Petition for Writ of Certiorari — California v. Ciraolo

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7) Office. Supreme Court, US,

. 84- 15130

FILED

MAR 22 1989

ALEXANDER L. STEVAS,

CLERK

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1984

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

DANTE CARLO CIRAOLO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT

JOHN K. VAN DE KAMP,

A‘:torney General

State of California

STEVE WHITE

Chief Assistant Attorney General

EUGENE W. KASTER

Deputy Attorney General

LAURENCE K. SULLIVAN

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-3653

Attorneys for Petitioner

QUESTIONS PRESENTED

Whether police observation from air-

craft of a fenced residential yard

is a search under the Fourth

Amendment of the United States

Constitution.

May police reasonably rely on a

judicial warrant to seize contraband

when probable cause is based on an

aerial observation which is fully

disclosed to the magistrate but

subsequently held unlawful?

ii.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED i

OPINIONS BELOW 2

JURISDICTION 2

CONSTITUTIONAL PROVISIONS

INVOLVED 3

STATEMENT OF THE CASE 3

A. STATE PROCEEDINGS 3

B. PACTS 5

REASONS FOR GRANTING THE WRIT 8

ARGUMENT

I A PHYSICALLY NONINTRUSIVE

OBSERVATION OF A READILY

SEEN OBJECT IN A FENCED YARD

FROM AIRCRAFT IN NAVIGABLE

AIRSPACE IS NOT A £TARCH 12

II EVIDENCE SEIZED IN GOOD FAITH

RELIANCE ON A JUDICIAL WARRANT

IS ADMISSISLE WHERE PROBABLE

CAUSE IS SUBSEQUENTLY DEEMED A

PRODUCT OF AN ILLEGAL SEARCH

FULLY DISCLOSED TO THE

MAGISTRATE 20

CONCLUSION 27

iii.

TABLE OF AUTHORITIES

Alderman v. United States,

394 U.S. 165, 177 (1969)

Dow Chemical Co. v. United States,

749 F.2d 307, (6th Cir. 1984)

Illinois v. Gates,

462 U.S. 213, 238 (1983)

United States,

347 (1967)

lullen,

037 RPA (D.C.N.Cal.

United States,

_,» 80 L.Ed.2d 214,

104 s.ct. 1735, (1984)

Joube t.

People v. St. Amour,

“ — 886 (1980)

~~ 37 Gok een 34 "B36 T8794)

Randall v. State,

733 So.2d 822, (Pla.App.2

Dist. 1984)

State v. Knight,

621 P.2d 370 (Hawaii 1980)

PAGE

8,13

Iv.

TADLE OF AUTHORITIES (CONT).

Tuttle v. Superior Co

120 Cal.App.3d 320

] c

United St tates v. eT tie

cuted States Ve yee sn

984)

PAGE

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California Health & Safety Code

§ 11358

§ 11360(a)

Title 28, United States Code

5 12573) .

42 U.S.C.

5 1983 18

— ‘a . - . >

tead States Constitution

> a

_— ie

OPINIONS BELOW

The opinion filed by the

California Court of Appeal is reported at

161 Cal.App.3¢@ 1081, 208 Cal.Rptr. 93.

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Court denied the People's petition for

hearing (Appendix C). By orders filed

February 15 and March 14, 1985, the

California Court of Appeal stayed its

his petition. (Appendices D, £).

This Court's jurisdiction is

invoked under Title 28, United States

Code, section 1257(3).

On August 8, 1983, respondent

was charged in the Santa Clara County

Superior Court, with felonious.y

cultivating and selling marijuana (Cal.

Health & Saf. Code, §§$ 11358, 11360(a)).

Citing Katz v.

389 U.S. 347 (1967), respondent

Fourth Amendment. Respondent moved

unsuccessfully in the trial court to,

under a search warrant. (CT 25-31, 33-41,

81). Respondent later pled guilty to the

cultivation charge (CT 92-93).

Respondent appealed to the

California Court of Appeal, First

Appellate District. (CT 109). At that

court's request, the parties addressed

United States v. Leon, 468 U.S. , 82

L.Ed.2d 677, 104 S.Ct. 3405 (1984).

(Appendix A:4).

The California Court of Appeal

reversed; holding that the aerial

observation was a warrantless search of

the curtilage violating the Fourth

Amendment, the California court suppressed

all evidence. "Leon has no application

. - e [A]n unconstitutional search cannot

be ... the basis for ... a search

warrant or the Fourth Amendment would be

rendered meaningless," the court held.

(Appendix A:6, 8-9; citations and fn.

omitted.)

B. FACTS

On September 2, 1982, Santa

Clara police narcotics officer Schutz

received an anonymous phone message that

marijuana was seen growing in the

backyard of respondent's residence.

(CT S, 7-8, ll, 14, 36, 37). Officer

Schutz was unable to observe the yard

from the ground because of a 6-foot

outer fence and an inner fence

approximately 10-feet high. Officer

Schutz was aware that marijuana growers

frequently conceal cultivation by

elevated fences. (CT 15, 37-38).

Later that day, Schutz

chartered an airplane at the San Jose

airport to observe and photograph the

yard. (CT 11-12, 38). Flying at not

less than 1000 feet altitude, and

without visual aids, Schutz identified

by its distinctive color, then

photographed, a 15 by 25 foot marijuana

garden of 8 to 10 feet tall plants within

the inner fence. (CT 12-16, 38).

