dissenting.
I respectfully dissent.
Defendant owned a house with a backyard. The part of her backyard with the marijuana plants was enclosed with a six-foot high privacy fence. Defendant testified and the trial court determined that her purpose, or subjective expectation, in constructing the fence was to create an area of privacy. The police officers who observed the marijuana testified that, in order to see the plant, they left the nearby alley and crossed over a two-foot area of weeds and grass that were flush against the fence. The officers testified that they observed the marijuana by looking through the openings and cracks in the fence. Defendant’s unrefuted testimony established that the approximate two-foot weeded area between the fence and alley was not traversed by the public.
The criteria to be used in determining whether a person has a constitutionally protected expectation of privacy is: Did the individual exhibit a subjective expectation of privacy in regard to the object of the challenged search and is society willing to recognize that expectation as reasonable? Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
According to both her testimony and the findings of the trial court, here, defendant met the first Katz requirement. The subjective expectation of privacy that is recognized as to one’s home, see United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), extends to the curti-lage, which is that area surrounding the home that is associated with the intimate activities and privacies of life. See Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746 (1886). A fenced area of a backyard, such as this one, is part of the curtilage of the *440home. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
Accordingly, the dispositive question here concerns the second part of the Katz test. That is, is society willing to recognize defendant’s expectation of privacy for her backyard as reasonable. And, that question in turn hinges on the extent to which the police officers had to go in order to observe the plants.
As a general proposition, police may see what may be seen from a public vantage point where they have a right to be. Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). Thus, if the observations of the police officers had occurred from the alley, I would agree there would not be a legitimate expectation of privacy by defendant.
Here, however, the critical observations were not made from a public place. Rather, the officers were able to see the marijuana plants only by leaving the alley and crossing approximately two-feet onto defendant’s unimproved property and only then after looking through the cracks in the fence. The evidence showed that the two-foot weeded area was not used by the public. In my view, by these actions, the officers trespassed not only on the defendant’s property, but also on her rights under the Fourth Amendment.
In People v. Lovelace, 116 Cal.App.3d 541, 172 Cal.Rptr. 65 (1981), a case very similar to this one, the court suppressed evidence where police officers who, while acting on a tip, observed marijuana plants in defendant’s backyard through knotholes and cracks in a fence surrounding the backyard. Because the police officers’ vantage point was from a place not expected to be used by the public, the court found an unreasonable search under the Fourth Amendment. See also People v. Fly, 34 Cal.App.3d 665, 110 Cal.Rptr. 158 (1973) (observations from non-public vantage point made by use of telescope); State v. Boynton, 58 Haw. 530, 574 P.2d 1330 (1978) (greater than six-foot high wood fence climbed by officers).
In accordance with these cases I would hold that when, as here, a person has surrounded his property with a privacy fence in excess of six feet high, that person has a justified expectation of privacy that should be recognized by society even if the police can locate a small crack or knothole to look through. 1 W. LaFave, Search & Seizures § 2.3(g) (2d ed. 1987).
I find several cases relied on by the majority to be inapplicable to this situation. For example, in Florida v. Riley, supra, that court concluded that the observations of the police did not constitute a search in violation of the Fourth Amendment because the defendant had no legitimate expectation of privacy from an aerial vantage point viewing. Neither that holding nor California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) contain any indication that merely because a public aerial vantage viewing point does not violate the Fourth Amendment, defendant, ipso facto, has lost his expectation of privacy from other non-public vantage points.
The thrust of both these opinions is to the contrary. In those cases, the defendant’s Fourth Amendment rights were not violated only because the observation place was public. Thus, here the alleged viewing of the plants from an apartment by an unidentified informant did not cost this defendant his expectation of privacy from other places.
Furthermore, this line of reasoning is rejected in Hoffman v. People, 780 P.2d 471 (Colo.1989) in which the court held that even if marijuana could be seen from one vantage point in an alley, it did not affect defendant’s right to expect privacy from other places. The determination of a legitimate expectation of privacy depends on the facts and circumstances of each case. Hoffman v. People, supra.
In my view, the evidence in this record fails to support the majority’s implicit conclusion that this two-foot wide strip along the fence was routinely used by curious bypassers to look at marijuana plants through cracks in the fence. Defendant testified that the strip was not used or traversed by the public, and there was no contrary testimony from the People’s witnesses.
*441The majority opinion creates a path by which police are now constitutionally permitted to trespass on a homeowner’s property, touch a privacy fence, and then look through any openings therein, for evidence of criminal activity. This ruling severely undermines the idea that the curtilage is entitled to a reasonable expectation of privacy and creates a basis for the police to cross into an unfenced backyard to look inside garages and other storage areas. See Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986).
Furthermore, if the right to privacy in a curtilage area is equivalent to the privacy of a house, the extension of the rule announced here would allow the police, without constitutional restrictions, to enter onto a person’s property in order to look into that person’s home. I view this result as entirely inconsistent with the aims of a free and open society.
I would reverse the judgment and direct that any evidence obtained as a result of the officer’s observations of defendant’s backyard from a non-public location must be suppressed.