Henderson v. People

• Decision Date: 13 June 1994
• Docket Number: No. 93SC339,93SC339
• Citation: 879 P.2d 383
• Parties: Bernard HENDERSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 383

879 P.2d 383

Bernard HENDERSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 93SC339.

Supreme Court of Colorado En Banc.

June 13, 1994.

Rehearing Denied July 25, 1994.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review People v. Henderson, 847 P.2d 239 (Colo.App.1993), which involved the observations of a police officer from a television news helicopter of marijuana plants on residential property. The court of appeals held that the helicopter flight over the defendant's property was not a search and that the warrant to search the defendant's property was supported by probable cause. On appeal, the defendant claims that the court of appeals erred in determining that the news reporter who flew the helicopter could assert the Colorado statutory newsperson's privilege and therefore was not required to testify at a suppression hearing. We affirm the judgment of the court of appeals.

I

In July, 1989, Officer Greg Bohlen, an undercover narcotics investigator for the South Metro Task Force, received an anonymous telephone call. The caller informed Officer Bohlen that Bernard Henderson had recently cultivated and sold marijuana from his residence at 4466 West Bowles Avenue in Littleton. The caller also stated that he observed $5,000 in cash, scales that are commonly used to weigh marijuana, and a number of weapons. Based on this information, Officer Bohlen placed the residence under surveillance for several days but did not observe any illegal activity.

On September 7, 1989, Detective Daniel F. Rupp received an anonymous call implicating Henderson in illegal activities. The caller indicated that Henderson lived at 4466 West Bowles Avenue, that there was Chevy pickup truck and a Harley Davidson motorcycle parked at the residence, and that marijuana was being grown in a shed behind the house. Detective Rupp conveyed this information to Officer Bohlen and the two officers went to the residence, walked around it, but saw nothing unusual.

Prior to September 8, 1989, Officer Bohlen had attempted to secure the use of a helicopter for a fly-over of another location in an unrelated investigation. When he was unable to obtain a law-enforcement helicopter, Officer Bohlen entered into an agreement for the use of a helicopter operated by television station KUSA Channel 9. KUSA agreed to provide a helicopter to Officer Bohlen and Agent Dan Johnson so that the officers could take photographs of the location in exchange for the right to report on the drug investigation.

On September 8, the morning Officer Bohlen was to participate in the fly-over of the unrelated property, he received another anonymous telephone call from the same caller regarding the alleged drug activity at 4466 West Bowles. The informant again indicated that he had been to the property and that Henderson was growing marijuana in a shed behind his house. The informant stated that Henderson retrieved a five-foot-tall marijuana plant from the shed and sold it to the informant's companion for $500. Additionally, the caller informed Officer Bohlen that he was aware of a substantial drug deal that took place at Henderson's residence a week prior to the call and that Henderson had automatic weapons in his house. As a result of the calls of the anonymous informant, Officer Bohlen asked the helicopter pilot for KUSA, Peter Peelgrane, if Peelgrane would fly him over Henderson's house. Peelgrane agreed to fly over Henderson's house after flying over the property that was the subject of the unrelated investigation.

Officer Bohlen, Peelgrane, Agent Johnson, and a photographer for KUSA made four or five passes over Henderson's residence during a period of approximately five minutes. Officer Bohlen observed a shed to the south of the residence with a plastic roof "with green plant material growing underneath the plastic." Officer Bohlen stated that the helicopter stayed between 500 and 700 feet in altitude. He based his altitude estimate on his experience flying in helicopters. Although he could not describe the plants in detail, based on his special education in drug identification and on his law enforcement experience, Officer Bohlen concluded that the plants were marijuana. Photographs were taken by the two police officers. Additionally, video tape was taken by the KUSA news photographer and was subsequently used in a news broadcast.

At about four o'clock on that same day, the anonymous caller telephoned again and told Officer Bohlen that Henderson had seen the helicopter fly over his residence and had ended his illegal gardening pursuits by uprooting and moving the marijuana plants.

The authorities subsequently obtained a no-knock search warrant and seized evidence, including roots, stalks, leaves, and other remnants of marijuana as well as cultivation equipment and fertilizer. Guns, scales, plastic bags, a pipe, and a bag of marijuana were found inside the house.

On October 31, 1989, a felony complaint was filed in Arapahoe County Court charging Henderson with one count of cultivation of marijuana, ¹ and one count of conspiracy to cultivate marijuana. ² Henderson pleaded not guilty on April 20, 1990.

Prior to trial, Henderson issued a subpoena to Peelgrane in an attempt to elicit testimony from him at a hearing on a motion to suppress evidence. Counsel for KUSA and Peelgrane moved to quash the subpoena, invoking the newsperson's privilege set forth in section 13-90-119, 6A C.R.S. (1993 Supp.). The trial court held that the privilege applied and quashed the subpoena. At the conclusion of the suppression hearing, the trial court denied Henderson's motion to suppress.

Trial to a jury commenced on August 22, 1990, and on August 30, 1990, the jury returned a verdict of guilty on both charges. On December 19, 1990, the trial court sentenced Henderson to eight years on the substantive count and four years on the conspiracy count with the sentences to run concurrently.

Henderson appealed and the court of appeals affirmed the convictions. The court of appeals held that the fly-over by the KUSA helicopter did not constitute a search under either the Fourth Amendment to the United States Constitution or article II, section 7 of the Colorado Constitution, that the search warrant issued was not infirm, and that Peelgrane was protected from giving testimony by the newsperson's privilege. People v. Henderson, 847 P.2d 239 (Colo.App.1993).

II

The court of appeals held that the fly-over was not a search under the Fourth Amendment to the United States Constitution and did not violate article II, section 7 of the Colorado Constitution. Henderson, 847 P.2d at 241. Under the facts of this case, we agree.

A

The Fourth Amendment protects: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. "The basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). Therefore, warrants are generally required before a governmental agency or official may conduct a search. See United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984) (stating that warrantless searches are presumptively unreasonable).

A warrant is only required, however, when a search occurs. A search occurs when the government intrudes on an area where a person has a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). ³ See also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986) (stating that a reasonable expectation of privacy is one that "society [is] willing to recognize ... as reasonable"); Karo, 468 U.S. at 712, 104 S.Ct. at 3302 ("A 'search' occurs 'when an expectation of privacy that society is prepared to recognize as reasonable is infringed.' ") (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). In order to determine whether the expectation of privacy is reasonable or "what expectations of privacy are constitutionally 'justifiable,' " United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971), the facts and circumstances of each case must be analyzed to determine if the defendant's expectation of privacy is objectively reasonable. See Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984) (concluding that no single factor determines whether an individual legitimately may assert a claim under the Fourth Amendment that he should be free from governmental intrusion); United States v. Fisch, 474 F.2d 1071, 1077-78 (9th Cir.1973) ("The test applied as to society's tolerance of the search rests, as it has for years, upon 'the facts and circumstances--the total atmosphere of the case.' There is no ready formula, 'each case is to be decided upon its own facts and circumstances.' ") (footnotes omitted); Hoffman v. People, 780 P.2d 471, 474 (Colo.1989) ("The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each particular case.").

The United States Supreme Court applied the totality of the facts and circumstances standard to determine if a defendant had a reasonable expectation of privacy in Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 ...