# Petition for Writ of Certiorari — California v. Ciraolo

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 207

## Text

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

i.

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

23

18

8,13

Iv.

TADLE OF AUTHORITIES (CONT).

Tuttle v. Superior Co
120 Cal.App.3d 320

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California Health & Safety Code

§ 11358
§ 11360(a)

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Title 28, United States Code

5 12573) .
42 U.S.C.
5 1983 18

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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

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his petition. (Appendices D, £).
This Court's jurisdiction is
invoked under Title 28, United States

Code, section 1257(3).

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,

4.

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

6.

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).

7.

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.

9.

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].)

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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

+
ao

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

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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

zs

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.
II

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

3.

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

1/

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

5.

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

6.

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,

Ve

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

9.

2/

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

7
:

;

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
Ve

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
5

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0314%3A02. Public record. Not legal advice.