People v. Arno

90 Cal. App. 3d 505, 153 Cal. Rptr. 624, 1979 Cal. App. LEXIS 1501

• Court: California Court of Appeal
• Decided: March 7, 1979
• Docket: Crim. 33155
• Status: Published

Opinions

Opinion

THOMPSON, J.

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

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 view by the naked eye; (4) if the purpose of the optically aided view is to permit clandestine police surveillance of that which could be seen from a more obvious vantage point without the optical aid, there is no unconstitutional intrusion; and (5) if the purpose of the optical aid is to view that which could not be seen without it, there is. We recognize that special circumstances involving a high degree of danger to life or property may permit an optically aided view and that there may be situations in which probable cause may be established to the satisfaction of a magistrate so that the aided view may be authorized by a warrant. We do not reach those latter issues on the record here.

Facts

Suspecting that defendants were operating a commercial venture wholesaling pornographic films, the Los Angeles police conducted a surveillance of their activities and those of their contracts over a 10-day period. Officer James D. Johnson, a member of the surveillance team, stationed himself on a hilltop 200 to 300 yards distant from the Playboy Building located at 8560 Sunset Boulevard. His vantage point was at an altitude approximating that of the sixth or seventh floor of the building. No other vantage points remotely approaching the height of the hill were located closer to the side of the building facing Johnson.

With his naked eye and also 10-power binoculars and starting with the first floor, Johnson surveyed the “whole building.” Using the binoculars, he looked into various offices and a photography studio within the building over a period of five to six hours. The drapes in suite 804 on the eighth floor were open. Through the window, Johnson could see that there were people in the suite but could identify nothing other than the color of their clothing. Using the binoculars, he saw Arno and others handle a distinctively marked flip-top box displaying a label with a picture of a nude woman. The box contained eight millimeter film.

The product of Johnson’s observation found its way into an affidavit signed by Officer David K. Weller which was presented to a magistrate in connection with an application for a warrant authorizing the search of suite 804, other premises, and automobiles. Later warrants were also issued. Copies of pornographic film and various business documents were seized when the warrants were executed.

Defendants’ motion to suppress the product of Johnson’s binocularly aided view and the evidence seized in execution of the warrant was denied. The product of the search was introduced in evidence by the prosecution. Johnson being unavailable at trial, his testimony detailing his view given at the motion to suppress was, at the prosecution’s instance, read to the jury. Weller, testifying as an expert on pornography operations, gave his opinion that the premises of suite 804 in the Playboy Building were being used for the wholesale distribution of sexually explicit pornographic films. Weller based his opinion upon the seized film and documents, and upon the results of the entire investigation.

The Optically Aided View

Some California decisions have noted but finessed the issue of the validity of optically aided views in the context of the protection of the right of privacy guaranteed by the Fourth Amendment as explicated in Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], (See, e.g., People v. Cox (1969) 274 Cal.App.2d 816 [79 Cal.Rptr. 541]; People v. Fly (1973) 34 Cal.App.3d 665 [110 Cal.Rptr. 158].) To our knowledge, however, no California decision has addressed the issue. Neither have we found any reported California case considering the impact of article I, section 1, of the California Constitution upon the problem.

We start then with Katz v. United States, supra, 389 U.S. 347. There the United States Supreme Court held constitutionally invalid evidence obtained by FBI agents from placing an electronic amplifying and recording device outside a public telephone booth. Once and for all rejecting the “trespass test” of illegality of search or surveillance, the high court declared: “[T]he 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. [Citations.]” (389 U.S. at pp. 351-352 [19 L.Ed.2d at p. 582].)

The Katz court rejected a prosecution argument founded on the proposition that the phone booth was partially constructed of glass so that the defendant could be seen inside it. It said: “But what [the defendant] sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear.” (Id.)

Given today’s state of technology, it is impossible to conceptualize a legally significant difference between electronically aided aural perception and optically aided visual view. As electronic bugs and remote microphones have made it possible to intrude upon private conversation surreptitiously in an Orwellian degree, so have modern optics made possible the same sort of visual intrusion. Employment of today’s technology of sophisticated optical systems, infrared process, and computer image enhancement carry the range of eyesight far beyond that of the spyglass. It can hardly be argued that the late unlamented activity of the break-in to the premises of the Democratic National Committee in the Watergate complex would have been any less intrusive had the sought after results been achieved by modern technology located outside the building.

The federal constitutional right against intrusion into the reasonable expectation of privacy is amplified by the specific right of privacy guaranteed by article I, section 1, of the California Constitution. The California constitutional guarantee is motivated by concern against contemporary society’s accelerating encroachment upon personal freedom and security caused by increased surveillance and data collection. (White v. Davis (1975) 13 Cal.3d 757, 774-775 [120 Cal.Rptr. 94, 533 P.2d 222].) It seems virtually tailored to meet the situation here involved.

