People v. Hillman

Decision Date20 July 1992
Docket NumberNo. 91SC591,91SC591
Citation834 P.2d 1271
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. James R. HILLMAN, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Paul Koehler, Asst. Atty. Gen., Appellate Section, Denver, for petitioner.

Pozner Hutt & Kaplan, P.C., Abraham V. Hutt, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

The People of the State of Colorado (the People) petition from the court of appeals opinion in People v. Hillman, 821 P.2d 884 (Colo.App.1991). The court of appeals reversed James Hillman's (Hillman) conviction of cultivation and possession of marijuana with the intent to distribute, based on a finding that Hillman's garbage was protected under Article II, Section 7, of the Colorado Constitution. We reverse and reinstate the judgment of conviction.

I.

On March 16, 1989, Deputy Sheriff Jerry Blue drove to 49 East 81st Place, a single-family residence in Adams County. At approximately 12:05 a.m., Officer Blue picked up five trash bags that had been placed adjacent to the intersection of the driveway and sidewalk for trash collection. 1 Four of the bags were both black and opaque. Officer Blue described the fifth bag as a large dog food bag. All of the five bags were tied.

Officer Blue took the trash bags back to the police station. At approximately 10:00 a.m., Officer Mark Nicastle examined the contents of the bags. Officer Nicastle found a credit union slip and two magazines bearing Hillman's name and address. Inside the dog food bag, Officer Nicastle found a green trash bag. Inside the green trash bag, Officer Nicastle found marijuana plants--some stripped of their leaves, and others in potting containers. A substantial amount of marijuana was found in several of the trash bags. 2

Officer Nicastle sought a search warrant for 49 East 81st Place. In support of his request, Officer Nicastle gave an affidavit stating that 49 East 81st Place had been under intermittent surveillance during January and February of 1989. This surveillance revealed that numerous vehicles came to the residence. Occupants of the vehicles were seen entering the residence and staying approximately five minutes before leaving the area. Officer Nicastle also stated in the affidavit that Detective Blue collected the five bags and that Officer Nicastle discovered their contents on March 16. 3

A search warrant for 49 East 81st Place was issued, and Officer Nicastle executed the warrant on March 16. 4 Inside 49 East 81st Place, Officer Nicastle found growing marijuana plants, harvested marijuana plants, scales, boxes of small plastic bags, and halogen lights.

Hillman was charged with cultivation and possession of marijuana with intent to distribute, among other things. 5 On November 17, 1989, the district court held a hearing on Hillman's motion to suppress the evidence seized from his garbage and subsequently from his house. At the hearing, the People stipulated that there was no probable cause to search the trash bags. 6 Finding no violation of Hillman's constitutional rights, the district court denied Hillman's motion.

On December 4, 1989, Hillman waived his right to a jury trial, and his case was tried to the district court. The district court entered a judgment of guilty with respect to the charges of cultivation and possession with intent to distribute. Hillman appealed, and the court of appeals reversed Hillman's conviction.

The court of appeals found that Hillman's garbage was protected under Article II, Section 7, of the Colorado Constitution. The court of appeals also found that the parties stipulated in the district court that the search of Hillman's home was based on probable cause provided by the search of the trash. 7 Thus, the court of appeals did not consider the People's argument that the warrant for the home search was supported by independent information providing sufficient probable cause. The court of appeals concluded that the district court erred in denying Hillman's motion to suppress the evidence seized from his garbage.

We granted certiorari to consider "whether the Colorado Constitution prohibits warrantless examinations of garbage left on the street for disposal." 8 We find that it does not.

II.

Article II, Section 7, of the Colorado Constitution protects individuals from unreasonable searches and seizures. Colo. Const. art. II, § 7; People v. Wright, 804 P.2d 866, 869 (Colo.1991) (holding that article II, section 7, proscribes all unreasonable searches and seizures); People v. Wieser, 796 P.2d 982, 984 (Colo.1990) (holding that the Colorado Constitution protects people from unreasonable governmental intrusions into their legitimate expectations of privacy); Hoffman v. People, 780 P.2d 471, 473 (Colo.1989). Article II, Section 7, of the Colorado Constitution provides that "[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures."

