People v. Lesslie

• Citation: 939 P.2d 443
• Decision Date: 13 June 1996
• Docket Number: No. 94CA1947,94CA1947
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jim LESSLIE, Defendant-Appellant. . IV
• Court: Court of Appeals of Colorado

Page 443

939 P.2d 443

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jim LESSLIE, Defendant-Appellant.

No. 94CA1947.

Colorado Court of Appeals,

Div. IV.

June 13, 1996.

Rehearing Denied Aug. 15, 1996.

Certiorari Denied June 30, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Lynne M. Olivia, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.

John Louis Mehlig, Montrose; Margaret L. Carey, Montrose,; Woodrow & Roushar, Victor T. Roushar, Montrose, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Jim Lesslie, appeals from the judgment of conviction entered after a jury verdict finding him guilty of conspiracy to commit eavesdropping in violation of § 18-2-201, C.R.S. (1986 Repl.Vol. 8B). We affirm.

In August 1992, in an effort to intercept conversations related to narcotics transactions, defendant, the deputy sheriff of Hinsdale County, cooperated with others to place a listening device on the window sill of the men's restroom of a local bar and to monitor conversations from a nearby motel. While conversations were intercepted, no drug transactions were overheard.

The next day the bar owner found and removed the device, and displayed it in the bar. Sometime later, the bar owner reported the incident to the district attorney's office and an investigation resulted in the prosecution at issue here.

I.

Defendant makes three interrelated contentions of error regarding whether communications in the bar restroom fit within the definition of conversations or discussions protected under the eavesdropping statute. First, defendant contends that the trial court erred in denying his motion to dismiss the charges because there was no legitimate expectation of privacy as to conversations in the bar restroom. Alternatively, defendant contends that, since the court declined to dismiss the case on this legal ground, it erred in both excluding his proffered jury instructions and expert testimony regarding reasonable expectations of privacy. We disagree with each contention.

Section 18-9-304(1)(a), C.R.S. (1986 Repl.Vol. 8A) provides that, in order to commit the crime of eavesdropping, a person, while not being visibly present, must overhear or attempt to overhear a conversation or discussion without the consent of at least one of the parties to the conversation or discussion. A "conversation" or "discussion" is synonymous with the term "oral communication," which is defined and limited in § 18-9-301(8), C.R.S. (1995 Cum.Supp.) as "any oral communication uttered by any person believing that such communication is not subject to interception, under circumstances justifying such belief." People v. Hart, 787 P.2d 186 (Colo.App.1989); see People v. Blehm, 44 Colo.App. 472, 623 P.2d 411 (1980); see also § 16-15-101(8), C.R.S. (1995 Cum.Supp.).

Whether the circumstances of a communication justify a belief that it is not subject to interception is analyzed in the same manner as the question whether an investigative activity amounts to a search: that is, whether there is a justifiable expectation of privacy at the time and place of the communication. People v. Palmer, 888 P.2d 348 (Colo.App.1994); Colo. Const. art. II, § 7; see also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. (1988).

Both the statutory and constitutional test for a reasonable expectation of privacy, in turn, require a determination whether there is an actual expectation of privacy and whether such expectation of privacy is legitimate, that is, is it one that society is willing to recognize as reasonable.

The latter, objective determination is tested against the customs, values, and common understandings that confer a sense of privacy upon many of our basic activities. People v. Oates, 698 P.2d 811 (Colo.1985); cf. O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (reasonable expectation must be addressed on a case-by-case basis weighing the general practical societal expectations of privacy in the workplace against the practical realities of the particular workplace); compare People v. Hillman, 834 P.2d 1271 (Colo.1992) (no invasion of privacy in observation of that which is plainly visible to the public) and United States v. Rose, 669 F.2d 23 (1st Cir.1982), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) (no reasonable expectation of privacy in communication transmitted by ham radio) with People v. Sporleder, 666 P.2d 135 (Colo.1983) (telephone subscriber has reasonable expectation of privacy in records of telephone numbers dialed).