We thus view the test of validity of the surveillance as turning upon whether that which is perceived or heard is that which is conducted with a reasonable expectation of privacy and not upon the means used to view it or hear it. So long as that which is viewed or heard is perceptible to the naked eye or unaided ear, the person seen or heard has no reasonable expectation of privacy in what occurs. Because he has no reasonable expectation of privacy, governmental authority may use technological aids to visual or aural enhancement of whatever type available. However, the reasonable expectation of privacy extends to that which cannot be seen by the naked eye or heard by the unaided ear. While governmental authority may use a technological device to avoid detection of its own law enforcement activity, it may not use the same device to invade the protected right.

The distinction is well elucidated in United States v. Kim (D. Hawaii 1976) 415 F.Supp. 1252. There the federal district court was faced with the admissibility of evidence of two types of optically enhanced view. FBI agents had used a high powered telescope to peer into the interior of an apartment into which no one could see without artificial aid. Other agents had used binoculars to watch a balcony into which anyone could see with the naked eye. Relying upon Katz, the court found that the observation into the interior of the apartment invaded a reasonable expectation of privacy but that the observation of activity on the balcony might not.

Cases cited for a contrary result do not support the proposition for which they are cited. Rather, they approve binocular or other optically aided searches under circumstances where a reasonable expectation of privacy was not established because the activity observed could be seen by others without optical aid. Fullbright v. United States (10th Cir. 1968) 392 F.2d 432 involves observation of bootlegging activity through the open door of a barn from a distance of 75 to 100 yards. (392 F.2d at p. 435.) Commonwealth v. Hernley (1970) 216 Pa.Super. 177 [263 A.2d 904, 48 A.L.R.3d 1172] is concerned with a view through an open window from a distance of about 35 feet. (263 A.2d at p. 905.) People v. Superior Court (Stroud) (1974) 37 Cal.App.3d 836 [112 Cal.Rptr. 764] validates an observation of stolen automobile parts by an officer using binoculars from a helicopter where the parts were in a back yard open for all to see. (37 Cal.App.3d at p. 839.) People v. Maxwell (1978) 78 Cal.App.3d 124 [144 Cal.Rptr. 95] involves a view through binoculars of activity on a public street. (78 Cal.App.3d at p. 128.)

Here the activity seen through Johnson’s 10-power binoculars within suite 804 was not observable to anyone not using an optical aid. It was as much protected from the uninvited eye as was Katz’s conversation from the uninvited ear. We hence conclude that the municipal court erred in denying defendants’ motion to suppress the product of Johnson’s observations.

Prejudice

The product of Johnson’s constitutionally invalid observation found its way into the affidavit in support of a search warrant but not the fact of the manner in which the observation was made. The Johnson observation was included in the testimony received against defendants at trial. The Johnson observations were part of the basis for the expert opinion that the premises at suite 804 were being used for wholesaling pornographic film.

Conceivably the search warrant obtained based in part upon Johnson’s observations would be valid if the infected evidence were excised from it. If the search warrant is valid, there is considerable evidence supporting the convictions. However, our task is to determine whether the record supports beyond a reasonable doubt the conclusion that had the jury been denied the product of the Johnson observations and the expert opinion based in part upon them, it would still have found defendants guilty. The error here is of constitutional dimension so that the strict test of harmless error is applicable. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].) We cannot find the error to be harmless beyond a reasonable doubt.

Limitations on Opinion

We do not decide whether under other circumstances, such as those involving substantial risk to life, person or property, optically aided view which intrudes upon a reasonable expectation of privacy may be constitutionally permitted. The Johnson observations by high powered binoculars are quintessential violations of the constitutional right. Faced with no risk to life, person or property, Johnson invaded the reasonable expectation of privacy not only of the defendants but of every person within the Playboy Building observable with the optical aid through a window on the side facing Johnson.

We need not decide, either, whether there are circumstances in which an optically aided view may be authorized by warrant issued by a neutral magistrate upon a showing of probable cause. We need not determine the validity of the search warrants here involved once the offending material is excised from the affidavit. That is a function appropriate for the municipal court on retrial. Because the judgment must be reversed, we do not reach other issues raised by appellants.* ²

Disposition

The judgments of the municipal court are reversed.

Lillie, Acting P. J., concurred.

1 We do not denigrate the opinion of the appellate department. It is exceedingly well analyzed,. researched and crafted. Our sole reason for not adopting it is a minor disagreement with the manner of expressing the controlling principle.

2 We feel compelled by the nature of the attack in the dissenting opinion to spell out a response:-1. Some answer is required to the dissent’s charge. 2. Certainly we do not endorse “victimless crime.” 3. How that question is involved escapes us. 4. Moreover, the constitutional issue is significant. 5. Ultimately it must be addressed in light of precedent. 6. Certainly the course of precedent is clear. 7. Knowing that, our result is compelled. (See Funk & Wagnall's The New Cassell’s German Dict., p. 408, in conjunction with fn. 6 of dis. opn. of Douglas, J., in Ginsberg v. New York (1967) 390 U.S. 629, 655-656 [20 L.Ed.2d 195, 212-213, 88 S.Ct. 1274].)