People v. Superior Court , 102 Cal. App. 3d 342 ( 1980 )

Opinion

ELKINGTON, Acting P. J.

We issued an alternative writ of mandate on application of the People, who seek reversal of a superior court order suppressing evidence (see Pen. Code, § 1538.5) essential to the prosecution of real parties in interest Spielman, Acosta and Tally.

The single question posed is whether a police officer who, acting reasonably on probable cause to investigate a burglary, inadvertently observes, through the nearby window of an adjoining building, a person’s unrelated criminal conduct therein, has unconstitutionally violated that person’s reasonable expectation of privacy.

The relevant evidence on the motion to suppress was uncontroverted.

Around 2 o’clock one morning a patrolling police officer observed two men somehow enter and close behind them a gate on a fence at the rear of a closed restaurant. Thinking that they might be a cleaning crew he waited a time for lights to come on. When they did not he decided to investigate a possible “illegal entry,” and called over police radio for a backup. Four backup vehicles responded and, no lights in the restaurant premises having yet come on, some of the officers surrounded the area while others proceeded to the fence and gate, which were about nine feet high. No means of opening the gate from the outside were observed, but it appeared that there was an inside latch. With the aid of others, Officer Stine climbed the fence to “get to the other side and unlock the gate”; he had no other purpose. While momentarily balancing on top of the fence, he found himself “looking into the window” of an adjacent building about six feet away. The window’s Venetian blinds were down, but the slats were “open” or “horizontal.” Inside what appeared to be an apartment, the officer observed real party in interest Spielman engaged in what he reasonably believed to be the packaging, and thus possession, of marijuana for sale in violation of Health and Safety Code section 11359.

It may properly be emphasized that the evidence conclusively established Officer Stine’s observation to have been in good faith, unplanned and inadvertent, and not in the course of an investigation of real parties in interest.

In granting the motion to suppress evidence the superior court expressly held that, “despite the fact that their [the police officers’] conduct was reasonable under the circumstances, it just seems to me that looking through a man’s window at 2:00 a.m. in the morning, hanging from a ten-foot fence, is a violation of that person’s reasonable expectation of privacy.” (Italics added.)

The court had thus held that police officers, acting reasonably, may nevertheless violate a person’s reasonable expectation of privacy. In this, we conclude, the court was in error.

The sole purpose of the Fourth Amendment is to protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,.. . ”¹ (Italics added.) For “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”² (Italics added.)

“There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances.. .and on the total atmosphere of the case.”³

But there are authoritative guidelines which trial courts, and this court, are obliged to follow.⁴

It is significant that: “[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’”⁵ “‘It is well established that the right of privacy guaranteed by the Fourth Amendment is not an absolute and may be abridged where a compelling public interest so requires.’”⁶ The United States Supreme Court has recognized that the “‘requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement.’”⁷

“[T]he standard for determining what is an illegal search is whether defendant’s ''reasonable expectation of privacy was violated by unreasonable governmental intrusion.’”⁸ (Italics added.)

The rule iterated by People v. Triggs, supra, 8 Cal.3d 884, 891, has been expressed in many ways. A person’s reasonable expectation of privacy will be violated only by “unreasonable governmental intrusion,”⁹ or “arbitrary” invasions by government officials,¹⁰ or “lawless” invasions,¹¹ or “unwarranted” intrusions,¹² or “unreasonable” searches and seizures,¹³ or “impermissible” intrusions.¹⁴ We find no authority holding that one’s reasonable expectation of privacy might be violated by reasonable police conduct. (The italics of this paragraph are ours.)

It is a “salutary rule of law that observations of things in plain sight from a place where a police officer has a right to be do not amount to a search in the constitutional sense.”¹⁵ And more particularly, there will in such a case be no Fourth Amendment offense where the observation was unplanned and inadvertent,¹⁶ as where “a law enforcement officer lawfully engaged in a search for evidence of one crime inadvertently comes upon evidence of another crime.... ”¹⁷

“The [14th] amendment protects the citizen against invasion of privacy. Once that interest is invaded legally by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of the invasion.”¹⁸ (Italics added.)

Here the evidence conclusively established as found by the superior court that Officer Stine, while lawfully investigating an apparent burglary and at a place where he had a right to be, inadvertently observed criminal activity through the nearby window of an adjoining building. The superior court properly found that his “conduct was reasonable under the circumstances,...” Under the authority we have cited, it follows as a matter of law that there was no unconstitutional violation of the right of privacy of the real parties in interest, or otherwise. The superior court erred in granting the motion to suppress.

The several authorities relied upon by real parties in interest concern planned and ongoing police investigations of persons suspected of criminal activity, in the course of which unlawful and unconstitutional means of surveillance of their activity were engaged in. They are wholly inapposite to the case before us.

The peremptory writ of mandate will issue.

Newsom, J., concurred.