Officer Schutz made ten to

twelve observations of houses during the

same flight, each based on a report of

marijuana cultivation. Five reports were

confirmed. Other aircraft, using the San

Jose airport, were in the area.

(CT 11-12, 15-17).

On September 8, 1982, Schutz

obtained a search warrant. His affidavit

described in detail the tip, the ground

and aerial observations, as well as the

plane's altitude and the absence of

visual aids for the aerial sighting.

(CT 34-40) .2/ The warrant was executed

the following day. Seventy-three

marijuana plants averaging eight feet

2. An aerial photograph, attached

to the affidavit, depicts an area of

homes and streets including responcent's

property. (CT 14, 15, 49).

tall were seized from respondent's yard.

(CT 6, 17).

REASONS FOR GRANTING THE WRIT

The California Court of Appeal

ignores the reasoning in Oliver v.

United States, 466 U.S. , 80 L.Ed.2d

214, 223-227; 104 S.Ct. 1735, 1740-1743

(1984), regarding reasonable expectations

of privacy, to hold that aerial

observation of a fenced residential yard

is subject to the Fourth Amendment's

warrant requirement. This decision

conflicts with both federal and state

decisions upholding physically

unobtrusive aerial observation of areas

immediately surrounding a home which were

closed to ground view from outside the

property. (United States v. Bassford,

F.Supp. , No. 84-22-8 (D. Maine,

filed Jan. 28, 1985); Randall v. State,

458 So.2d 822, 824-826 (Fla.App.2 Dist.

1984); State v. Stachler, 570 P.2d 1323,

1326-1329 (Hawaii 1977); State Vv.

Rogers, 673 P.2d 142, 143-144 (N.M.App.

1983). Cf. People v. Sneed, 32

Cal.App.3d 535, 540-543 (1973)

[intrusive low altitude]; State v.

Knight, 621 P.2d 370, 373 (Hawaii 1980)

[following Stachler but rev'd on other

grounds].)2/ This Court should

intervene to resolve that conflict.

Law enforcement will be severely

hampered by this’ ruling. Under the

decision, marijuana cultivation is

entitled to "privacy" within fenced

residential yards. Unless police are on

routine air patrol - an’ unprincipled

distinction by the California Court

which also conflicts with those

3. Presently before this Court is a

case involving visually augmented aerial

surveillance of "industrial curtilage”.

Dow Chemical Co. v. United States, 749

F.2d 307, (6th Cir. 1984), petition for

cert. filed, 53 U.S.L.W. 3656 (U.S. Feb.

7, #$1985) (No. 84-1259). Cf. United

States v. Marbury, 732 F.2d 390, 398-399

(Sth Cir. 1984) (aerial surveillance of

commercial gravel pit upheld.).

10.

decisions - officers must _ henceforth

guess if they are seeing solidly fenced

curtilage, open field or a combination.

The impracticality of this decision and

its adverse impact on California's

efforts against marijuana cultivation

justify review.

The California Court of

Appeal's grudging interpretation of

United States v. Leon, supra, 468 U.S.

___, 82 L.Ed.2d 677, 104 S.Ct. 3495

(1984) merits certiorari standing alone.

Under the Court of Appeal's

interpretation of Leon, objectively

reasonable reliance by police on a

judicial warrant to seize property is

irrelevant if the warrant is subsequently

deemed fruit of an illegal search. (Cf.

United States v. Henderson, 746 F.2d 61%,

624-625 (9th Cir. 1984) [conflicting in

principle].)

nis

ie)

at their peril when they rely in good

faith on a judicial warrant to seize

property when the magistrate reasonably

found probable cause was lawfully

acquired. This point has not been lost

on the United States Court of Appeals

for the District of Columbia Circuit

which recently applied Leon on that

basis. United States v. Thornton, 746

F.2d 39, 49 (D.C. Cir. 1984).

Expression of that principle by this

Court will ensure Leon's consistent

application in the frequently

encountered se where probable cause

for a warrant is undermined by a

reviewing court's subsequent appraisal

of earlier police conduct.

A PITYSICALLY NONINTRUSIVE

OBSERVATION OF A READILY

SEEN OBJECT IN A FENCED YARD

FROM AIRCRAFT IN NAVIGASLE

AIRSPACE IS NOT A SEARCH

The California Court of Appeal

finds aerial observation by police of

marijuana plants in a fenced yard to be

"a direct and unauthorized intrusion into

- « « the home.*® (Appendix A:19).

Curtilage, closed to ground view, is now

ictionally opaque to all California

peace officers not on routine air

The lower court fails to

acknowledge that “the scope of the

curtilage exception to the open fields

doctrine or the degree of Fourth

Amendment protection afforded the

curtilage, as opposed to the home

itself*® was reserved by this Court in

13.

Oliver v. United States, supra, 466 U.S.

at _» 80 L.Ed.2d at 225, fn. ll, 104

from the air, but refers to “lands".

Indeed, the Fourth Amendment has never

been extended by this Court to preclude

~~.

cn)

14]

>»bservation from public places of

La |

ie™

ng,

vi)

if)

rernible items on particular

premises. (See United States v. Knotts,

460 U.S. 276, 282 (1983).) Airplanes in

navigable space, not physically

interfering with the enjoyment of

property below, occupy such public

places. (See United States v. Causby,

328 U.S. 256, 261, 266 (1946).)

The Court of Appeal erroneously

concludes that the height and existence

of respondent's fence manifests a

reasonable expectation of privacy.

