People v. Schafer, 97SA142

• Decision Date: 15 September 1997
• Docket Number: No. 97SA142,97SA142
• Citation: 946 P.2d 938
• Parties: 97 CJ C.A.R. 1914 The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Scott E. SCHAFER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 938

946 P.2d 938

97 CJ C.A.R. 1914

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Scott E. SCHAFER, Defendant-Appellee.

No. 97SA142.

Supreme Court of Colorado,

En Banc.

Sept. 15, 1997.

Michael F. Green, District Attorney, Twenty-Second Judicial District, Cortez, for Plaintiff-Appellant.

David F. Vela, Colorado State Public Defender, William Herringer, Deputy State Public Defender, Durango, for Defendant-Appellee.

Justice HOBBS delivered the opinion of the court.

This interlocutory appeal is brought by the prosecution, pursuant to section 16-12-102(2), 8A C.R.S. (1996 Supp.), and C.A.R. 4.1, from an order of the Montezuma County District Court granting the motion of defendant Scott E. Schafer (Schafer) to suppress evidence discovered as the result of a warrantless search of his tent and backpack. The District Attorney for the Twenty-Second Judicial District contends that the order should be reversed because Schafer lacked standing to challenge the search, or, alternatively, because exigent circumstances obviated the need for a search warrant. We affirm the district court's suppression ruling.

I.

On the morning of October 19, 1996, at approximately 10:00 a.m., an armed robbery took place at the Chief One Stop convenience store in Cortez, Colorado. The clerk reported that the robber had fled the store on foot, heading east. Cortez police officers arrived at the scene and began to search the area based on the store clerk's description of the perpetrator. The police were informed by a friend of the clerk that a "transient" was camping in a tent behind Stromstead's Restaurant, about a half mile east of the Chief One Stop. Two police officers proceeded to the location of the tent, where they were joined by two other officers.

The district court found that the tent was standing on vacant land that was "junky, with broken glass, trash, and many dirt tracks/roads." Although the land was privately owned, it was publicly accessible and used by townspeople for parties. There were no fences or signs prohibiting entry onto the land. Schafer owned the tent and personal items therein, including the backpack. ¹ Schafer was not present when the police officers arrived or at any time during the ensuing search. The flaps of the tent were closed and the entrance was zippered shut. The officers did not have a search warrant.

One of the officers opened the flaps and zipper and entered the tent, where he found clothes, a bedroll, and a backpack. The officer opened the backpack, removed an address book, and copied the name "Scott Robert Schafer" from an envelope therein. ² He then returned the address book to the backpack, and the officers left without removing any object from the scene.

Several months later, following a domestic violence complaint, Schafer was arrested in Montrose, Colorado for possession of a weapon which had been stolen in Montezuma County, in which Cortez is located. The police included Schafer's photograph in a photo lineup that was transmitted to Cortez. The clerk of the Chief One Stop identified Schafer as the person who robbed the store on October 19, 1996. Thereafter, Schafer was charged with aggravated robbery, in violation of section 18-4-302, 8B C.R.S. (1986), and carrying a concealed weapon, in violation of section 18-12-105, 8B C.R.S. (1986). Prior to trial, Schafer moved to exclude testimony and other evidence based on the warrantless search of his tent and backpack on October 19 in Cortez. The district court granted the motion for suppression, finding that "[Schafer] closed the tent and his knapsack. He clearly had a reasonable expectation that they would remain in that condition." The court further held that

[n]o exigent circumstances existed for a search without a warrant, as the police were unaware of any connection between the occupant of the tent and the robbery for several months. Therefore there was no basis presented by the evidence to enter the tent, examine its contents and write down information.

The district attorney then brought this appeal, challenging Schafer's standing to raise the constitutionality of the search and asserting that exigent circumstances justified the warrantless entry and search. We uphold the district court's suppression order.

II.

We determine under the Fourth Amendment of the United States Constitution and its Colorado counterpart, Colo. Const. art. II, § 7, ³ that a person camping in Colorado on unimproved and apparently unused land that is not fenced or posted against trespassing, and in the absence of personal notice against trespass, has a reasonable expectation of privacy in a tent used for habitation and personal effects therein.

