Amicus Curiae Brief — California v. Ciraolo

x

No. 84-1513 (7

IN THE

Supreme Court of the Uni

OCTOBER TERM, 1984

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner

V.

DANTE CARLO CIRAOLO,

Respondent.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEALS,

FIRST APPELLATE DISTRICT

BRIEF OF THE STATE OF INDIANA AND THE

COMMONWEALTHS AND STATES OF

ALABAMA, DELAWARE, GEORGIA, ILLINOIS,

KANSAS, KENTUCKY, LOUISIANA, MAINE,

MASSACHUSETTS, MISSOURI, NEBRASKA,

NEVADA, NEW HAMPSHIRE, NEW MEXICO,

OHIO, PENNSYLVANIA, SOUTH CAROLINA,

VERMONT, VIRGINIA, WASHINGTON, AND

WYOMING

LINLEY E. PEARSON

Attorney General of Indiana

WILLIAM E. DAILY

Deputy Attorney General

LIsA M. PAUNICKA

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6351

Central Publishing Company, Inc., Indianapolis. IN 46206

BEST AVAILABLE COPY

Honorable Charles A. Graddick

Attorney General of Alabama

Post Office Box 948

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Honorable Charles M. Oberly

Attorney General of Delaware

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Honorable Michael J. Bowers

Attorney General of Georgia

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Honorable Neil F. Hartigan

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Honorable James E. Tierney

Attorney General of Maine

State House

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Honorable Francis X. Bellotti

Attorney General of Massachusetts

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Honorable William L. Webster

Attorney General of Missouri

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Honorable Robert M. Spire

Attorney General-Designate of

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Attorney General of Pennsylvania

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Attorney General of Vermont

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Attorney General of Virginia

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Attorney General of Wyoming

123 State Capitol

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TABLE OF CONTENTS

Table of Authorities

Interest of the Amici Curiae.......................

cc cedéccevececes

Summary of the Armument.............ccccccccess

Argument .........

Conclusion.........

“ee eeeeeeeeeeneeneeeneeeeeneeenenenenee

TABLE OF AUTHORITIES

Cases: Page:

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979) .. 6

Dean v. Superior Court, 35 Cal. App.3d 112, 110 Cal.

PEED oi cnccéadnsndtens ddkenseauades 5, 6

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1891 (1979) 2

Dow Chemical Co. v. United States, 536 F.Supp. 1355

(E.D. Mich. 1982), cert. granted, ___U.S.___

ROME ER, BEND, « ciccecdnsuusuedecwenmeweanuetee 5

Hester v. United States, 265 U.S. 57, 44 S.Ct. 445

GN dc Gidkeache 60s cckcslnade dbbns muh menneanee 3

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507

as hie i ovo ties eddeanedanns ih awen weenie 3, 4, 6

People v. Sneed, 32 Cal. App.3d 535, 108 Cal. Rptr. 146

SER blk iu 5s bnew a dass aban bededann bien 5

People v. St. Amour, 104 Cal. App.3d 886, 163 Cal.

Be Te CRO kv kc dnccdcncaedeivevedeeewsetes 5

State v. Knight, 63 Hawaii 90, 621 P.2d 370 (1980).. 5

State v. Layne, 623 S.W.2d 629 (Tenn. Cr. App. 1981) 5

State v. Stachler, 58 Hawaii 412, 570 P.2d 13823(1977) 5

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

cert. denied, 454 U.S. 833 (1981) ............... 4,5

United States v. Bassford, 601 F.Supp. 1324 (D.Maine

ES BScns cinioCinccscs tinct icti eons 5

United States v. DeBacker, 493 F.Supp. 1078

CE AIOE, SIE a vic ndscehn piknbemances baxbeds 4,5

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081

SOD i cev ac dcdecasdsceueeonurthenspeaeeteuke 5

United States v. Lace, 669 F.2d 46 (2d Cir. 1982) ... 6

United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.