Oliver v. United States, supra, 466 U.S.

___» 80 L.Ed.2d at 227; 104 S.Ct. at

1743, however, holds that private fences

do not establish an expectation of

privacy recognized by society. "Rather

the correct inquiry is whether the

government's intrusion infringes upon the

Society is not prepared to

recognize the legitimacy of privacy

expectations from physically nonintrusive

observation from navigable airspace, when

objects, readily observable wit the

naked eye, are knowingly placed within

curtilage open to aerial view. (See

United States v. Sassford, supra, slip

Op. at 6-7, 10-ll; State v. Stachler,

supra, 570 P.2d at 1328-1329; State v.

Rogers, 673 ?.2¢ at 143-144). In such

circumstances, “*|s]ocie willing

ty appear

to accept aerial surveillance as a

15.

reasonable and necessary investigative

tool in effective modern law

enforcement.” (Randall v. State, supra,

458 So.2d at 825.)

Moreover, “([t)here would appear

to be no sound basis for distinguishing

between ‘curtilage’ and ‘noncurtilage'

areas equally visible from the air. In

most cases it would be impracticable to

view one without contemporaneously

viewing the other." (United States v.

Bassford, supra, slip op. at 7.)

Under the Court of Appeal's

decision, the airborne officer will

"have to guess before every search

whether landowners had erected fences

sufficiently high ... to establish a

right of privacy.” (Oliver v.

United States, supra, 466 U.S. ___, 80

L.Ed.2d at 226; 104 S.Ct. at 1742-1743.)

Police will have to decide if a fence

encloses curtilage, open fields or a

officer will not know whether he

“searched” or only “looked" until he

already has seen. The decision provides

no meaningful guidance to police.

There is an urgent need to

provide such guidance. This decision

will severely impair law enforcement

efforts to reduce marijuana cultivation

in California. This Court's recent

decisions illustrate the significant role

played by aerial observation in the

field. (See e¢.g., United States v.

Knotts, supra, 460 U.S. 276, 279.)4

4. That role has not ._ gone un

by commentators, (see,

e : ane Vi

y) and has provoked }

» Annotation, Aerial Obse

Tliance As Violative OF

gainst Un

(FOOTNOTE 4 CONTINUED ON NEXT PAGE)

1?.

Because the California court's

exception for routine patrol observation

is unrealistic, its decision will

provide safe havens for the California

marijuana industry so long as it prunes

eritical role played by aerial

surveillance in drug enforcement

justifies this Court's review.

Confusion is now growing in

this area such that a definitive

(FOOTNOTE CONTINUED):

Comment, Fourth

Servalt tance fo.Catlfornts 2] anta

ara L.Rev. 779 ( omment , rod ics

acnny fons: The _ sett heasonable

Pxpectatic

18.

statement of law is required. Recently,

for example, the Federal District Court

for the Northern District of California,

acting under 42 U.S.C. § 1983, granted a

preliminary injunction against state and

federal officials overseeing California's

Campaign Against Marijuana Planting

(CAMP) enjoining, inter alia, use of

helicopters for surveillance except of

open fields. However, under the terms of

the injunction, this prohibition does not

apply to fixed wing aircraft. NORML v.

Mullen, No. (83-4037 RPA (D.C.N.Cal.,

1985) (Order Granting Preliminary

Injunction) 33.

When viewed in light of Mullen,

the Fourth Amendment's application to

aerial observation of curtilage, after

Ciraolo, is a puzzle. This Court should

intervene so that police flying in

navigable airspace in a physically

19.

nonintrusive manner are allowed to see

objects openly visible to anyone who

looks.

In this case, officers did

precisely that. There is no hint of

repeated flyovers or other harassment.

Police were 1000 feet or higher over a

city accustomed to air traffic from a

neighboring airport. The marijuana

garden, composed of 8 to 10 feet tall

plants, was readily distinguishable by

its size, the plants’ height and their

distinctive color. Not readily

distinguishable from the air or the

ground or the law was the boundary

created by the California court

separating protected from unprotected

areas. The police deserve brighter

lines than provided by this decision.

20.

EVIDENCE SEIZED IN GOOD FAITH

RELIANCE ON A JUDICIAL WARRANT

IS ADMISSIBLE WHERE PROBABLE

CAUSE IS SUBSEQUENTLY DEEMED A

PRODUCT OF AN ILLEGAL SEARCH

FULLY DISCLOSED TO THE

MAGISTRATE

The California Court of Appeal

flouts United States v. Leon, supra, 458

U.S. __, 82 L.Ed.2d 677, 104 S.Ct. 3405

(1984) which it deems inapplicable

whenever a warrant is based on

information that is later ruled illegal.

Leon does not support such an

overbroad holding. Evidence seized in

good faith reliance on a judicial warrant

is admissible when the magistrate

reasonably found probable cause was

acquired lawfully, notwithstanding a

subsequent contrary determination. In

United States v. Thornton, supra, 746

F.2d 39, the Court of Appeals’ was

confronted with the claim that a

warrantless search of a trash can was

21.

unconstitutional, thus, rendering

probable cause for a later search

warrant insufficient. The court found

it unnecessary to reach the question,

under Leon: "It was eminently

reasonable for the Superior Court judge

[who issued the warrant], and the police

officers, to believe that the trash bag

search was constitutional" under the

"overwhelming weight of authority”

upholding such searches. (Id., at 49;

fn. omitted).

