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holding that the warrantless installation of an electronic tracking device in a drum of chemicals prior to sale violated the purchaser's right to protection against unreasonable searches under the Colorado Constitution
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No. 84SA196
Decided May 6, 1985.
Interlocutory Appeal from the District Court, Teller County Honorable John F. Gallagher, Judge
Robert L. Russel, District Attorney, Fourth Judicial District; Thomas L. Kennedy, Deputy District Attorney, for Plaintiff-Appellant.
Stephanie H. Yukawa, John W. Cook, Ranson, Thomas, Cook Livingston, for Defendants-Appellees.
EN BANC
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 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.
A beeper is a miniature radio transmitter that emits signals at a set frequency; by following the signals, police officers may track the location of any item to which a beeper is attached.
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 synonymous 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."
The parties further stipulated at oral argument that monitoring of the beeper was discontinued after the drum of chemicals arrived at the Spring Valley address.
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. The district court granted the motion, ruling that the warrantless beeper installation 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.
The connection between the use of the beeper and the evidence seized during execution of the warrant was not set forth clearly in either the defendants' motion or the district court order. Presumably the evidence was suppressed because information obtained through use of the beeper was recited in the search warrant affidavit, and the affidavit failed to state probable cause once this information was excised. However, because the People do not challenge this aspect of the court's ruling, we need not determine the connection between the beeper search and the seized items.
The district court also ruled, based on United States v. Knotts, 103 S. Ct. 1081 (1983), that subsequent monitoring of the beeper was not a search under the United States or Colorado Constitutions. Because C.A.R. 4.1 only permits review of rulings adverse to the People, we do not pass upon the district court's monitoring ruling here. However, in order to analyze the invasion of privacy occasioned by the installation of a beeper, we must refer to its purpose — the tracking of location and movement. It is by virtue of this ultimate use that the initial installation threatens constitutionally-protected privacy.
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 (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 (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, 103 S. Ct. 1081 (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, 104 S. Ct. 3296 (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. 109, ___, 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. 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 residence constituted a search requiring a warrant, even if police officers visually observed the item containing the beeper being taken into the house. Id. at 3303-04. In such circumstances, the Court reasoned, the beeper reveals information that would otherwise remain concealed and thereby infringes upon a legitimate expectation of privacy. Id.
The record in the instant case indicates that defendant Kubosh owned the house at 109 Spring Valley Circle. After law enforcement officers lost the signal from the beeper at the Manitou Springs exit off I-25, use of a DEA aircraft picked up the signal near Divide, Colorado. Subsequent monitoring of the beeper while the drum presumably was in the house or garage eventually disclosed the drum's location. Under Karo, the unwarranted monitoring of the beeper in Kubosh's house or garage could well foreclose using against him evidence discovered because of the beeper. However, the United States Supreme Court had not decided Karo at the time the district court ruled in this case. Although the district court ruled that the monitoring of the beeper here did not require a warrant, see note 4 supra, the court was not asked to address, and did not consider, whether law enforcement monitoring of the beeper when the drum was located inside 109 Spring Valley Circle, as distinct from monitoring of the drum on public highways, violated the defendants' legitimate expectation of privacy. Under Karo, this issue doubtless would arise, and the district court's ruling on the monitoring issue might well be different. Nevertheless, because this ruling was adverse to the defendant, we have no jurisdiction to address it in an interlocutory appeal under C.A.R. 4.1. People v. Barton, 673 P.2d 1005, 1006 n. 1 (Colo. 1984); People v. McNulty, 173 Colo. 491, 480 P.2d 560 (1971). Therefore, although the evidence in this case may well be suppressible under Karo, the suppression questions are not in a procedural posture for us to address them under the Karo rationale.
Under Karo, the installation and presence of the beeper in this case was not a search. However, in interpreting article II, section 7 of the Colorado Constitution, we are not bound by the decisions of the United States Supreme Court construing the federal constitution. Several times we have determined that the Colorado proscription against unreasonable searches and seizures protects a greater range of privacy interests than does its federal counterpart. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 105 S. Ct. 181 (1984) (governmental use of telephone toll records is search under Colorado Constitution); Sporleder, 666 P.2d 135 (governmental installation of pen register is search under Colorado Constitution); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (governmental use of bank records is search under Colorado Constitution). We conclude that the broader definition of what constitutes a legitimate expectation of privacy under the Colorado Constitution encompasses the expectation that purchased commercial goods will be free of government surveillance devices such as beepers. We therefore depart from the reasoning in Karo and hold that the installation and continued presence of the beeper in this case infringed upon the legitimate expectations of privacy of at least one defendant, and therefore constituted a search requiring a warrant under article II, section 7 of the Colorado Constitution.
III.
