People v. Shorty

• Decision Date: 20 January 1987
• Docket Number: No. 86SA309,86SA309
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Fred SHORTY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 679

731 P.2d 679

55 USLW 2438

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Fred SHORTY, Defendant-Appellee.

No. 86SA309.

Supreme Court of Colorado,

En Banc.

Jan. 20, 1987.

Norman S. Early, Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Lozow, Lozow and Elliott, Charles W. Elliott, Michael D. Shangraw, Denver, for defendant-appellee.

ERICKSON, Justice.

This interlocutory appeal by the prosecution is from an order suppressing a packet of cocaine found under a two feet square piece of carpeting that was serving as a doormat in front of a basement apartment. We reverse and remand with directions.

I.

The apartment in question is seven steps below ground level, and has a private entrance not in common with other residences in the building. The defendant stayed in the apartment from time to time. The defendant claimed that he was renting the apartment, although the utility bills came to one the defendant's girlfriends, and the defendant did not have a key to the apartment at the time of his arrest. Three informants who had provided reliable information in the past reported to the police that the defendant was selling cocaine from the apartment. The informants described the defendant as a black male, in his late thirties, and 5'10"'' in height. The police were also told that the defendant drove an orange Volkswagen Beetle, which the police had seen in the area.

The informants described a simple procedure the defendant used to advise his potential customers that he had cocaine to sell. Day or night, if the porch light was on, the defendant had cocaine for sale. If the porch light was off, the defendant did not have cocaine for sale. Sporadic surveillance of the apartment confirmed the informants' reports. When the porch light was on, even during the daytime, the police officers observed many visitors to the apartment. When the porch light was off, the apartment was quiet.

On January 27, 1986, in the afternoon, Detectives Stephen Barnhill and George Fortunato drove by the apartment in an unmarked police car. ¹ As they approached the apartment, they saw an individual near the apartment who matched the defendant's description. The individual was watching the detectives, and when they came to a stop sign in front of the building, they noticed that the individual was continuously looking over his shoulder, and appeared nervous as he walked down the stairway to the apartment. When he got to the bottom of the stairwell, he continued to watch the police as they proceeded down the street. According to Detective Barnhill, the individual appeared to be playing a "cat and mouse" game with them, because his head would disappear and then reappear to watch their car.

The detectives turned their car around, parked, walked across the lawn to the apartment, and met the defendant coming out of the stairwell. The detectives advised the defendant that they were police officers, and the defendant replied, "yeah, I know." The defendant told the detectives that he was locked out of the apartment, and that he was waiting for his girlfriend to let him in. The defendant was asked for identification, and he produced a driver's license.

Detective Fortunato took the defendant's driver's license, and ran a radio check on the defendant to determine whether he was wanted. At the same time, Detective Barnhill went down the stairwell, rang the doorbell, and found that no one was at home. At the bottom of the stairwell, he saw a worn piece of carpeting, approximately two feet square, covering a concrete drain. Detective Barnhill lifted the carpet and found a plastic bag containing white folded paper which, in the detective's opinion, was of a type used to package cocaine. The defendant, when questioned about the packet, told the police officer that it was not his. The defendant was arrested and the contents of the packet were subsequently analyzed. The analysis confirmed the detective's suspicion that the substance in the folded paper was cocaine. The defendant was charged with possession of a schedule II controlled substance, a class three felony, pursuant to section 18-18-105, 8B C.R.S. (1986).

II.

The issue before us is whether the rights guaranteed to a citizen against unlawful search and seizure under both the United States and Colorado Constitutions require suppression of the packet of cocaine that Detective Barnhill found under the small piece of carpet in front of the apartment door. We reverse the trial court's order of suppression and remand for further proceedings consistent with this opinion.

