PEOPLE v. WIESER

JUSTICE VOLLACK delivered the Opinion of the Court.

The People brought this interlocutory appeal pursuant to C.A.R. 4.1, 7B C.R.S. (1984), 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.

C.A.R. 4.1(a) authorizes the state to file an interlocutory appeal in this court from a ruling of a district court granting a motion under Crim. P. 41(e) and (g) and Crim. P. 41.1(i), made in advance of trial by the defendant for return of property and to suppress evidence, or granting a motion to suppress an extra-judicial confession or admission. The People have properly certified to the district court, and to this court, that this appeal has not been taken for purposes of delay, and that the evidence is a substantial part of the proof of the charges pending against the defendant. C.A.R. 4.1(a); People v. Mendoza-Rodriguez, 790 P.2d 810, 813 (Colo. 1990).

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, and one count of knowing possession and manufacture of marijuana concentrate, 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.

Psyilocyn is defined as a schedule I controlled substance by § 12-22-309(2)(a)(XVI), 5 C.R.S. (1989 Supp.).

The complaint alleges that marijuana concentrate is defined as a schedule IV controlled substance by § 12-22-312, 5 C.R.S. (1989 Supp.).

II.

The United States and Colorado Constitutions protect individuals from unreasonable searches and seizures. "When a defendant challenges governmental investigative activity involving an intrusion into his privacy, Katz [ v. United States, 389 U.S. 347 (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 (1986).

The fourth amendment provides: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated." Article II, § 7, of the Colorado Constitution provides: "The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures."

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 (1983); accord United States v. Chadwick, 433 U.S. 1, 7 (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 (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, 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 they have stopped upon reasonable suspicion does not constitute a search); United States v. Whitehead, 849 F.2d 844, 856 (4th Cir.) (entry by officers into defendant's compartment on a passenger train to conduct a dog sniff was reasonable without a showing of probable cause), cert. denied, 109 S. Ct. 534 (1988). In State v. Slowikowski, 307 Or. 19, 27, 761 P.2d 1315, 1320 (1988), the Oregon Supreme Court held that a drug-sniffing dog's discovery of marijuana in the defendant's locked storage locker was not a search. The court based its decision on the fact that the dog's discovery of the marijuana was accidental, and the fact that at the time of the discovery the officers and the dog were in a place they had a right to be. Id.

We hold that the dog sniff conducted outside of the defendant's storage locker was not a search under either the United States Constitution or the Colorado Constitution. As the Court noted in Place, 462 U.S. at 707, a dog sniff does not expose noncontraband items that otherwise would remain hidden from public view. The only information the sniff discloses to law enforcement authorities is whether narcotics are present in the area sniffed. Id.; see also Jacobsen, 466 U.S. at 123 ("[a] chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy"). Our conclusion that the canine sniff of the storage locker did not constitute a search is supported by the manner in which Officer Johnson conducted the search. Officer Johnson walked the dog past the defendant's locker and several other lockers. Cf. Slowikowski, 307 Or. at 27, 761 P.2d at 1320. At all times the dog remained in a public walkway outside of the defendant's locker. Cf. Colyer, 878 F.2d at 474 (sniff of train compartment conducted from a public corridor); Hoffman, 780 P.2d at 474 (officers' observation from public alley of marijuana plants in defendant's backyard did not constitute a search); Slowikowski, 307 Or. at 27, 761 P.2d at 1320. Under these circumstances the dog sniff conducted by Officer Johnson was not a search under either the United States Constitution or the Colorado Constitution, and therefore the district court erred in holding that the sniff violated the defendant's constitutional rights. Whitehead, 849 U.S. at 856-57 (officer's entry into defendant's passenger train compartment to conduct a dog sniff of defendant's luggage did not constitute a search); see also Colyer, 878 F.2d at 477 (the fourth amendment is not implicated where no search occurs).

The defendant relies upon People v. Unruh, 713 P.2d 370. In Unruh, the police were investigating a recent burglary of the defendant's house. One of the investigating officers noticed three individuals attempting to conceal an object in the trunk of a car. Id. at 372. By the time the officer approached the car to investigate, the individuals had abandoned the car. The officer discovered that the object in the car trunk was a locked safe. Id. When one of the individuals was subsequently apprehended, he confessed to participating in a recent burglary in the vicinity of the defendant's house, and he told the officer that he thought the safe contained money and drugs. Id. During an exigent search of the defendant's house another officer discovered a triple-beam scale, a mirror, two teaspoons, and a playing card in a closet in the defendant's basement where the safe had been located. The implements discovered by the officer were all stained with a white residue. Id. On the basis of these discoveries the police took the safe to the police station and submitted it to a canine sniff. Id. at 373. We held that the dog sniff was a search because the defendant could have no expectation that the locked safe, which had been taken from his house and subsequently recovered by the police, would be subject to a governmental investigative technique of any sort. Id. at 378. We then held, based on Terry v. Ohio, 392 U.S. 1 (1968), that the dog sniff was justified because the officers possessed a reasonable suspicion that the safe contained drugs. Unruh, 713 P.2d at 379; see also Place, 462 U.S. at 722 (Blackmun, J., concurring). Thus we affirmed the defendant's conviction. Id. at 382. Unruh is not dispositive here because the dog sniff in this case, which took place in a public right of way next to a public storage locker, was not a search. Unlike the safe in Unruh, the public right of way outside the defendant's public storage locker was not protected by a reasonable expectation of privacy. Cf. Place, 462 U.S. at 707; Slowikowski, 307 Or. at 27, 761 P.2d at 1320.

The order of the district court is reversed, and the case is remanded for further proceedings.

JUSTICE ERICKSON specially concurs.

JUSTICE MULLARKEY concurs in the judgment, and JUSTICE LOHR and JUSTICE KIRSHBAUM join.

JUSTICE QUINN dissents, and JUSTICE LOHR joins the dissent in part.