The California Court of Appeal,

however, observes that Leon neither

applies to warrantless searches’ nor

overrules the "fruit of the poisonous

tree” doctrine. (Appendix A:6). From

this truism it discerns another:

22.

"{A]n unconstitutional

search cannot be ... the

basis for ss a search

warrant...”

(Appendix A: 8; fn. and citations

omitted.) It concludes that "Leon does

not permit the use of the evidence

seized in the instant case." (Appendix

A:5).

The conclusion does not follow

from its premises. Of course, an

illegal search may not “form the basis

for an arrest or search warrant or for

testimony at the homeowner's trial,

since the prosecution would be using the

fruits of a Fourth Amendment violatjon

[citations]." Alderman v. United States

394 U.S. 165, 177 (1969). That

principle, however, merely establishes a

factual predicate to Leon's application

here. The warrant has been found

23.

defective, subsequent to its execution,

based on an illegal search, according to

the California Court of Appeal.

The Fourth Amendment imposes no

obligation on police to describe, when

seeking a warrant, the precise method by

which facts were gathered, so long as

probable cause is_ present. (See

Illinois v. Gates, 462 U.S. 213, 238

(1983). When police go further and

detail how probable cause was acquired,

a magistrate's warrant is an implicit

judicial determination that probable

cause was obtained constitutionally. If

that appraisal is subsequently

overturned, when it was reasonable under

the law at the time, the officer seizing

property under the warrant stands in

identical relation to the Fourth

Amendment as the officer in Leon. The

property is seized by police relying in

good faith on a judicial officer's

24.

Fourth Amendment determination which

later proves erroneous. Leon compels

that the error be ascribed to its

legitimate source, the magistrate, and

the evidence admitted.2/

The California Court of Appeal

believed that Leon was impliedly limited

by Segura v. United States, supra, 468

U.S. , 82 L.Ed.2d 599, 104 S.Ct. 3380.

5. Cf., United States v. Henderson,

supra, 746 F.2d 619, 624-625 (9th Cir.

1984), where evidence, seized under a

search warrant based on results’ of

beeper monitoring, authorized by court

order, was held admissible under Leon.

The reviewing court assumed that United

States v. Karo, 468 U.S. , 82 L.Ed.2d

530; 104 S.Ct. 3296 (1984) retroactively

invalidated the beeper order, leaving

the search warrant affidavit insufficient

without the beeper information. Even so,

"the search warrant was based on a

probable cause determination that

comported fully with applicable legal

standards at the time,” which allowed

warrantless beeper monitoring. (746 F.2d

at 625). While the existence of the

beeper order factually distinguishes

Henderson, its rationale conflicts in

principle with the California Court of

Appeal's holding.

25.

Were a contrary reached, according to

the California court, the Fourth

Amendment would “be rendered

meaningless” by Leon. (Appendix A:7-9;

fn. and citations omitted.) We

disagree.

Segura held, inter alia, that a

prior unlawful search did not invalidate

a search warrant based on information

acquired independent of the _ police

illegality. Nothing in Segura implies

that government conduct, reasonably

found constitutional by a magistrate,

but subsequently deemed illegal, compels

suppression of evidence seized in good

faith reliance on a search warrant.

Meaningful deterrence of the

prior unlawful police conduct is

obtained by excluding direct results of

the unconstitutional search. (Segura v.

United States, supra, 468 U.S. , 82

L.Ed.2d at 608, 104 S.Ct. at 3386.)

ee A ta

26.

Thus, information acquired during the

overflight, if illegal, is inudheetble

at any trial. The Fourth Amendment,

rather than being rendered meaningless,

is fully vindicated.

In this case, Officer Schutz

described in his affidavit the manner by

which the crucial aerial observation was

made. The magistrate necessarily

concluded, on a legitimate view of the

law at the time ,/ that the overflight

complied with the Fourth Amendment. The

California Court of Appeal's subsequent

decision to the contrary does not

6. See, e.g., Tuttle v. Superior

Court, 120 Cal.App.3d 320, 327 (1981),

cert. denied, 454 U.S. 1033 (1981);

People v. Joubert, 118 Cal.App.3d 637,

645-646 (1981) (quoting State Vv.

Stachler, supra, 570 P.2d 1323); People

v. St. Amour, 104 Cal.App.3d 886, 891-894

(1980); People Vv. Superior Court

(Stroud), 37 Cal.App.3d 836, 839-840

(1974); People v. Sneed, supra, 32

Cal.App.3d at 542-543 (dictum).

27.

preclude reasonable reliance by police on

the warrant.

CONCLUSION

For the foregoing reasons, this

Court is respectfully requested to grant

a writ of certiorari to review the

judgment and opinion of the California

Court of Appeal.

DATED: March 22, 1985

JOHN K. VAN DE KAMP, Attorney General

of the State of California

STEVE WHITE

Chief Assistant Attorney General

EUGENE KASTER

Deputy Attorney General

LAURENCE K. SULLIVAN

Deputy Attorney General

Attorneys for Petitioner

APPENDIX A

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FILED

November 20, 1984

Court of Appeal - First App. Dist.

