SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

California’s previous rule that observations of contraband within the
curtilage of one’s home (i.e., the yard) under such circumstances should be
suppressed (see People v. Cook (1985) 41 Cal.3 rd 373; People v. Ciraolo
(1984) 161 Cal.App.3 rd 1081.) was overruled in California v. Ciraolo,
supra. Passage of Proposition 8 in June, 1982, dictates that California
follow the federal rule.
The federal Environmental Protection Agency’s use of aerial photography,
flying at the legal “navigable altitude,” was held to be within its statutory
authority, as a regulatory and enforcement agency requires no explicit
authorization to employ methods of observation available to the public.
Additionally, the taking of photographs of petitioner's complex from
navigable airspace was not a search prohibited by the Fourth
Amendment. (Dow Chemical Co. v. United States (1986) 476 U.S. 227
[90 L.Ed.2 nd 226].)
Overflights conducted by officers of a greenhouse situated 125 yards from
a two-story residence did not constitute a search requiring a warrant under
the Fourth Amendment. (United States v. Broadhurst (9 th Cir. 1986)
805 F.2 nd 849, 849-850, 856-857.)
Electronic Tracking Devices (Transmitters):
General Rule: Electronic tracking devices are lawful to use in tracking, so
long as the route used is otherwise open to view. (United States v. Knotts
(1983) 460 U.S. 276 [75 L.Ed.2 nd 55].)
However, leaving the tracking device on after it disappears into a house (at
least when done without a search warrant) is an invasion of privacy, and
unlawful. (United States v. Karo (1984) 468 U.S. 705 [82 L.Ed.2 nd 530].)
But, when the transmitter is contained inside property which has been
stolen, defendant’s possession of the stolen property in his vehicle (United
States v. Jones (4 th Cir. 1994) 31 F.3 rd 1304, in a stolen mail bag.) or in a
motel room (People v. Erwin (1997) 55 Cal.App.4 th 15, in a stolen bank
bag.) does not made the warrantless “search” unlawful.
Note: In Karo, the transmitter was followed while it was moved
about inside a private residence, then to two different storage
facilities, and into a second residence; a circumstance not present
in Jones or Erwin.
In following stolen stereo speakers containing tracking devices into a
home, exigent circumstances of a fresh crime and the possibility that the
speakers would be destroyed if officers waited for a warrant, justified an
© 2011 Robert C. Phillips. All rights reserved
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