Court OKs Aerial Searches; Marijuana Case Reinstated

In a decision strengthening law enforcement’s hand against marijuana, the U.S. 9th Circuit Court of Appeals ruled Tuesday that officers without warrants may look for hidden plantations from the air--even those inside the supposed privacy of greenhouses.

The three-judge panel reversed a San Francisco federal judge’s finding in the case of six Yuba County defendants that air surveillance prior to obtaining a warrant was an illegal search and that 553 marijuana plants seized in a greenhouse in August, 1982, could not be used as evidence.

The defendants had argued that they had a right to consider the interior of their greenhouse private.

Although the suspects “clearly went to great lengths to prevent anyone from seeing anything inside the greenhouse,” the appellate justices noted Tuesday, officers flying at not less than 1,000 feet altitude were able to see what appeared to be marijuana plants.

They said the officers on three overflights “discerned shadows, shapes of plants and shades of green” . . . and that the plants “were of a color and height ‘consistent with marijuana.’ ”

They concluded that “what a person knowingly exposes to public view” is not protected by the Fourth Amendment provisions against unreasonable search and seizure.

Although the U.S. Constitution “does not require one to build an opaque bubble over himself to claim a reasonable expectation of privacy,” the justices observed, if the bubble he does build “allows persons in navigable public airspace to view his illicit activity, whatever expectation of privacy he has certainly is not reasonable.”

The latest ruling apparently was another step toward resolving the conflict that has existed in the courts over whether aerial surveillance without a warrant constitutes unreasonable search and seizure.

Last May, the U.S. Supreme Court, in a 5-4 ruling, struck down a California appellate court’s finding that the marijuana-growing conviction of Dante Carlo Ciraolo in Santa Clara County should be thrown out on the grounds that aerial surveillance of a fenced residential yard was unconstitutional.

Although the California Supreme Court ruled 6 to 1 last Dec. 31 to overturn the conviction of a San Diego County man in another aerial surveillance marijuana case, prosecutors said at the time the decision probably would have little impact on future such cases.

That was because it predated the passage in 1982 of Proposition 8, the California Victims’ Bill of Rights Initiative, which requires state courts to follow federal rulings on the legality of police search and seizure. Prosecutors viewed it as unlikely that the state Supreme Court ruling will be extended to cases originating after that measure was approved by the voters.

After Tuesday’s 9th Circuit decision on the Yuba County case, Assistant U.S. Atty. Douglas Hendricks said in San Francisco that the government plans to bring W.N. Daniel Broadhurst, Gregory Dorland, Joseph A. Broadhurst, Steven S. Townsend Jr., Deborah Dorland and Beverly E. Broadhurst to trial on the three-count indictment.