LORENZANA v. SUPERIOR COURT

OPINION

TOBRINER, J.

The crucial question we face here is whether a citizen may properly be subjected to the peering of the policeman who, without a search warrant, walks over ground to which the public has not been invited but which has been reserved for private enjoyment, stands by a window on the side of a house and peeks through a two-inch gap between the drawn window shade and the sill, and thus manages to observe the conduct of those within the residence. We conclude that the questioned police procedure too closely resembles the process of the police state, too dangerously intrudes upon the individual's reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle; the prosecution cannot introduce into evidence, and the courts cannot be tainted with, that which the intrusion yields.

We shall point out that the cases recognize the distinction between the observations of a police officer who has positioned himself upon property which has been opened to public common use, and the observations of an officer who ventures onto property which has not been so committed. A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there. The officer who walks upon such property so used by the public does not wear a blindfold; the property owner must reasonably expect him to observe all that is visible. In substance the owner has invited the public and the officer to look and to see. But by the same reasoning, the officer who intrudes upon property not so open to the public enjoys no such prerogatives.

By separate petitions petitioners here seek writs of mandate to set aside orders of the Los Angeles Superior Court denying their motions to suppress evidence obtained as a result of police observation into petitioner Lorenzana's home. Because the petitions involve identical facts and issues of law, we consolidated them for purposes of this review. We begin with a statement of the uncontested facts of the case as drawn from the testimony of police officers adduced at the preliminary examination and the suppression hearing held pursuant to Penal Code section 1538.5.

On May 27, 1971, Sergeant Charles Myers of the Narcotics Division of the Los Angeles Police Department received information from a "confidential reliable informant" that an individual named Richard was "dealing" in heroin at 368 North Avenue 53. The informant told Sergeant Myers that he had gone to the address with another person, and that the person had "scored," or bought heroin. According to the informant, upon receiving an order for heroin, Richard would go somewhere else and pick it up. At approximately 10 p.m. on the day they received this information, the police proceeded to the address which the informant had given them. The officers neither attempted to, nor did, procure a search or arrest warrant.

The dwelling at the designated address, a single family house, was set back about 70 feet from the sidewalk. The front door to this dwelling did not face the public street on the north, but instead was on the west side of the building. A rear door opened on the south side. Officer Myers testified that access to the house was from the west. There were no doors or defined pathways on the east side of the house, and a strip of land covered with grass and dirt approximately six to ten feet in width separated the east side of the dwelling from an adjacent apartment driveway.

Upon arriving at the address, Sergeant Myers circled behind the apartment, walked down the adjacent driveway, crossed onto the strip of petitioner Lorenzana's property, and positioned himself at a window on the east side of the house. The window had been fully closed. The window glass was intact. The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade. Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window.

Sergeant Myers testified that he had trespassed onto petitioner Lorenzana's property because he could not see into the house from the adjacent driveway or from the street. In fact, he could not see into the dwelling until he was within five or six inches of the window. The officer further testified that he knew that the property onto which he trespassed was not a common-use area but belonged to the dwelling at 368 North Avenue 53. Sergeant Myers did not have permission to go upon the property.

Myers placed his face within an inch of the window on the east side of the house and stood there for approximately 15 minutes. During this time he overheard a telephone conversation in which a man inside said, "If you want to cop, you can come over. I will have to pick the stuff up," and, "Someone's coming over that I am going to pick up for now, and I'll get yours when I return." Three or four minutes later, Sergeant Myers observed, through the aperture at the bottom of the window, a man go to the front door and talk with someone in the doorway. A moment later both men left the location, and Myers notified officers in the field to follow them.

The officers followed the man who had been in the house, later identified as petitioner Lorenzana, to an apartment. They observed him knock on the door, and petitioner Salas answered. Although the officers did not see any objects actually transferred, they thought that Lorenzana and Salas might have exchanged something.

Thirty minutes after he had left the house at 368 North Avenue 53, petitioner Lorenzana returned. Police resumed their surveillance at the window on the east side of the house, and observed petitioner Lorenzana empty the powdery contents of a tied-off rubber balloon onto a newspaper. Concluding that the substance was heroin, the officers went to the door, announcing, "You are under arrest for narcotics violations. Open the door." Hearing running movements, the officers reasoned that evidence was being destroyed; they forced entry into the house, arresting petitioner Lorenzana and two others, and recovering a small amount of heroin.