By: Clifford C. Porter, Clerk

Deputy

PEOPLE OF THE STATE )

OF CALIFORNIA, )

) No. AO26048

Plaintiff and )

Respondent, ) Santa Clara

) County Superior

Vv. ) Court No. 88043

)

DANTE CARLO CIRAOLO, )

)

Defendant and )

Appellant. )

)

Defendant/appellant Dante Carlo

Ciraolo appeals his conviction of

cultivation of marijuana (Health & Saf.

Code, § 11358) following his plea of

guilty, contending the trial court erred

in failing to suppress the evidence

seized during a search of his residence.

The search was conducted pursuant to a

warrant obtained’ on the basis of

information gathered in a warrantless

overflight of defendant's residence. For

reasons hereafter set forth, we conclude

the evidence was inadmissible and reverse.

On September 2, 1982, Santa

Clara police officer Shutz received an

anonymous phone message that marijuana

plants were seen growing in the back yard

of a Santa Clara home, later identified as

defendant's residence. Shutz initially

went by the house on foot and conducted a

ground level investigation. He was unable

to observe anything because of two fences

that completely enclosed defendant's back

yard: a 6-foot outer fence, and an inner

fence approximately 10 feet high. Officer

Shutz undertook an airplane flight that

Same day with the express purpose of

observing and photographing that portion

of defendant's residence enclosed by his

fence. The plane was flown at an

altitude of 1000 feet. Without visual

aids, Shutz observed and photographed a

marijuana garden in defendant's back

yard. On the basis of the information

obtained from the overflight, Shutz

procured a search warrant for

defendant's home, and upon. execution

thereof, growing marijuana plants were

Giscovered within the fenced area of the

back yard and seized.

Defendant's motion under Penal

Code section 1538.5 to suppress’ the

plants was denied. He contends the

aerial surveillance violated his

reasonable expectation of privacy,

protected by the Fourth Amendment and

various provisions of the California

Constitution.= The People contend the

1/ In light of our decision on

Fourth Amendment grounds, we need not

reach defendant's remaining

contentions.

aerial surveillance was reasonable,

citing, inter alia, Oliver v. United

States (1984) _ U.S. __ [80 L.Ed.2d

214, 104 S.Ct. 1735), United States v.

Allen (9th Cir. 1980) 675 F.2d 1373,

cert. den. Allen v. United States (1981)

454 U.S 838, and People v. Superior Court

(Stroud) (1974) 37 Cal.App.3d 836.

At our request both parties have

discussed the applicability of United

States v. Leon (1984) _— U.S. __ [82

L.Ed.2d 677, 104 S.Ct. 3405). In Leon,

the United States Supreme Court responded

affirmatively to the issue of “whether the

Fourth Amendment exclusionary rule should

be modified so as not to bar the use in

the prosecution's case~in-chief of

evidence obtained by officers acting in

reasonable reliance on a search warrant

issued by a detached and neutral

magistrate but ultimately found to be

unsupported by probable cause.” (Id.,

at pe. _ #£[82 L.Ed.2d at p. 684, 104

S.Ct. at p. 3409].) "{[OJur evaluation

of the costs and benefits of suppressing

reliable physical evidence seized by

officers reasonably relying on a warrant

issued by a detached and neutral

magistrate leads to the conclusion that

such evidence should be admissible in

the prosecution's case-in-chief." (Id.,

at p. _ [82 L.Ed.2d at p. 692, 104

S.ct. at pe. 3416}).) However, we

conclude that Leon does not permit the

use of the evidence seized in _ the

instant case. "The good-faith exception

for searches conducted pursuant to

warrants is not intended to signal our

unwillingness strictly to enforce the

requirements of the Fourth Amendment

- « « e” (United States v. Leon, supra,

U.S. at p. [82 L.Ed.2d at

p.- 699, 104 S.Ct. at p. 3422); emphasis

supplied.)

Defendant correctly notes that

Our primary focus must be directed to the

warrantless search conducted during the

overflight. Leon has no application to

warrantless searches, nor does it overrule

the “fruit of the poisonous tree"

doctrine which first bloomed in Nardone v.

United States (1939) 308 U.S. 338 [84

L.Ed.2d 207, 60 S.Ct. 266], and ripened in

Wong Sun v. United States (1963) 371 U.S.

471 [9 L.Ed.2d 441, 83 S.Ct. 407]. This

doctrine forbids the use of after-acquired

evidence which is found to be the direct

result of an unlawful search or other

unlawful conduct. Such evidence may be

used only if it can be established that it

was acquired or discovered by independent

means "'. . . sufficiently distinguishable

to be purged of the primary taint.'

[Citation.]" (Wong Sun v. United States,

supra, at p. 488 [9 L.Ed.2d at p. 455,

83 S.Ct. at p. 417); see also Taylor v.

Alabama (1982) 457 U.S. 687 [73 L.Ed.24

314, 102 +=#§.Ct. 2664); Dunaway v.

New York (1979) 442 U.S. 200 [60 L.Ed.2d

824, 99 S.Ct. 2248]; Brown v. Illinois

(1975) 422 U.S. 590 [45 L.Ed.2d 416, 95

S.Ct. 2254].)

Further confirmation that the

Wong Sun doctrine still controls is

found in Segura v. United States (1984)

___—*iU.S. __-s« [82 -L.Ed.2d 599, 104 S.Ct.

3380] decided the same date as Leon.