1 United States Constitution, Fourth Amendment.

2 Elkins v. United States (1960) 364 U.S. 206, 222 [4 L.Ed.2d 1669, 1680, 80 S.Ct. 1437]; People v. Medina (1972) 7 Cal.3d 30, 41 [101 Cal.Rptr. 521, 496 P.2d 433],

3 People v. Ingle, (1960) 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577]; and see Go-Bart Co. v. United States (1931) 282 U.S. 344, 357 [75 L.Ed. 374, 382, 51 S.Ct. 153]; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]; People v. Berutko (1969) 71 Cal.2d 84, 93 [77 Cal.Rptr. 217, 453 P.2d 721]; People v. Newell (1979) 93 Cal.App.3d 29, 36 [155 Cal.Rptr. 430],

4 See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937],

5 Katz v. United States (1967) 389 U.S. 347, 350 [19 L.Ed.2d 576, 581, 88 S.Ct. 507]; Fraser v. United States (7th Cir. 1971) 452 F.2d 616, 620.

6 People v. Thomas (1975) 45 Cal.App.3d 749, 757 [119 Cal.Rptr. 739]; Russi v. Superior Court (1973) 33 Cal.App.3d 160, 168 [108 Cal.Rptr. 716],

7 Osborn v. United States (1966) 385 U.S. 323, 330, fn. 9 [17 L.Ed.2d 394, 400, 87 S.Ct. 429], and see authority there collected; United States v. Bobo (4th Cir. 1973) 477 F.2d 974, 979.

8 People v. Triggs (1973) 8 Cal.3d 884, 891 [106 Cal.Rptr. 408, 506 P.2d 232] (overruled on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4 [150 Cal.Rptr. 910, 587 P.2d 706]).

9 Katz v. United States, supra, 389 U.S. 347, passim; Cleaver v. Superior Court (1979) 24 Cal.3d 297, 302 [155 Cal.Rptr. 559, 594 P.2d 984]; People v. Hyde (1974) 12 Cal.3d 158, 164 [115 Cal.Rptr. 358, 524 P.2d 830]; Dillon v. Superior Court (1972) 7 Cal.3d 305, 310 [102 Cal.Rptr. 161, 497 P.2d 505]; People v. Medina, supra, 1 Cal.3d 30, 41; People v. Bradley (1969) 1 Cal.3d 80, 84 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Edwards (1969) 71 Cal.2d 1096, 1104 [80 Cal.Rptr. 633, 458 P.2d 713],

10 United States v. Martinez-Fuerte (1976) 428 U.S. 543, 554 [49 L.Ed.2d 1116, 1126, 96 S.Ct. 3074); Camara v. Municipal Court (1967) 387 U.S. 523, 528 [18 L.Ed.2d 930, 935, 87 S.Ct. 1727]; United States v. Hunter (6th Cir. 1977) 550 F.2d 1066, 1074; People v. Newell, supra, 93 Cal.App.3d 29, 36.

11 Terry v. Ohio (1968) 392 U.S. 1, 13 [20 L.Ed.2d 889, 901, 88 S.Ct. 1868],

12 Terry v. Ohio, supra, 392 U.S. 1, 13 [20 L.Ed.2d 889, 901]; Nordskog v. Wainwright (5th Cir. 1977) 546 F.2d 69, 72.

13 Terry v. Ohio, supra, 392 U.S. 1, 12 [20 L.Ed.2d 889, 901]; Camara v. Municipal Court, supra, 387 U.S. 523, 528 [18 L.Ed.2d 930, 935]; People v. Tremayne (1971) 20 Cal.App.3d 1006, 1015 [98 Cal.Rptr. 193].

14 United States v. Kaiser (5th Cir. 1977) 545 F.2d 467, 477.

15 Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634 [108 Cal.Rptr. 585, 511 P.2d 33]; see also Harris v. United States (1968) 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992]; Dillon v. Superior Court, supra, 1 Cal.3d 305, 310; Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 707 [94 Cal.Rptr. 412, 484 P.2d 84].

16 Harris v. United States, supra, 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069.]; United States v. Wilson (8th Cir. 1975) 524 F.2d 595, 598; United States ex rel. La-Belle v. LaValle (2d Cir. 1975) 517 F.2d 750, 755.

17 United States v. Masciarelli (2d Cir. 1977) 558 F.2d 1064, 1067; see also Frazier v. Cupp (1969) 394 U.S. 731, 740 [22 L.Ed.2d 684, 693, 89 S.Ct. 1420]; Harris v. United States (1947) 331 U.S. 145, 153-155 [91 L.Ed. 1399, 1407-1408, 67 S.Ct. 1098] (overruled on other grounds in Chimel v. California (1969) 395 U.S. 752, 768 [23 L.Ed.2d 685, 696, 89 S.Ct. 2034]); United States v. Sedillo (9th Cir. 1974) 496 F.2d 151, 151-152; United States v. Gargotto (6th Cir. 1973) 476 F.2d 1009, 1013; United States v. Nelson (10th Cir. 1971) 448 F.2d 1304, 1307.

18 United States v. Brand (5th Cir. 1977) 556 F.2d 1312, 1317.