GARDNER, P. J. I dissent.
The majority of this court premise their conclusion that the search and seizure were illegal on the alleged lack of information available to Officer Saporito to reasonably suspect that contraband was in the car. Having made that decision, it became unnecessary for the majority to discuss the question of the alleged unconstitutional invasion of privacy in Saporito’s observation into the backyard. However, since I feel that the-majority are in error in their holding on the issue of the search of the car, it becomes necessary for me to discuss the threshold issue of the alleged violation of the defendant’s right to privacy.
The Facts
The statement of facts of the majority is generally accurate. However, I would make the following additions, corrections and observations:
The majority seize on Officer Saporito’s statement that he was looking “just to see what he could see” and from that leave an inference that he was some kind of a busybody engaged in a course of action which could best be classified as unrestrained snooping into the lives of the citizens of Laguna Beach. However, a reading of the record makes it clear that Saporito was engaged in a narcotics surveillance in an area of high narcotics activity—a course of action which I submit was well within his duties and responsibilities as a police officer.
Officer Saporito was a trained and experienced narcotics investigator and, in his opinion, the object he saw the individuals handling in the backyard had the same size, shape, wrapping and appearance of a kilo of marijuana. This conclusion on his part has a ring of accuracy when we discover that the object found in the engine compartment was a package wrapped in blue cellophane which containéd not one but two kilos of marijuana. Of course, Saporito said he did not know what was in the package from his point of observation but it was his considered and educated opinion, not his speculation or “hunch,” that it was a kilo of marijuana.
The trial court found from its examination of the diagrams and pictures from which Saporito testified that it was “pretty obvious that the person [936]who lives at S-l (a house on the hill on which Saporito was standing) could look into' their backyard about any time he wants.”
Right Of Privacy
It is readily apparent that the observation of Officer Saporito into the backyard constituted no unconstitutional invasion of privacy under the cases of Edwards, Bradley and Krivda cited by the majority.
The test established by these cases is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion.
Here, the backyard was visible to anyone standing where Officer Saporito was standing. If Saporito could see into the yard, I presume that Mr. Kahan, the resident of the property on which Saporito was standing, could see onto it also. In addition, the backyard was visible from the home or homes of persons living nearby. Under such circumstances, if the defendants had a subjective expectation of privacy, it was unreasonable. One may not have a reasonable expectation of privacy from observation in areas clearly visible to neighbors.
The concept of reasonable expectation of privacy has been the subject of a great deal of legal and judicial discussion—much of it pure sophistry. When carried to its illogical conclusion, a burglar has a very real expectation of privacy. For that matter, any criminal (except perhaps one engaged in lewdly exposing his private parts to others) has an expectation of privacy or he would not be committing his crime. Obviously, the concept cannot be tortured in such a way as to protect all kinds of anti-social behavior no matter how private the actor might wish his actions to be.
A man locked in his own bathroom with the blinds drawn rather obviously has a reasonable expectation of privacy. That same man standing in his front yard watering his roses has no such expectation. In between these two examples exist countless thousands of situations, each of which presents to the trier of fact a set of circumstances which are to be tested by the basic test—has that person exhibited a reasonable expectation of privacy? Each case presents essentially a question of fact. Any effort to generalize is fraught with disaster. An example of such a generalization is to be found in the statement of the court in Vidaurri v. Superior Court, 13 Cal.App.3d 550 [91 Cal.Rptr. 704], where at page 553, the court said: “Also, a person who surrounds his backyard with a fence, and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of [937]privacy for that area [citation].” But if a backyard is surrounded on three sides by 14-story apartment houses, each of which looks down into that backyard, the property owner might have a reasonable expectation of privacy from the standpoint of persons traipsing through his yard, but he would have no expectation of privacy from the standpoint of someone observing him in his backyard—whether that backyard is surrounded by a fence or not.
The parties have exhaustively briefed the cases in this field. Any effort on my part to painstakingly go over each of these cases and discuss the particular factual situation of each, pointing out areas of similarity or dissimilarity, would be a classic exercise in judicial futility. The trial court found on substantial evidence that the facts in this case were such that those individuals in the subject backyard did not have a reasonable expectation of privacy from observation as to their activities. I cannot find as a mattter of law to the contrary.
Probable Cause To Search .
Turning to the issue of probable cause to search the car, I accept the statement of law by the majority that a motor vehicle may be searched without a warrant so long as the officer has reasonable cause to believe that the vehicle contains contraband and to constitute probable cause a statement of facts must be known to the officer which would lead a man of ordinary care and prudence to entertain a strong suspicion of guilt. (People v. Hillery, 65 Cal.2d 795 [56 Cal.Rptr. 280, 423 P.2d 208]; People v. Gale, 46 Cal.2d 253 [294 P.2d 13].) However, I strongly disagree with the majority in their application of this law to the particular facts of this case.
What did Officer Saporito know and what reasonable inferences could be drawn from the facts available to him?
