People v. Mayoff

BIRD, C. J., Dissenting.

Today a majority of this court sanction an unparalleled program of indiscriminate aerial surveillance of the property, homes and persons of innocent citizens by the government. The opinion rejects appellant’s challenge by concluding that the government’s warrantless examination of his home and curtilage in the course of its random surveillance did not infringe upon any legitimate expectation of privacy. I do not agree.

The majority’s holding is remarkable given our recent opinion in People v. Cook (1985) 41 Cal.3d 373 [ 221 Cal.Rptr. 499 , 710 P.2d 299 ]. There, this court held that the aerial surveillance of defendant’s curtilage was an unconstitutional search under article I, section 13 of the state Constitution. Here, the majority conclude that the arguably more intrusive surveillance of Mr. Mayoff’s yard did not even constitute a search. This contradictory result not only makes the significance of the Cook holding uncertain, but brings confusion where clarity is needed. Those law enforcement agencies seeking to conform their aerial surveillance programs to constitutional requirements will find little guidance in today’s opinion. Moreover, residents of the many California counties with programs of random surveillance will enjoy no assurance that they may utilize their yards without unwarranted government intrusion.

This case aptly illustrates the dangers inherent in analyzing privacy interests according to the discredited “protected areas” approach. By focusing on what they consider to be the “diminished privacy” expectations in the area where the marijuana was discovered, the majority lose sight of the scope of the invasive conduct. In addition to their faulty analysis, the majority reach their result by drastically misreading the record or ignoring it completely. Let me explain.

The record reflects that a police aircraft was making a random search for marijuana under cultivation. The officers had no reason to believe that they would find such cultivation on appellant’s property or on any other specific property. The Attorney General does not dispute that appellant’s home, surrounding land and a nearby structure were examined and photographed when the property fortuitously came within the sights of the airborne officers. He also does not dispute that these areas were hidden from public view.

It is well settled that a warrantless ground search of appellant’s curtilage would have been per se unreasonable. (See Lorenzana v. Superior Court *1323 (1973) 9 Cal.3d 626, 634 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ]; People v. Edwards (1969) 71 Cal.2d 1096 [ 80 Cal.Rptr. 633 , 458 P.2d 713 ].) The Attorney General, however, asserts an unlimited right to examine residential property from the air. He claims this surveillance may be conducted randomly, even though such a program of surveillance would necessarily intrude upon the property of innocent persons.

The Attorney General raises two arguments to support his claims. He argues that appellant’s curtilage was in plain view of the airborne officers and that the prevalence of air traffic precluded a reasonable expectation of privacy from aerial surveillance. These same arguments were advanced in Cook and were firmly rejected. (See Cook, supra, 41 Cal.3d at pp. 380-385.)

The Attorney General raises an additional argument which was not applicable in Cook. He maintains that expectations of privacy are not reasonable in open fields. Since the marijuana gardens were located in an open field, the examination of appellant’s curtilage was of no significance. According to him, privacy interests “are not resurrected in a field by the otherwise irrelevant observation of some other place, such as a rooftop or backyard.” (Original italics.) The majority adopt this reasoning and uphold the surveillance of appellant’s property.

According to the majority opinion, this activity by the police did not infringe upon Mr. Mayoff’s privacy interests in the lands surrounding his home since, although one agent “unavoidably examined the apparently inhabited zone,” the “focus of the examination for criminal activity was the cultivated area outside the curtilage.” (Maj. opn., ante, at p. 1316.) 1 The majority’s conclusion presumes (1) that the officers only inadvertently or incidentally looked into a curtilage and (2) that no warrant is required *1324 if scrutiny of the curtilage occurs in the course of surveillance which is “focused” on discovering marijuana being cultivated beyond the curtilage.

The majority’s first premise totally ignores the fact that the officers participating in the surveillance of the property acknowledged that they examined the curtilage for evidence of criminal activity. The majority also disregard the prosecution witnesses’ extensive testimony which established that a detailed inspection of residences and their surrounding areas was an essential element of the aerial identification of marijuana. Further, the majority discount the significance of the evidence showing that an intrusion upon the curtilage commonly occurs in the course of the current program of indiscriminate aerial surveillance.

