POLICE SHOULD NOT HAVE GONE INTO YARD TO SPY ON ALLEGED DRUG SELLER,
SUPREME COURT SAYS

SAN FRANCISCO (AP) -- Police violated the reasonable expectation of privacy
by spying on a suspected drug dealer through an open window, a divided
California Supreme Court ruled Thursday.

The 4-3 decision overturns an accused Oxnard drug dealer's conviction.
Chief Justice Ronald M. George issued a blistering dissent, arguing that
the civil rights issue may better be resolved by the nation's highest court.

"This case might well provide the United States Supreme Court with an
appropriate opportunity to clarify the proper relationship between trespass
principles and the reasonable-expectation-of-privacy test under the Fourth
Amendment of the United States Constitution," George wrote, in a dissent
signed by Justice Marvin R. Baxter and Justice Ming W. Chin.

The decision upholds a 1998 Ventura-based appellate court decision saying
that an Oxnard Police Department officer violated the reasonable
expectation of privacy by walking into a grassy side yard to look through a
bedroom window, where he allegedly saw Cayetano Camacho measuring cocaine.

The decision overturns Ventura County Superior Court Judge Bruce Clark's
1997 decision not to suppress the small amount of cocaine.

Defense attorneys familiar with the Oxnard case said a contrary ruling
would have been a blow to Californian's privacy rights.

"It would have expanded the horizons for police to basically come up with
reasons why they ought to go snooping around people's houses," said J.
Courtney Shevelson, who defended Camacho before the justices. "My civil
rights sensibilities are offended to think that the police should be able
to do that."

Deputy Attorney General Gary Lieberman said his office is mulling whether
to petition the U.S. Supreme Court to review the case.

"He took no effort to cover the window and the yard was open and
accessible. That's our position, that he was in plain view," Lieberman said.

The majority opinion of Justice Kathryn Mickle Werdegar and signed by
Justices Stanley Mosk, Joyce L. Kennard and Janice Rogers Brown, noted that
police may intrude onto private property, such as somebody's lawn, if they
believed there is an emergency. During Camacho's 1997 arrest, Werdegar
said, police were responding to an anonymous tip of loud music, not an
emergency.

Most important, while police did not hear loud music, the officers never
knocked on the door during their 11 p.m. investigation, Werdegar wrote.
Instead, an officer went to the side yard where Camacho was seen through an
open window.

"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," Werdegar wrote.

George, however, said Camacho forfeited his privacy expectations because he
did not erect a fence around the property, which left the area open to a
child chasing a ball. The window was 40 feet from the street and at the
side of the house.