Amicus Curiae Brief — California v. Ciraolo

Supreme Court, U.S,

FILED

CT 4& 1989

JOSEPH F. SPANIOL, JR.

84-1513 | CLERK

No.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1985

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

DANTE CARLO CIRAOLO,

Respondent.

On Writ of Certiorari to the

California Court of Appeals

for the First District

BRIEF OF THE CIVIL LIBERTIES

MONITORING PROJECT AS AMICUS CURIAE

IN SUPPORT OF RESPONDF.:.7

AMITAI SCHWARTZ *

RICHARD JAY MOLLER

RONALD M. SINOWAY

MELVIN B. PEARLSTON

AMITAI SCHWARTZ

Suite 800

155 Montgomery Street

San Francisco, CA 94104

(415) 398-0922

BEST AVAILABLE COPY

Attorneys for Amicus Curiae

The Civil Liberties

Monitoring Project

*Counsel of Record

earn) scucwige

-

*

te a:

QUESTIONS PRESENTED

1. Whether the state's

intentional visual surveillance into an

American's curtilage is a search intruding

upon a reasonable expectation of privacy

in violation of the Fourth Amendment.

2. If the state's intentional

aerial surveillance into the curtilage is

not a full-fledged search, whether the

brief aerial surveillance of a curtilage

is a Fourth Amendment intrusion as

significant as a stop of the person,

requiring particularized suspicion.

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TAB F NT

Page

Questions presented... ceeeeeeeececceces i

Tee OE MMEMOPLELOB sc ccc cc ccc ccccccccs iii

Interests of Amicus Curiae.........200. 2

Summary Of Argument......eceeeceeecceees 3

ATQUMENE.. ccc cee cece eeseeeeesesesesecees 6

I

THE STATE'S INTENTIONAL VISUAL

SURVEILLANCE INTO A CURTILAGE

IS A SEARCH INTRUDING UPON A

REASONABLE EXPECTATION OF

PRIVACY IN VIOLATION OF THE

DTM E . 6c cc bceececccescccccces 6

II

IF THE STATE'S INTENTIONAL AERIAL

SURVEILLANCE, FOR A BRIEF TIME, INTO

A CURTILAGE IS NOT A FULL-FLEDGED

SEARCH, IT IS AT LEAST AS SIGNIFICANT

AN INTRUSION AS A BRIEF STOP, THUS

REQUIRING PARTICULARIZED SUSPICION..... 18

NEE Oe eee a ee ee ee 29

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iii

TABLE OF AUTHORITIES CITED

Page

Cases

Brown v. Texas

BES Uebe SF CAP eh cccbsocoeccvcosaevesess 20

idge v. New Ham i

403 U.S. 443,469-470 (1971)........20.8. 9

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

cert. ‘ U.S.

Pawn tes 8.ce, 2900... ...0s sees 23

K . U

DOS Gels BOF TEOET Pedasocscoisbovsaecesres 8

Mincey v. Ar

437 U.S. 385, 393-395 (1978) ..ccccccces 27

New York v. Belton

453 U.S. 454,458-459 (1981).....;,..04. 22

National Organization for the Reform

608 F.Supp. 945

(D.C.Cal. 1985). .cccccccccccccces 2,40,87

Oliver v. United States

466 U.S. » Oe be BEe 26 2146, cccces passim

People v. Arno

90 Cal.App.3d 505,509-512 (1979)...... 24.

iv

7

State v. Rogers

3

Terry v. Ohio

SPE Wome Be bO. CAPER Riso cccccsccevacs

United States v. Allen

675 F.2d 1373,1381

(9th Cir. 1980) cert.

denied

. we Pe ae! Pee anes

United States v. Cortez

449 U.S. 411,417-418 (1981).........

United States v. DeBacker

~493 F.Supp. 1078,1081

CWB RGM RIGO) ccc cveccccccccserccse

United States v. Kim

415 F.Supp. 1252 (D.Haw. 1976)......

United States v. Lace

669 F.2d 46,57 (2d Cir. 1982).......

United States vy.

732 F.2d 390,398-399

(Jer: Gaee Seth oS 6 45S b dK 040 coe ae

Other Authorities

George Orwell, Nineteen Eighty-Four

C1DRD cece cc cccccseesdsovbbdesceeces

P.2d 142,144 (N.M.App. 1983)....

