# Amicus Curiae Brief — California v. Ciraolo

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0314%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 207

## Text

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
Montgomery, Alabama 36102

Honorable Charles M. Oberly
Attorney General of Delaware
820 North French Street, 8th Floor
Willmington, Delaware 19801

Honorable Michael J. Bowers
Attorney General of Georgia
132 State Judicial Building
Atlanta, Georgia 30334

Honorable Neil F. Hartigan
Attorney General of Illinois
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Chicago, Illinois 60601

Honorable Robert T. Stephan
Attorney General of Kansas
Judicial Center—Second Floor
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Honorable David L. Armstrong
Attorney General of Kentucky
State Capitol, Room 116
Frankfort, Kentucky 40601

Honorable William J. Guste, Jr.
Attorney General of Louisiana
2-3-4 Loyola Building

New Orleans, Louisiana 70112

Honorable James E. Tierney
Attorney General of Maine
State House

Augusta, Maine 04330

Honorable Francis X. Bellotti
Attorney General of Massachusetts
One Ashburton Place, 20th Floor
Boston, Massachusetts 02108

Honorable William L. Webster
Attorney General of Missouri
P.O. Box 899

Jefferson City, Missouri 65102

Honorable Robert M. Spire

Attorney General-Designate of
Nebraska

State Capitol

Lincoln, Nebraska 68509

Honorable Brian McKay

Heroes Memorial Building,
Capitol Complex

Carson City, Nevada 89710

Honorable Stephen E. Merrill
Attorney General of

New Hampshire
208 State House Annex
Concord, New Hampshire 03301

Honorable Paul Bardacke

Attorney General of New Mexico
Bataan Building, P.O. Box 1508
Santa Fe, New Mexico 87504-1508

Honorable Anthony Celebrezze
Attorney General of Ohio
State Office Tower,

30 E. Broad St.
Columbus, Ohio 43215

Honorable LeRoy S. Zimmerman

Attorney General of Pennsylvania
Strawberry Square—16th Floor
Harrisburg, Pennsylvania 17120

Honorable Travis Medlock

Attorney General of South Carolina
Rembert Dennis Office Building
Columbia, South Carolina 29211

Honorable Jeffrey Amestoy
Attorney General of Vermont
Pavilion Office Building
Montpelier, Vermont 05602

Honorable Gerald L. Baliles
Attorney General of Virginia
101 N. 8th Street—5th Floor
Richmond, Virginia 23219

Honorable Kenneth O. Eikenberry
Attorney General of Washington
Temple of Justice

Olympia, Washington 98504

Honorable Archie G. McClintock

Attorney General of Wyoming
123 State Capitol
Cheyenne, Wyoming 82002

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TABLE OF CONTENTS

Table of Authorities

Interest of the Amici Curiae.......................
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Summary of the Armument.............ccccccccess

Argument .........
Conclusion.........

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0314%3A13. Public record. Not legal advice.