The trial court properly found that the police officers had a specific and articulable basis for suspecting criminal activity, and that the purpose, scope, and character of the investigatory stop was reasonable. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (a reliable informant's tip can be a reasonable basis for making an investigatory detention); People v. Archuleta, 616 P.2d 977 (Colo.1980) (the police may detain a suspect and require that he produce identification if they have a reasonable suspicion that the suspect is involved in criminal conduct). The Stone-Tate ² basis for an investigatory stop has as its foundation the trilogy of cases announced with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and has been codified by the General Assembly in section 16-3-103, 8A C.R.S. (1986). ³ Here, the police investigatory stop was proper, and the actions of the police officers did not go beyond the legitimate ends of an investigatory stop. The defendant was patted down for weapons, identified, and questioned about his conduct.

Although the police had neither probable cause nor a warrant to search the area underneath the doormat, that area was not constitutionally protected from an unauthorized search. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court recognized that the Fourth Amendment does not protect a defendant from police intrusions that do not abridge a legitimate expectation of privacy. Id. at 360, 88 S.Ct. at 507 (Harlan, J., concurring). See also People v. Oates, 698 P.2d 811, 814 (Colo.1985). The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. People v. Oates, 698 P.2d at 819. While the Supreme Court has held that the curtilage surrounding one's home may be protected under the Fourth Amendment, see Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the fact that a search occurs within the curtilage is not dispositive if the area's public accessibility dispels any reasonable expectation of privacy. United States v. Smith, 783 F.2d 648 (6th Cir.1986). See also California v. Ciraolo, 476 U.S. ---- 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986); State v. Seagull, 95 Wash.2d 898, 632 P.2d 44 (1981). In conducting a criminal investigation, a police officer may enter those residential areas that are expressly or impliedly held open to casual visitors. State v. Seagull, 95 Wash.2d 898, 632 P.2d 44 (1981). See generally 1 J. Cook, Constitutional Rights of the Accused § 3:44, at 673-74 (1985). Reasonable expectations of privacy are diminished in common areas of multi-family dwellings. See United States v. Romano, 388 F.Supp. 101 (E.D.Pa.1975); State v. Brown, 198 Conn. 348, 503 A.2d 566 (1986).

The frayed piece of carpeting under which Detective Barnhill found cocaine was in an area open to the public, and was not secured to the landing in any manner. The police officers who were investigating narcotics transactions at the apartment had seen many people enter and then leave shortly thereafter. The carpet could be moved, tripped over, walked upon, looked under, or lifted up by any business or personal visitor. The defendant could not reasonably expect privacy in an unsecured area that was often visited by many people in the occupant's business or social use of the rental unit. Further, the defendant's interest in the area is lessened by the fact that his residence was transitory in nature. The record discloses that the defendant was an occasional overnight guest at another woman's house in the same neighborhood, and that the defendant claimed that house as his home during a narcotics arrest sixteen months prior to the incident in question. In these circumstances, we must conclude that even if the defendant had a subjective expectation of privacy in the area or the contraband found under the carpet fragment, his expectation is not one that society is prepared to recognize as reasonable. ⁴ See United States v. Haughn, 414 F.Supp. 37 (D.N.J.1976) (the defendant does not have a reasonable expectation of privacy in the contents of a raincoat left on the landing of a stairway leading to the defendant's apartment).

In view of the defendant's actions, the police looked closely at the stairwell to determine if the defendant had disposed of contraband or a weapon to avoid arrest when questioned. Although he told the police that the packet did not belong to him, he admitted that he lived in the apartment with his girlfriend, whom he intended to "straighten out" for not being there when he arrived. The facts in this case are different than the factual scenario in People v. Thomas, 660 P.2d 1272 (Colo.1983), where the police officers found narcotics after an investigatory stop was made without a proper foundation. The sole issue in Thomas was whether the police had grounds for an investigatory stop.

Accordingly, we reverse the suppression order and remand for further proceedings consistent with this opinion.

KIRSHBAUM, J., concurs and specially concurs.

QUINN, C.J., dissents and LOHR, J., joins in the dissent.

KIRSHBAUM, Justice, concurring and specially concurring.

I agree with the majority opinion that under the particular...