Pe 2 ee

te

No. 84-1513

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

V.

DANTE CARLO CIRAOLO,

Respondent.

ON WRIT OF CERTIORARI TO THE CALIFORNIA

COURT OF APPEAL FIRST APPELLATE DISTRICT

BRIEF OF THE CIVIL LIBERTIES MONITORING

PROJECT AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

INTERESTS OF AMICUS CURIAE

The Civil Liberties Monitoring

Project ("Project") is a nonprofit

California corporation. The principal

focus of the Project is on the continued

preservation and enhancement of individual

rights and liberties. The Project engages

in discussions and other forms of

education concerning civil liberties and

civil rights. General aerial surveillance

threatens the privacy and welfare of the

Organization's members, particularly

because many of its members live in

isolated areas in rural counties subject

to this new law enforcement technique.

Amicus is presently engaged in litigation

with the Federal Government and the State

of California in a case challenging

governmental aerial surveillance. The

National Organization for the Reform of

ae —————

a

Marijuana Laws v.- Mullen, 608 F.Supp. 945

(D.C.Cal. 1985).

SUMMARY OF ARGUMENT

The state, and amici in support

ot the state, write as if this case

concerns Only a marijuana garden.! In

fact, at stake in this case is the privacy

of Americans in their own homes and

curtilages.

The state's argument--that the

aerial search conducted in this case is

not really a search and in any event not

unreasonable--logically would permit

searches by cther technological means,

1. For the sake of simplicity,

amicus will refer to the arguments of the

state as including those arguments

advanced by the amici curiae in support of

the state.

at best degrading an expectation of

privacy as we know it, and permitting

substantial, difficult to control, abuses.

The state's argument is at war

with Fourth Amendment law and any

reasonable policy attempting to

accommodate both the state's interests and

the important policies underlying the

Fourth Amendment. For this Court to

establish a narrow principle of law

upholding only this type of plane search

would further complicate Fourth Amendment

jurisprudence; but to establish one of the

Droad principles of law advocated by the

state and amici wouid inadvertently Lay

the groundwork for an Orwellian-type

government able to keep its subjects under

24-hour surveillance.

Amicus asks this Court to

declare that Americans' subjective

~-e* _

expectation of privacy from unfettered

governmental spying into their homes and

curtilages is an expectation this Court,

and society in general, is prepared to

recognize as reasonable, and thus

constitutionally protected. At a minimun,

this Court should hold that a brief aerial

search of a curtilage is a privacy

intrusion as serious as a stop of the

person, and thus requires founded

suspicion.

ARGUMENT

I

THE STATE'S INTENTIONAL VISUAL

SURVEILLANCE INTO A HOME OR

CURTILAGE IS A SEARCH INTRUDING

UPON A REASONABLE EXPECTATION

OF PRIVACY IN VIOLATION OF THE

FOURTH AMENDMENT

The state's primary argument is

the Fourth Amendment prohibits only

physical intrusions into the privacy of

on2's home and curtilage; visual searches

into one's home and curtilage are not

really searches. (Brief for Petitioner at

16-17, 32-34). Amicus agrees with the

state there is no meaningful distinction

between the constitutional protection

Americans enjoy in their homes, as opposed

to their curtilages (Brief for Petitioner

at 34 & n.10). The curtilage of a home is

the area to which extends "the intimate

activity associated with the sanctity of a

man's home and the privacies of life."

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

80 L.Ed.2d 214,225; 104 S.Ct. 1735,1742

(1984). Because the principle of law is

the same, Amicus will often refer to the

house and the curtilage simply as the

home.

The problem with the state's

distinction between a visual and physical

search is that from the viewpoint of most

Americans a visual search is just as

intrusive as a physical search. In George

Orwell's Nineteen Eighty-Four (1949), Big

Brother did not physically intrude upon

the subjugated populace's homes and

curtilages. Instead, the omnipresent

video screens and helicopters adequately

kept people under constant surveillance.