The majority’s second premise misses the point as to the fundamental principles of search and seizure analysis. One need only look to People v. Cook, supra, 41 Cal.3d 373 , to find the correct analytical framework. There, our court stated: “Determining the legality of warrantless police forays into allegedly private zones of activity was once almost exclusively a matter of ascertaining the scope of the property interests of the individual whose privacy was purportedly invaded. [Citations.] However, in 1967, Katz v. United States [1967] 389 U.S. 347 , affirmed that constitutional limitations on police searches and seizures protect ‘people, not places.’ (P. 351.) [f] Under the Katz standard as applied in California, the propriety of a warrantless governmental surveillance has come to encompass an assessment of the reasonableness of the individual’s expectation of privacy in a particular situation, wherever he is, and whether or not government agents trespassed physically on his property interests. [Citations.] The inquiry is whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid. [Citation.]

“Though location is no longer the sine qua non of search-and-seizure analysis, it remains relevant under the Katz test. The privacy one is entitled to expect in a particular place is governed primarily by common habits in the use of such property. [Citations.] [If] Thus, we guard with particular zeal an individual’s right to carry on private activities within the interior of a home or office, free from unreasonable governmental intrusion. [Citations.]” (Cook, supra, 41 Cal.3d at pp. 378-379.)

In this case, it is the traditional sanction of the outdoor area adjacent to the home—rather than the home itself—which the majority place at risk. In Cook, this court recognized the “high privacy interest in the ‘curtilage’ of a residence . . . .” (Id., at p. 379.) Cook also noted the recent holding of the United States Supreme Court that the curtilage “‘has been considered part of [the] home itself for Fourth Amendment purposes. . . (Id., at *1325 p. 380, quoting Oliver v. United States (1984) 466 U.S. 170 [ 80 L.Ed.2d 214 , 104 S.Ct. 1735 ]; see also California v. Ciraolo (1986) — U.S. — [ 90 L.Ed.2d 210, 221 , 106 S.Ct. 1809, 1816 ] (dis. opn. of Powell, J.).)

Even before Oliver, lower federal courts had viewed the home and curtilage as equivalent for purposes of Fourth Amendment analysis. (See United States v. Molkenbur (8th Cir. 1970) 430 F.2d 563 , 566 [“the curtilage . . . is entitled to the same protection as the home against search and seizure”]; Wattenburg v. United States (9th Cir. 1968) 388 F.2d 853, 857 [“[t]he protection afforded by the Fourth Amendment, insofar as houses are concerned, has never been restricted to the interior of the house, but has extended to open areas immediately adjacent thereto”]; Rosencranz v. United States (1st Cir. 1966) 356 F.2d 310, 313 [“[the Fourth Amendment] speaks of the ‘houses’ of persons, which word has been enlarged by the courts to include the ‘curtilage’”].)

Appellant’s 40-acre parcel is located in rural Humboldt County. The prosecutor indicated that the “area [was] once [a] sheep or cattle ranch and is now being subdivided into forty-acre plots ... for residential purposes.” The property contains 2 residences located 40 to 50 feet apart. The marijuana gardens were approximately 200 feet from the nearest dwelling. Another residence surrounded by several outbuildings is located on a neighboring parcel a relatively short distance from appellant’s residences. This second residence is clearly visible in the aerial photographs taken during the overflight.

Despite the majority’s suggestions to the contrary, the record reveals that the aerial inspection of appellant’s home and surrounding area was quite detailed. On July 23, 1980, Agent Brown, Detective Vulich and a pilot flew south from Eureka toward Garberville looking for marijuana cultivation. According to Agent Brown, when the plane “just happened to fly over [the Mayoff property],” the officers began examining the ground for “indicators” of illegal cultivation. Detective Vulich testified that he observed the two residences on defendant’s property, noting that they appeared to be “inhabited structures.” He also observed that one was a larger mobilehome with a light-colored roof and he estimated its square footage. Further, he examined the paths leading from the residences to the suspect gardens to see if there might be any possible indication of marijuana cultivation.

Agent Brown examined the two residences on the property. One of the residences was a mobilehome with a wooden addition built on and the other was a smaller trailer located just down the road. The first indication of possible marijuana cultivation were “the paths leading . . . from the residence to the garden sites. . . .’’He observed that the gardens were planted *1326 in uniform rows and noted their distance from the residence. Agent Brown admitted that his surveillance “encompass[ed] quite a bit . . . .” This admittedly purposeful surveillance of the curtilage belies the majority’s characterization as an unavoidable or inadvertent glimpse of the residences.

