People v. Superior Court

I concur in the result, but by a somewhat different line of reasoning. What is at issue in this proceeding (given the ruling of the trial court) is the lawfulness of the observation which the police officer made from the fence, and not the lawfulness of any subsequent intru *348 sion or seizure. 1 The top of the fence was most certainly not a “public vantage point” (cf. Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 724 [ 89 Cal.Rptr. 893 ]), such as a “sidewalk, pathway, common entrance or similar passageway. ..which necessarily negates any reasonable expectancy of privacy in regard to observations made there.” (Lorenzana v. Superior Court (1973) 9 Cal. 3d 626, 629 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ].) 2 The trial court was, therefore, quite correct in concluding that real parties had a reasonable expectation of privacy protectible under the Fourth Amendment as interpreted in Katz v. United States (1967) 389 U.S. 347 [ 19 L.Ed.2d 576 , 88 S.Ct. 507 ].

The fact (as determined by the trial court) that the police officer was not on top of the fence for the purpose of making any observation serves to distinguish this situation from cases like People v. Triggs (1973) 8 Cal.3d 884,…

We issued an alternative writ of mandate on application of the People, who seek reversal of a superior court order *344 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…