The state's theory is

inconsistent with the law. Whether the

police are physically in a place where

they have a legal right to be is not

determinative of the legality of a search

that is conducted from that place. For

example, the telephone wiretap the police

placed in the public telephone booth in

Katz was also in a place it had a legal

right to be. Katz v. United States, 389

U.S. 347 (1967). Thus, because the right

of privacy focuses on a person's

reasonable expectation of privacy, the

issue in this case is whether Americans

reasonably expect some protection from

general systematic aerial surveillance of

the curtilage. Whether the state has

physically intruded onto property is

simply not a determining factor in

assessing a Fourth Amendment privacy

violation. Oliver v. United States,

supra, 466 U.S.wws, 80 L.Ed.2d 214,227.

A critical factor is whether the

state's visual intrusion was intentional

or accidental. Certainly, Americans do

not object to the casual, inadvertent view

of a neighbor or police officer into their

homes or backyards. Moreover, such an

inadvertent plain view is legally

permissible. Coolidge v. New Hampshire,

403 U.S. 443, 469-470 (1971). But

virtually all Americans object to Peeping

Toms peering into their windows late at

night or spying upon them in their

backyard <¢o catch a glimpse of some

private matter. Americans engage in

private matters in the privacy of their

backyards and homes without feeling the

reed to build opaque domes and to shutter

10

Windows because the risk of Peeping Toms

is so minimal that Americans generally do

not live in paranoid fear of such

intrusions. There is a big difference,

however, between Peeping Toms and the

government. See e.g. United States v.

Kim, 415 F.Supp. 1252,1256-1257 (D.Haw.

1976).

Recently, the government has

launched a war called the Campaign Against

Marijuana Planting (CAMP) against

thousands of innocent Americans in an

effort to curtail marijuana cultivation.

In National Organization for Reform of

Marijuana Laws v. Mullen, 608 F.Supp. 945

(D.C.Cal. 1985), the court recounted

numerous incidents where federal and state

personnel used helicopters to look into

persons' homes and curtilages, and to

chase innocent people into the woods or

| en Yoel

e

——%

11

frighten them. Id. at 950-951,955-56.

Marilyn Beckworth, for example, was

"continually buzzed" by a helicopter while

taking her outdoor shower. Id. at 955.

Allison Osborne testified that occupants

of a law enforcement helicopter flew about

fifty feet above the ground right outside

her home and made obscene gestures at her

seven year old daughter. Id. She said it

felt like Vietnam as the "leaves from the

trees are blowing down on your head and

the children are kind of hanging on to you

because it feels like you'll be gusted

away."" Id. at 956. A CAMP helicopter

blew the toilet paper from Charles Keyes

reach as he was using his outhouse. Mr.

Keyes and his five year old son Arthur

left their property in fear of their

safety. Id. at 955.

The court summariz2d the

/

12

unbelievable conduct of the government as

follows:

"Rather, the

uncontradicted evidence shows

regular intrusions into the

areas immediately surrounding

the home. These helicopters

are no longer just surveying

open fields, but are

deliberately looking into and

invading peoples' homes and

curtilage. Moreover, this

prying is not limited to an

occasional, casual peek during

an overflight to a raid site,

but is accomplished through

sustained and repeated

buzzings, hoverings, and dive

bombings that at best disturb,

and at worst terrorize, the

hapless residents below.

It is not just the

highly disruptive character of

low helicopter flights that

distinguishes them from the

common airplane overflights

that we are all accustomed to,

but also the degree of their

intrusiveness into "the

privacies" of life; an airplane

can see far less than a

helicopter that is hovering

outside a bedroom window or

over an open outhouse or

shower. This case demonstrates

how the unique versatility of

helicopters renders them at

13

once an effective law

enforcement tool and an

unprecedented threat to civil

liberties."

Id. at 957.

Under the state's theory,

however, an aerial search is a

"non-search"; it is only a search if the

police land the helicopter on one's home

or in one's backyard. This doublespeak

harkens back to Orwell. When a search is

no longer really a search; when a

helicopter hovering at one's bedroom

window is not a violation of one's

privacy; when intentional aerial

surveillance of one's home and curtilage

is no longer an intrusion, then words

become meaningless and Americans' lack of

respect for law and justice sinks deeper.

If Americans’ sub jective

expectation of privacy in their homes and

14

curtilages is unreasonable as applied to

visual spying, Americans will not be able

to engage in any private, intimate matter

in any place in the world except behind

closed doors and shuttered windows.

