
    The People of the State of New York, Respondent, v Katherine Reynolds, Appellant.
    Argued February 5, 1988;
    decided March 31, 1988
    
      POINTS OF COUNSEL
    
      Noel Tepper for appellant.
    I. Defendant’s challenge to probable cause for issuance of a search warrant is based on State constitutional grounds and therefore, this court should adopt a stricter standard than imposed by the Fourth Amendment to the US Constitution. (California v Ciraolo, 476 US 207; People v Joeger, 111 AD2d 944; People v Gustafson, 101 AD2d 920; 
      Beneficial Fin. Co. v Bond, 83 Misc 2d 9; People v Shepherd, 130 Misc 2d 284; Manson v Brathwaite, 432 US 98; Michigan v Mosley, 423 US 96; Cooper v Morin, 49 NY2d 69; People v Teicher, 73 AD2d 136, 52 NY2d 638; Oregon v Hass, 420 US 714.) II. Both trial and appellate courts erred in applying the doctrine of "open fields” to this case without an initial evidentiary hearing on factual allegations. (Oliver v United States, 466 US 170; Boyd v United States, 116 US 616; United States v Berrong, 712 F2d 1370, 718 F2d 1115; United States v Dunn, 766 F2d 880, 773 F2d 1236, 781 F2d 52, 782 F2d 1226; People v Abbott, 94 AD2d 831.) III. There was no probable cause for a warrant to search defendant’s house. (United States ex rel. Pugach v Mancusi, 310 F Supp 691, 441 F2d 1073, 404 US 849; United States v Thomas, 757 F2d 1359; United States v Ocampa, 492 F Supp 1211, 650 F2d 421.) IV. Items seized which were not described with particularity in the search warrant or found in plain view should have been suppressed. (Coolidge v New Hampshire, 403 US 443; People v Basilicato, 64 NY2d 103; United States v Rega, 496 F Supp 101; People v Martinelli, 117 Misc 2d 310.) V. According to the rules of statutory construction, defendant could not be charged under the Penal Law. (People v Fusco, 75 Misc 2d 981; Thielebeule v M/S Nordsee Pilot, 452 F2d 1230; Matter of Lo Bello v McLaughlin, 39 AD2d 404, 31 NY2d 782, 33 NY2d 755; People v Doe, 117 Misc 2d 35; People v Garthaffner, 115 Misc 2d 93; Sheridan Suzuki v Caruso Auto Sales, 110 Misc 2d 823; People v Mann, 113 Misc 2d 980.)
    
      Eugene Keeler, District Attorney (John E. Carter, Jr., of counsel), for respondent.
    I. The summary determination by the trial court of defendant’s motion for suppression was in all respects proper. (People v Glen, 30 NY2d 252, cert denied sub nom. Baker v New York, 409 US 849; People v Solimine, 18 NY2d 477; People v Cusumano, 108 AD2d 752; People v Ricks, 96 AD2d 788; People v Hernandez, 124 Misc 2d 840; People v Mitchell, 90 Misc 2d 463; Oliver v United States, 466 US 170; United States v Dunn, 480 US 294, 107 S Ct 1123; Hester v United States, 265 US 57; People v Abbott, 105 AD2d 1029.) II. The search of defendant’s property was reasonable, and did not violate her rights under the Constitutions of the United States and the State of New York. (Wong Sun v United States, 371 US 471; People v Harris, 62 NY2d 706; People v Plevy, 52 NY2d 58; People v Seidita, 49 NY2d 755; People v Vonderhyde, 114 AD2d 479; United States v Giordano, 416 US 505; People v 
      
      Bigelow, 66 NY2d 417; People v McRay, 51 NY2d 594; Katz v United States, 389 US 347; Hester v United States, 265 US 57; Oliver v United States, 466 US 170.) III. There was probable cause for the search of defendant’s residence, and items found there were properly seized pursuant to the search warrant as evidence tending to demonstrate that an offense was committed. (People v Christopher, 101 AD2d 504, 65 NY2d 417; People v Sinatra, 102 AD2d 189; People v Hanlon, 36 NY2d 549; People v Dwork, 116 Misc 2d 411.) IV. Defendant was properly indicted for the Penal Law felony of criminal possession of marihuana in the first degree. (Matter of Parmeter v Feinberg, 105 AD2d 886.)
   OPINION OF THE COURT

Dillon, J.