" 'When a defendant challenges governmental investigative activity involving an intrusion into his privacy, Katz [v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),] requires a two-step inquiry: (1) was the intrusion a search; (2) if so, was it a reasonable search.' " Wieser, 796 P.2d at 984 (quoting People v. Unruh, 713 P.2d 370, 377 (Colo.), cert. denied, 476 U.S. 1171, 106 S.Ct. 2894, 90 L.Ed.2d 981 (1986)). We have consistently begun our analysis of the constitutionality of searches and seizures by determining whether the defendant has a legitimate expectation of privacy in the area or object in question. Wieser, 796 P.2d at 984. We begin our analysis with this threshold inquiry because the protections of article II, section 7, do not extend to investigative activity that does not amount to a search or seizure. See People v. Shorty, 731 P.2d 679, 681 (Colo.1987) (discussing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Oates, 698 P.2d 811, 816 (Colo.1985)).

Whether the contested activities constitute a search depends on whether the officer's "actions intruded upon an activity or area in which the defendant held a legitimate expectation of privacy." Wieser, 796 P.2d at 984 (citing Oates, 698 P.2d at 814). "A legitimate expectation of privacy is one that society is prepared to consider reasonable." Id. (citing Oates, 698 P.2d at 814; People v. Sporleder, 666 P.2d 135, 139 (Colo.1983)). We have not previously considered whether, under article II, section 7, society is prepared to recognize as reasonable a legitimate expectation of privacy in trash bags placed adjacent to a public sidewalk for disposal. We begin our consideration by reviewing the decisions of the state and federal courts that have addressed this question.

A.

In 1988, the United States Supreme Court concluded that the Fourth Amendment to the United States Constitution 9 did not prohibit the warrantless search and seizure of garbage left outside the curtilage of the home for collection. California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30 (1988). In Greenwood, a police investigator learned that a truck containing illegal drugs was scheduled to arrive at Greenwood's house. Id. The investigator had also received complaints of heavy vehicular traffic late at night in front of Greenwood's single-family residence. Id. The investigator asked the regular trash collector to deliver to the investigator the garbage bags that Greenwood left on the curb in front of his house. Id.

The investigator found items indicative of narcotics use in the bags and recited this information in an affidavit in support of a warrant to search Greenwood's house. Id. at 37-38, 108 S.Ct. at 1627. The warrant was issued and executed, revealing narcotics and evidence of narcotics trafficking. Id. at 38, 108 S.Ct. at 1627.

The United States Supreme Court stated that Greenwood's Fourth Amendment rights would only be violated if Greenwood "manifested a subjective expectation of privacy in [his] garbage that society accepts as objectively reasonable." Id. at 39, 108 S.Ct. at 1628 (citing Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring)). The Court noted that Greenwood's subjective expectation that no one would inspect his opaque trash bags prior to collection did not, by itself, create a Fourth Amendment protection. Id. The Court instead concluded that Greenwood "exposed [his] garbage to the public sufficiently to defeat [his] claim to Fourth Amendment protection." Id. 486 U.S. at 40, 108 S.Ct. at 1629.

The Court reasoned that plastic garbage bags left "on or at the side of a public street" are readily accessible to members of the public. Id. Thus, the Court continued, individuals could not possess a reasonable expectation of privacy in inculpatory, discarded items when the items are in garbage bags that in turn are deposited " 'in an area particularly suited for public inspection and, in a manner of speaking, public consumption.' " Id. at 40-41, 108 S.Ct. at 1629 (quoting United States v. Reicherter, 647 F.2d 397, 399 (3d Cir.1981)).

The Court premised its conclusion that society would not accept as reasonable an expectation of privacy in trash left for collection in an area accessible to the public partly on "the unanimous rejection of similar claims by the Federal Courts of Appeals" and on the decisions of a vast majority of state appellate courts. Greenwood, 486 U.S. at 41, 108 S.Ct. at 1629. 10

We note that the majority of federal and state courts considering this question in the wake of Greenwood have similarly concluded that society will not accept as reasonable an expectation of privacy in trash left for collection.

The United States Court of Appeals for the First Circuit, for...

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