Americans do not reasonably expect privacy

in their backyards because they are all

growing marijuana. There are hundreds of

activities people enjoy doing in their

backyard, in part because they believe

they have privacy. Such activities

include playing with one's children,

having a talk with one's son, showing 3

affection to one's spouse, or having

friends over for a barbeque.

Simply imagine a police agent's

head hanging over a backyard fence, or

perched in a tree in an open field, or

sticking out of a hovering helicopter or a

circling plane watching a teenage

15

daughter's birthday pool party. Would it

be reasonable if her father believed the

police officer was invading his family's

privacy even though the agent had not

physically entered his backyard and began

swimming and dancing with his daughter and

her friends? Would it be reasonable for

her mother to tell the police officer to

leave them alone--that her daughter and

her friends felt inhibited so long as the

police officer watched. Yet, the officer

would have as much reason to watch this

birthday party for possible crime as to

survey every American's backyard garden

for marijuana. Young people have been

known unlawfully to drink alcohol, use

drugs or engage in sex at parties at least

as frequently as the average American

grows marijuana in his backyard.

The state, however, does not

16

discuss teenage birthday parties. Instead,

the state argues the crime of growing

marijuana in one's backyard is so terrible

that all Americans ought to be willing to

give up their right to privacy anywhere

the sun can shine. The real issue is

whether it is reasonabie for Americans to

expect privacy at their childrens'

backyard birthday parties or weddings, or

in their bedrooms. In short, a visual

invasion into the privacy of one's home or

curtilage is not different enough from a

physical intrusion to justify less than

full Fourth Amendment protection:

probable cause and a search warrant.

The state's concern the police

will have difficulty not looking into

Americans' curtilages or homes, while

freely looking into open fields, is

misdirected. This Court recognized the

—— 5

17

courts and the police are capable of

distinguishing between open fields and

curtilages. Oliver v. United States,

supra, 466 U.S. at__, 80 L.Ed.2d at 226

n.12. There is no showing--nor could

there be--that police patrols in planes

have a difficult time distinguishing

between a home and its curtilage and an

open field. Any person with eyesight good

enough to qualify to fly a plane, can

distinguish between a home and an open

field. In California, the CAMP operation

is presently under court order to keep

helicopters and planes at least 500 feet

away from all homes. National

Organization for the Reform of Marijuana

Laws v. Mullen, 608 F.Supp. 945,965-66

(D.C.Cal. 1985). Only intentional

intrusions are enjoined. Id. at 965 n.17.

It is imperative to distinguish

18

between an intentional visual intrusion

into a home, and an inadvertent view. The

state's intentional invasion into

Americans' last bastion of privacy is

necessarily different from a casual glance

of a passerby or the casual sightings of

plane passengers. Intentional police

surveillance has the potential of cowering

the populace and suppressing the vitality

and joy of life of a nation.

II

IF THE STATE'S INTENTIONAL AERIAL

SURVEILLANCE, FOR A BRIEF TIME, INTO

THE CURTILAGE IS NOT A FULL-FLEDGED

SEARCH, IT IS AT LEAST AS SIGNIFICANT

AN INTRUSION AS A BRIEF STOP, THUS

REQUIRING PARTICULARIZED SUSPICION

Amicus agrees with the state

that it is significant the police took to

19

the air in this case "following a report

of suspicious activity." (Brief of

Petitioner at 19). Random, general aerial

searches of everyone's home without a

warrant are far more objectionable than

the aerial surveillance of a particular

person's home for which the police have

founded suspicion of a crime. If this

Court does not believe this particular

plane search to be a full-fledged search

requiring probable cause, it is at least

as intrusive as a brief stop on the

street--requiring particularized

suspicion. See, e.g., United States v.

Cortez, 449 U.S. 411, 417-418 (1981);

Terry v. Ohio, 392 U.S. 1,16 (1968). Many

of the aerial searches upheld by lower

courts involve some amount of

particularized suspicion rather than

general, systematic surveillance of

20

everyone. See, e.g-., United States vy.

Marbury, 732 F.2d 390,398-399 (5th Cir.,

1984); United States v. Allen, 6/75 F.2d

1373,1381 (9th Cir. 1980), cert. denied

454 U.S. 833 (1981); United States v.

DeBacker, 493 F.Supp. 1078,1081 (W.D.

