Chapter 37: Physical Surveillance

[1] CAL: P v.
Camacho (2000) 23 C4 824, 834 ["Had [the officers] been
standing on a public sidewalk, they could have observed defendant
[in his home] for as long as they wished."].

[2] USSC: Florida v. Riley (1989)
488 US 445, 449-50 ["Thus the police, like the public, would have
been free to inspect the backyard garden from the street if their
view had been unobstructed."]. CAL:
Dillon v. Superior Court (1972) 7 C3 305, 311 [officer's
observation of a marijuana garden in a fenced-in backyard was
lawful where the officer viewed the garden from the second floor
of the house next door whose owner had consented to the entry];
P v. Claeys (2002) 97 CA4 55, 59 ["a search does not
violate the Fourth Amendment simply because police officers
trespassed onto a neighbor's property when making their
observations"]; P v. Vermouth (1974) 42 CA3 353, 362 ["The
marijuana plants were seen in plain and unobstructed view from a
neighbor's backyard."]; Hart v. Superior Court (1971) 21
CA3 496 [neighbor consented to a plain view observation of
marijuana plants in the covered portion of defendant's backyard];
P v. Shaw (2002) 97 CA4 833 [with permission of a neighbor,
officers standing behind a fence looked into the common area of
defendant's apartment]; P v. Superior Court (Stroud) (1974)
37 CA3 836, 839-40 ["The observation made by the officers looking
over the five-foot fence from the neighbor's yard disclosed no
more than what was in plain view of the neighboring
householders"]; P v. Smith (1986) 180 CA3 72, 83-84 ["The
fence surrounding Smith's (marijuana) garden was only five feet
high and allowed people outside to see the activities occurring
inside the garden."].

[3] USSC: Oliver v. US
(1984) 466 US 170, 183 ["Nor is the government's intrusion upon an
open field a 'search' in the constitutional sense because that
intrusion is a trespass at common law."]; US v.
Dunn (1987) 480 US 294, 304 ["Under Oliver
and Hester, there is no constitutional difference between
police observations conducted while in a public place and while
standing in the open fields."]. CAL: P v.
Shaw (2002) 97 CA4 833, 838 ["A warrantless observation
made by law enforcement from an open field enjoys the same
constitutional protection as the one made from a public place."];
P v. Channing (2000) 81 CA4 985, 993 ["A warrantless
observation made by law enforcement from an open field enjoys the
same constitutional protection as the one made from a public
place."]; P v. Scheib (1979) 98 CA3 820, 825 ["As
early as 1924, the US Supreme Court held that the Fourth Amendment
protection against unreasonable searches and seizures did not
apply to 'open fields.'" Citing Hester v.
US (1924) 265 US 57]. OTHER:
US v. Mathias (8C 2013) 721 F3 952, 956-57 ["As Officer
Murray was within an open field when he looked through Mathias's
fence, his actions did not constitute a trespassory search."].

[4] USSC: Oliver v. US
(1984) 466 US 170, 177, 178 ["an individual may not legitimately
demand privacy for activities conducted out of doors in fields,
except in the area immediately surrounding the home"];
Dow Chemical v. US (1986) 476 US 227, 235 ["open
fields do not provide the setting for those intimate activities
that the Fourth Amendment is intended to shelter from governmental
interference or surveillance"]. CAL: P v.
Barbarick (1985) 168 CA3 731, 741, fn.3 ["To the extent the
garden was outside the curtilage it was an open field"];
P v. Freeman (1990) 219 CA3 894, 901 ["An open field
need be neither 'open' nor a 'field' as those terms are used in
common speech."]; P v. Channing (2000) 81 CA4 985,
990. 9th CIR: US v. Barajas-Avalos (9C
2004) 377 F3 1040 [open field did not become protected merely
because a travel trailer was kept on the property where the owner
only occasionally slept in the trailer]. OTHER:
Widgren v. Maple Grove Township (6C
2005) 429 F3 575, 579 ["The term 'open field' is somewhat of a
misnomer in that an open field need be neither 'open' nor a
'field' and may include any unoccupied or undeveloped area outside
of the cartilage."]; US v. Reilly (2C 1996)
76 F3 1271, 1281 ["the boundaries of curtilage are naturally and
necessarily imprecise"].

[5] OTHER: US v. Mathis (6C 2013)
738 F3 719, 731["the site was unoccupied and undeveloped…
consisting of a partially demolished building with debris strewn
throughout"].

[6] USSC: Oliver
v. US (1984) 466 US 170, 180, fn.11. OTHER:
US v. Vankesteren (4C 2009) 553 F3 286, 290
["Vankesteren's fields were located a mile or more from his home,
the land was being used for farming and not intimate activities
[and] there is no indication in the record that Vankesteren had
taken any steps to protect his field from observation."];
US v. Hayes (2C 2008) 551 F3 138 [scrub brush
in unfenced area 65 feet from house was not within curtilage].