The principal and narrow issue to be resolved on this appeal is whether an open field, bearing no manifestation of the owner’s subjective expectation of privacy other than is naturally provided by the land’s woods and contour, falls within the protection of the Search and Seizure Clause of this State’s Constitution (NY Const, art I, § 12). We hold that it does not, and that governmental intrusion upon or above such land without a warrant is not constitutionally prohibited.

Defendant owns a 103-acre farm in the Town of Gallatin. The State Police, acting on an anonymous tip, but without a warrant, surveyed defendant’s property from a helicopter flying in navigable airspace, and then entered the land on foot, looking for evidence of what had been described to them as a "commercial marihuana operation”. Both the overflight and the foot surveillance revealed the presence on the property of a greenhouse-type structure located approximately 150 feet from defendant’s house. The troopers observed that there were mature marihuana plants both within the structure and in the area surrounding it. The ground search revealed other marijuana plants in areas further removed from the structure. Photographs were taken of the structure, the marihuana plants, and the general area in which they were located. The photographs graphically depict the separation of that area by distance and terrain from defendant’s house. They also reveal that the "greenhouse” structure was little more than a frame. The roof and sides were only partially covered by transparent material, and its interior was fully viewable from either ground level on the property or from above. Based upon the police observations and the photographs, a search warrant was issued. Execution of the warrant resulted in seizure of 1,282 marihuana plants, processed marihuana, United States currency, a triple beam scale, peat humis and lengths of hose.

Defendant’s motion to suppress the evidence was denied without a hearing. County Court, finding that neither the helicopter search nor the foot search was unlawful, concluded that the search warrant was properly issued. Defendant entered a plea of guilty of the crime of criminal possession of marihuana in the first degree. The Appellate Division affirmed the conviction, and we now affirm.

On appeal to this court, defendant contends that her rights under article I, § 12 of the New York State Constitution were violated when the troopers made the warrantless aerial and ground level observations of her property. Relief is sought under the State Constitution for the obvious reason that neither search is proscribed by the Fourth Amendment of the United States Constitution. In California v Ciraolo (476 US 207), the Supreme Court found it permissible for the police, by overflight, to make warrantless observations of marihuana growing in a backyard which was surrounded by fences. From the holdings in United States v Dunn (480 US 294, 107 S Ct 1123, 1139) and Oliver v United States (466 US 170), the rule evolves that neither the erection of fences nor the posting of "No Trespassing” signs on otherwise open land will establish a legitimate expectation of privacy in the sense required by the Fourth Amendment (cf., Riley v State, 511 So 2d 282 [Fla], cert granted sub nom. Florida v Riley, — US —, 98 L Ed 2d 977 [a case in which the greenhouse was located 10-20 feet from the house and within a fence surrounding both buildings which had been posted with "Do Not Enter” signs]).

We need not address the applicability of those cases because defendant makes no claim here that her property was bounded by fencing, marked by signs warning against trespassing, or that she in any other way overtly demonstrated an expectation that members of the public should not enter upon the land. The defendant fails to establish a constitutionally protected privacy interest under the Fourth Amendment. Indeed, even the dissenters in Oliver agreed that if an owner has not marked the boundaries of his fields or woods in a way that informs passersby that they are not welcome, no objection will lie if the police enter upon his land and make observations (Oliver v United States, 466 US 170, 193-194 [Marshall, J., dissenting], supra).

In assessing whether the police conduct here violated defendant’s State constitutional rights, it is significant that the relevant language of article I, § 12 of the New York Constitution conforms with that of the Fourth Amendment of the United States Constitution. While both guarantee security against "unreasonable searches and seizures”, principles of federalism secure to a State the right to afford its citizens greater insulation from governmental intrusion than is provided under the Fourth Amendment (People v P. J. Video, 68 NY2d 296; People v Class, 67 NY2d 431; People v Johnson, 66 NY2d 398, 407). That power is cautiously exercised, however, because, as we have repeatedly said, the identity of language in the two clauses supports a policy of uniformity in both State and Federal courts (see, e.g., People v P. J. Video, supra, at 304; People v Johnson, supra, at 406; People v Gonzalez, 62 NY2d 386, 389-390; People v Ponder, 54 NY2d 160, 165).