A search occurs when the legitimate expectations of privacy of a particular individual or individuals are violated, and only such individuals have standing to challenge the government practice at issue. Rakas v. Illinois, 439 U.S. 128 (1978); People v. Spies, 200 Colo. 434, 436, 615 P.2d 710, 711 (1980). Because the legitimacy of each individual's expectation of privacy depends upon his relationship to the area searched or items seized, People v. Naranjo, 686 P.2d 1343, 1345 (Colo. 1984), and because each defendant in this case bore a different relationship to the drum of chemicals, we examine the issue before us — the reasonableness of the defendants' expectation of privacy under the Colorado Constitution — separately as to each defendant. We turn first to defendant Kubosh.
A.
Whether an expectation of privacy is reasonable may be tested against the customs, values and common understandings that confer a sense of privacy upon many of our basic social activities. Rakas, 439 U.S. at 133 n. 12; People v. Suttles, 685 P.2d 183, 190 (Colo. 1984). Government surveillance necessarily reduces this sense of privacy; many citizens may choose to curtail their freedom of action rather than risk exposure of their activities to government scrutiny. 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1 at 231-33 (1978) (hereinafter "LaFave"); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 348, 402-03 (1974) (hereinafter "Amsterdam"). Where, as a result of a government surveillance practice, "the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society," Amsterdam at 403, a court may require regulation of the government practice by means of a warrant.
In the present case, defendant Kubosh had partially paid for the drum of chemicals at the time the beeper was installed. He also took possession of the drum. Among the most common understandings of our society is the expectation that the owner or possessor of private property retains the exclusive power to use and dispose of his goods as he sees fit. The "right to exclude" has often been viewed as the crucial factor that grants a legitimate expectation of privacy in an area that has been subject to police intrusion. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980); Rakas, 439 U.S. at 144 n. 12, 149; see Naranjo, 686 P.2d at 1345 (possessory or proprietary interest in area searched or item seized important factor in determining whether legitimate expectation of privacy violated); see generally, Slobogin, Capacity to Contest a Search and Seizure: The Passing of Old Rules and Some Suggestions for New Ones, 18 Am. Crim. L. Rev. 387 (1981). For this reason, we consistently have held that the owner or possessor of a sealed container possesses a legitimate expectation of privacy in its contents. E.g., People v. Hines, 195 Colo. 71, 575 P.2d 414 (1978) (search of backpack); People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977) (search of tinfoil package). Government installation of a beeper in a drum of chemicals, a sealed container, violates the owner's expectation of privacy, and the violation continues through the time that the purchaser of the drum takes possession. Such a violation is not merely a "technical trespass," Karo, 104 S. Ct. at 3302; rather, the invasion is one that significantly impairs the privacy associated with privately-owned goods. Placement of the beeper inside the drum of chemicals converted that drum to a government use unintended by the owner, and in so doing insinuated a government presence into a sealed container from which the owner had, by custom and law, the right to exclude the world. As one court has written concerning the placement of a beeper into a vehicle:
We do not believe, as some courts have held, that the consent of the seller or lessor of goods validates the invasion that occurs when the goods are transferred to the purchaser or lessee. E.g., United States v. Bruneau, 594 F.2d 1190 (8th Cir.), cert. denied 444 U.S. 847 (1979). As the Court of Appeals noted in Karo, "The consent of one owner to have a beeper installed cannot suffice to continue the installation once the item belongs to someone else any more than the consent of a previous owner of a suitcase could suffice to permit the police to periodically open and search the suitcase after it comes under the ownership of another." United States v. Karo, 710 F.2d 1433, 1439 (10th Cir. 1984), rev'd 104 S. Ct. 3296 (1984).
"In a very real sense, the beeper serves as a surrogate police presence that remains within the vehicle's interior and converts the area into a covert broadcasting station. Given the capacity of such devices to impart information, the introduction of these government-controlled objects into an area in which an individual legitimately retains an expectation of privacy constitutes an offensive invasion of fourth amendment values. The government, via its electronic counterpart, remains physically present within the interior of the vehicle from the moment its agents enter until the tracking device ceases to function."
United States v. Butts, 710 F.2d 1139, 1149 (5th Cir. 1983), cert. denied 105 S. Ct. 181 (1984); accord State v. Hendricks, 43 N.C. App. 245, 258 S.E.2d 872, 878 (1979); Note, Tracking Katz: Beepers, Privacy and the Fourth Amendment, 86 Yale L.J. 1461, 1485 (1977) (hereinafter "Note"). We do not believe that the privacy values that customarily attend the purchase of commercial goods in a sealed container countenance such an invasion.
Although the government entry into the sealed container here was not for the purpose of searching the contents of the container, as occurred in the searches in Hines and Casias, the invasion of privacy occasioned by the entry is not any less significant. A beeper searches the location of property; this information may be as private as the contents of a container. A beeper may reach into places concealed from public view — for example, the interiors of homes or the trunks of automobiles — and reveal to the government that a particular item may be found there, just as if a government agent had entered the premises in person. See Karo, 104 S. Ct. at 3303-04 (entry of beeper into home is search); see also United States v. Holmes, 521 F.2d 859, 865 n. 11 (5th Cir. 1975), aff'd by an equally divided court 537 F.2d 227 (5th Cir. 1976) (en banc) (no difference between presence of beeper and presence of government agent). Equally important, a beeper permits the government to monitor the movements of both the item to which the beeper is attached and the person or persons having possession of the item, since "items of personal property seldom travel on their own accord. . . ." United States v. Karo, 710 F.2d 1433, 1438 (10th Cir. 1983), rev'd 104 S. Ct. 3296 (1984). Knowing the movements of an item and its possessor may permit the government to reconstruct "a virtual mosaic of a person's life," Sporleder, 666 P.2d at 142, including one's habits, habitats and associates.
