People v. Arno

In People v. Arno (1979) 90 Cal.App.3d 505, the reviewing court was faced with a terrestrial search of an 8th floor suite in an office building by officers using binoculars from a hill some 200 to 300 yards distant from the building. The court specifically found there were no other vantage points remotely approaching the height of the hill closer to the building. ( Id., at p. 509.) The officers surveyed the building using binoculars, looked into the open window of the eighth floor suite and saw the defendant handle a distinctively marked box displaying a label with a picture of a nude woman. The box contained eight millimeter film. The product of the officer's observations found its way into an affidavit in support of a search warrant leading to the seizure of the pornographic film. In holding the binocular aided scrutiny of the defendant's conduct constitutionally invalid, Arno articulated the following: "(1) the use of optical aids in the nature of binoculars, telescopes and the like is not itself determinative of the admissibility in evidence of the product of the observation; (2) the primary determinative factor is the presence or absence of a reasonable expectation of privacy of the person whose conduct, property, or documents is observed; (3) reasonable expectation of privacy . . . is tested by the extent to which the person has exposed his conduct, property, or documents to public view by the naked eye; (4) if the purpose of the optically aided view is to permit clandestine police surveillance of that which could be seen from a more obvious vantage point without the optical aid, there is no unconstitutional intrusion . . . ." (Ibid.)