People v. Roberts

Opinion

RUSHING, J.^*

Defendant was charged with cultivation of marijuana and possession of marijuana for sale. After his motion to suppress was denied, defendant proceeded to trial, but during jury selection he pled guilty. He was sentenced to two years in prison for cultivation.¹ Execution was suspended, and he was placed on probation for three years upon condition, inter alia, that he serve one year in the county jail. Defendant now appeals.

Facts

On October 3, 1980, Sergeant Gunderson, Detective Sergeant Phillips, and two other officers from the Sonoma County Sheriff’s Office were flying over a rural area of the county. They were on an unrelated mission, but they decided to fly over defendant’s property to look for marijuana. This decision was made because over the past two months Sergeant Gunderson had observed growing marijuana plants on the property. When first seen, the plants were two or three feet high and planted outside a large greenhouse structure. Over time, the plants had been moved into the greenhouse.

On the afternoon of October 3, the officers flew over defendant’s property in a helicopter. They flew at about three hundred feet above ground and circled the property for about three or four minutes. The area under surveillance was a cleared compound area with a house trailer and a large greenhouse. The greenhouse was covered with white opaque plastic material and was connected to the house trailer with a fiberglass-covered breezeway.

At the south end of the compound, the officers saw marijuana growing outside. In addition, the officers saw more plants inside the greenhouse. But the officers could not see clearly through the plastic covering. One end of the greenhouse was open, however, covered only by a four-foot sheet of plywood. By positioning the helicopter just so, the officers could see through the opening and identify what appeared to be marijuana plants.

Based on these observations, Detective Sergeant Phillips prepared an affidavit and obtained a search warrant. Defendant challenged the warrant on several grounds, but his motion to suppress was denied. On appeal, defendant renews his challenges to the validity of the warrant.

Discussion

I. The Aerial Search

Defendant first argues that the helicopter overflight was an invasion of his expectation of privacy and, hence, the observations made by the officers could not be used to support the search warrant. The argument has considerable merit.

In People v. Mayoff (1986) 42 Cal.3d 1302 [233 Cal.Rptr. 2, 729 P.2d 166], the Supreme Court upheld a random aerial search of open fields conducted for the purpose of identifying plots of land upon which marijuana was being cultivated. The court recognized, however, that under the California Constitution there is a great expectation of privacy in the “curtilage.” (Id., at pp. 1310-1311.) Indeed, the court reaffirmed its holding in People v. Cook (1985) 41 Cal.3d 373 [221 Cal.Rptr. 499, 710 P.2d 299], that the police cannot defeat the legitimate expectation of privacy within a residential curtilage by “spying at will on a private yard from an aircraft.” (42 Cal.3d at p. 1311; but see California v. Ciraolo (1986) 476 U.S. 207 [90 L.Ed.2d 210, 106 S.Ct. 1809] [under federal Constitution, no expectation of privacy from an aerial search].)

In both Cook and Mayoff, the court accepted the definition of “curtilage” stated by the United States Supreme Court in Oliver v. United States (1984) 466 U.S. 170, 180 [80 L.Ed.2d 214, 225, 104 S.Ct. 1735]: “the land immediately surrounding and associated with the home.” More recently, the United States Supreme Court has explained that to determine whether an area falls within the protected curtilage the courts should look to four factors: the proximity of the area to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observations by passersby. (United States v. Dunn (1987) 480 U.S. 294 [94 L.Ed.2d 326, 108 S.Ct. 1134] [bam not within the curtilage].)

There seems little doubt that the area under surveillance here was within the protected residential curtilage. The cleared compound area was surrounded by a fence. Inside the fence was a house trailer, which was the only residence in the vicinity. The greenhouse was attached to this house trailer by a covered breezeway. The greenhouse was apparently being used for growing plants, an essentially domestic activity. The greenhouse was covered with an opaque plastic material which prevented clear observations of the plants within.

Of course, the Mayoff court explained that the aerial observation of a home and curtilage is not unlawful if incidental to the search of open fields. The determining factor is whether the focus of the examination was on a particular curtilage or on the open fields. (People v. Mayoff, supra, 42 Cal.3d at pp. 1316-1317.) Here, however, the officers’ observations were focused on the greenhouse—an area within the protected curtilage.

Consequently, we conclude the present case is controlled by Cook and the aerial surveillance of defendant’s property was unconstitutional.

II. Navigable Air Space

There is another basis for holding the aerial surveillance invalid: the low altitude of the helicopter. In People v. Sabo (1986) 185 Cal.App.3d 845 [230 Cal.Rptr. 170], certiorari denied, 481 U.S. 1058 [95 L.Ed.2d 855, 107 S.Ct. 2200], police officers in a helicopter observed marijuana plants growing in a backyard greenhouse from which several roof and side panels were missing. The officers were able to make their observations only by circling the defendant’s property and hovering at about 400-500 feet. The court held the surveillance was an unreasonable invasion of privacy.

Sabo arose after Proposition 8; hence, the court was bound by California v. Ciraolo, supra, 476 U.S. 207 [90 L.Ed.2d 210, 106 S.Ct. 1809], and not by Cook. Yet, the Sabo court distinguished Ciraolo on the following grounds: there, the fenced backyard was open to the skies, and the marijuana was easily visible from a fixed-wing aircraft flying at 1,000 feet in navigable airspace; in Sabo, in contrast, the greenhoused marijuana was visible only to an eye in a circling helicopter positioned so as to enable a peek through the gaps. The court held that such low-altitude surveillance, being in nonnavigable airspace, was an intrusion into the defendant’s expectation of privacy.

The present case is identical in all material respects. The officers here flew even lower—at about 300 feet. They circled over defendant’s property for three or four minutes trying to get a look at the plants inside the greenhouse. The officers had to peek through an opening at one end of the greenhouse which was half covered with plywood. The intrusion was just as great as in Sabo.

In light of our ruling that the aerial overflight was invalid, we need not reach the other issues raised by defendant: namely, whether the affidavit fails to set forth sufficient facts to show the basis for the officer’s belief that the plants were marijuana; and whether there was probable cause to search the house trailer.

The judgment is reversed.

Newsom, J., concurred.

* Assigned by the Chairperson of the Judicial Council.

1 Defendant was sentenced to two years for possession of marijuana for sale. The sentence was stayed pending appeal, the stay to become permanent upon completion of the sentence imposed on count one.