People v. St. Amour

In People v. St. Amour (1980) 104 Cal.App.3d 886, county sheriffs conducting an aerial surveillance for marijuana gardens observed in plain view from an altitude of 4,000 to 5,000 feet what they thought was a marijuana garden. The plants were several feet tall. The officer believed the plants were marijuana because of the "distinct green color which becomes easier to observe when contrasting colors surround it. It also has a distinct configuration." The officers believed the plants were marijuana but were not positive ( id., at p. 889). The plane circled the area and one officer used ordinary and then gyrobinoculars from 1,000 or 1,500 feet to examine the garden. The gyrobinoculars stabilized the view, eliminating the effect of the plane's movement and vibration to facilitate the observations. The officers verified that the garden was marijuana growing on about one-quarter of an acre. The garden was on the side of a mountain slope in a deserted area. The nearest town was a mile and a half away. No business or other human activity was observable from the air. In upholding the aerial surveillance, the court stated: "While the constitutional privilege of protecting one's privacy covers not only the ground, but may extend also into the airspace, it is absolutely essential that the person affected exhibit a reasonable expectation (as opposed to mere subjective, personal desire) that the activity in question be so protected. The reasonable expectation to protect the airspace overlying the land, however, cannot be demonstrated by measures taken to defend the land from earthly intrusions (e.g., by setting up a road block, trespass signs or by hiding the area or activity from ground observations). Rather the individual seeking constitutional safeguards must show that the land is used in accordance with the common habits of people engaged in the cultivation of agricultural land who exhibit an expectation of privacy with respect to the pursuit in question." ( Id., at p. 891.)