The purpose of the State and Federal warrant clauses is to protect people from unreasonable government intrusion into their legitimate expectations of privacy (United States v Chadwick, 433 US 1, 7; People v Mercado, 68 NY2d 874). A protected privacy interest is established when a person has exhibited a subjective expectation of a privacy right which society recognizes as reasonable (Katz v United States, 389 US 347, 361 [Harlan, J., concurring]). We have made it clear that a warrantless search may only be challenged by one having a reasonable expectation of privacy in the place or object of the search (People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160, supra). Manifestly, persons have a reasonable expectation of privacy in their homes, and a protected privacy right is recognized in other confined areas as well (see, People v Mercado, 68 NY2d 874, 876, supra). Generally, however, conduct and activity which is readily open to public view is not protected. It is for that reason that we decline to declare as a matter of State constitutional law that an owner has a reasonable expectation of privacy in open fields and woods where no precautions have been taken to exclude the public from entry. Consequently, the warrantless observations of marihuana on defendant’s property provided probable cause for issuance of the search warrant.

In reaching this conclusion, we do not at all depart from our decision in People v Gleeson (36 NY2d 462), where we held that a police entry upon private property without a warrant constituted an illegal trespass requiring suppression of the derivative evidence. Unlike the police activity we see here, the trespass in Gleeson extended into the primary building of the landowner (see, People v Doerbecker, 39 NY2d 448, 452). Nor do we here decide whether this State’s Search and Seizure Clause (NY Const, art I, § 12) would be similarly applied if defendant’s lands were fenced or otherwise marked in a way which demonstrated an expectation of privacy. It is also sufficient for purposes of this decision to state that where ground level police intrusion is not unreasonable under our State Constitution, police overflight in navigable airspace is similarly permissible.

We next address defendant’s claim that County Court erred in failing to hold a hearing on her motion to suppress the seized evidence. The argument is without merit. While the affidavit of defendant’s counsel submitted in support of the motion includes conclusory assertions that the marihuana was found within the "curtilage” of the house, not in an "open field” but "hidden in enclosed areas”, it contains no sworn allegations of fact supporting those conclusions (see, CPL 710.60 [1]). The affidavit does not dispute the averments in support of the warrant application that the "greenhouse” structure was located 150 feet from the residence on the property and that the marihuana was discovered merely by walking the land. No claim is made that the location and terrain of the area searched is other than is graphically shown in the photographs submitted with the warrant application, and no facts are asserted which would support a finding that the area is in any way related to the intimate activities of the home.

In addition, in order for the defendant to prevail, it is not enough for her to show or prove that some of this evidence was illegally observed within an area entitled to Fourth Amendment protection. She must show that all of the evidence necessary to establish probable cause was obtained from such locations. In this instance, quite apart from the evidence observed in the greenhouse, evidence was found in what were obviously open areas to establish probable cause for the issuance of the warrant. Thus, the suppression court appropriately concluded that the motion should be summarily denied (see, CPL 710.60 [3] [bj; People v Gomez, 67 NY2d 843; see also, People v Glen, 30 NY2d 252, cert denied sub nom. Baker v New York, 409 US 849).

Finally, we agree with the Appellate Division, for reasons stated in its memorandum (124 AD2d 356), that defendant was properly charged under Penal Law § 221.30. We have reviewed defendant’s other claims of error and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Hancock, Jr., J.

(dissenting). The majority bases its affirmance on facts which have not been found after an evidentiary hearing or accepted as true by either lower court and, indeed, which those courts did not even consider relevant or necessary to their decisions. Instead of remitting the matter for a hearing, the majority simply makes two critical assumptions: (1) that defendant failed to post "no-trespassing” signs or to take other steps to exclude the public, and (2) that the premises searched were "open fields”. The court, thus, finds it unnecessary to answer the important questions presented by defendant on this appeal:

(1) whether the warrantless aerial surveillance of defendant’s premises, with the aid of binoculars, from a helicopter, hovering at an altitude of 600 feet, violated defendant’s reasonable expectation of privacy under the Fourth Amendment of the Federal Constitution, notwithstanding the Supreme Court’s decision in California v Ciraolo (476 US 207); or, whether it did so under article I, § 12 of the New York State Constitution; and

(2) whether no-trespassing signs or other indicia of efforts to exclude the public are relevant in ascertaining the extent of an owner’s legitimate expectation of privacy under our State Constitution — as contradistinguished from the Supreme Court’s "open fields” doctrine under the Fourth Amendment (see, Oliver v United States, 466 US 170; United States v Dunn, 480 US 294, 107 S Ct 1123) — in wooded lands, isolated rural areas, and in the buildings in the immediate vicinity of the home.

