People v. Winters

Opinion

BROWN (Gerald), P. J.

Wayne Walter Winters pleaded guilty to cultivating marijuana (Health & Saf. Code, § 11358) after the superior court denied his motion to suppress evidence under Penal Code section 1538.5. We reverse because there is no substantial evidence to support the superior court’s findings the officers’ warrantless entry into the rear of Winters’ posted property was justified.

Winters lives in Vista, a community in north San Diego County. His small home on Rosario Lane is surrounded with large trees and many shrubs. Large cactus and succulent plants line the walkway up to his front steps. Pampas grass and large evergreens grow along his driveway. His entire home is encircled by a six-foot-high fence. In the fence are three gates,

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which he keeps closed. The gate spanning his driveway is posted with a conspicuous sign: “Private Property/no trespassing/no soliciting.” His next door neighbor’s home is similarly fenced, and the overall atmosphere of the area in which Winters lives suggests rural residents longing to be left alone.

The front entryway to Winters’ house consists of several steps leading to the front door. At the bottom of the steps is Winters’ mailbox. At the top of them is the sliding glass front door, through which one can easily see into the house. Up to this door went two policemen in October of 1981, wanting to talk to Winters’ son about a malicious mischief matter. They looked through the glass and saw no one in the house. Had they knocked they could have confirmed no one was home, left, and returned or telephoned another time. Instead, they breached the privacy of the rear of the house, went through the closed posted gate, and eventually found some growing marijuana plants. They left for a search warrant. Although the warrant was for marijuana, paraphernalia, and proof of occupancy (all of which were found), the police also seized a samurai sword and a box of silverware which were Winters’ own. The marijuana was used in evidence against Winters, over his contention the officers conducted an illegal search when they looked through a gate at the rear of his house and saw the marijuana.

Winters rightly claims the officers, by going into his backyard through the closed driveway gate, invaded his constitutionally protected Fourth Amendment right to privacy. A person who surrounds his backyard with a fence and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy