Hoffman v. People

Decision Date18 September 1989
Docket NumberNos. 87SC453,87SC463,s. 87SC453
Citation780 P.2d 471
PartiesLarry HOFFMAN and Robin Hoffman, Petitioners, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, State Public Defender, Judy Fried, Deputy State Public Defenders, Denver, for petitioners.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., and Paul H. Chan, Asst. Atty. Gen., for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

The petitioners, Robin Hoffman and Larry Hoffman (Hoffmans), were convicted in separate trials in Morgan County District Court of cultivation of marijuana, in violation of section 18-18-106(8)(a)(I), 8B C.R.S. (1986). They appealed, and the Court of Appeals affirmed their convictions. Having granted certiorari to review issues relating to the trial court's order denying the Hoffmans' motion to suppress evidence, we reverse and remand with directions. 1


On July 20, 1985, Robert Aufenkamp, then Chief of Police of Log Lane Village, received a telephone call from an anonymous citizen indicating that marijuana might be growing in the backyard of a residence located in that community. He and Lieutenant Dana Speaks of the Morgan County Sheriff's Department drove to the residence. Speaks knocked on the front door of the residence. Receiving no answer, he and Aufenkamp drove to the back of the residence and stopped in a service alley abutting the Hoffmans' backyard. From one vantage point they observed a garden through a wire mesh fence enclosing the backyard. Among the vegetables and flowers growing in the garden were what the officers believed to be marijuana plants. Speaks took photographs of the plants from the alley.

The two officers then opened an unlocked gate in the fence and entered the backyard. When Speaks received no response to his knock on the back door of the residence, he and Aufenkamp walked to the garden, took additional pictures of the plants, removed them and took them to an evidence room at the Morgan County sheriff's office. Subsequent testing confirmed that the plants were marijuana plants.

Prior to his trial, Larry Hoffman filed a motion to suppress introduction of the marijuana plants into evidence on the ground that in the absence of a warrant the officers' conduct was constitutionally impermissible. He and Robin Hoffman, who later joined in the motion, argued that while the off-premises sighting of the marijuana was lawful, the entry into the backyard and particularly the seizure of the plants violated their rights to privacy 2 in their residence and its curtilage. 3

At the suppression hearing the People acknowledged the absence of any search warrant supporting the seizure of the plants 4 and presented testimony by the two police officers to justify the seizure. The People argued that because the backyard and its contents were fully visible to the officers and anyone else from the public alley, the Hoffmans had no legitimate expectation of privacy in the garden area of their backyard and that in any event the officers were justified in entering the yard and seizing the plants.

The trial court denied the suppression motion. The trial court's order contained the following pertinent language:

I have difficulty in this case accepting the proposition that the defendant had any--or defendants had any expectation or reasonable expectation of privacy where the fence as I gather was transparent, that is to say, it was a wire fence, was a situation where you had a garden that was readily visible at least from an alley and, at least according to the evidence received, from a public highway.

It seems under those circumstances there is no expectation of privacy as to the items that can be observed. If there is no expectation of privacy, I frankly don't see that there is any violation, constitutional violation of such gravity that it requires the suppression of evidence in this case.

Robin Hoffman was convicted by a jury of the offense of cultivation of marijuana and sentenced to two years' probation. Larry Hoffman was convicted of the same offense following a trial to the court and was sentenced to three years' probation. On appeal, the Court of Appeals affirmed the judgments in a one-page opinion, stating:

[W]e conclude that the trial court rulings were correct for the reasons assigned by the People in the answer briefs. We regard the following cases to be dispositive of the arguments and issues raised. People v. Shorty, 731 P.2d 679 (Colo.1987); People v. Gomez, 632 P.2d 586 (Colo.1981); People v. Ortega, 175 Colo. 136, 485 P.2d 894 (1971).

People v. Hoffman and Hoffman, Nos. 86CA0647 and 86CA1198, slip op. at 1 (Colo.Ct.App. Sept. 17, 1987).


The fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution protect persons from unreasonable searches and seizures. 5 See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Searches have been described as intrusive governmental investigations or explorations into non-public places for that which is concealed. See W. LaFave, Search and Seizure § 2.1(a), 301-03 (2d ed. 1987). However, the mere observation by government officials of that which is plainly visible to anyone does not constitute a search for constitutional purposes. See California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Fagundes v. United States, 340 F.2d 673 (1st Cir.1965); People v. Becker, 188 Colo. 160, 533 P.2d 494 (1975). Seizures, on the other hand, refer to some meaningful interference with an individual's possessory interest in personal property such as the physical taking and removing of such property. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); W. LaFave Search and Seizure § 2.1(a), 299-301 (2d ed. 1987).

The touchstone of fourth amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy" in the area or item searched or seized. Katz v. U.S., 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). See Ciraolo, 476 U.S. at 211, 106 S.Ct. at 1811; Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). That determination requires the court to ascertain whether an individual has exhibited a subjective expectation of privacy in the particular place or object in question and whether that subjective expectation is one society recognizes as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. at 516. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each particular case. Oliver, 466 U.S. at 177-78, 104 S.Ct. at 1740-41; People v. Shorty, 731 P.2d 679, 681 (Colo.1987); People v. Oates, 698 P.2d 811, 819 (Colo.1985); People v. Savage, 630 P.2d 1070, 1073 (Colo.1981).

In the present case, the Hoffmans and the People agree that the officers' off-site observation of the marijuana plants did not constitute a search for fourth amendment purposes. There is no invasion of privacy in the observation of that which is plainly visible to the public. See Fagundes, 340 F.2d 673 (1st Cir.1965); Petteway v. United States, 261 F.2d 53 (4th Cir.1958). As the Supreme Court has recognized, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. at 511. Thus, in general, a curtilage is not protected from observations that are lawfully made from outside its perimeter not involving physical intrusion. Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 696, 102 L.Ed.2d 835 (1989); Ciraolo, 476 U.S. at 213, 106 S.Ct. at 1812.


The fact that the officers legitimately obtained sufficient information to establish probable cause to believe the Hoffmans had committed an offense does not end the inquiry. Probable cause permits officers to obtain a warrant to search premises and to seize property. See Specht v. Jensen, 832 F.2d 1516 (10th Cir.1987), cert. denied, 488 U.S. 1008, 109 S.Ct. 792, 102 L.Ed.2d 783 (1989); U.S. v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); People v. Rayford, 725 P.2d 1142 (Colo.1986); People v. Hill, 690 P.2d 856 (Colo.1984). The officers here elected to enter the backyard, walk to the garden 6 and seize the marijuana plants, all without first obtaining a warrant judicially authorizing such conduct.

Warrantless searches and seizures are presumptively invalid under the fourth amendment to the United States Constitution and article II, section 7, of the Colorado Constitution, subject only to a few specifically delineated exceptions. See Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) (per curiam); United States v. United States Dist. Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); People v. Dandrea, 736 P.2d 1211 (Colo.1987); People v. Reynolds, 672 P.2d 529 (Colo.1983); People v. Stoppel, 637 P.2d 384 (Colo.1981). The prosecution bears the burden of establishing that warrantless conduct by government officials falls within one of those exceptions. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); People v. Jansen, 713 P.2d 907 (Colo.1986); People v. Turner, 660 P.2d 1284 (Colo.1983); People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

While the fourth amendment protects people rather than places, Katz, 389 U.S. at 353, 88 S.Ct. at 512, particular places retain significance for purposes of determining the scope of fourth amendment protections. Certain areas, such as the interiors of homes and offices, are deemed to be...

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