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October 30, 1972

UNITED STATES of America, Plaintiff,
Marion E. McMILLON, Defendant

Richey, District Judge.

The opinion of the court was delivered by: RICHEY

RICHEY, District Judge.

 On August 4, 1972, the defendant was arraigned before this Court and pleaded not guilty to three counts of a Grand Jury indictment charging her with unlawful possession of a narcotic drug under the District of Columbia Code, and certain other violations of the federal drug abuse laws. Subsequent to her arraignment the defendant, through her attorney, filed a Motion to Suppress as evidence against her all items mentioned in the counts of the indictment under which she was charged. On October 4 and October 5, 1972, this Court heard oral argument and testimony on the defendant's Motion. The Motion was based on several grounds, and the Court recognizes a need for special comment, as those grounds raise particularly difficult questions of fact and law.

 I. Contentions of the Defendant

 The defendant contends that the search warrant authorizing the search of the defendant's premises was illegal because the facts and circumstances alleged in the affidavit in support of said warrant were obtained in a manner constituting an invasion of privacy of the inhabitants of the dwelling, thus violating the proscriptions of the Fourth Amendment. The defendant further contends that the search warrant improperly authorized a night time search, and that it improperly authorized a search of the defendant's yard and premises, rather than a search of the yard only.

 II. Facts and Circumstances

 The affidavit in support of the warrant alleges that Officer Finkelberg of the Narcotics Branch, Metropolitan Police Department, was informed by a reliable source that the occupants of 1655 34th Street, N.W., Washington, D.C. had plants growing which were suspected to be marijuana plants in flower pots in the back yard of the premises. Officer Finkelberg subsequently responded to the rear of the premises and took pictures of the suspected marijuana plants, which pictures were viewed by Officer Yates of the Narcotics Branch, who believed that the plants were indeed marijuana plants. Officer Yates made his own observations of the yard, and saw that some of the plants which had been setting on the ground, as shown in the photographs, were setting on the rear porch in flower pots and that several of the plants were missing altogether. He further observed one marijuana plant growing from the soil in the rear yard. Based on these and other observations made by Officer Yates, he alleged in the affidavit that he believed there was illicit marijuana being secreted inside the premises and that there was illicit marijuana being grown and cultivated in the yard at the rear of the premises. A search warrant was issued for the entire premises and the back yard, and the search conducted pursuant to the warrant resulted in the confiscation of the items listed in the indictment.

 The defendant's main contention is that the manner in which the observations by Officers Finkelberg and Yates were made violated the defendant's right to privacy and as such constituted an unreasonable search under the Fourth Amendment. As shown in the photographic exhibits of the back yard and premises, the yard was enclosed by a stake fence approximately six feet in height and overgrown with vines and bushes. At the hearing, defendant adduced testimony from both of the officers in an effort to demonstrate that they had taken very active and positive steps to pierce the visual barrier of the high fence and vegetation to peer into the yard.

 It is apparent from the testimony of the two officers that neither of them physically intruded onto the defendant's property during the course of the observations reported in Officer Yates' affidavit. The observations by both officers which are the main subject of this controversy were made from the porch of the premises adjacent to the defendant's dwelling, the testimony indicating that the officers were there at the invitation of the occupant of those premises. From this vantage point, Officer Finkelberg took the photographs which were later viewed by Officer Yates. It was also from this point that Officer Yates took a video tape of the plants which was exhibited during the course of the hearing, such tape having been made during the same observation by Officer Yates as that alleged in his affidavit. The porch on which the officers stood was separated from the defendant's porch by a wall or partition, and was slightly recessed from the defendant's porch. Officer Finkelberg testified that he could see and photograph the plants in the yard by standing on his toes, or perhaps by standing on a box, and looking over the fence separating the two yards. Officer Yates testified that in taking the video tape shot of the plants growing in defendant's yard, he stood on the adjacent porch and aimed the camera over the fence while holding the camera at eye level. He further testified that in taking the shots of the plants in the flower pots on the defendant's porch he had to "lean around the side of the partition" in order to take the picture. The video itself indicated that the lens of the camera stayed on the officer's side of the fence and that the pictures were not taken within defendant's premises.

 A. The Relevance of the Katz Decision

 The physical conditions of the defendant's yard indicate that it was an area where she had a constitutionally protected reasonable expectation of privacy according to the rationale developed by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Further, as stated in Katz, "the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure". 389 U.S. at 353, 88 S. Ct. at 512. Other cases have held that an individual's Fourth Amendment rights may be violated by a visual intrusion. See Brock v. United States, 223 F.2d 681 (C.A.5 1955). But despite the guidelines developed by the abovementioned cases, the question in this case remains as to whether the officers' utilization of the adjacent property in the manner outlined above was so unusual or unreasonable as to conflict with the defendant's expectation of privacy. This Court does not feel that it was.

 B. The "Plain View" Doctrine

 It is well settled that observations of objects and activities falling within the plain view of an officer who has a right to be in the position to have that view are not searches within the meaning of the Fourth Amendment. United States v. Lee, 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924); Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). The "plain view" doctrine is relevant to the circumstances in this case, ...

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