[7] USSC: US v.
Dunn (1987) 480 US 294, 304 ["It follows that no
constitutional violation occurred here when the officers crossed
over respondent's ranch-style perimeter fence, and over several
similarly constructed interior fences, prior to stopped at the
locked front gate of the barn."]. 9th CIR: US
v. Roberts (9C 1984) 747 F2 537, 541. OTHER:
US v. Rapanos (6C 1997) 115 F3 367, 372 ["The
rather typical presence of fences, closed or locked gates, and 'no
trespassing' signs on an otherwise open field therefore has no
constitutional import."]; Widgren v.
Maple Grove Township (6C 2005) 429 F3 575, 580 ["The
presence of 'No Trespassing' signs does not transform the open
fields into an area where an expectation of privacy is necessarily
reasonable."]; US v. Lewis (10C 2001) 240 F3
866; US v. Caldwell (6C 2000) 238 F3 424.

[8] CAL: P v.
Superior Court (Reilly) (1975) 53 CA3 40, 45 [standing
outside a motel room, officers looked inside through a three-inch
gap in the curtains]; Cooper v.
Superior Court (1981) 118 CA3 499 [the agent "could clearly
see into the [defendant's] household from a neighbor's
apartment"]; P v. Walker (1969) 276 CA2 39, 43
["[The window] had no blinds and there was an unobstructed view
into the kitchen which was well lighted."]; P v.
Stevens (1974) 38 CA3 66, 68-69 [observation through
a "defectively closed door"]. 9th CIR: Ponce
v. Craven (9C 1969) 409 F2 621, 625 ["If [the
defendant] did not wish to be observed, he could have drawn his
blinds."]. OTHER: Commonwealth v.
Hernley (1971) 216 Pa.Super. 177 [in discussing the
defendant's failure to prevent police surveillance by simply
installing curtains, the court said, "The law will not shield
criminal activity from visual observation when the actor shows
such little regard for his privacy."].

[9] USSC: California v.
Ciraolo (1986) 476 US 207, 215 ["The Fourth Amendment
simply does not require the police traveling in the public airways
at this altitude [1,000 feet] to obtain a warrant in order to
observe what is visible to the naked eye."]; Florida
v. Riley (1989) 488 US 445, 451 ["the helicopter in
this case was not violating the law"]. CAL:
P v. Romo (1988) 198 CA3 581, 586 ["the helicopter
was operating lawfully"]; P v. McKim (1989) 214 CA3
766, 771 ["Although the dust has not entirely settled on the issue
of helicopter aerial surveillance in light of
Riley's plurality status and multiplicity of opinions, this
much is clear: five US Supreme Court justices do not think that
the warrantless surveillance of a residential backyard from a
helicopter 400 feet in the air constitutes a per se violation of
the Fourth Amendment"]; P v. Venghiattis (1986) 185
CA3 326, 331 ["Venghiattis may not successfully assert a
reasonable expectation of privacy from lawful aerial
observations."].

[10] USSC: Florida v.
Riley (1989) 488 US 445, 452 ["there was no undue noise,
and no wind, dust, or threat of injury"]. CAL: P v.
Romo (1988) 198 CA3 581, 587 ["[The helicopter] did not
hover over defendant's backyard"]; P v.
St. Amour (1980) 104 CA3 886, 894 ["flying at normal
heights"]; Dean v. Superior Court (1973) 35
CA3 112, 117 ["When the police [in a helicopter] have a plain view
of contraband from a portion of the premises as to which the
occupant has exhibited no reasonable expectation of privacy, there
is no search in a constitutional sense"]; P v.
Superior Court (Stroud) (1974) 37 CA3 836, 839 ["Patrol by
police helicopter has been a part of the protection afforded the
citizens of the Los Angeles metropolitan area for some time. The
observations made from the air in this case must be regarded as
routine."]; P v. McKim (1989) 214 CA3 766, 772
[there was no evidence that the helicopter "created any undue
noise, wind, dust, or threat of injury."]; Burkholder
v. Superior Court (1979) 96 CA3 421, 426 ["neither
of the flights herein involved a purposeful and intensive
(helicopter) overflight in an unreasonable and unlawful
altitude"]; P v. Eckstrom (1986) 187 CA3 323, 334
[defendant's marijuana grow "were spotted in open fields"].
COMPARE: P v. Sneed (1973) 32 CA3 535, 542
["The positioning of the helicopter 20 to 25 feet above
appellant's backyard, in addition to being an obtrusive invasion
of privacy, was probably illegal."]. NOTE: Although the
Court's opinion in Riley was endorsed by only four
justices, all four of them plus Justice O'Connor clearly indicated
they would uphold warrantless helicopter surveillance over the
curtilage if the helicopter was flying at an altitude which, in
the words of the plurality, was not "sufficiently rare in this
country to lend support to respondent's claim that he reasonably
anticipated that his greenhouse would not be subject to
observation from that altitude." In Justice O'Connor's words, "if
the public can generally be expected to travel over residential
backyards at an altitude of 400 feet [which was the surveillance
helicopter's altitude], Riley cannot reasonably expect his
curtilage to be free from such aerial observation." At p. 455.

[11] CAL: P v.
Sabo (1986) 185 CA3 845, 853 ["We judicially notice the
unique capabilities of the helicopter to gambol in the
sky—turning, curtsying, tipping, hummingbird-like suspended in
space, ascending, descending and otherwise confounding its fixed
wing brethren."]; P v. Romo (1988) 198 CA3 581, 588
["Helicopters and airplanes have different capabilities and the
helicopter is particularly suited for conducting more
intrusive-type flights."].