On August 4,1980, Detective Vulich returned to the skies over appellant’s property, again without a warrant. During this second surveillance, he took numerous photographs, not only of the suspected marijuana gardens but also of appellant’s residences and their adjacent lands. Vulich photographed the neighboring farmhouse and its curtilage with an 80-200-millimeter telephoto lens. 2

The record also makes clear that scrutiny of the curtilage is essential to the aerial identification of marijuana even when the suspect garden technically lies outside of the curtilage. The two officers participating in the surveillance of appellant’s property had been trained in aerial marijuana identification and had a combined total of almost 20 years in making such identifications. Both officers admitted that from the altitudes maintained marijuana plants could not be distinguished from other plants which might be found in a typical vegetable garden.

The officers were able to form an opinion about the nature of the plants only by reference to external “indicators.” Three of the four primary indicators the officers were trained to look for require an inspection of the curtilage. In addition to “row-like” planting and/or the color of the garden, the proximity of the residence to the garden, the presence of pathways leading from the residence to the garden and the presence of water storage were taken into account. Thus, contrary to the majority’s suggestion, it appears that an intensive inspection of the curtilage was a prerequisite for establishing probable cause to validate the later ground search.

A fundamental problem with the majority’s analysis is that it assumes that the “principal focus” of the surveillance in this case was confined to open fields. (Maj. opn., ante, at p. 1308.) The state has never suggested *1327 that the surveillance program is limited to open fields. Instead, it argues that aerial surveillance of all lands—curtilage and field—is constitutionally permissible. 3

It is clear from the aerial surveillance cases before us that the majority’s characterization of the surveillance program does not comport with reality. This court recently granted review in several cases involving aerial surveillance. The most distant gardens in these cases were found 200 to 300 feet from the residence. (People v. Kramer (Cal.App.) hg. granted Mar. 22, 1984 (Crim. 23607); People v. Agee (Cal.App.) hg. granted May 24, 1984 (Crim. 23738).) In another case, a few marijuana plants were found in vegetable gardens within 20 feet of the home, and more were found next to a swimming pool and greenhouse—clearly within the immediate curtilage. (People v. Liondakis (Cal.App.) hg. granted May 31, 1984 (Crim. 23752).) In still another case, the officers spotted a few marijuana plants in a small roofless greenhouse located next to the residence in an enclosed backyard (People v. Fitzgerald (Cal.App.) hg. granted May 24,1984 (Crim. 23736).) In all but one of these cases, the gardens appear to have been relatively small in scale.

It is apparent, then, that the focus of the officers’ attention was wherever they happened to spot areas of lush green vegetation which might be indicative of marijuana cultivation. In this case, that location happened to be an area 200 feet from the nearest sign of human habitation. In other cases, the suspicious vegetation—and therefore, the focus of police attention— was as near as 20 feet from an apparently inhabited dwelling or in an enclosed backyard. There is absolutely no evidence to support the majority’s assertion that the focus of police surveillance excluded curtilage areas.

Further, the majority completely ignore the extensive testimony regarding the nature of the aerial surveillance program operated in Humboldt County. The program is conducted from June through November of each year. The flyover program covers virtually the entire county outside of the municipal areas of Eureka, Areata and Fortuna. 4 The officers “terrace” or survey an area by flying in a zigzag fashion, “looking constantly” at the ground. The *1328 area surveyed is not limited to open fields; towns and communities are “searched” as well.

When the officers “see something that [they] think may be suspicious” they begin circling to inspect the area in greater detail and sometimes fly at a lower altitude. During this process, they examine nearby residences and the areas surrounding them. From the air, they are able to observe people and vegetable gardens planted “fairly close” to homes. The officers also examined residences and curtilages from the air even when they observed no marijuana gardens in the vicinity. None of the officers indicated that they made any attempt to avoid examining homes or adjacent yards.

Despite substantial evidence indicating the general intrusiveness of the program the officers’ admission that they conducted a purposeful examination of appellant’s curtilage, the majority conclude that the random surveillance did not constitute a search under either the federal or state Constitutions. I strongly disagree. The aerial surveillance of appellant’s property clearly violated our state Constitution.

The police had no prior information regarding marijuana cultivation on any property. They were flying over and indiscriminately examining the ground for marijuana gardens. When appellant’s property came within sight, the officers surveyed that area. Flying at 1,000 feet, they examined appellant’s curtilage and fields for evidence. The police returned to the property on a second occasion, again flying at 1,000 feet, and extensively photographed the residences and the curtilages.

