Air Searches for Marijuana in Open Fields Ruled Legal

The California Supreme Court on Wednesday upheld the constitutionality of warrantless aerial surveillance flights over open fields by police searching for marijuana.

In a 5-1 decision, the justices affirmed the legality of an aerial search in 1980 that led authorities to arrest a suspect they accused of growing 144 marijuana plants on a 40-acre plot in a remote, wooded area of Humboldt County.

The contraband was spotted under an aerial surveillance program by local authorities that was a forerunner to a similar federal, state and local plan called the Campaign Against Marijuana Planting (CAMP), concentrating on marijuana fields in Northern California.

The defendant in the case, Allan Norman Mayoff, pleaded guilty to cultivation of marijuana, pending a legal challenge to the validity of the surveillance flights.

The justices left intact a 1985 ruling they made striking down aerial searches of enclosed backyards as a violation of the state constitutional guarantees of the right to privacy.

But they held there was no similar “reasonable expectation of absolute privacy” to bar warrantless aerial surveillance of crops growing in open fields, separate from the home and its immediate surroundings.

“Insofar as the open fields are observed from sufficient altitude to prevent disruption or detailed observation of individual activities below, the fields are in ‘plain view’ from the air, and aerial surveillance for illegal cultivation there is not a ‘search’ governed by either (the state or federal) Constitution,” Justice Joseph R. Grodin wrote in a lead opinion joined by Justices Stanley Mosk and Cruz Reynoso.

Grodin concluded that the marijuana plot was sufficiently distant from Mayoff’s residence to be considered an open field, but was close enough to justify authorities in obtaining a warrant for a subsequent ground search that led to his arrest.

At the same time, Grodin’s opinion acknowledged that such random surveillance and marijuana eradication programs present “difficult constitutional and regulatory problems.”

He urged both the state Legislature and police officials to join together to develop new standards to balance the needs of law enforcement against “the legitimate privacy expectations of affected citizens.”

Justices Allen E. Broussard and Malcolm M. Lucas concurred in the court’s judgment.

Chief Justice Rose Elizabeth Bird, in a 23-page dissent, accused the majority of approving “an unparalleled program of indiscriminate aerial surveillance of the property, homes and persons of innocent citizens by the government.”

The ruling, she said, “all but abolishes” the constitutional protections that the 1985 ruling recognized for residents in rural and semi-rural areas.

Deputy state Atty. Gen. Laurence K. Sullivan welcomed the decision as “gratifying.”

“The ruling can be fairly read as, in effect, holding also that the CAMP program does not violate the Constitution,” he said.

In a ruling earlier this week, the court unanimously upheld a $45,000 jury award to an Oakland supermarket customer who was arrested and jailed overnight after employees summoned police on a suspicion--later proved erroneous--that he was passing counterfeit money.

The justices, affirming a judgment against Safeway Stores and the City of Oakland, ruled that the firm could be held liable for subjecting innocent customers to the “emotional distress” of a public confrontation with police.

The case arose in 1977, when George Lloyd Pool, then 56, attempted to use a $100 bill to pay for $7 in groceries at a Safeway Store. Employees, alert to a wave of counterfeiting in the area, called police.

Pool was arrested and taken to the police station, where he was fingerprinted, photographed and strip-searched. The bill was later found to be authentic, but Pool was held overnight on charges of interfering with a police investigation.