First, he was on a narcotics surveillance in an area of high narcotics activity. He, himself, had participated in approximately one hundred arrests during the preceding six months in the Woodland Drive area—described as a two-square block of sub-standard residences. As the trial court observed, it was a matter of common knowledge that that area was an area of high narcotics activity. I am aware that the author of Cunha (Cunha v. Superior Court, 2 Cal.3d 352, 357 [85 Cal.Rptr. 160, 466 P.2d 704]) takes a dim view of testimony concerning a “high narcotic” or “high crime” area. I must respectfully disagree. I am fairly familiar with the narcotics picture in Orange County having spent 13 of the 23 years [938]between 1947 and 1970 as the presiding judge of the criminal division of that court. I literally grew up with the narcotics traffic in that area. I firmly believe there is a strong factual and legal basis for such testimony. Human beings are gregarious animals and those with common interests tend to cluster together. Throughout the years of the growth of the narcotics traffic, certain areas became meeting places for those in the drug culture—a vacant lot with a seemingly perpetual bonfire in Stanton—a vacant lot in the Delhi section of Santa Ana on which there was a dilapidated sign which carried an obscene message to a vice and narcotics investigator with the Santa Ana Police Department—a particular Winchell’s Donut Shop in Anaheim—a pool hall in Fullerton—all of these and many other places became known not only to those in the drug culture but to law enforcement officers as. areas of high narcotics activity. Activities observed in these areas would have a different connotation than similar activities observed on the floor of the New York Stock Exchange. Laguna Beach has developed two notorious areas of high narcotics activity—a particular corner of the Coast Highway on which is located a taco shop—and Woodland Drive. I agree with the trial court. It would not take Officer Saporito’s testimony to persuade any knowledgeable person that the area under discussion is an area of great narcotics activity. This evidence is of the type that “ ‘reasonably inspires confidence’ ” and is of “ ‘ “solid value.” ’ ” (People v. Redmond, 71 Cal.2d 745, 756 [79 Cal.Rptr. 529, 457 P.2d 321].)
With this as a background, Officer Saporito saw some people behaving in a way which indicated to him as a reasonable man and as an experienced narcotics investigator that they were engaged in narcotics traffic.
He saw the defendants drive up and enter the backyard in question. An individual in that yard then went behind a fence and picked up a plastic bag, a foot square, and showed the contents to these defendants. He saw another individual dig in the ground and come up with a package, shaped like a kilo of marijuana. They all went into the house and when they came out one of the defendants was carrying that which the officer could reasonably infer were the two objects he had seen handled by these individuals before they went into the house. The defendants then walked to the car looking around (about 180°), looked around again and put this rather large package (measuring 10 inches by 12 inches) in the engine compartment. At this point, I find myself in agreement with the trial judge when he said, “Knowing what the officer knew, having observed what he observed with his trained background, I feel that a reasonable man would certainly entertain a strong suspicion that the defendants were transporting contraband.”
[939]I cannot accept as reasonable the majority’s holding that the activities of the defendant were so- consistent with innocence as to overrule the trial court’s finding that the officer reasonably had a strong suspicion of criminal activity. The majority suggests that the bundle put into the engine compartment could have contained rags, tools or a battery. In the first place, the storage compartment of a Volkswagen (and a Karmann Ghia) is in the other end of the vehicle. There is no place in the engine compartment of a Volkswagen product to store rags, tools or a battery. A battery is kept under the seat in a Karmann Ghia. Insofar as the battery is concerned, it weighs between 35 and 40 pounds as contrasted with the approximately 4 pounds of a kilo of marijuana. The difference in appearance between a man carrying a battery and a man carrying two kilos of marijuana is a difference between a man carrying a fifth of bourbon and a case of bourbon. And, in addition, I would point out that few people keep rags, tools or batteries buried in their backyard.
Of course, the package could have contained something else than kilos of marijuana.. It could have contained powdered rhinoceros horn, dried cow bezoar, Howard Hughes Autobiography—or Mr. Justice Peters famous cookies (Renters v. Superior Court, 2 Cal.3d 659, 666 [87 Cal.Rptr. 202, 470 P.2d 11]). Frankly, between these choices, I would vote for the latter. After all what better place to keep cookies warm than in the engine compartment?
The majority make much of the statement of Saporito that he did not know what was in the package. Of course, he did not know. However, it was his considered opinion, based on his not inconsiderable experience and the objective facts available to him, that the package contained marijuana. He was operating on much more than a mere suspicion or a hunch. A state of facts existed which would lead a man of ordinary care and prudence to reasonably entertain a strong suspicion that the bag contained marijuana.
Thus, based upon the uncontradicted evidence in this case and upon reasonable inferences to be drawn therefrom, the trial court found as a matter of fact that there was no reasonable expectation of privacy and that the officer as a reasonable man had sufficient facts on which to entertain a strong suspicion that the car contained contraband. In order to overturn these findings, the majority must find as a matter of law that those in the backyard did have a reasonable expectation of privacy and that Officer Saporito did not as a reasonable man have sufficient facts on which to entertain a strong suspicion that the car contained contraband. I submit that on this record this cannot be done. Actually, what the majority have [940]done is retry the case and in so doing have substituted themselves as the triers of fact—a practice which is clearly contrary to all established rules of appellate review.
I would deny the writ.
A petition for a rehearing was denied March 24, 1972, and the petition of respondent and real party in interest for a hearing by the Supreme Court was denied April 26, 1972. McComb, J., and Burke, J., were of the opinion that the petition should be granted.