Sergeant Myers radioed the news of the arrests and recovery of heroin to officers waiting at petitioner Salas' apartment. Upon receiving the call, the officers went to Salas' apartment, announced, "Police officers. You're under arrest for narcotics violations," and hearing movements within, they forced their way into the apartment. The police then arrested defendant Salas and recovered nine balloons of heroin which he had attempted to throw to the floor upon their entry. The officers also recovered a can of milk sugar, often used for "cutting" heroin before sale. Because of the amount of heroin recovered, as well as the can of milk sugar, the police concluded that petitioner Salas possessed the narcotics for sale. Contending that the search at Lorenzana's house violated constitutional precepts and that the evidence described above was obtained as a fruit of that unlawful search, petitioners seek suppression of the evidence seized in both of their homes.

With this background in view we proceed to a brief survey of the California cases. We shall show that in evaluating the reasonableness of searches under the state and federal Constitutions (Cal. Const., art. 1, § 19; U.S. Const., 4th Amend.), the decisions differentiate between the police officer, who, acting without a warrant, observes activities in a private residence while standing upon a part of the surrounding property that has been opened, expressly or impliedly, to public use, and the officer who, in such circumstances, stands upon property not so committed.

In People v. Willard (1965) 238 Cal.App.2d 292 [ 47 Cal.Rptr. 734], police officers without a warrant went upon the defendant's property, and from the steps leading up to a side door of defendant's house, through a screen door, observed illegal activity. In concluding that "there was no substantial, if any, degree of privacy to the area" ( id. at p. 307), the court pointed out that the door appeared to have been a normal means of access to and egress from the house and that the sidewalk from the property line to this door was used by persons other than the occupants of the house; while the officer stood on the sidewalk, which enjoyed public use, he could constitutionally observe illegal activity in plain view inside the house.

People v. Berutko (1969) 71 Cal.2d 84 [ 77 Cal.Rptr. 217, 453 P.2d 721] involved a situation in which the officers went to a common passageway bordering defendant's apartment, and from there observed contraband through an aperture in the curtains which the defendant had drawn. Noting that the case involved "observation by an officer from a place where he had a right to be and through an opening which defendant had provided through his arrangement of drapes covering the window" ( id. at p. 91 (italics added and deleted)), the court held that the police had not violated constitutional limits by observations which they drew from an area in which they were "lawfully present." ( Id. at p. 94.)

We faced the same issue in People v. Bradley (1969) 1 Cal.3d 80 [ 81 Cal.Rptr. 457, 460 P.2d 129]. In that case a police officer proceeded to the rear of defendant's back yard, and observed plants growing in the yard "a scant 20 feet from the defendant's door to which presumably delivery men and others came" ( id. at p. 85). Closer scrutiny revealed the plants to be marijuana. Based on these facts a majority of this court held that the officer did not violate constitutional rights in his act of discovering and later seizing the plants.

Other cases illustrate the converse situation in which the officer stations himself at a place which is not open to the public. Thus, in Pate v. Municipal Court (1970) 11 Cal.App.3d 721 [ 89 Cal.Rptr. 893], the Court of Appeal evaluated the conduct of police officers who, in order to observe obscene movies being shown inside a motel room, climbed onto a second-story trellis and so posted themselves "at a considerable distance from any public vantage point" ( id. at p. 724). Finding that the defendants had exhibited a reasonable expectation of privacy in drawing the curtains over a window in order that observations could not be made from any area open to public use, the court determined that the officers' search from the trellis constituted an unreasonable governmental intrusion, necessitating suppression of the evidence obtained as a result of that search. (Accord, People v. Myles (1970) 6 Cal.App.3d 788 [ 86 Cal.Rptr. 274].) Likewise the court in People v. Cagle (1971) 21 Cal.App.3d 57 [ 98 Cal.Rptr. 348] sustained a finding that police officers transgressed constitutional limits by looking through defendant's bathroom window, which "was at the rear of the house, situated far from all normal access routes" ( id. at p. 65).

Similarly, in Cohen v. Superior Court (1970) 5 Cal.App.3d 429 [ 85 Cal.Rptr. 354], the Court of Appeal held that a police search conducted from a fire escape into an upstairs window might prove unlawful, since as a matter of fact the fire escape might not constitute a common area "except during an emergency evacuation" ( id. at p. 435); during such an evacuation, the occupants might nonetheless reasonably expect that evacuees would not peer into their room. Ordering a hearing of this factual question, the appellate court held that the trial court erred in ruling that the search was reasonable per se.

