Maryjane Potts v People of the State of California

____ U S ____ (201?)

Maryjane Potts was in desperate straits. A single mom, the mother of three, Maryjane was in severe danger of losing her home, located just beyond the city limits of Arcata, California. Never one to provide much child support in the first place, Maryjane’s ex was now doing time in the State Prison at Susanville on a “meth” charge, rendering him unable to provide any child support at all.. Citing “mental stress,” Ms. Potts had quit her nurse’s job, but had been denied disability payment. TANF and Food stamps were her only sources of support, barely enough to feed three kids, much less keep up house payments. In desperation she turned three rooms of her home and an attached green house into a “grow” area.

Things went well for a while. She produced a “dynamite product that she could sell easily. All debts were cleared, and what’s more, she didn’t have to pay taxes on her illicit income. Questioned by the bank, she said that her mother and brother had agreed to provide financial aid. But of course, all good things must come to an end. PG&E installed a “smart meter” on her property. Unlike the old meters, this one was not subject to manipulation. PG&E officials noticed a significant increase in electricity use, creating a suspicion that possible illegal activities were taking place. Because the house was an older wood frame model, officials were worried about the danger of a fire. These worries were conveyed to officials of Fire District # 2, the entity affording fire protection in Maryjane’s neighborhood.

Acting on this information, the Fire District dispatched a vehicle carrying a thermal imaging device to the area. Such devices, now in common use by fire departments throughout the country, are very good at spotting areas from which an excess amount of heat is being produced. Their primary purpose is to locate hot spots in buildings where persons may be in danger, but they are also quite good at detecting “grow” areas. Sure enough, the device detected excess heat emanating from three rooms of the house and a structure in the back resembling a darkened green house. In light of a recent shooting at a “grow house” in Mendicino County, Fire District officials decided to turn over the evidence to the Humboldt County Drug Task Force.

No one at the Task Force knew that Maryjane’s ex was missing, and because he was known to carry lethal fire arms, folks there decided to move in secret. On a cold, frosty January morning, six armed officers surrounded the premises. Before they moved in, they noticed there was no frost on the roof of the described rooms, a sure sign of a grow house. Without a warrant, they knocked on the door and gained entrance into the house. There they discovered more than 200 plants in various states of growth, cultivating and harvesting equipment, about five pounds of processed marijuana, and an undisclosed amount of cash.

Maryjane was arrested and charged with counts of possession of marijuana out of compliance with Prop 215 guidelines, possession and use of cultivation equipment for illegal purposes, and cultivation of Marijuana with intent to sell. The D A also reserved the right to charge Maryjane with tax evasion, a serious felony charge. Hearing of her plight, folks at NORML provided Maryjane with legal defense. Her lawyers filed a motion to suppress the evidence, citing Silverthorn LUMBER Company v U S (1925), (poisonous fruit of the vine doctrine), Elkins v U S (1960) (revocation of the “Silver platter” doctrine), and Kyllo v. U S (2001), claining this case was similar to Kyllo. Because she rad a reasonable expection of privacy society was willing to tolerate, as per the Katz test, the warrantless search constituted a 4’th and 14’th Amendment violation, rendering the evidence inadmissible in court. Judge Lawn Order did not buy this argument, and eventually Maryjane was convicted on all counts and sentenced to six months in County Jail, five years probation, and was fined $4,000. Because she was a first time offender, the DA decided not to pursue tax evasion charges or to confiscate the property.

Maryjane’s lawyers appealed to the 1’st District Court of Appeals where a unanimous Court accepted the defense’s argument, reversing and remanding the case back to the lower court, using almost verbatim their argument. The State appealed, citing Florida v Riley (1989), California v Ciraolo (1986) and California v. Greenwood (1988). They also cited Justice Stephens’s dissent in Kyllo.

In a 4 – 3 decision, the California Supreme Court overturned the District Court’s decision. Writing for the majority, Justice I. M. Modern said:

“This case calls in question the Kyllo decision. Thermal imaging devices are now in common use throughout the country, thus casting severe doubt on such reasonable expectation of privacy claims. Furthermore, the facts and circumstances surrounding this case indicate that officers could easily have shown “probable cause” by observing conditions on the roof. Finally, because the action was initiated by a private entity (PG &E), and evidence was presented to a public safety agence lacking police authority re marijuana, who then contacted law enforcement people. “silver platter” considerations are not applicable here.”

Fearing an “excessive invasion of privacy of all decent citizens made possible by this ill considered decision,” the defense appealed to your Court.