Cook

This case requires us to examine the contours of California citizens’ entitlement to be free from the intrusive gaze of the state, in an era when the instruments of surveillance at the disposal of the police are far more sophisticated than our nation’s founders would have dared contemplate. Here, after law enforcement officials were frustrated in their effort to confirm from any land-based public vantage point an anonymous tip of possible marijuana cultivation at appellant’s residence, they carefully surveyed appellant’s fenced back yard from a fixed-wing aircraft without obtaining a warrant, We conclude that this warrantless scrutiny, which led to the acquisition of a search warrant under which marijuana growing in ap *376 pellant’s yard ultimately was seized, violated appellant’s rights under article I, section 13 of the California Constitution. 1

The issue is whether appellant enjoyed a so-called reasonable expectation that he could conduct affairs in his enclosed back yard in privacy. (People v. Crowson (1983) 33 Cal.3d 623, 629 [ 190 Cal.Rptr. 165 , 660 P.2d 389 ]; Burrows v. Superior Court, supra, 13 Cal.3d 238, 242-243 ; see Katz v. United States (1967) 389 U.S.…

I respectfully dissent.

The majority, invoking the California Constitution’s proscription against “unreasonable seizures and searches” (art. I, § 13), holds invalid all warrantless aerial surveillance of backyards and similar “curtilage” areas. 1 I cannot join in imposing such a broad, absolute prohibition. In my view, the limited, nonintrusive surveillance undertaken here did not constitute an “unreasonable” search.

The majority’s repeated concern for protecting legitimate privacy interests is entirely misplaced in cases such as this, where the officers surveyed defendant’s backyard at a height of 1,600 feet. At such, a height, as the majority appears to acknowledge, “it is virtually impossible to observe legitimate and private human activities on the ground.” (Ante, p. 384.) Indeed, the present “search” was limited to scrutinizing the color of defendant’s plants, and looking for the distinctive bright green hue of growing marijuana plants. The only privacy interest significantly infringed by such overflights is the interest of the marijuana grower in concealing his illegal crop. Contrary to the majority’s repeated references to “garrison states” and “Orwellian notions,” we are…

This case requires us to examine the contours of California citizens' entitlement to be free from the intrusive gaze of the state, in an era when the instruments of surveillance at the disposal of the police are far more sophisticated than our nation's founders would have dared contemplate. Here, after law enforcement officials were frustrated in their effort to confirm from any land-based public vantage point an anonymous tip of possible marijuana cultivation at appellant's residence, they carefully surveyed appellant's fenced back yard from a fixed-wing aircraft without obtaining a warrant. (1a) We conclude that this warrantless scrutiny, which led to the acquisition of a search warrant under which marijuana growing in appellant's yard ultimately was seized, violated appellant's rights under article I, section 13 of the California Constitution. [1]

The issue is whether appellant enjoyed a so-called reasonable expectation that he could conduct affairs in his enclosed back yard in privacy. ( People v. Crowson (1983) 33 Cal.3d 623, 629 [ 190 Cal. Rptr. 165 , 660 P.2d 389 ]; Burrows v. Superior Court, supra, 13 Cal.3d 238, 242-243 ; see Katz v. United States…