Finally, in Mann v. Superior Court (1970) 3 Cal.3d 1 [ 88 Cal.Rptr. 380, 472 P.2d 468], we addressed the actions of officers who, in order to obtain a clear view into the defendant's house, positioned themselves next to the window, inside a group of bushes that blocked the window view from the property's "public" areas. After observing "what was going on in the house" from this "vantage point," the officers then obtained the consent of the house's occupants to conduct a search. In concluding that this consent vitiated the defendants' claim to protection under constitutional provisions, we "assumed without deciding that the officers violated petitioners' constitutional right to privacy by looking through the window while trespassing in the shrubbery outside." ( Id. at p. 7.)

(1) These cases clearly demonstrate the salutary rule of law that observations of things in plain sight made from a place where a police officer has a right to be do not amount to a search in the constitutional sense. On the other hand, when observations are made from a position to which the officer has not been expressly or implicitly invited, the intrusion is unlawful unless executed pursuant to a warrant or one of the established exceptions to the warrant requirement. (2) In the instant case, it is undisputed that the officers had not obtained a warrant, that conditions warranting the application of an exception to the warrant requirement did not exist, and that the officers did not make their observations from a position to which they were expressly invited; hence, unless they were implicitly invited to the place from which they made their observations, the officers' conduct cannot be upheld.

All of the evidence produced at the preliminary examination and the suppression hearing demonstrated that the officers could not see into the residence from either the public street or the adjacent apartment driveway. Indeed Officer Myers testified that he could neither see nor hear anything inside the Lorenzana home until he came within five or six inches of the window on the east side of the dwelling. The trial court's denial of defendants' motion to suppress can be sustained only by a finding that an implicit invitation offered by the observable characteristics of the house and surrounding property gave the officers the right to position themselves only six inches away from that window. An examination of the record, however, reveals no substantial evidence to support such a finding.

The evidence revealed that the six-foot-wide strip of property immediately adjacent to the window through which the observations were made is covered with dirt and grass, that there is no sidewalk or pathway leading past the window from any direction, that the side of the house containing the window does not contain a door, and that the main entrance, or front door, is on the opposite side of the house. Officer Myers testified that normal access to the house would be from the side containing the main entrance and that the land adjacent to the window was not a common use portion with other buildings. None of this evidence could support a finding that normal approach to the Lorenzana home would lead the public to within six inches of the window in question.

The evidence also thoroughly rebuts an inference that the six-foot strip served as a normal access route to the rear door of the Lorenzana home or to the house behind on the same lot. First, that evidence shows that there are bushes toward the rear of the house on the east side containing the window. Although the extent of obstruction is not revealed, it is reasonable to conclude that these bushes represent a significant hindrance to anyone proceeding to the rear of the house by way of this strip of land only six feet wide. Second, the rear door of the Lorenzana home is situated on the west side of a vestibule protruding out of the rear of the structure. Since the door faces west and in fact is not even visible from the east, it would be unreasonable to infer that someone normally approaching the rear door would proceed down the east side past the window, clear around the vestibule, and finally to the door rather than proceeding by the more direct route down the west side of the house past the main entrance. Third, Officer Myers testified that the land beneath the window did not appear to be in common use by the occupants of any adjacent buildings. Since Myers approached the Lorenzana home from the rear and saw the house behind it on the same lot, his testimony strongly undercuts an inference that access to the other house would be by way of the strip of land that passes by the window in question. That inference is further weakened by the existence of an alley on the south side of the other house, making it unreasonable to eschew access by way of that alley and choose instead access by passing from the street some 100 feet away and down the east side of the Lorenzana home.

(3) While this court must view the evidence in the light most favorable to the trial court's order, we also cannot ignore "the well established rule [that] our function is to determine whether substantial evidence supports it." ( People v. Cagle (1971) 21 Cal.App.3d 57, 62 [ 98 Cal.Rptr. 348].) The record reveals no substantial evidence supporting a conclusion that a normal access route to either the Lorenzana home or the house behind it on the same lot would lead to a point within a scant six inches from the window through which the officers made their observations; thus, those observations were made from a position where the officers had no right to be. Since neither a warrant nor one of the established exceptions to the warrant requirement sanctioned this intrusion, it was unlawful.