Segura held that a search of an

apartment conducted pursuant to a valid

search warrant was not invalidated by a

previous illegal entry into the

apartment, where the warrant and the

information upon which it was based were

unrelated to the illegal entry. Segura

implicitly recognized that evidence

seized pursuant to a warrant based on

facts obtained from a prior unlawful

search would be subject to suppression.

"[T]he exclusionary rule reaches not only

primary evidence obtained as a direct

result of an illegal search or seizure

[citation], but also evidence later

discovered and found to be derivative of

an illegality or ‘fruit of the poisonous

tree.' [Citation. ] It ‘extends as well

to the indirect as the direct products' of

unconstitutional conduct. Wong Sun _ v.

United States ... [4] Evidence obtained

as a direct result of an unconstitutional

search or seizure is plainly subject to

exciusion.”" (Segura v. United States,

supra, U.S. at p. [82 L.Ed.2d at

p. 608, 104 S.Ct. at p. 3386].) In short,

an unconstitutional search cannot be used

as the basis for issuance of a search

Warrant or the Fourth Amendment would be

rendered meaningless.— Segura v.

United States, supra, U.S. at p.

[82 L.Ed.2d at p. 608, 104 S.Ct. at

p. 3386); Wong Sun v. United States,

Supra, at p. 488 [9 L.Ed.2d at p. 455,

83 S.Ct. at p. 417]; McGinnis v. United

States (1955) 227 F.2d 598, 603-604.)

We thus refocus our attention

on the aerial surveiilance of

defendant's residence, from which

evidence was obtained to support the

issuance of the search warrant. "The

question to be resolved when it is

claimed that evidence subsequently

obtained is 'tainted' or is ‘fruit’ of a

prior illegality is whether the

challenged evidence was ‘"come at by

exploitation of [the initial] illegality

2/ Because Leon is limited to

searches conducted pursuant to warrant,

we need not decide the issue of its

possible retroactive application to the

instant case.

10.

or instead by means sufficiently

distinguishable to be purged of the

primary taint."'" (Segura v. United

States, supra, U.S. at p. [82

L.Ed.2d at p. 608, 104 S.Ct. at p. 3386],

citing Wong Sun v. United States, supra,

371 U.S. at p. 488 [9 L.Ed.2d at p. 455,

83 S.Ct. at p. 417]).)} It is undisputed

that the aerial surveillance provided the

sole source the sole source of factual

Support for the warrant.2/

We disagree with the People's

contention that the federal courts have

condoned aerial surveillance of areas

within the curtilage. Oliver v. United

States (1984) U.S. [80 L.Ed.2d

3/ Clearly, the anonymous’ tip

received by Officer Shutz did not, by

itself, provide probable cause to support

a warrant. (Illinois v. Gates (1983)

U.S. ’ [76 L.Ed. 2d 527,

548-549, 103 §.Ct. 2317, 2332-2333);

accord People v. Reeves (1964) 61 Cal.2d

268, 273-274.)

ll.

214, 104 S.Ct. 1735), upon which the

People rely, reaffirmed the "open

fields” doctrine of Hester v.

United States (1924) 265 U.S. 57 [68

L.Ed.20d 898, 44 S.Ct. 445]. Oliver

held the Fourth Amendment did not

preclude the use of evidence obtained

through a warrantless search of secluded

but open fields on private property,

even though posted with "no trespassing"

signs and secured with a locked gate.

The court reasoned that open fields,

although secluded, were not within the

curtilage, and hence not within an area

where one could reasonably entertain an

expectation of privacy. However, the

court made it clear that the area within

the curtilage -- "the land immediately

Surrounding and associated with the

n4/

home -- was entitled to the “right

4/ U.S. [80 L.Ed.2d 225,

12.

to privacy embodied in the Fourth

Amendment . °2/ "[T]he rule of Hester v.

United States, supra, that we affirm

today, may be understood as providing that

an individual may not legitimately

demand privacy for activities conducted

out of doors in fields, except in the

area immediately surrounding the home.

[Citation. ] This rule is true to the

conception of the right to privacy

embodied in the Fourth Amendment. The

Amendment reflects the recognition of the

Founders that certain enclaves should be

free from arbitrary government

interference. For example, the Court

since the enactment of the Fourth

Amencment has stressed ‘the overriding

respect for the sanctity of the home that

has been embedded in our traditions since

the origins of the Republic.'

5/ U.S. [80 L.Ed.2d 224, 104

S.Ct. 1741].

eso

13.

[Citations.]" (Oliver v. United States,

supra, U.S. at p. [80 L.Ed.2d at

p. 224, 104 S.Ct. at p. 1741), emphasis

supplied.)

The Oliver court deemed its

decision to be "consistent with the

understanding of the right of privacy

expressed in our Fourth Amendment

jurisprudence [in] Katz v. United States

(1967) 389 U.S. 347 +. « « « [T]he

touchstone of [Fourth] Amendment

analysis has been the question whether a

person has a ‘constitutionally protected

reasonable expectation of privacy'.”

(Oliver v. United States, supra,

0.8. at p. [80 L.Ed.2d at p. 223, 104

S.Ct. at p. 1740).)

In Katz V. United States,

supra, 389 U.S. 347 [19 L.Ed.2d 576, 88

S.Ct. 507], the high court emphasized

that the Fourth Amendment ' protects

people, not places, in holding that a

14.

person making a call from ae public

telephone booth was protected from

electronic eavesdropping in the absence of

a warrant supported by probable cause.