The majority conclude that the police conduct did not implicate appellant’s privacy interests. The majority distinguish Cook, supra, 41 Cal.3d 373 by the fact that here, the marijuana garden was found outside the curtilage (see maj. opn., ante, at pp. 1307, 1316; but see ante, fn. 1), while the marijuana garden in Cook was observed inside the curtilage. (Cook, supra, 41 Cal.3d at p. 378.) The majority’s theory is that “the open fields doctrine providefd] an initial justification for the officers’ airborne presence.” (Maj. opn., ante, at p. 1317.) Because the police investigation “focused” on an area 200 feet from the residence and “merely notice[d]” the relationship of dwellings to the focused area, the surveillance was not objectionable. (Id., at p. 1317.) The majority indicate, however, that scrutiny of the curtilage “for the particular purpose of confirming a suspicion that criminal activity is taking place there,” remains unconstitutional. (Id., at p. 1316.) 5

*1329 Even under the majority’s own test, one would have to conclude that the surveillance in this case was unconstitutional. As the uncontroverted testimony of the two airborne officers establishes, they examined the area surrounding appellant’s home for evidence of criminal activity. The fact that the officers failed to find marijuana inside appellant’s curtilage does not make the scrutiny of that area any less purposeful.

It cannot be disputed that the officers’ inspection of appellant’s curtilage was at least as intrusive as the inspection in Cook, supra, 41 Cal.3d 373 . The infringement of appellant’s “high privacy interest” in his curtilage was no less invasive even if one were to assume that the purpose of this inspection was only to confirm a suspicion of marijuana cultivation in a field. However, the majority overlook this simple truth by once again examining the issue through a “zones-of-privacy” approach. Under the majority’s reasoning, protection from government intrusion depends not on the extent to which legitimate privacy expectations are infringed, but on the zone in which the contraband is discovered. If found in a zone of “diminished privacy,” then the intrusion upon other zones becomes, to use the Attorney General’s term, “irrelevant.” 6

In Cook, this court recognized that the concept of protected zones has little meaning when it comes to aerial surveillance. “Purposeful surveillance from the air simply lays open everything and everyone below—whether marijuana plants, nude sunbathers, or family members relaxing in their lawn chairs—to minute inspection. The usual steps one might take to protect his privacy are useless.” (People v. Cook, supra, 41 Cal.3d at p. 382.)

The majority’s unprecedented conclusion, that random aerial searches can be “focused” to detect illegal crop cultivation without infringing upon “innocent activities occurring within a legitimate zone of protected privacy” (maj. opn., ante, p. 1317), flatly ignores the reality of indiscriminate surveillance. At the same time the majority urge the aerial police to avoid scrutiny of the curtilage, they restrict their flights to altitudes from which the officers admit they are unable to identify marijuana cultivation without reference to the curtilage.

*1330 Even if the officers wanted to “focus” their attention only on open fields, it should be obvious that any such attempt would be futile in a program of systematic, indiscriminate surveillance of private lands from the air. To implement the majority’s requirement, the officers will be required to examine an area first in order to determine if it is off-limits. This will be particularly problematic in this present context since broad curtilages surround many rural homesteads and it is difficult to determine the outer boundaries of private property.

Today’s ruling all but abolishes the constitutional protection recognized in Cook for residents of rural and semirural counties. In its place, these residents are left with the illusory protection of a requirement that law enforcement officials “focus” their attention on open fields during random overflights of the residents’ homes and yards. Nothing in the majority opinion prohibits plain view observations of activities within curtilage areas, so long as the observer’s attention is “focused” on a nearby open field.

As one commentator observed, the right to be free from unreasonable searches “protects not against incrimination, but against invasions of privacy—or rather ... of the right to maintain privacy without giving up too much freedom as the cost of privacy. The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not.” (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 403 [hereafter Fourth Amendment].)