Thus, whether there is a legitimate expectation of privacy in a particular case depends necessarily on the facts and circumstances, with the actual expectation manifested by a party being a question for the factfinder and the objective reasonableness of the expectation being determined for the particular circumstances as a matter of law. See Angel v. Williams, 12 F.3d 786 (8th Cir.1993); see also People v. Juarez, 770 P.2d 1286 (Colo.1989); United States v. Monie, 907 F.2d 793 (8th Cir.1990); United States v. Carroll, 337 F.Supp. 1260 (D.D.C.1971) (objective reasonableness decided as a matter of law on motion to dismiss).

Here, the configuration of the restroom was not in dispute. The room was 7' X 5' with a door and one window located about five feet from the floor and opening on to a public alleyway. The restroom had no lock or partitions, and it was undisputed that the window was open. As configured, the room could hold one or two people, and was not designed for high-traffic use. As the trial court noted, although located in a bar, it was less like a public restroom containing stalls and common areas, and more like a bathroom, or any enclosed room in a private residence or business.

A.

Defendant does not dispute that persons engaged in a conversation in the restroom could manifest an expectation of privacy. He contends, however, that the trial court erred in determining that any such expectation of privacy in the restroom was legitimate. We disagree.

Specifically, defendant asserts that society should not recognize as reasonable an expectation of privacy from surveillance with a police transmitter under the circumstances here in which anyone outside the open alley window might overhear what was said in the restroom. However, clandestine police surveillance by use of an electronic device is substantively different from simply overhearing a conversation without contrivance or augmentation of the sound. See 1 W. LaFave, Search & Seizure § 2.2(e) at 437 (3d ed.1996) ("resort to [electronic] equipment to hear that which cannot be heard except by artificial means constitutes a search"). Thus, the potential for a bystander to overhear a restroom conversation is not dispositive of the privacy issues presented here.

While it does not appear that the question of privacy protection from warrantless electronic eavesdropping in restrooms has yet been decided, decisions addressing activities, rather than conversation in restrooms, and conversations in other locations are instructive. The reasonableness of an expectation of privacy depends both on the nature of the thing to be protected, conversation here, and the place. 1 W. LaFave, Search & Seizure § 2.2(e) at 442--43 (3d ed.1996) ("privacy of conversations ... is more deserving of constitutional protection, even when the conversations occur in a public place, than is privacy as to conduct which occurs in a public or semi-public place").

On the one hand, when words are conveyed to another in conversation, there may be no legitimate expectation that this conversation will be free from interception by the police, either with or without the aid of electronic devices. See People v. Velasquez, 641 P.2d 943 (Colo.1982), cert. denied, 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982) (carrying of an electronic transmitter or recording device by a police agent does not transform a permissible police investigation into an unconstitutional invasion of privacy); People v. Strozzi, 712 P.2d 1100 (Colo.App.1985), cert. denied, 476 U.S. 1105, 106 S.Ct. 1950, 90 L.Ed.2d 359 (1986) (no reasonable expectation that personal conversation will not be revealed to the police); see also United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

But, it is generally accepted that there is a legitimate expectation of freedom from visual electronic surveillance by police in private restrooms or private areas of public restrooms. People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973) (method of observation rather than physical features of public restroom critical to evaluation of search); see generally 1 W. LaFave, Search & Seizure § 2.4(c) (3d ed.1996). This expectation of privacy is objectively reasonable both because of the setting, compare People v. Triggs, supra (reasonable expectation of privacy in restroom) with United States v. Hitchcock, 467 F.2d 1107 (9th Cir.1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973) (no reasonable expectation of privacy in prison), and because individuals can shield themselves from view.

The situation here is comparable to that of visual restroom surveillance. Since individuals in an otherwise private restroom area can easily adjust the volume of their conversation to exclude listeners, it is legitimate to expect that a particular conversation will not be electronically intercepted by the police. Cf. People v. Hart, supra; Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968) (constitutional protections from search and seizure can attach without circumstances justifying perfect privacy). People v. Sporleder, supra, 666 P.2d at 141 ("privacy is not a discrete commodity, possessed absolutely or not at all.").

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