This case cannot be decided as the courts below sought to do —by simply applying the Supreme Court’s decisions in Ciraolo and Oliver. Those cases differ from this one, and, in any event, have not been ádopted by this court — nor do I think that they should be — as the measure of protection under our State Constitution. Moreover, the questions before us cannot be resolved under our State Constitution without a determination, at an evidentiary hearing, of the facts relevant to defendant’s claim of an expectation of privacy in the premises. Because the majority declines to remit the matter for a hearing and, instead, grounds its affirmance on factual assumptions not warranted by the record, I respectfully dissent.

I

The basis of the majority’s affirmance is different from that of either court below. County Court held no hearing and did not determine whether defendant’s greenhouse was in "open fields”. Instead, relying solely on federal law, that court concluded that both the helicopter surveillance and the initial portion of the foot search were lawful under Oliver regardless of what might be developed at a hearing. The Appellate Division, likewise, found the aerial surveillance and the foot search entirely permissible under federal law without addressing the state constitutional questions. Relying on Ciraolo, the court held that there could be no Fourth Amendment objection to the aerial observation of the greenhouse because there is "no reasonable expectation of privacy from such observation”, regardless of the location of the greenhouse in the "open fields” or the "curtilage”. Additionally, the court upheld the foot search on the authority of Oliver, without considering whether defendant had taken any measures to exclude the public from the premises or whether, for some other reason, she was justified in expecting her prémises to be treated as private. Now, in affirming the order below, the majority of this court makes its own factual determinations and, apparently, sees no ground for distinguishing the Supreme Court’s decisions or need to articulate the applicable State rules.

In the motion papers submitted in support of suppression, defendant’s counsel affirmed that "the location where the marihuana was found could not be seen from the road”, that it "was located within the 'curtilage’ of the house”, that it was "not in open view”, that it was not part "of an open field”, and that it was "if anything, hidden in enclosed areas”. These factual allegations, based on counsel’s personal inspection of the premises, are clearly sufficient to entitle defendant to an evidentiary hearing. They can hardly be characterized els conclusory; they are statements of fact which could be established at an evidentiary hearing.

The defense counsel’s assertions, uncontraverted by any factual statement in the reply papers of the Assistant District Attorney or in any other documents in the record, are, in fact, supported by the investigation reports, the application for the search warrant, and the warrant itself. The investigation report pertaining to the aerial surveillance refers to the greenhouse as being "a short distance away [emphasis added]” from the residence. The warrant application and the warrant state that the premises encompass the residence and the other outbuildings as one group, "including a greenhouse like structure with a removable roof and surrounding field, occupied & inhabited by Katherine Reynolds”. Moreover, the residence is described in a police memorandum as being in an "isolated location [emphasis added]” and "a considerable distance” from Columbia County Route No. 8. There can be no question that a hearing is required under our statutes and case law (CPL 710.60, 710.70; People v Millan, 69 NY2d 514, 521; People v Abbott, 94 AD2d 831).

The majority, however, without the benefit of any fact-finding process and relying solely on its de novo analysis of the record, has made its own factual determinations, apparently rejecting defense counsel’s affirmations. The majority states that defendant’s property bore "no manifestation of the owner’s subjective expectation of privacy other than is naturally provided by the land’s woods and contours,” that the "photographs graphically depict the separation of that area [where the marihuana was found] by distance and terrain from defendant’s house”, and that defendant’s conduct and activity were "readily open to public view.” Such fact finding is beyond the power of this court and, moreover, is not supported by the evidence. By no means do the photographs establish lack of efibrts to exclude the public, the absence of natural boundaries shielding the property from public view, the distance of the greenhouse from the residence, or that evidence was found in "obviously open areas”. Defense counsel’s unrefuted factual statements based on his own observations — that the marihuana plants were found within "the curtilage” of defendant’s house, not in an "open field”, but "hidden in enclosed areas” — raise questions of fact that must be resolved.

II

Nor, in my view, do the recent Supreme Court decisions provide a basis for the outright rejection of defendant’s claim of an expectation of privacy. First, the Supreme Court has held that the "open fields-curtilage” issue framed in Oliver is to be resolved by examining various factors including proximity of the area to the home, whether it is enclosed, how it is used, and what if any steps have been taken to render it private (United States v Dunn, 480 US, at —, 107 S Ct, at 1139, supra). Consideration of the factors outlined in Dunn obviously calls for fact finding.