The court held that the Fourth Amendment's

protections extended to situations wherein

an individual had what has come to be

described as a reasonable expectation of

privacy. (Accord, People v. Edwards

(1969) 71 Cal.2d 1096.) "(W)hat' [a

person] seeks to preserve as private, even

in an area accessible to the public, may

be constitutionally protected." (Katz v.

United States, supra, 389 U.S. at pp. 35l-

352 [19 L.Ed.2d at p. 582, 88 S.Ct. at

p.- 511]; accord, Oliver v. United States,

supra, U.S. at p. [80 L.Ed.2d at

p. 223, 104 S.Ct. at p. 1740].) Oliver

contains the statement that "both

petitioner Oliver and respondent Thornton

concede that the public and _ police

lawfully may survey lands from the air."

15.

(Oliver v. United States, supra,

U.S. at p. [80 L.Ed.2d 224, 104

S.Ct. 1741], fn. omitted, emphasis

supplied.) For this proposition Oliver

footnotes a reference to United States

v. Allen (9th Cir. 1980) 675 F.2d 1373,

and United States v. DeBacker (W.D.

Mich. 1980) 493 F.Supp. 1078. (Oliver,

supra, __—«-~«vU.S.~ at pe _ [80 L.Ed.2d

224 fn. 9, 104 S.Ct. 1741).)

Allen involved the helicopter

surveillance of a 200-acre ranch on the

Oregon coast. The ranch paralleled the

ocean for approximately one mile and was

separated from the beach by a narrow

strip of federal land. It was subjected

to regular Coast Guard helicopter

overflights for law enforcement’ and

other reasons. The Ninth Circuit held

that any resident of the ranch,

undoubtedly aware of the ranch's

proximity to the seacoast, the functions

16.

of the Coast Guard and the frequency of

its overflights, could not’ reasonably

entertain an expectation of privacy.

(United States v. Allen, supra, 675 F.2d

at p. 1381.) DeBacker involved a flight

over open fields on the defendant's farm.

No issue of surveillance within’ the

curtilage was involved, and the court

found that the defendant could not have

had a reasonable expectation of privacy.

Other federal cases we have

discovered which deal with aerial

Surveillance also distinguish between open

areas or fields and the curtilage. (See,

e.g., United States v. Marbury (5th Cir.

1984) 732 F.2d 390, which upheld a

helicopter flight over "the Plainly

noncurtilage portions” of a "large

commercial gravel pit tract ... ."

(Id., at p. 398.) Consequently, Oliver's

icltcrence to aerial surveillance does not

remove Fourth Amendment protection from

17.

the curtilage, wherein the landowner may

reasonably expect privacy.

Defendant's back yard is within

the curtilage; the height and existence

of the two fences constitute objective

criteria from which we may conclude he

manifested a reasonable expectation of

privacy by any standard. "The

historical underpinnings of the ‘open

fields’ dGoctrine also demonstrate that

the doctrine is consistent with respect

for "reasonable expectations of

privacy.' As Justice Holmes, writing

for the Court, observed in Hester, 265

U.S. at 57, the common law distinguished

‘open fields' from the ‘curtilage,’ the

land immediately surrounding and

associated with the home. [Citation.]

The distinction implies that the

Curtilage .. . warrants the Fourth

Amendment protections that attach to the

home. At common law, the curtilage is

: ‘

the area to which extends the intimate

activity associated with the ‘sanctity of

a man's home and the privacies of life,'

Boyd v. United States, 116 U.S. 616, 630

(1886), and therefore has been considered

part of home itself for Fourth Amendment

purposes. Thus, courts have extended

Fourth Amendment protection to the

Curtilage; and they have defined the

Curtilage, as did the common law, by

reference to the factors that determine

whether an individual reasonably may

expect that an area immediately adjacent

to the home will remain private.

[Citations.]" (Oliver v. United States,

supra, U.S. at p. [80 L.Ed.2d at

p. 225, 104 S.Ct. at p. 1742).)

From the perspective of

defendant's reasonable expectation of

privacy we deem it significant that the

aerial surveillance of his back yard was

not the result of a routine petrol

;

19.

conducted for any other legitimate law

enforcement or public safety objective,

but was undertaken ior the _ specific

purpose of observing this particular

enclosure within defendant's curtilage.

In short, we are not dealing

with the observation of an open corn

field which also contains a cannabis

crop. We are confronted instead with a

direct and unauthorized intrusion into

the sanctity of the home .8/ "[A]) person

need not construct an opaque bubble over

his or her land in order to have a

reasonable expectation of privacy

regarding the activities occurring there

in all circumstances." (United States

v. Allen, supra, 675 F.2d at p. 1380.)

6/ "[I]t becomes clear that the

reach of [the Fourth] Amendment cannot

turn upon the presence or absence of a

physical intrusion into any given

enclosure." (Katz v. United States,

supra, 389 U.S. at p. 353 [19 L.Ed.2d at

Pp. 583, 88 §.Ct. at p. 512].)

20.

Having determined that the area

searched was within defendant's curtilege |

wherein he could reasonably entertain an

expectation of privacy, we must conclude

that the warrantless overflight

constituted an unreasonable search in

violation of the Fourth Amendment. The

fruits of that unconstitutional search

Cannot support a warrant.