The constant threat of surveillance during random overflights will require individuals “to erect opaque cocoons within which to carry on any affairs they wish to conduct in private, and the concomitant chill such a requirement [will] place on lawful outdoor activity, [is] inimical to the vision of legitimate privacy which underlies our state Constitution.” (See Cook, supra, 41 Cal.3d at p. 377.) 7

Random surveillance is nothing more than an exploratory search, i.e., an effort to discover evidence of criminal activity undertaken without a warrant, probable cause or even particularized suspicion. Such searches are viewed with profound disfavor precisely because they threaten the security of the law-abiding as well as the lawbreaker, chilling the legitimate activities of the innocent as well as the illicit schemes of the guilty. (See, e.g., People *1331 v. Triggs (1973) 8 Cal.3d 884 [ 106 Cal.Rptr. 408 , 506 P.2d 232 ]; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 606 [ 21 Cal.Rptr. 552 , 371 P.2d 288 ], citing People v. Schaumloffel (1959) 53 Cal.2d 96, 100-101 [ 346 P.2d 393 ]; People v. Roberts (1956) 47 Cal.2d 374, 378-379 [ 303 P.2d 721 ]; People v. Mills (1957) 148 Cal.App.2d 392, 399-401 [ 306 P.2d 1005 ].) 8

Nevertheless, the majority claim such invasions of personal privacy are necessary to advance the significant law enforcement objectives at stake. I cannot agree. It is possible to serve the legitimate governmental purposes of the surveillance program without sacrificing the privacy rights of our citizens who live in areas where there will be indiscriminate police surveillance.

Many of the counties subject to random aerial surveillance programs contain vast areas of public lands. The Attorney General asserts that a substantial proportion of the marijuana cultivation occurs on such lands. Also, there is evidence that marijuana growers are increasingly reacting to the aerial surveillance programs by moving their operations to public lands in order to avoid detection. The impact of marijuana cultivation on the users of public lands, such as “hikers, campers, fishermen, and hunters,” is a significant governmental objective of the surveillance program cited by the majority. (Ante, p. 1308, fn. 2.) The majority state that the transformation of rural areas “formerly open to recreational use into illegal armed camps *1332 posing a danger to innocent wanderers is a major social and environmental problem which itself implicates precious personal freedoms.” (Ibid.)

A program of random aerial surveillance could be operated in conformity with constitutional principles if restricted to publicly owned lands where there generally would be no infringement upon the elevated privacy rights of any residences or any curtilage areas surrounding residences. Aerial surveillance of specific privately owned fields could be permitted to confirm reports of marijuana cultivation. In view of the unique problems identified by the Attorney General, this latter surveillance might be allowed on the basis of a reasonable and particularized suspicion. A program restricting indiscriminate surveillance to public lands and allowing site-specific searches of private fields on less than probable cause, would permit law enforcement agencies to survey a substantial portion of the area of suspected cultivation and would also serve to combat any danger to recreational users of the land. Such a program would at the same time protect the legitimate privacy rights of our innocent citizens living in our rural counties.

The inquiry in any search and seizure case should be “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.” (Fourth Amendment, supra, 58 Minn.L.Rev. at p. 403.) The procedures at issue here “too closely resemble [] the process of the police state, too dangerously intrude[] upon the individual’s reasonable expectancy of privacy, and thus too clearly transgress [] constitutional principle” to be left substantially unregulated. (Lorenzana v. Superior Court, supra, 9 Cal.3d at p. 629 .)

By permitting indiscriminate aerial surveillance, the majority effectively limit the traditional sanctity of residential property to the area enclosed by the four walls of the dwelling house. Such a holding is inconsistent with those principles which separate our open and democratic society from societies in which the government may spy on its citizenry unfettered by the rule of law.

Respondent’s petition for a rehearing was denied January 29, 1987.

Since the record clearly shows that the police infringed upon appellant’s reasonable expectations of privacy in the area immediately surrounding his home, it is unnecessary to address the majority’s conclusion that the garden sites were located in an open field. It is not clear, however, how it could have been at once apparent to the officers in the air that appellant’s home and the gardens were functionally related and at the same time obvious that the gardens were not part of appellant’s curtilage (maj. opn., ante, at p. 1319), especially given that courts have found areas much more distant than these gardens to be within the curtilage. (See United States v. Van Dyke (4th Cir. 1981) 643 F.2d 992 [honeysuckle patch beyond mowed lawn and 150 feet from rural residence within the curtilage]; Sanders v. State (1978) 264 Ark. 433 [ 572 S.W.2d 397 ] [marijuana and vegetable garden separated from house trailer by a fence and lying 100 to 200 yards from the trailer within the curtilage]; Norman v. State (1975) 134 Ga.App. 767 [ 216 S.E.2d 644 ] [small meadow behind a barn which was itself located 100 feet from a farm house within the curtilage]; Brinlee v. State (Okla.Crim.App. 1965) 403 P.2d 253 [lot adjacent to barn and 100 yards from house within the curtilage]; Walker v. United States (5th Cir. 1955) 225 F.2d 447 [barn 70 to 80 yards from dwelling and separated from house by a private driveway within curtilage].)