CNG stats bealsd god baduddhadedaheaen cbeenes 5

United States v. Oliver, __. U.S. ___.,, 104 §.Ct. 1735

SN ri Fb bek biwd Sheed wi tblcoh ve vue Rete eeuees 3, 4

Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970

PGE Jisekivbouseds uswdeecketiagcsessurene 2

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tree

No. 84-1513

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner

Vv.

DANTE CARLO CIRAOLO,

Respondent.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEALS,

FIRST APPELLATE DISTRICT

INTEREST OF AMICI CURIAE

Aerial surveillance is an important and effective tool of

law enforcement in curtailing the cultivation and

distribution of marijuana.’ Statistics on the cultivation of

marijuana underscore the interest of the amici curiae in

' DeFoor, Houston Police Department's Eye in the Sky, FBI L.

Enforcement Bull., Sept. 1981 at 1, 2.

1

2

this area. Marijuana is the fourth largest cash crop in the

United States following corn, soybeans, and wheat.? In

1981, the marijuana crop had a street value of 8.5 billion

dollars.’ Further, law enforcement agencies in the 50 states

destroyed 3,802,927 cultivated marijuana plants, as well

as, 9,178,283 wild marijuana plants in 1984.4

The success and repeated use of aerial surveillance as a

police investigatory tool has created a new area of fourth

amendment search and seizure analysis. The judicial

system presently condones the use of warrantless aerial

surveillance.’ In deciding whether warrantless aerial

surveillance constitutes a search under the fourth

amendment, courts recognize that the fourth amendment

requires that a balance be achieved between an individual’s

privacy interests and the general public’s interest in law

enforcement. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct.

1391 (1979); Zurcher v. Stanford Daily, 436 U.S. 547, 98

S.Ct. 1970 (1978). These cases recognize that an

expectation of privacy is not reasonable merely because it is

manifested objectively by means of active concealment.

The expectation must be one that society is prepared to

recognize as reasonable.

Thus, the amici curiae submit that in analyzing the

propriety of warrantless aerial surveillance, the focus

should be on both the observer and the observed: whether

an accused actually expected privacy from the air;

whether the surveillance method utilized was acceptable.

The application of this standard to resolve warrantless

2 Grass was Never Greener, Time, Aug. 9, 1982, at 15.

3 Jd., see also The Marijuana Wars, Newsweek, Aug. 29, 1983 at 22

(estimates of the size of the American marijuana crop).

‘U.S. Dept. of Justice Drug Enforcement Administration, Final

Report, 1984, Domestic Cannabis Eradication/Suppression

Program, Dec. 1984.

5 See, eg., United States v. Allen, 675 F.2d 1373 (9th Cir. 1980), cert.

denied, 454 U.S. 833 (1981).

3

aerial surveillance cases strikes a balance between the

preservation of constitutionally guaranteed privacy and

legitimate law enforcement techniques.

STATEMENT OF THE CASE

On September 2, 1982, a narcotics officer was informed,

by means of an anonymous telephone message, that

marijuana was growing in the backyard of the

Respondent’s residence. The plot of marijuana, which

measured 15 x 25 feet and contained plants eigh.’ ten feet

in height, was enclosed in an inner ten foot f_.:ce, as well as,

an outer six foot fence.

Subsequently, the officer chartered an airplane to view

and to photograph the Respondent’s property. At an

altitude of not less than 1000 feet and without visual aids,

the officer identified marijuana on the Respondent’s

property. Based upon the information gathered from the

informant and from the sightings in the plane, the officer

obtained a search warrant to search the Respondent’s

property. Thereafter, the warrant was executed. Seventy-

three marijuana plants were seized from the Respondent’s

yard.

SUMMARY OF THE ARGUMENT

To determine whether a search has occurred in a

warrantless aerial surveillance case, a standard of

reasonableness should be adopted—a standard which

properly focuses on both the observer and the observed.

ARGUMENT

In United States v. Oliver,* ___ U.S. ___., 104 S.Ct. 1735

(1984), the Supreme Court revitalized the “open fields”

6In Oliver, two police officers acting on tips that

marijuana was growing on a farm, walked toward the suspect field

passed a locked gate with a “ro trespassing” sign, ignored verbal

warnings, and found marijuana plants.

