STATE JUSTICES APPLY PRIVACY RULE TO SEARCHES

SAN FRANCISCO--A person has a reasonable expectation of privacy in his
home, even while bagging cocaine in front of an open side-yard window, the
California Supreme Court decided Thursday.

In a 4-3 ruling, the court said police violated a drug defendant's rights
by walking into an open side yard late at night and observing the resident
through his bedroom window as he placed white powder in bags. The 4th
Amendment to the Constitution forbids unreasonable searches by police.

The court majority contended that the ruling will discourage police from
"engaging in warrantless nighttime intrusions into the yards of citizens."

Justice Kathryn Mickle Werdegar, writing for the majority, said it was
reasonable for the defendant in the case, Cayetano Camacho, to expect that
no one would trespass on his property late at night and look into his
bedroom window, which could not be seen from the street.

"The line we draw today lets an unquestionably guilty man go free,"
Werdegar wrote. But, she continued, quoting U.S. Supreme Court Justice
David Souter, "constitutional lines are the price of constitutional
government."

The three justices who dissented complained that the court was imposing a
"narrow and rigid restraint on police" in California.

The ruling "sets a bright-line rule" that if police do not have a warrant,
they must stay in locations where the public is implicitly invited except
in an emergency, said Deputy Atty. Gen. Gary Lieberman.

The state is considering appealing the decision, People vs. Camacho,
S075720, to the U.S. Supreme Court, Lieberman added.

The ruling came in an Oxnard case in which police testified that they
received an anonymous complaint about a loud party and went to the address
at 11 p.m. to investigate.

The officers heard no noise. But instead of knocking on the front door,
they walked across the grass into a side yard to look into a bedroom window
of the single-story home.

There they saw Camacho, sitting with his back to the window, handling clear
plastic bags. On a bed and dresser were several bags containing white powder.

The two officers called for a backup, entered Camacho's bedroom window and
arrested him.

"There was never any dispute as far as the good faith of the police,"
Lieberman said. "They got a complaint about a loud music disturbance, and
the window they looked through was where the defendant's stereo speakers
were facing."

The decision will overturn the conviction of Camacho, who had pleaded
guilty to possession of drugs for sale after a trial court refused to
suppress the evidence against him. He has been on probation, pending his
appeal.

In evaluating the officers' conduct during the June 1997 search, the court
based its decision on the lateness of the hour, the relative lack of
seriousness of the phoned-in complaint and the officers' failure to first
knock on the defendant's door.

Ventura County Judge Bruce A. Clark heard the case and ruled at the trial
that the police had acted legally because the window had no blinds and
anyone outside could easily peer in.

But the Supreme Court disagreed, saying that the absence of blinds did not
mean a person could not reasonably expect privacy.

"Most persons, we believe, would be surprised, indeed startled, to look out
their bedroom window at such an hour to find police officers standing in
their yard looking back at them," wrote Werdegar, who was joined by
Justices Stanley Mosk, Joyce Kennard and Janice Rogers Brown.

Chief Justice Ronald M. George, writing the dissent, said Camacho's failure
to "take even minimal measures" to shield the window with blinds, curtains
or some other cover meant that he could not truly expect to be private.

To make his point, George attached color photographs of Camacho's modest
home. They show that the side yard was easily accessible from the street,
and, in George's view, "a location where other persons reasonably may be
anticipated to be present."

"The brief time spent by officers in the open side yard of the residence,
not for the purpose of surveillance but simply to attempt to identify the
location of the noise that had prompted the complaint to the police, was
not unreasonable under the circumstances," George wrote. Justices Marvin
Baxter and Ming W. Chin joined him.