Arno

Norman Arno and Leonard Steer were convicted in the municipal court of three counts of possessing obscene films with intent to distribute them. (Pen. Code, § 311.2.) Their convictions were reversed by the Appellate Department of the Los Angeles Superior Court because of that court’s conclusion that evidence based upon a view of business premises occupied by defendants which was aided by the use of high power binoculars was illegally obtained. Because the issue of optically aided view had not at that time been directly addressed in California, we ordered the matter transferred to this court so that an opinion of statewide effect might be published.

*509 We conclude: (1) the use of optical aids in the nature of binoculars, telescopes and the like is not itself determinative of the admissibility in evidence of the product of the observation; (2) the primary determinative factor is the presence or absence of a reasonable expectation of privacy of the person whose conduct, property, or documents is observed; (3) reasonable expectation of privacy in the context here involved is tested by the extent to which the person has exposed his conduct, property, or documents to public…

Norman Arno and Leonard Steer were convicted in the municipal court of three counts of possessing obscene films with intent to distribute them. (Pen. Code, § 311.2.) Their convictions were reversed by the Appellate Department of the Los Angeles Superior Court because of that court's conclusion that evidence based upon a view of business premises occupied by defendants which was aided by the use of high power binoculars was illegally obtained. Because the issue of optically aided view had not at that time been directly addressed in California, we ordered the matter transferred to this court so that an opinion of statewide effect might be published. [1]

(1a) We conclude: (1) the use of optical aids in the nature of binoculars, telescopes and the like is not itself determinative of the admissibility in evidence of the product of the observation; (2) the primary determinative factor is the presence or absence of a reasonable expectation of privacy of the person whose conduct, property, or documents is observed; (3) reasonable expectation of privacy in the context here involved is tested by the extent to which the person has exposed his conduct, property, or…

I dissent.

The majority opinion as a basis for its reversal apparently focuses on defendants’ “reasonable expectation of privacy” and concludes that the trial court erred in denying the defense motion to suppress the product of Officer Johnson’s binocular-aided observations of suite 804 in the commercial structure at 8560 Sunset Boulevard on the Sunset Strip known as the Playboy Building.

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the [municipal] court sitting as finder of fact. [Citations.] The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence. [Citations.]” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [ 118 Cal.Rptr. 617 , 530 P.2d 585 ].)

It is clear that there is no formula for the determination of “reasonableness,” and each case must be decided on its own facts and circumstances including “the degree of privacy which a defendant may…