4

doctrine set forth in Hester v. United States, 265 U.S. 57, 44

S.Ct. 445 (1924). This doctrine permits police officers,

without a warrant, to enter and search an open field which

is not within the curtilage of a defendant’s home. In a

section of the opinion, the “open fields” rule was discussed

in light of the “reasonable expectation of privacy” test

established in Katz v. United States, 389 U.S. 347, 88 S.Ct.

507 (1967). The Court reaffirmed that the fourth

amendment “does not protect the merely subjective

expectations that society is prepared to recognize as

reasonable.” ___ U.S. at ___., 104 S.Ct. at 1740, quoting

Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J.,

concurring). The Court further stated that the rule in

Hester “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.” ____ U.S. at____, 104

S.Ct. at 1741. Oliver, however, did not delineate the scope of

the curtilage exception to the “open fields” doctrine nor did

it address the propriety of aerial surveillance of areas

within or near the curtilage but open to view from the air.

The Oliver Court, however, citing Ninth Circuit and

other lower court precedent noted that the “public and

police lawfully may survey lands from the air.” ___ U.S. at

___., 104 §.Ct. at 1741, citing in n. 9, United States v. Allen,’

675 F.2d 1373, 1380-1381 (9th Cir. 1980), cert. denied, 454

7 In United States v. Allen, 675 F.2d 1373 (9th Cir. 1980), cert. denied,

454 U.S. 833 (1981) the Court ruled that under the facts of that case

overflights did not constitute an unreasonable intrusion upon the

Defendants’ reasonable expectations of privacy. The Court relied

principally upon the unique characteristics of the area observed.

Coast Guard helicopters, the Court noted, “routinely traversed the

nearby air space for several reasons, including law enforcement.” Jd.

at 1381. Further, under those facts “any reasonable person, cognizant

of the ranch’s proximity to the coastline and the Coast Guard’s well

known function of sea-coast patrol and surveillance, could expect that

government officers conducting such flights would be aided by sense-

enhancing devices.” Jd.

5

U.S. 833 (1981); United States v. DeBacker, 493 F.Supp.

1078, 1081 (W.D.Mich. 1980). It is well, then, to resolve the

issue whether of warrantless aerial surveillance of an area

within or near the curtilage constitutes a search in light of

Katz.

Katz established the reasonable expectation of privacy as

the touchstone of fourth amendment analysis. The Katz

decision has generally been understood in terms of Justice

Harlan’s two prong test for protected expectations of

privacy: (1) “that a person have exhibited an actual

(subjective) expectation of privacy” and (2) “that the

expectation be one that society is prepared to recognize as

‘reasonable’.” Such analysis invites a careful examination

of the totality of the circumstances to determine whether

the person whose place is searched has manifested an

expectation of privacy that society is prepared to recognize

as reasonable.

The amici curiae submit that this fourth amendment

question must be examined by assessing the nature of the

particular aerial surveillance and the likely extent of its

impact on an individual’s sense of security, balanced

against the utility of the conduct as a technique of law

enforcement. The optimum approach, then, is to focus on

the observer and the observed: (1) whether the accused

actually expected privacy from the air; (2) whether the

surveillance method utilized was acceptable.’ A justifiable

® This formulation incorporates the “reasonable expectations” test yet

still focuses on appropriate policy considerations. In Dow Chemical

Co. v. United States, 536 F.Supp. 1355 (E.D. Mich. 1982), cert.

granted, ___ US. (June 10, 1985), the court incorporated social

concepts into the “reasonable expectations” test. The Dow court

observed that the “essence of the first prong of the test is that the party

must have acted in such a way that it would have been reasonable for

him to expect that he would not be observed .......... Therefore,

the court must look to objective manifestations of any claimed privacy

expectation.” /d. at 1364. In determining whether an expectation is

one society will accept as reasonable, the Dow court reversed the

question by examining the reasonableness of the government’s

actions.