The judgment is reversed.

HANING, J.

We concur:

LOW, P.J.

KING, J.

People v. Ciraolo

RODEOTS

Trial

Court:

Trial

Judge:

Counsel for

Appellant:

Counsel for

Respondent:

21.

Superior Court

County of Santa Clara

Honorable Marilyn Pestarino

zecher

PAMELA H. DUNCAN, Esq.

PHILIP H. PENNYPACKER, Esq.

1565 The Alameda

San Jose, California 95126

JOHN K. VAN DE KAMP

State Attorney General

EUGENE W. KASTER

LAURENCE K. SULLIVAN

Deputy State Attorneys

General

6000 State Building

San Francisco, California

94102

People v. Ciraolo

A026048

APPENDIX B

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FILED

December 10, 1984

Court of Appeal - First App. Dist.

By: Clifford C. Porter, Clerk

Deputy

PEOPLE OF THE STATE )

OF CALIFORNIA, )

) No. AO26048

Plaintiff and )

Respondent, ) Santa Clara

) County Superior

Vv. ) Court No. 88043

)

DANTE CARLO CIRAOLO, )

)

Defendant and )

Appellant. )

)

BY THE COURT:

The Petition for Rehearing

filed in the above-entitled cause is

hereby denied.

Dated: December 10, 1984

LOW P.J.

APPENDIX C

ORDER DENYING HEARING

AFTER JUDGMENT BY THE COURT OF APPEAL

1ST DISTRICT, DIVISION 5, No. AO26048

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

PEOPLE

DANTE CARLO CIRAOLO

Respondent's petition for

hearing DENIED.

Lucas, J., is of the opinion

the petition should be granted.

BIRD

CHIEF JUSTICE

SUPREME COURT

FILED

January 23, 1985

Laurence P. Gill, Clerk

Deputy

APPENDIX D

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FILED

February 15, 1985

Court of Appeal - First App. Dist.

By: Clifford C. Porter, Clerk

Deputy

{

PEOPLE OF THE STATE )

OF CALIFORNIA, )

) No. AO26048

Plaintiff and )

Respondent, ) Santa Clara

) County Superior

Vv. ) Court No. 88043

)

DANTE CARLO CIRAOLO, )

)

Defendant and )

Appellant. )

)

BY THE COURT:

The motion to stay remittitur

pending the timely tiling of a petition

for writ of certiorari in the United

States Supreme Court is granted for a

period of 30 days from the date of this

order.

Dated: February 15, 1985

LOW P.J.

APPENDIX E

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FILED

March 14, 1985

Court of Appeal - First App. Dist.

By: Clifford C. Porter, Clerk

Deputy

PEOPLE OF THE STATE )

OF CALIFORNIA, )

) No. AO26048

Plaintiff and )

Respondent, ) Santa Clara

) County Superior

Vv. ) Court No. 88043

)

DANTE CARLO CIRAOLO, )

)

Defendant and )

Appellant. )

)

BY THE COURT:

The application to extend stay

of remittitur previously granted pending

the timely filing of a petition for writ

of certiorari in the United States

Supreme Court is granted. And said say

is hereby extended to and included March

25, 1985.

Dated: March 14, 19€5

LOW P.J.

CERTIFICATE OF SERVICE BY MAIL

PEOPLE OF THE STATE

OF CALIFORNIA,

No.

Petitioner,

DANTE CARLO CIRAOLO,

)

Vv. )

)

Respondent. )

)

State of California )

) ss.

City and County of San Francisco )

LAURENCE K. SULLIVAN, a membder

of the Bar of the Supreme Court of the

United States, being duly sworn, deposes

and states:

This his business address is

6000 State Building in the City and

County of San Francisco, State of

California; that on March 22, 1985

true copies of the attached Petition for

Writ of Certiorari to the California

Court of Appeal, First Appellate

District in the above-entitled matter

were served on counsel of record by

cae

placing same in envelopes addressed as

follows:

Clerk, United States Supreme Court

1 First Street, N.E.,

Washington, D.C. 20543

Leo Himmelsbach

District Attorney

70 West Hedding Street

5th Floor

San Jose, CA 95110

Clerk, Santa Clara Superior Court

191 N. First Street

San Jose, CA 95113

Phillip H. Pennypacker, Esq.

Conflicts Administrator

190 West Hedding Street, #202

San Jose, CA 95110

Pamela H. Duncan, Esq.

P.O. BOX A

300 7th Avenue

Santa Cruz, CA 95062

Clerk of the Court

California Court of Appeal

First Appeliate District

350 McAllister Street

San Francisco, CA 94102

Said envelopes were then sealed

and deposited in the United States mail

at San Francisco, California, with first

class postage thereon fully prepaid.

| ae |

Pe k. Ke lbw

LAURENCE K. SULLIVAN

Deputy Attorney General

Dated: March 22, 1985

a JOAN CHICCARELLA

- NOTARY PUBLIC - CALIFORNIA

COUNTY OF SAN FRANCISCO

My commision expires Feb. 8, 1988

- Ay a eee Oe ‘a A

J (NOTARY PUBLIC)

Notary Public in and for the State of

California, City and County of San

Francisco, personally appeared LAURENCE

K. SULLIVAN, known to me to be the

person whose name is subscribed to the

within instrument, and acknowledged that

he executed the same.

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