(4) The fact that apertures existed in the window, so that an unlawfully intruding individual so motivated could spy into the residence, does not dispel the reasonableness of the occupants' expectation of privacy. (See, e.g., People v. Cagle (1971) supra, 21 Cal.App.3d 57; Pate v. Municipal Court (1970) 11 Cal.App.3d 721 [ 89 Cal.Rptr. 893]; People v. Myles (1970) 6 Cal.App.3d 788 [ 86 Cal.Rptr. 274].) To the contrary, the facts of this case demonstrate that by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use. Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum of privacy, would be compelled to encase himself in a light-tight, air-proof box. The shadow of 1984 has fortunately not yet fallen upon us.

Our holding that police officers conduct an unreasonable search under the above circumstances conforms to the reasoning of the United States Supreme Court's definitive decision in Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507]. In that case, which evaluated the government's right "to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls" ( id. at p. 348 [19 L.Ed.2d at p. 580]), Mr. Justice Stewart comprehensively defined the Fourth Amendment as protecting an individual's "privacy upon which he justifiably relied." ( Id. at p. 353 [19 L.Ed.2d at p. 583].) Rejecting the theory that the Fourth Amendment applied only to "constitutionally protected areas," the Katz court declared: "the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." ( Id. at pp. 351-352 [19 L.Ed.2d at p. 582].)

The factual setting of Katz, involving the use of a telephone booth which was accessible to the public, necessitated Mr. Justice Stewart's delineation of the Fourth Amendment's scope in the generic terms of "reasonable expectations of privacy." Because of the telephone booth's public accessibility, as contrasted to that of the noncommon area surrounding a private residence, the booth clearly could not be deemed a "constitutionally protected area"; the Katz court rejected application of that standard to "the problem presented by this case," noting that "we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem." (389 U.S. at p. 351 fn. 9 [19 L.Ed.2d at p. 582].) Applying its broadly defined standard, the Katz court held that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment." (389 U.S. at p. 353 [19 L.Ed.2d at p. 583].)

In a similar fashion, the generic Katz rule permits the resident of a house to rely justifiably upon the privacy of the surrounding areas as a protection from the peering of the officer unless such residence is "exposed" to that intrusion by the existence of public pathways or other invitations to the public to enter upon the property. This justifiable reliance on the privacy of the non-common portions of the property surrounding one's residence thus leads to the particular rule that searches conducted without a warrant from such parts of the property always are unconstitutional unless an exception to the warrant requirement applies. Mr. Justice Harlan, concurring in the Katz decision, nicely summarizes this point: "Generally, . . . the answer to that question [of what protection the Fourth Amendment extends] requires reference to a `place'. . . . Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the `plain view' of outsiders are not `protected' because no intention to keep them to himself has been exhibited." (389 U.S. at p. 361 [19 L.Ed.2d at pp. 587-588].)

Pursuant to the principles of Katz, therefore, we do not rest our analysis exclusively upon such abstractions as "trespass" or "constitutionally protected areas" or upon the physical differences between a telephone booth and the land surrounding a residence; we do, however, look to the conduct of people in regard to these elements. Taking into account the nature of the area surrounding a private residence, we ask whether that area has been opened to public use; if so, the occupant cannot claim he expected privacy from all observations of the officer who stands upon that ground; if not, the occupant does deserve that privacy. Since the eavesdropping officer in the case before us stood upon private property and since such property exhibited no invitation to public use, we find that the officer violated petitioner Lorenzana's expectations of privacy, and hence, his constitutional rights.

The People do not contest the conclusion that the occupants of the Lorenzana residence entertained a reasonable expectation of privacy, but contend that "for purposes of the Fourth Amendment there is a difference of constitutional dimension between electronic eavesdropping, which involves the use of mechanical devices, and simple eavesdropping or surreptitious observation, which involves only the use of some of man's five senses." The danger to the privacy of citizens from electronic eavesdropping is far greater, the People assert, than from "the eavesdropper or `peeping Tom' traditionally known to the law"; the electronic eavesdropper "imposes a much greater threat to the principles underlying the Fourth Amendment."

