People v. Wieser, 90SA58

• Citation: 796 P.2d 982
• Decision Date: 24 September 1990
• Docket Number: No. 90SA58,90SA58
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James A. WIESER, Defendant-Appellee.
• Court: Supreme Court of Colorado

Page 982

796 P.2d 982

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James A. WIESER, Defendant-Appellee.

No. 90SA58.

Supreme Court of Colorado En Banc.

Sept. 24, 1990.

James C. Sell, Chief Deputy Dist. Atty., Robert R. Gallagher, Jr., Dist. Atty., Philip M. Smith, Deputy Dist. Atty., Englewood, for plaintiff-appellant.

Arthur M. Schwartz, P.C., Michael W. Gross, Denver, for defendant-appellee.

Justice VOLLACK announced the Judgment of the Court.

The People brought this interlocutory appeal pursuant to C.A.R. 4.1, 7B C.R.S. (1984), ¹ to challenge the order of the Arapahoe County District Court suppressing evidence obtained from a search of a storage locker rented by defendant James Wieser. We reverse.

I.

Events leading to the defendant's arrest were set in motion when the Drug Enforcement Administration (DEA), and Officer Daniel Johnson of the Englewood Police Department, began an investigation of Richard Marsh, a suspected methamphetamine dealer. At the time of the suppression hearing, Officer Johnson had been a police officer for five years and for fourteen months had been assigned to the South Metro Task Force, a multijurisdictional task force which investigates drug crimes.

The DEA began investigating Marsh in March of 1989. During its investigation the DEA purchased several pounds of methamphetamine from Marsh and intercepted a one-pound package of methamphetamine containing Marsh's fingerprints. The DEA subsequently informed Officer Johnson that Marsh would be flying from Arizona to Denver, and that from Denver he would be shipping drugs to buyers in other cities. DEA agents and Officer Johnson decided to keep Marsh under surveillance during his visit to Denver.

Marsh arrived at Stapleton Airport and drove a pickup truck to James Wieser's (the defendant's) apartment. Marsh and the defendant drove to an apartment at 3443 South Canosa Court, and then drove to a drug paraphernalia store. Later they met a woman at a restaurant, and drove with her to a hotel. The group checked into the hotel and stayed there for about an hour and a half. The defendant then left the hotel and drove back to his apartment. The next morning, Marsh met the defendant at his apartment. Later in the day Marsh returned to the airport and flew back to Arizona.

Approximately one or two weeks later the DEA notified Officer Johnson that Marsh would again be flying into Denver to deal drugs. Officer Johnson again kept Marsh under surveillance during his stay in Denver. When he arrived in Denver, Marsh met the defendant at the airport, and the two rented a car and drove to several houses and apartments in the Denver metropolitan area. Marsh remained in Denver for three days, and on each day he contacted the defendant.

Sometime after Marsh left Denver, Officer Johnson was contacted by the owner of a public storage facility in which Officer Johnson rented a storage locker. The owner of the public storage facility was acquainted with Officer Johnson and had previously cooperated with him in a drug investigation involving the public storage facility. The owner reported that one of the co-lessees of a storage locker in the facility was engaging in suspicious behavior. The owner identified the co-lessee as James Wieser. The owner explained that the defendant had visited his locker on each of the previous five or six days. On each visit the defendant rode a motorcycle and carried only a backpack. The owner of the storage facility observed the defendant on three different motorcycles, but each carried the same California license plate. Each of the defendant's visits to his locker lasted approximately five minutes. Officer Johnson concluded from the defendant's behavior that he was storing something in the locker that could be carried in a backpack. The records at the public storage facility identified 3443 South Canosa Court as the address of the other co-lessee of the storage locker. Officer Johnson recognized 3443 South Canosa Court as one of the addresses Marsh and the defendant had visited on Marsh's first trip to Denver. Based on the defendant's activities, and the defendant's association with Marsh, Officer Johnson suspected that the defendant was storing drugs or money in the locker.

Officer Johnson arranged to have a drug-sniffing dog assist in the investigation. Officer Johnson twice walked the dog past several lockers in the public storage facility, including the defendant's, and on each pass the dog alerted to the defendant's locker. Officer Johnson testified that the dog's behavior indicated that narcotics were present in the locker.

Officer Johnson applied for a warrant to search the defendant's locker for methamphetamine, chemicals used in the production of methamphetamine, or derivatives of methamphetamine, as defined in sections 12-22-309 through 12-22-313, 5 C.R.S. (1985 & 1989 Supp.). The Arapahoe County District Court issued the search warrant on July 18, 1989, and on that date Officer Johnson searched the defendant's locker. Officer Johnson discovered marijuana concentrate and psyilocyn, a hallucinogenic substance, in the locker.

The People charged the defendant in Arapahoe County District Court with one count of knowing possession of psyilocyn, ² and one count of knowing possession and manufacture of marijuana concentrate, ³ in violation of subsections 18-18-105(1)(a) and (2)(a)(I), 8B C.R.S. (1986 & 1989 Supp.). The defendant filed a motion to suppress evidence obtained as a result of the execution of the search warrant. After holding a hearing the district court granted the motion to suppress.

II.

The United States and Colorado Constitutions protect individuals from unreasonable searches and seizures. ⁴ "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." 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).

The United States and Colorado constitutions "protect[ ] people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983); accord United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); People v. Oates, 698 P.2d 811, 814 (Colo.1985); People v. Sporleder, 666 P.2d 135, 139 (Colo.1983). Whether the activities of the drug-sniffing dog in this case constituted a search depends on whether the dog's actions intruded upon an activity or area in which the defendant held a legitimate expectation of privacy. Oates, 698 P.2d at 814; see also United States v. Colyer, 878 F.2d 469, 473 (D.C.Cir.1989) ("[t]he question always to be asked is whether the use of a trained dog intrudes upon a legitimate expectation of privacy"). A legitimate expectation of privacy is one that society is prepared to consider reasonable. United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984); Oates, 698 P.2d at 814; Sporleder, 666 P.2d at 140. "The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each particular case." Hoffman v. People, 780 P.2d 471, 474 (Colo.1989); accord People v. Shorty, 731 P.2d 679, 681 (Colo.1987).

In Place, 462 U.S. at 707, 103 S.Ct. at 2644, the Supreme Court considered whether a canine sniff of airport luggage constituted a search under the fourth amendment. The Court relied upon the following reasoning to conclude that such a procedure did not constitute a search:

We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of respondent's luggage, which was located in a public place, to a trained canine--did not constitute a "search" within the meaning of the Fourth Amendment.

Id. (citations omitted).

Courts addressing the question of whether a dog sniff constitutes a search have focused on the unique nature of dog sniffs, as well as the defendant's expectation of privacy in the area subjected to the dog sniff. See United States v. Dovali-Avila, 895 F.2d 206, 207-08 (5th Cir.1990) ("the mere alerting of a dog, or, to an even lesser extent, the mere walking of a dog around a particular vehicle, does not, in and of itself, constitute a search"); Colyer, 878 F.2d at 475 (dog sniff conducted in corridor outside of defendant's room aboard passenger train did not constitute a search); United States v. Stone, 866 F.2d 359, 363 (10th Cir.1989) (police use of a narcotics dog to sniff an automobile which t...