Second, the Supreme Court in Ciraolo merely held that "naked-eye observation of the curtilage by police from an aircraft lawfully operating at an altitude of 1,000 feet” does not violate an expectation of privacy under the Fourth Amendment (California v Ciraolo, 476 US 207, 213, supra [emphasis added]). And in Dow Chem. Co. v United States (476 US 227), decided the same day, the court upheld the high altitude warrantless surveillance of a large outdoor manufacturing facility, with the use of sense enhancing equipment. The court explained that "the Government has 'greater latitude to conduct warrantless inspections of commercial property’ ” than of "an area immediately adjacent to a private home, where privacy expectations are more heightened” (id., at 237, n 4). Read together, Ciraolo and Dow certainly provide no clear authority for aerial surveillance of a greenhouse in the immediate vicinity of a residence, where the surveillance is conducted in a "hovering” helicopter, with the aid of binoculars, at a height of 600 feet.

Third, the Supreme Court precedents are not, in any event, controlling under our State Constitution. Indeed, there are good reasons why our State rules should be different (see, Oliver v United States, 466 US 170, 189 if [Marshall, J., dissenting]; California v Ciraolo, 476 US 207, 216, and 223-225 [Powell, J., dissenting], supra; see also, discussion in 1 LaFave, Search and Seizure § 2.3 [g], at 421-424; § 2.4 [a], at 428-429 [2d ed]).

Ill

As to both the warrantless aerial and foot searches, a hearing should be ordered to determine whether defendant had a protectable expectation of privacy, under either State or Federal law, in the areas surveilled (see, People v Perel, 34 NY2d 462, 466; People v Mercado, 68 NY2d 874, 875-876; Katz v United States, 389 US 347, 361 [Harlan, J., concurring]). At the hearing, the suppression court should consider, among other things: the nature, use and location of defendant’s property; whether the property was rural or isolated and the extent to which it was secluded or otherwise hidden from public view; the distance of the property from public thoroughfares or air routes and the volume and type of related traffic; the use of signs or other devices to warn or exclude trespassers; the distance of the area searched from the residence; and the manner in which the aerial and foot searches were conducted, including their scope and duration, what, if any, sense enhancing devices were employed, and the over-all degree of intrusiveness on the owner’s property and privacy (see, People v Farenga, 42 NY2d 1092 [defendant’s activities overt]; People v Doerbecker, 39 NY2d 448, 452 [defendant’s efforts at seclusion]; People v Gleeson, 36 NY2d 462 [officers’ trespass]; People v Spinelli, 35 NY2d 77 [use of binoculars]; United States v Allen, 675 F2d 1373 [frequent Coast Guard overflights]; United States v Broadhurst, 612 F Supp 777 [defendant’s property secluded]; National Org. for Reform of Marijuna Laws v Mullen, 608 F Supp 945 [observation from hovering helicopter]; United States v Taborda, 491 F Supp 50 [use of telescope]; see, discussion of factors employed in Federal courts, United States v Bassford, 601 F Supp 1324, 1330).

For these reasons, I am persuaded that under governing state and federal law the order should be reversed and the matter remitted to County Court for an evidentiary hearing.

Chief Judge Wachtler and Judges Simons and Bellacosa concur with Judge Dillon; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judges Kaye and Alexander concur.

Order affirmed. 
      
      . This is no less true for the statement that the greenhouse "was located within the 'curtilage’ of the house”. This assertion about the greenhouse is the equivalent of stating that it was in the yard near or belonging to the house — as, indeed, appears to have been the case. "Curtilage” is defined in Webster’s New 20th Century Dictionary as "in law, a yard, garden, enclosure, or field near and belonging to a dwelling”.
     
      
      . See, Riley v State (511 So 2d 282 [Fla], cert granted sub nom. Florida v Riley — US —, 98 L Ed 2d 977) where the Florida Supreme Court, distinguishing Ciraolo and Dow, held that the defendant’s privacy rights were violated where an aerial surveillance of a greenhouse on defendant’s property was conducted from a helicopter hovering at about 400 feet. We agree with that court that it is difficult to "believe that society is prepared to say that individuals relinquish all expectations of privacy in their residential yards merely because they have not taken the extraordinary steps required to protect against all types of aerial surveillance” (id., at 288-289 [emphasis in original, footnote omitted]).
      Significantly, that court had the benefit of the suppression court’s factual findings after a full evidentiary hearing.
     
      
       Designated pursuant to NY Constitution, article VI, § 2.
     