STATE of Oregon, Appellant,
v.
Chris Lee BLACKER, Respondent.
No. C-2027; CA 19504.
Court of Appeals of Oregon.
Argued and Submitted April 29, 1981. Decided June 29, 1981.Douglas W. Johnson, Deputy Dist. Atty., Baker, argued the cause for appellant. With him on the brief was Ken Hadley, Dist. Atty., Baker.
*414 John Daugirda, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before GILLETTE, P.J., and ROBERTS and YOUNG, JJ.
YOUNG, Judge.
The state appeals from a pretrial order suppressing evidence seized during a search of defendant's house pursuant to a search warrant. We affirm.
The Baker office of the state police received information from informants that defendant was growing marijuana at his home. In order to corroborate the informants' information, the police observed the defendant's home from a vantage point along U.S. Hwy. 30. The home is in a rural area and adjacent to the highway. The nearest neighbor is more than a mile away. A state trooper parked along the highway an estimated 50 yards from defendant's house. From that location and with the aid of a spotting scope, which magnified 16 to 36 times, the trooper visually examined the premises. Using the scope to look into a second story window of the home, the trooper saw what he recognized to be a growing marijuana plant. Based on the foregoing facts the search warrant issued, the home was searched and defendant was arrested.
The trial court found that "the marijuana plant * * * was not visible with the naked eye * * *" from the public highway. The evidence supports that finding, and it will not be disturbed by this court. Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458 (1981); Ball v. Gladden, 350 Or. 485, 443 P.2d 621 (1968).[1]
The trial judge found that the surveillance of defendant's home with the aid of optics constituted an invasion of defendant's reasonable expectation of privacy, and hence, was unconstitutional.[2] The question on appeal is whether a police officer's telescopic observation of a marijuana plant, located in the interior of defendant's residence, violates a reasonable expectation of privacy, which in turn violates the Fourth Amendment's prohibition against unreasonable searches. If the optically aided original observation was unlawful, the evidence obtained by the subsequent search and seizure pursuant to the warrant would be subject to suppression. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Corbett, 15 Or. App. 470, 516 P.2d 487 (1973), rev. den. (1974).
An observation constitutes an unlawful search when made into a constitutionally protected area. An area is "constitutionally protected" if defendant had a "reasonable expectation of privacy" therein. Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L.Ed.2d. 576 (1967); and see 1 LaFave, Search and Seizure § 2.2, pp. 242-43 (1978). Optical surveillance does not constitute an illegal search where defendant did not have a reasonable expectation of privacy in the place searched. State v. Harp, 48 Or. App. 185, 616 P.2d 564, rev. den. (1980). Defendant may be said to have a "reasonable expectation of privacy" if he has an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. Katz v. U.S., supra, 389 U.S. at 361, 88 S.Ct. at 516 (concurring opinion, Harlan, J.); see also State v. Davis, 51 Or. App. 827, 627 P.2d 492 (1981); State v. Harp, supra.
The first prong of the Katz test requires us to determine whether defendant exhibited an intention to protect his privacy. In analyzing defendant's expectation, we find persuasive the analysis in U.S. v. Taborda, 635 F.2d 131 (2d Cir.1980). There, government agents used a high-powered telescope, without issuance of a warrant, to observe defendant processing cocaine in his apartment. In applying the Katz test, the court concluded that where defendant does not *415 knowingly expose his activities to unenhanced viewing, he cannot be said to have renounced his expectation of privacy simply because the government, through sophisticated search techniques, is able to peer into his residence. The Fourth Amendment is designed to protect the citizenry from just such intrusive governmental surveillance:
"The vice of telescope viewing into the interior of a home is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also of intimate details of a person's private life which he legitimately expects will not be observed either by naked eye or enhanced vision * * *." 635 F.2d at 138-39 (Footnotes omitted).
We think defendant manifested an expectation of privacy here. He placed the plant in a second story room in his house. A large tree obscured the window, and the plant was not visible to an outside observer off the premises with the naked eye.
Further, we believe defendant's expectation of privacy was "reasonable." The telescopic view was of an object inside defendant's residence. Although the Katz court stated that the "Fourth Amendment protects people not places," it is still useful, as La Fave, has observed, to view residential premises as a place especially protected against unreasonable police intrusion. 1 LaFave, Search and Seizure, §§ 2, 3, p. 298 (1978). In Katz, Justice Harlan stated "A man's home is for most purposes a place where he expects privacy," 389 U.S. at 361, 88 S.Ct. at 516. Society recognizes that expectation as reasonable.
The state argues that because defendant did not close the curtain to the window, he thereby forfeited his expectation of privacy. This approach, adopted by the Pennsylvania and Illinois courts, is based on the premise that a person who, by not closing the curtains, shows little regard for his privacy and does not have a justifiable or reasonable expectation of privacy. Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904, 48 A.L.R. 3d 1172 (1970), cert. denied 401 U.S. 914, 91 S. Ct. 886, 27 L. Ed. 2d 813 (1971); see also, Commonwealth v. Williams, 262 Pa.Super. 508, 396 A.2d 1286 (1978); People v. Hicks, 49 Ill. App. 3d 421, 7 Ill. Dec. 279, 364 N.E.2d 440 (1977). If, by not closing his curtains, defendant thereby exposes his property to public view by the naked eye, we would find his failure to do so relevant. However, where, as here, only an enhanced eye could penetrate, we do not think defendant's failure to draw the curtain should be interpreted as a renunciation of his expectation of privacy. See U.S. v. Taborda, supra, 635 F.2d at 139; U.S. v. Kim, 415 F. Supp. 1252 (D. Hawaii 1976); People v. Arno, 90 Cal. App. 3d 505, 153 Cal. Rptr. 624 (1979); see also, LaFave, supra, § 2.2, 260-61.
In sum, we reach the same conclusion as the United States Court of Appeals reached in Taborda:
"* * * [O]bservation of objects and activities inside a person's home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair legitimate expectation of privacy and encounters the Fourth Amendment's warrant requirement unless circumstances create a traditional exception to that requirement." 635 F.2d at 139.
Affirmed.
NOTES
[1] It is clear from the record that the officer did not observe any other marijuana on the premises from his initial observation point with or without optics.
[2] Because the trial court suppressed the evidence on the ground that the telescopic viewing constituted a warrantless search, it did not reach the other grounds set forth in the motion to suppress or rule on defendant's other motions.