People v. Oates

• Decision Date: 06 May 1985
• Docket Number: No. 84SA196,84SA196
• Citation: 698 P.2d 811
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Gaylean OATES and Ora Doyle Kubosh, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 811

698 P.2d 811

53 USLW 2592

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James Gaylean OATES and Ora Doyle Kubosh, Defendants-Appellees.

No. 84SA196.

Supreme Court of Colorado En Banc.

May 6, 1985.

Robert L. Russel, Dist. Atty., Fourth Judicial Dist., Thomas L. Kennedy, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Stephanie H. Yukawa, John W. Cook, Ranson, Thomas, Cook & Livingston, Colorado Springs, for defendants-appellees.

DUBOFSKY, Justice.

The defendants, James Gaylean Oates and Ora Doyle Kubosh, were charged with manufacturing and possessing controlled substances, § 18-18-105, 8 C.R.S. (1984 Supp.), and with conspiracy to manufacture and possess controlled substances. § 18-2-201, 8 C.R.S. (1978). The defendants also were charged with three special offender counts. § 18-18-107, 8 C.R.S. (1984 Supp.). During the investigation leading to the charges, an agent of the Drug Enforcement Administration attached a beeper ¹ to a drum of chemicals purchased by defendant Kubosh. Prior to trial, the Teller County District Court ruled that the installation of the beeper was illegal because it had not been authorized by warrant. The district court therefore suppressed all evidence seized through use of the beeper. The People appeal the suppression order under C.A.R. 4.1. We affirm the ruling of the district court as to defendant Kubosh, but remand for further findings concerning the standing of defendant Oates to challenge the legality of the search.

The defendants submitted their suppression motion upon the following stipulated facts:

On August 16, 1983, Agent Surovec of the Drug Enforcement Agency (DEA) in Houston, Texas was notified by the General Manager of American Scientific and Chemical Co. of Houston that two men had placed an order with a $200.00 deposit for 110 lbs. of phenyl-acetic acid. The two men were driving a blue Chevrolet Van registered to Defendant Kubosh. On the same day, Agent Surovec was also able to determine through DEA records that the same van had been used on January 12, 1983 to purchase 25 lbs. of sodium acetate and glassware.

On August 26, 1983, Agent Surovec received a phone call from C.A. Busbee, an Investigator for the Palo Pinto County Texas District Attorney who advised Agent Surovec that Defendant Kubosh was suspected of being involved in the manufacture of methamphetamines. On that same day, Agent Surovec placed an electronic tracking device, commonly known as a "beeper" in the 110 lb. drum of phenyl-acetic acid which had been ordered by the two individuals on August 16, 1983. The General Manager of American Scientific and Chemical Co. consented to placement of the beeper. It was determined that Defendant Kubosh was the individual who had placed the $200.00 deposit for the order on the 110 lb. drum of phenyl-acetic acid.

On September 13, 1983 at 9:00 a.m., a white male paid for and picked up the drum of phenyl-acetic acid containing the beeper. Monitoring of the beeper disclosed that the drum was transported in a 1980 Pontiac Gran Prix to the residence of Defendant Kubosh. Later the Pontiac was driven to another location followed by a 1976 white Ford Van. By means of the beeper, it was learned that the drum was transferred from the Pontiac to the white Ford Van. Monitoring of the drum in the van was continued until 6:00 p.m. the same day, then surveillance was lost in the area of Wichita Falls, Texas. The signal was picked up later that evening and it was determined that the drum and van were headed to Colorado.

Surveillance continued until September 14th when the signal was lost again as the van turned off I-25 to Hwy 24 West at the Manitou Springs Exit. Later on that same day, the signal was picked up near Divide, Colorado. On September 16, 1983, the drum, through monitoring of the beeper, was located at 109 Spring Valley Circle in Teller County. Agent Fagan drove by the address and observed the van in a detached garage. He also reported smelling a very strong odor synonomous with an amphetamine lab. On September 18, 1983, law enforcement obtained and executed a search warrant for 109 Spring Valley Circle and the vehicles located there.[ ²

The defendants moved to suppress all evidence seized during execution of the search warrant, contending that the warrantless installation and monitoring of the beeper constituted an illegal search and seizure, and that the seized evidence was a fruit of this illegal conduct. ³ The district court granted the motion, ruling that the warrantless beeper installation ⁴ violated the defendants' rights under the fourth amendment to the United States Constitution and article II, section 7 of the Colorado Constitution. We agree with the district court that defendant Kubosh, who at least partially paid for and took possession of the drum containing the beeper, possessed a legitimate expectation of privacy in that drum, and that the warrantless installation and continued presence of the beeper constituted an illegal intrusion upon that expectation of privacy under article II, section 7 of the Colorado Constitution. Therefore, we affirm the suppression order as to defendant Kubosh. However, the record is silent regarding any connection between defendant Oates and the drum of chemicals; we therefore remand for a determination of whether the installation of the beeper invaded any legitimate expectation of privacy possessed by defendant Oates.

I.

Article II, section 7 of the Colorado Constitution states:

The People shall be secure in their persons, papers, houses and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.

This provision shares a common purpose with the fourth amendment to the United States Constitution: the protection of legitimate expectations of privacy from unreasonable governmental intrusion. Katz v. United States, 389 U.S. 347, 350-52, 88 S.Ct. 507, 510-12, 19 L.Ed.2d 576 (1967); People v. Sporleder, 666 P.2d 135, 139 (Colo.1983). Therefore, any governmental action intruding upon an activity or area in which one holds such an expectation of privacy is a "search" that calls into play the protections of the Colorado Constitution. Whether an expectation of privacy is "legitimate" is determined by a two-part inquiry: whether one actually expects that the area or activity subjected to governmental intrusion would remain free of such intrusion, and whether "that expectation is one that society is prepared to recognize as reasonable." Sporleder, 666 P.2d at 140; see also Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (employing same test under fourth amendment).

In the present case, the People concede that the defendants possessed an actual expectation of privacy in the drum of chemicals and contend only that this expectation was not reasonable. We consider the People's contention under both the Colorado and United States Constitutions.

II.

The United States Supreme Court has applied the "legitimate expectation of privacy" test to beeper installation and monitoring on two recent occasions. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), police officers attached a beeper to a drum of chloroform and visually tracked the movements of the automobile into which the drum had been placed. When visual contact with the automobile was lost, officers followed its movements by monitoring the beeper. The Court held that such surveillance did not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." 103 S.Ct. at 1085. The Court explicitly refrained from deciding whether the installation of a beeper, apart from monitoring, would require a warrant. Id. at 1084 n. * *.

A year later, the Court addressed the installation issue. In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), a beeper was placed into a drum of ether belonging to the Drug Enforcement Administration (DEA). The defendants purchased the drum from a third party, and the beeper was used both to track the movements of the drum on public roads and to locate the drum inside a number of private homes and storage facilities. The Court first held that the installation of the beeper did not violate the defendants' legitimate expectation of privacy because at the time of installation the drum was owned by the DEA. Id. at 3301. The Court also concluded that the transfer of the drum did not constitute a "search":

A "search" occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. ----, ---- [104 S.Ct. 1652, 1656, 80 L.Ed.2d 85] (1984). The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on.

Id. 104 S.Ct. at 3302 (emphasis in original). Nor did the installation and presence of the beeper constitute a "seizure," as there was no "meaningful" interference with a possessory interest; at most, the Court declared, a "technical trespass" occurred. Id. at 3302. The Court determined, however, that the use of the beeper to locate the drum inside a...