Whatever the relative and speculative dangers of "electronic" compared to "simple" surveillance, the constitutional distinction which the People attempt to draw does not pass the clarifying scrutiny which the United States Supreme Court decision in Katz v. United States imparts to the Fourth Amendment. We now recognize the constitutional encasement which renders inviolable the individual's reasonable expectation of privacy; any governmental intrusion into that privacy is an "unreasonable search" within the meaning of the Fourth Amendment, whether that intrusion be the traditional physical search (e.g., People v. Edwards (1969) 71 Cal.2d 1096 [ 80 Cal.Rptr. 633, 458 P.2d 713]) or a surreptitious auditory invasion (e.g., Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507] (electronic); United States v. Case (7th Cir. 1970) 435 F.2d 766 (non-electronic)) or indeed visual intrusion (e.g., People v. Triggs (1973) 8 Cal.3d 884 [ 106 Cal.Rptr. 408, 506 P.2d 232]; Britt v. Superior Court (1962) 58 Cal.2d 469 [ 24 Cal.Rptr. 849, 374 P.2d 817]; Bielicki v. Superior Court (1962) 57 Cal.2d 602 [ 21 Cal.Rptr. 552, 371 P.2d 288]).

The People further contend, however, that the police "had probable cause to arrest petitioner" based upon information from a reliable informant and that they had knowledge that petitioner was obtaining narcotics from somebody else; hence, "rather than making an arrest" the police could investigate, by means of a deliberate search, "to ascertain the identity of [the] supplier." As the People themselves recognize, such an argument as "probable cause," was rejected by the United States Supreme Court in Katz v. United States (1967) supra, 389 U.S. 347. (5) The contention ignores the well-established principle that, except for certain well-delineated and non-applicable exceptions, no quantum of "probable cause" will justify a warrantless search.

As the court in Katz explained: ". . . this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful `notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires `that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . .'" (389 U.S. at pp. 356-357 [19 L.Ed.2d at p. 585]; accord, Coolidge v. New Hampshire (1971) 403 U.S. 443, 450-451 [29 L.Ed.2d 564, 573-574, 91 S.Ct. 2022]; Vale v. Louisiana (1969) 399 U.S. 30, 34 [26 L.Ed.2d 409, 413, 90 S.Ct. 1969]; People v. Henry (1967) 65 Cal.2d 842, 845 [ 56 Cal.Rptr. 485, 423 P.2d 557].)

In brief, the People's proposed rule would transform probable cause to arrest into an authorization to search without a warrant, a rule which could not pass constitutional muster. Although the officers who went to 368 North Avenue 53 indeed may have had probable cause to arrest the occupant, that probable cause did not entitle them to conduct a warrantless exploratory search for other evidence against the occupant. Again quoting Katz, "Whatever one's view of `the long standing practice of searching for other proofs of guilt within the control of the accused found upon arrest,' [citation] the concept of an `incidental' search cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest." (389 U.S. at pp. 357-358, fn. 20 [19 L.Ed.2d at p. 586].)

(6) The People finally contend that even if we hold that the police surveillance violated constitutional requirements, as, indeed, we have concluded, the case should still be remanded to the trial court to enable the People to argue that the contested evidence, instead of constituting the "fruit" of that illegality, would, in any event, have been discovered. Such a result, however, would negate the purpose for which Penal Code section 1538.5 establishes the pretrial suppression hearing; namely, to avoid the continued relitigation of the question of the admissibility of evidence.

In this case, petitioners presented a motion to suppress the evidence on the grounds that it was the fruit of an illegal search; the petitioners and the People submitted that question on the basis of testimony taken at the preliminary examination as well as that adduced at the suppression hearing. All parties faced the obligation of presenting all their testimony and arguments relative to the question of the admissibility of the evidence at that time. If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing. The People offered no such argument at that hearing and may not do so for the first time on appeal. To allow a reopening of the question on the basis of new legal theories to support or contest the admissibility of the evidence would defeat the purpose of Penal Code section 1538.5 and discourage parties from presenting all arguments relative to the question when the issue of admissibility of evidence is initially raised. ( People v. Superior Court (1971) 14 Cal.App.3d 935, 939, fn. 1 [ 92 Cal.Rptr. 545]; see People v. Miller (1972) 7 Cal.3d 219, 227 [ 101 Cal.Rptr. 860, 496 P.2d 1228]; People v. Superior Court (1972) 7 Cal.3d 186, 198-199 [ 101 Cal.Rptr. 837, 496 P.2d 1205]; Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 109 [ 68 Cal.Rptr. 530].)

In sum, the prying policeman, clandestinely peering through a two-inch aperture between drawn blinds and windowsill, standing upon trespassed property over which the public has not been expressly or impliedly invited, portrays a sorry figure who violates his subject's right of privacy — a right protected by the California and United States Constitutions and precious to a free and open society.

Let peremptory writs of mandate issue as prayed.

Wright, C.J., Mosk, J., and Sullivan, J., concurred.