Mich. 1980); State v. Rogers, 673 P.2d

142,144 (N.M.App. 1983).

A generalized suspicion that

some persons in a certain county are

growing marijuana, however, does not

justify the wholesale invasion of

everyone's privacy who lives within the

county. See Brown v. Texas, 443 U.S. 47

(1979) (being present in a high crime area

with a great deal of drug traffic is not a

sufficiently suspicious circumstance to

justify the momentary stop of a particular

individual and to request identification

from him.) Moreover, unless this Court

21

requires at least a standard of founded

suspicion, "by only modest logical

extension, legitimacy [will be] conferred

on 'random' enhanced viewing of a whole

neighborhood of unfenced yards from a

government satellite in geosynchronous

orbit." (Brief of Petitioner at 43 n.16).

A minimal standard of founded

suspicion is essential to prevent the

state from enjoying an unfettered right to

spy upon Americans twenty-four hours a day

for weeks at a time so long as the police

hide in the open fields or woods, or use

high-flying planes, rather than openly

enter backyards where they would be

visible. See United States v. Lace, 669

F.2d 46,57 (2d Cir. 1982). (Court upheld

three weeks of warrantless 24-hour

surveillance by camouflaged police

officers peering through telescopes from

22

the wooded fields).

If Americans have no reasonable

expectation of privacy from aerial

surveillance into their homes and

curtilages, then it would be lawful for

the state to photograph bedrooms through

skylight windows in the roof, or use

X-rays to penetrate a curtained window or

a solid roof. It would simply be

unreasonable, however, to force

law-abiding Americans interested in

preserving their privacy to line the

walls, windows and roofs of their homes

with a substance impenetrable to X-rays or

to build an opaque dome over their

curtilages.

In establishing a clear,

bright-line rule in this difficult Fourth

Amendment area, see New York v. Belton,

453 U.S. 454, 458-459 (1981), the

23

well-understood standard of founded

suspicion is preferable to many of the

standards proposed by the state.

For instance, this Court should

not give constitutional significance to

the type of visual surveillance the state

used in conducting the search. (See Brief

of Petitioner at 13, 20-21). It would

only add further confusion to Fourth

Amendment jurisprudence to give lower

courts the Herculian task of

distinguishing among the myriad kinds of

ground searches, helicopter searches, the

plane search in this case, plane searches

at 2000 feet with binoculars; U-2 spy

plane searches at 10,000 feet with

sophisticated photographic equipment, cf.

Dow Chemical Company v. United States, 749

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

td Bicininniy Anti Dba 805: 6.48.3700% ond

24

spy satellites using computers to keep

Americans under 24-hour surveillance. The

impact on Americans' right to privacy is

Similar, no matter where the vantage point

of the state agent, or what the

technological equipment.

This Court should also not

burden lower courts with the need to

decide whether a particular technological

device allowed the state to view an object

that otherwise could only have been seen

by physically intruding into the

curtilage. One can imagine the absurd

lengths the defense and prosecution could

go in trying to prove that an object seen

by the police could not have been seen

from a legal vantage point without the use

of the technological device. (See e.g.

People v. Arno, 90 Cal.App.3d 505,509-512

(1979).

25

The result in this case should

not depend on the location of Ciraolo's

home. The fact Ciraolo's home happened to

be located in a suburban area in close

proximity to a major airport should be

deemed irrelevant. It would make a mess

of Fourth Amendment jurisprudence to force

lower courts to hold hearings about the

proximity of airports to an American's

home, the absence or presence of air

traffic over a person's land, or whether

the visual search of a home occurred in an

urban in contrast to a remote rural area

of the country. It would also be unfair

to distinguish among Americans in this

arbitrary fashion with respect to the

highly-valued blessings of freedom and

privacy.

It should also be immaterial

that Ciraolo's home and backyard had a

26

fence, but nevertheless, might have been

in view of neighbors, utility workers,

roofers, or children climbing trees. Many

Americans live in homes and spend private

moments in backyards which are more or

less protected from view than Jae

Ciraolo's home. This Court should avoid

establishing a rule of law which would

encourage Americans to build high walls,

moats, opaque domes, or castles. To

distinguish among Ciraolo's suburban home

and a suburban home without a fence; or

one with a high wall and many trees around

it and one without trees; or a rural home

in a remote location protected by dogs and

fences and a rural home hidden in the

woods would only deepen the quagmire of

Fourth Amendment jurisprudence. The issue

is not whether private citizens can spy

upon neighbors, or whether the police can

27

accidentally look into a home; the issue

is the propriety of intentional visual

searches into a curtilage by the state's

police.

