.App. 1974) (remanded for evidentiary hearing).
[12] “An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Oliver v. United States, 466 U.S. at ____, n. 11, 80 L.Ed.2d at 225, n. 11, 104 S.Ct. at 1742, n. 11.
[13] United States v. Bassford, 601 F.Supp. at 1328-1332, 1334-1335 (D. Maine 1985) (marijuana gardens 10 and 5 feet from two homes in a heavily wooded, posted, 30-acre property); Randall v. State, 458 So.2d 822, 824-826 (Fla.App. 2 Dist. 1984) (marijuana in backyard of duplex apartment behind reed fence);State v. Stachler, 570 P.2d 1321, 1326-1329 (Haw. 1977) (8 to 10 foot tall marijuana patch 15 feet from secluded home in remote area); State v. Rogers, 673 P.2d 142, 143-144 (N.M.App. 1983) (plants protruding from greenhouse near house within fence); Cf. People v. Sneed, 32 Cal.App.3d 535, 540-543, 108 Cal.Rptr. 146, 149-151 (1973) (helicopter hovered 20 to 25 feet over corral 125 feet behind house;rev'd.)
Other cases have affirmed without stopping to examine whether the area was curtilage although the facts did not preclude that possibility. E.g., United States v. Allen, 675 F.2d 1373, 1380-1381 (9th Cir. 1980),cert. denied, 454 U.S. 833 (aerial photography of modifications to a barn not observable outside 200 acre ranch on sea coast); United States v. Hensel, 699 F.2d 18, 41 (1st Cir. 1983), cert. denied 461 U.S. 958(air observation of property containing several buildings, garage and deep water dock), State v. Davis, 627 P.2d 492, 493-494 (Or.App. 1981), pet. denied, 634 P.2d 1346 (Or. 1981) (marijuana 150 to 300 feet from secluded residences with signs and locked gate); see also, State v. Cockrell, 689 P.2d 32, 33-34 (Wash. 1984) (state constitution).
[14] “There is almost uniform agreement, among those who have considered the question, that an attempt to exclude ground-based observation fails to demonstrate an expectation of privacy from the air.” Comment,Aerial Surveillance: A Plane View of the Fourth Amendment, 18 Gonz.L.Rev. 307, 324, n. 100 (1982-83) (cases cited.)
[15] It is unclear whether Ciraolo is disengaging himself on this point, however slightly, from the California court's holding. In his most recent briefs, Ciraolo emphasizes that the tip was “nonspecific”, “unvalidated” and “anonymous”. (Ans. to Pet. for Hg. [filed Jan. 8, 1985] 3; Cert. Opp. 5). This may only be rhetoric to obscure the fact that police acted on particularized suspicion that a specific crime was taking place rather than on random curiousity to see inside this yard. On the other hand, it may signal Ciraolo's discomfort with the logical endpoint of the Court of Appeal's analysis: acting on suspicion to observe one yard from the air is bad while acting on none to observe all is good. Whatever Ciraolo means, we take the lower court's opinion holding “the warrantless overflight . . . an unreasonable search” (Pet.App. A20) at face value. If looking at a particular yard is the real evil, then a specific, validated and known tip, i.e., probable cause, will not excuse a warrant.
[16] If preservation from disclosure to government of objects enclosed in fenced yards is the key value, the intention of police to see those objects on routine air patrol surely precludes achieving that goal. Thus, contrary to the California court, the intention of government to see into a specific enclosure is irrelevant, unless we indulge the peculiar notion that residents will be idiosyncratically comforted knowing that police are not looking because of a tip. It is due to this logically irreconcilable aspect of the California court's decision, plus the fact that it ambiguously characterized the directed nature of the flyover to be “significant” (Pet. App. A18), not necessarily dispositive, that we suspect exclusionary rule concerns lurk beneath a mask of privacy expectation analysis. The California court might just as well have said that all aerial observations of fenced residential yards are searches but only directed flyovers can be deterred by a warrant requirement.
That the court did not render its holding in such form is probably more meaningful than what it did say. First, it would imply that Ciraolo's expectation of privacy is, at best, so abstract and theoretical that, in general, the cost to society of its enforcement through exclusion of evidence is prohibitive. Second, it would leave open the possibility of civil remedies against routine air patrol that are unacceptable to anyone except criminals. Third, it would make crystal clear that police could avoid exclusion if they dissemble about the degree to which they focused on a specific fenced yard; a puzzle this Court avoided solving by keeping a gnomic silence on just how significant directed flyovers are. Fourth, it would render the uncomfortable implications of its decision too plain to require closer scrutiny: something has gone very wrong with the Fourth Amendment when the eminently reasonable police activity in this case is outlawed but, by only modest logical extension, legitimacy is conferred on “random” enhanced viewing of a whole neighborhood of unfenced yards from a government satellite in geosynchronous orbit.
[17] In the proper discharge of his duty, such activity serves to avoid the risk of misdescription of what has been already seen, a risk in which there is no cognizable interest. United States v. Jacobsen, 466 U.S. at ______, 80 L.Ed.2d at 98, 104 S.Ct. at 1659. In this case, for example, the photograph of Ciraolo's neighborhood served to preserve what police had already lawfully seen. Such action violates no legitimate expectation of privacy. State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981); Annot., Employment of Photographic Equipment to Record Presence and Nature of Items as Constituting Unreasonable Search, 27 A.L.R. 4th 532 (1984); see, United States v. Allen, 675 F.2d at 1380; Cf. United States v. White, 401 U.S. 745, 748-753 (1971) (plurality opinion) (recording in home by informant); United States v. Miller, 753 F.2d 1475, 1480 (9th Cir. 1985) (informant corroborated by aerial photo.)
Kelly Koss & Melanie Matias | Persuasion Theory Spring 2015 | Chicago-Kent College of Law | Professor Godfrey
For educational purposes only.
For educational purposes only.