Opinion
Docket No. 100147.
Decided September 23, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, for the people.
Richard M. Lustig, for defendant.
The people appeal as of right from an order of the trial court granting defendant's motion for the suppression of evidence and quashing the information. We reverse.
Having received a tip that marijuana was being grown at defendant's home, Michigan State Police Trooper Donald Harris and Detective Sergeant Marie Wallakes proceeded to that location. Upon arrival, the officers observed that the back yard was enclosed with a six-foot high wooden fence, attached to the house on one side with a gate. Trooper Harris drove into the alleyway behind the house and observed much green foliage in the yard. He got out of the car, looked through a gap in the fence and saw what he believed to be marijuana plants. Trooper Harris went back to his car and stood on the bumper to obtain a better view. From this vantage point he could see that the whole back yard was filled with growing marijuana plants. Detective Wallakes also saw the marijuana both by looking through the gap in the fence and by standing on the bumper of the car.
Following these observations, Officers Harris and Wallakes went up to the house and knocked. Defendant came to the door and, according to the officers, consented to a search of his back yard and a seizure of the plants after being advised of his rights. The defendant was also told that there was usually no prosecution in these cases but that the decision was up to the prosecutor. Defendant, however, testified that he was not advised of his rights and that he was told he would not be prosecuted if he agreed to a search.
The trial court held, inter alia, that the marijuana was growing within the curtilage of the defendant's home, that the back yard was purposely enclosed by a fence, and that the defendant had a reasonable expectation of privacy in his back yard. An order was thereupon entered granting defendant's motion to suppress the evidence and quash the information.
An essentially identical scenario was before the United States Supreme Court in California v Ciraolo, 476 U.S. 207; 106 S Ct 1809; 90 L Ed 2d 210 (1986), where the accused had enclosed his back yard with a six-foot outer fence and a ten-foot inner fence. Acting on an anonymous telephone tip, two police officers trained in marijuana identification obtained a private plane and flew over the accused's house at an altitude of one thousand feet. From the air the officers clearly identified and photographed growing marijuana plants eight to ten feet tall. A search warrant based on the officers' observations resulted in the seizure of seventy-three marijuana plants and the subsequent prosecution of the accused. The respondent argued that, because his yard was in the curtilage of his home, no governmental aerial observation was permissible without a warrant. Accepting that the defendant "manifested a subjective expectation of privacy" from observation of his back yard activity, the Court stated that "`[t]he test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity,' but instead `whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'" 476 U.S. 212, citing Oliver v United States, 466 U.S. 170; 104 S Ct 1735; 80 L Ed 2d 214 (1984). The Ciraolo Court further held:
That the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. [ 476 U.S. 213.]
The Court thereafter declared that one who grows illicit drugs in his back yard is not entitled to assume that such unlawful conduct will not be observed "by a passing aircraft — or by a power company repair mechanic on a pole overlooking the yard." 476 U.S. 214-215. Moreover, "[t]he fact that a ground-level observation by police `focused' on a particular place is not different from a `focused' aerial observation under the Fourth Amendment." 476 U.S. 214, n 2. See also United States v Broadhurst, 805 F.2d 849 (CA 9, 1986), citing Ciraolo, supra, upholding a search warrant for growing marijuana plants based on aerial observations through the sides of a greenhouse.
We conclude that defendant could have had no reasonable expectation that a wooden fence which is six feet high would shield his back yard activity from observations by tall passersby, from occupants of aircraft traveling through overhead public airspace, or, indeed, from a police officer standing on the bumper of his automobile on the adjacent public thoroughfare.
The order of the trial court dismissing the case is reversed and the matter remanded for further proceedings consistent with this opinion.