A. Standing

The prosecution first contends that the district court erred in recognizing Schafer's standing to contest the search of the tent and backpack. In order to assert a Fourth Amendment violation, a defendant must show that he or she had "a legitimate expectation of privacy in the areas searched or the items seized." People v. Naranjo, 686 P.2d 1343, 1345 (Colo.1984). Whether a person has a legitimate expectation of privacy in a particular place or object is determined by considering the totality of the circumstances, including "whether an individual has a possessory or proprietary interest in the areas or items which are the subject of the search." Id.

The prosecution observes that "[a] defendant who does not reside on the premises, had no right to be on the premises, and does not have a possessory interest in the premises is not an aggrieved person and cannot complain of the unlawfulness of a search." People v. Juarez, 770 P.2d 1286, 1289 (Colo.1989). However, Juarez does not apply for two reasons. First, Schafer owned the tent and the backpack and was using the tent for an overnight stay. Second, a possessory interest in the premises "may be established by one lawfully in possession at the time of the search, or by one reasonably believing he has a ... colorable interest in the premises or vehicle." People v. Pearson, 190 Colo. 313, 319, 546 P.2d 1259, 1264 (1976).

In Colorado, one who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege in the absence of personal or posted notice. Section 18-4-201(3), 8B C.R.S. (1986), provides:

Except as is otherwise provided in section 33-6-116(1), C.R.S., a person who enters or remains upon unimproved and apparently unused land which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders does so with license and privilege unless notice against trespass is personally communicated to him by the owner of the land or some other authorized person or unless notice forbidding entry is given by posting with signs at intervals of not more than four hundred forty yards or, if there is a readily identifiable entrance to the land, by posting with signs at such entrance to the private land or the forbidden part of the land.

Schafer was given no notice that he was trespassing on private land or that the owner thereof intended to exclude the public. Accordingly, he enjoyed "license and privilege" to enter, was in lawful possession of the tent and the personal effects therein, and has standing to contest the search.

B. Tents As Habitation

The Fourth Amendment to the United States Constitution and its Colorado counterpart are intended to protect from unreasonable governmental intrusion one's legitimate expectation of privacy. See People v. Oates, 698 P.2d 811, 814 (Colo.1985). The highest protection is afforded to one's residence; a search thereof without a warrant is presumptively unreasonable. See People v. O'Hearn, 931 P.2d 1168, 1173 (1997). In determining whether Schafer had a reasonable expectation of privacy in his tent, we take notice that tents have long been utilized as temporary or longer term habitation in Colorado and the West.

Carved out of the public domain secured to the United States by the Louisiana Purchase and the Treaty of Guadalupe Hidalgo, see Charles F. Wilkinson, Crossing the Next Meridian 34 (1992), thirty-seven percent of Colorado remains in federal ownership, consisting primarily of Bureau of Land Management, Forest Service, National Park, and National Monument lands which are widely available for hiking, hunting, fishing, rafting, wildlife watching, and tent camping. Mel Griffiths & Lynnell Rubright, Colorado 161 (1983). Colorado's twenty-four federally designated wilderness areas, see Sierra Club v. Yeutter, 911 F.2d 1405 (10th Cir.1990), are accessed solely by foot or horseback, usually for multi-day treks utilizing tents as the predominant mode of shelter. Colorado state parks, federal lands, and some private lands offer opportunities for long term camping as well as overnight or weekend visits. Because wind, hail, rain, or snow may strike without warning any day of the year, particularly in the mountains, ⁴ the typical and prudent outdoor habitation in Colorado for overnight or extended stay is the tent.

Tents have long served humans as a form of habitation in Colorado and the West. Lewis and Clark, their interpreter Charbonneau, his wife Sacajawea, and their child shared a tent of dressed buffalo skins as they traveled from Fort Mandan to the Rocky Mountains in search of a passage to the Pacific Coast:

This tent is in the Indian stile, formed of a number of dressed Buffaloe skins sewed together with sinues. It is cut in such manner that when foalded double it forms the quarter of a circle, and is left open at one side here it may be attatched or loosened at pleasure by strings which are sewed to its sides for the purpose.

The Journals of Lewis and Clark 92 (Bernard DeVoto ed., 1953)(entry of April 7, 1805).

The twenty-one member expedition of 1820 led by Major Stephen Long up the Platte River to the Continental Divide in Colorado was housed by means of "three tents,...