People v. Fly

Opinion

KINGSLEY, J.

The People appeal, pursuant to paragraph (7) of subdivision (a) of section 1238 of the Penal Code, from an order made under section 1385 of the Penal Code, dismissing a criminal prosecution after the trial court had granted defendants’ motion under section 1538.5 of the Penal Code to suppress certain evidence. We affirm the order of dismissal.

Acting on a tip, a narcotic agent proceeded to investigate the premises occupied by defendants. With the permission of a neighbor, the agent attempted to look into the backyard of defendants’ residence. Because his view was obstructed by foliage, he was able only to see plants that might be marijuana. By the agent’s own account that viewing was not enough to enable him to say positively that the plants were marijuana.

1

He returned

[667]

the next day with a telescope and (again with the neighbor’s permission) looked through an opening in the foliage.

2

The enlarged view which his telescope gave him enabled him to be certain that the plants were, in fact, marijuana. The agent then procured a warrant, the execution of which resulted in securing the marijuana and other drugs which form the basis of the present prosecution and which the trial court suppressed.

The briefs and oral argument considered the issue of the legality of the use by the officer of a telescope in order to see with sufficient accuracy the plants involved. We do not reach that issue because we conclude that, on the record in this case, the evidence supports the court’s finding that the officer viewed the yard, on both occasions., from a vantage point as to which the defendants had a reasonable expectation of privacy. The evidence before the trial court, and before us, included a photograph of the area involved. It shows that, in order for the officer to peer through the vines into the yard, he had to squeeze into a narrow area between the neighbor’s garage and defendants’ fence and that that area was almost blocked by heavy foliage and weeds. The expectation created by the vines covering the fence was even greater by reason of the protection afforded at the vantage point selected by the officer. Each case stands on its own facts; however, the expectation of privacy in the case at bench was, if anything, greater than that in