Court to Hear Issue of Aerial ‘Pot’ Searches

The Supreme Court agreed Monday to review a California case to decide whether police officers need warrants to make aerial searches for marijuana growing behind fences in residential yards.

The justices, responding to an appeal by state prosecutors, will be deciding an issue with potentially broad impact for California. Law enforcement authorities have begun a far-ranging attack on marijuana growers whose illicit crop is proliferating in mountains, fields and backyards throughout the state.

Nationwide, about 3.8 million cultivated marijuana plants were eradicated by police last year. An additional 9.2 million wild plants were destroyed.

Copter Flights Banned

At least a half dozen cases are pending in state and federal courts in California challenging the legality of different kinds of aerial searches for marijuana. A federal district court in San Jose recently issued an injunction barring low-flying surveillance flights by helicopters over private residences. But routine air patrols at higher altitudes have been permitted to continue.

The case before the high court, to be decided next term, focuses on the legal requirements for an aerial search of property that is just outside the home but not readily visible from the ground.

Last year, the court reaffirmed a long-standing doctrine allowing police officers to enter and search “open fields” without warrants even if the fields are secluded and posted with “No Trespassing” signs. The court, in a 6-3 decision, said that there was no “societal interest” in invoking the constitutional right to privacy to protect marijuana being cultivated in open fields.

In the new case (California vs. Ciraolo, 84-1513), police officers in Santa Clara said that they received a telephone tip that marijuana plants were being grown in the backyard of a home belonging to Dante Carlo Ciraolo. The officers’ view of the residence from the ground was impeded by a 10-foot fence. They subsequently chartered a plane, flew over the residence and spotted what turned out to be 73 marijuana plants more than eight feet tall.

Defendant Pleaded Guilty

The officers, armed with aerial photographs, obtained a search warrant, went to the home and seized the evidence. Ciraolo’s attempt to suppress the evidence as being the result of an illegal, warrantless aerial search was denied in trial court, and he pleaded guilty to cultivation of marijuana. But a state Court of Appeal in San Francisco overturned the conviction, saying that, despite the Supreme Court’s ruling on “open fields,” the area “immediately surrounding and associated with the home” was entitled to privacy under the Constitution.

The state Supreme Court refused to overturn the decision. But state Atty. Gen. John K. Van de Kamp, joined by the California District Attorneys Assn., brought the case to the high court, contending that law enforcement would be “severely hampered” by the appeals court ruling.

There is no legitimate expectation of privacy protecting marijuana growers from visual searches for contraband that is readily visible to anyone flying overhead, the state said. The state court ruling, Van de Kamp said, would provide “safe havens” for the state’s marijuana industry “so long as it prunes its plants behind high fences.”