The majority argue that the photographs indicate that the “details of human activity could scarcely have been discernible from the aircraft.” (Maj. opn., ante, at p. 1316.) This is somewhat misleading. Two aerial photographs are part of the record on appeal. Testimony below revealed that one of these photographs was taken at an altitude “a lot higher” than the other. The photographs bear out this assertion. We do not know the altitude represented by the lower photograph and have no idea whether it was taken from the lowest altitude flown during the surveillance of appellant’s property.

Reference was also made below to several other photographs which are not included in the record on appeal. We do not know what these photographs portrayed. Finally, the majority overlook the testimony suggesting that the officers were able to observe appellant’s property in great detail, as well as the testimony that people are clearly visible during the surveillance flights.

This explains in part why the trial court testimony simply does not square with the majority’s view of a program of “limited surveillance.” The prosecution never sought to establish that the program was restricted to open fields or that the surveillance did not encompass the curtilage. Rather, the prosecution’s witnesses freely admitted that they inspect residential property for evidence of criminal activity. Even the prosecutor elicited testimony inconsistent with the majority’s characterization of the program.

Although municipalities are not included in the surveillance program, the officers admitted that it is impossible to avoid observing yards from the air. Indeed, marijuana gardens have been identified even in cities.

Each of the other facts cited by the majority to support their finding that the surveillance was permissible was present in the surveillance of the Cook property. Here, they explain, *1329 the property was located in a rural area (maj. opn., ante, at p. 1309); in Cook it was located in a semi-rural area (41 Cal.3d at p. 377). Here, they note, the plane flew over the property on only two occasions (maj. opn., ante, at p. 1309); in Cook only one overflight occurred (41 Cal.3d at p. 377). Finally, here, the plane maintained an altitude of over 1,000 feet during each flight (maj. opn., ante, at p. 1316); in Cook the plane maintained an altitude of at least 1,600 feet (41 Cal.3d at p. 377).

Presumably the majority would have upheld the surveillance in Cook had the officers discovered during the overflight that the marijuana was actually growing not in Mr. Cook’s yard, but in an adjacent field. Under the majority’s analysis, even though the intrusiveness of the surveillance would have been the same, the location of the discovery would have rendered the overflight constitutional.

This case illustrates how the random surveillance program can infringe upon the privacy rights of the innocent. In the course of the surveillance of this area, the officers unavoidably intruded upon the homestead adjacent to the Mayoff property, as to which there was no suspicion of criminal activity.

The searches conducted in colonial America under the general warrants and the writs of assistance are regarded as “one of the primary causes of the American Revolution” and the inspiration for the constitutional prohibition against unreasonable searches and seizures. (Schaefer, Aerial Surveillance and the Fourth Amendment (1984) 17 J. Mar. L.Rev. 455, 460; see also Fourth Amendment, supra, 58 Minn.L.Rev. at pp. 363, 366.) “[T]he primary abuse thought to characterize the general warrants and the writs of assistance was their indiscriminate quality, the license that they gave to search Everyman without particularized cause . . . .” (Fourth Amendment, supra, 58 Minn.L.Rev. at p. 366.) “‘[WJarrants lacking strict particularity as to location to be searched or articles to be seized were deemed obnoxious’ because of the root principle stated by Lord Mansfield: that ‘[i]t is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.’ The power asserted by the English messengers and colonial customs officers and condemned by history was ‘a discretionary power ... to search wherever their suspicions may chance to fall,’ ‘a power that places the liberty of every man in the hands of every petty officer.’” (Id., at p. 396, fns. omitted.)

Today, the sound of English messengers at the doorstep has been replaced by the drone of the police surveillance plane. As with the general warrants, a dangerous consequence of indiscriminate aerial surveillance is the intrusion on the privacy of citizens without particularized cause. As the testimony in this case proves, the surveillance officers examine an area in detail whenever their glances fall on “something [they] think may be suspicious." The officers have unfettered discretion to decide whose privacy will be invaded. These parallels to colonial times are especially significant since these very characteristics of the general warrants and writs of assistance led to the enactment of the Fourth Amendment and in no small measure inspired the creation of this democratic society.