6

expectation of privacy from airborne observation can be

determined by considering: (1) the obviousness of the object

from the air;? (2) the location of the property observed;'° and

(3) the frequency of air traffic over the property."

If a subjective expectation of privacy has been

established, the focus of the inquiry should shift to the

nature of the investigatory techniques utilized by the

police. Factors such as the altitude of surveillance, the use

of technological viewing aids in the observation, and

finally, the frequency and duration of aerial surveillance

should be considered.!2 This qualified “open view”

approach strikes a satisfactory balance between the use of

® Dean v. Superior Court, 35 Cal. App.3d 112, 110Cal. Rptr. 585 (1973);

People v. St. Amour, 104 Cal. App.3d 886, 163 Cal. Rptr. 187 (1980);

State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977).

10 People v. Sneed, 32 Cal. App.3d 535, 108 Cal. Rptr. 146 (1973).

'! United States v. Allen, 675 F.2d 1373 (9th Cir. 1980), cert. denied, 454

U.S. 833 (1981); United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.

1980); United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich. 1980);

State v. Layne, 623 S.W.2d 629 (Tenn. Cr. App. 1981).

12 See, e.g., People v. Sneed, 32 Cal. App.3d 535, 108 Cal. Rptr. 146(1973)

(warrantless aerial surveillance at 20-25 feet is unconstitutional);

State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977) (warrantless

visual surveillance unconstitutional when highpowered binoculars

used); State v. Knight, 63 Hawaii 90, 621 P.2d 370 (1980) (continual

aerial surveillance for prolonged time periods could be a

consideration although not relevant to instant case. However, devices

such as highpowered binoculars, telescopic cameras, and infra-red

telescopes only enhance what could be seen with the naked eye and,

therefore, their use has been held not to constitute a fourth

amendment search. United States v. Knotts, 460 U.S. 276, 103 S.Ct.

1081 (1982); see also United States v. Bassford, 601 F.Supp. 1324

(D.Maine 1985).

'8 The notion of “open view” originated in Katz v. United States, 389 U.S.

347, 361, 88 S.Ct. 507, 521 (1967) (Harlan, J., concurring). Justice

Harlan explained that something exposed to the open view of a

member of the public is not protected under the fourth amendment

because no intention to keep it private has been exhibited. See United

States v. Lace, 669 F.2d 46, 50 (2d Cir. 1982).

7

an effective investigatory tool and the preservation of

constitutionally guaranteed privacy. If a defendant has

established an expectation of privacy, the reasonableness of

the warrantless observations should be considered.

The public and police may lawfully survey lands from the

air. During aerial surveillances, police are in a place where

they have a right to be. Merely because contraband is

planted in an area not observable from ground level should

not foreclose all surveillance of the area. Indeed, aerial

surveillance is a viable and reasonable technique which

causes minimal intrusion yet allows police to corroborate

informants’ tips as a means of establishing sufficient

probable cause to obtain a search warrant. In Dean v.

Superior Court, 35 Cal. App.3d 112, 117, 110 Cal. Rptr. 585

(1973), the court noted that agriculturists do not conceal

their wheat or oat fields from aerial view. Marijuana

fields/plots deserve no greater protection. To determine

whether a search has occurred in a warrantless aerial

surveillance case, a standard of reasonableness should be

adopted—a standard which properly focuses on both the

observer and the observed. The advantage to the use of this

approach is that by examining the conduct of police, a court

is forced to consider the effect such conduct has upon

society’s “sense of security.” In this way, citizens will be

allowed to be both protected by and from airborne

observation.

4 In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979), the Court ruled

that, in some cases, expectations of privacy may be unreasonable if

society is not prepared to recognize them as legitimate—regardless of

the efforts of the person to keep his activity hidden.

8

CONCLUSION

For the foregoing reasons, the decision of the California

Court of Appeals, First Appellate District should be

reversed.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

William E. Daily

Deputy Attorney General

Lisa M. Paunicka

Deputy Attorney General