It would be unprincipled to

allow the legality of visual searches to

depend upon the type of object seen.

Under this theory, the legality of an

aerial search would depend upon whether an

American used his backyard for sunbathing

as well as for marijuana cultivation.

Fourth Amendment protection has never

depended upon whether the police were

looking only for marijuana and saw only

marijuana. Just as there is no murder

scene exception to the Fourth Amendment,

Mincey v. Arizona 437 U.S. 385, 393-395

(1978), there is no marijuana scene

exception to the Fourth Amendment. Thus,

Ciraolo's fenced suburban backyard should

28

not lose its status as a curtilage because

alot of marijuana was grown in it. It

would cause unimaginable confusion to have

courts define a curtilage on the basis of

the size or number of marijuana plants

grown within it. |

Amicus feels compelled to add a

final word in response to the state's

arguments about the probable impact of

this Court's decision on marijuana

cultivation and use. The state has made

no showing that allowing unfettered aerial

surveillance will have any effect on the

total supply or demand for marijuana.

After Oliver, the state has an unlimited

right to engage in general systomatic

aerial surveillance of 95% of the land

mass of the United States.

Even assuming a few marijuana

plants may escape detection in the

ee

29

curtilages of homes (rather than escape

detection in enclosed greenhouses, or

closets, or foreign countries), the issue

is whether Americans are willing to pay

this minimal price to ensure the state

will not have the unfettered discretion to

watch a pool party, a wedding, a show of

affection or a playful romp with one's

children occurring in one's backyard or

bedroom with the sunshine streaming in

through the window.

CONCLUSION

The Civil Liberties Monitoring

Project respectfully requests this Court

to decide this intentional aerial

intrusion into the sanctity of Ciraolo's

curtilage is a Fourth Amendment search

requiring probable cause and a search

warrant. At a minimun, Amicus believes a

30

standard of founded suspicion for this

kind of search is imperative.

Dated: September 29, 1985

Respectfully submitted,

AMITAI SCHWARTZ *

RICHARD JAY MOLLER

RONALD M. SINOWAY

MELVIN B. PEARLSTON

AMITAI SCHWARTZ

155 Montgomery Street

San Francisco, CA 94104

(415) 398-0922

Attorneys for Amicus Curiae

Civil Liberties Monitoring Project

* Counsel of Record

$<

CERTIFICATE CF SERVICE BY MAIL

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

V.

DANTE CARLO CIRAOLO, No. 84-1513

Respondent.

State of California

City and County of San Francisco me

Amitai Schwartz, a member of the Bar of

the Supreme Court of the United States,

being duly sworn, deposes and states:

That his business address is 155

Montgomery Street, Suite 800 in the City

and County of San Francisco, State of

California; that on October 4,1985 true

copies of the attached Brief for Amicus

Curiae in the above-entitled matter were

served on counsel of record by placing

same in envelopes addressed as follows:

Clerk, United States Supreme Court

1 First Street, N.E.

Washington, D.C. 20543

Marshall W. Krause

Krause, Baskin, Shell, Grant, & Bellenttne

Wood Island, Suite 207

60 E. Sir Francis Drake Blvd.

Larkspur, CA 94939

Pamela H. Duncan

Attorney at Law

Post Office Box 98

Santa Cruz, CA 95063

John Van de Kamp

Attorney General of California

Laurence K. Sullivan

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Clerk of the Court

California Court of Appeal

First Appellate District

350 McAllister Street

San Francisco, CA 94102

Leo Himmelsbach

District Attorney

70 W. Hedding Street, 5th Fl.

San Jose, CA 95110

Clerk, Santa Clara Superior Court

191 N. First Street

San Jose, CA 95110

Said envelopes were then sealed

and deposited in the United States mail at

San Francisco, California with first class

postage thereon fully prepaid.

Subscribed and sworn to before

me this 4th day of October, 1985