It is no answer to the dangers posed by government beepers to suggest, as did the Court in Knotts, that beepers may often reveal information available to visual observers. A beeper has utility to law enforcement officials only to the extent that it performs functions that visual observers cannot perform: following lengthy or evasive movement, for example, or tracking routes through secluded areas. Holmes, 521 F.2d at 866 n. 13; 1 LaFave § 2.7 at 157-58 (1985 Supp.); Note at 1491-95. In Sporleder, we rejected the notion that it is reasonable to permit unrestrained government collection of the telephone numbers one dials simply because the telephone company already possesses this information, noting that "[t]he mere fact that `our ordinary social intercourse, uncontrolled by government, imposes certain risks upon us hardly means that government is constitutionally unconstrained in adding to those risks.'" 666 P.2d at 141, quoting Amsterdam at 406. Here, too, we cannot accept the additional intrusion that occurs when information revealed to private observers becomes the subject of comprehensive governmental electronic surveillance.
We are not content, as was the Court in Karo, to view the actual installation of the beeper as constitutionally insignificant apart from subsequent monitoring. In Alderman v. United States, 394 U.S. 165 (1967), the Court held that, where police officers install a listening device inside a private home, the legitimate privacy expectations of the homeowner are violated even though the homeowner is not present during any monitored conversation. "The rights of the owner of the premises are as clearly invaded when the police enter and install a listening device in his house as they are when the entry is made to undertake a warrantless search for tangible property. . . ." Id. at 179-80. The crucial invasion of privacy occurs when entry is effected for the purpose of making a search; it is not necessary that the entry produce information in order to violate the sense of security protected by the constitutional proscription against unreasonable searches and seizures. As Justice Stevens has pointed out, the entry of an intruder is an invasion of privacy even when the intruder is blindfolded. Karo, 104 S. Ct. at 3314 n. 11 (Stevens, J., concurring and dissenting). See Holmes, 521 F.2d at 866 (because police officers intend to gather evidence at time of beeper installation, installation is search).
We therefore hold that the legitimate privacy expectation of one with a proprietary or possessory interest in a commercially-purchased item is violated under article II, section 7 of the Colorado Constitution whenever the item contains a government-installed beeper. Before the item is purchased, or before anyone otherwise acquires a legitimate expectation of privacy in the beeper-laden item, the government must secure a search warrant authorizing the installation of the beeper. As a practical matter, this means that the government generally should obtain a warrant prior to installation of the beeper, for the placement of the beeper becomes a search at the moment the item is transferred to the person challenging the search. Here, no warrant was obtained; the beeper placement therefore was an illegal search as to defendant Kubosh, who had partially purchased and taken possession of the drum of chemicals. See People v. Savage, 630 P.2d 1070, 1073 (Colo. 1981) (one of four persons sharing rent and occupancy of trailer has standing to challenge search of trailer).
Because the People bear the burden of proving that any search is exempt from the warrant requirement, People v. Lorio, 190 Colo. 373, 377, 546 P.2d 1254, 1257 (1976), we presume that a search is illegal unless accompanied by a warrant. We do not believe that requiring the police to obtain a warrant hinders the investigation of illegal drug trafficking. A warrant requirement does not prevent the installation of beepers; it only requires that prior to an invasion of privacy, the police present facts to a neutral magistrate that would warrant "a person of reasonable caution to believe that contraband or material evidence of criminal activity is to be found on the premises. . . ." People v. Hill, 690 P.2d 856, 859 (Colo. 1984). Thus, police officers may install beepers where a demonstrably legitimate investigative need exists; only where the law enforcement interest cannot be shown to justify an invasion of privacy will beeper placement be prevented. The United States Supreme Court recognizes that the warrant requirement accommodates legitimate law enforcement interests: "These long-prevailing standards [of probable cause] seek to safeguard citizens from rash and unreasonable interferences with privacy. . . . They also seek to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176 (1949). In this case, the People have not argued that any standard less than probable cause could validate the installation of a beeper if the installation constitutes a search.
In Karo, the United States Supreme Court noted that "warrants for the installation and monitoring of a beeper will obviously be desirable since it may be useful, even critical, to monitor the beeper to determine that it is actually located in a place not open to visual surveillance." 104 S. Ct. at 3302 n. 3. The Court also took note of the government's argument that its holding, as a practical matter, would force police officers to obtain warrants prior to installation of a beeper, and observed, "The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement." 104 S. Ct. at 3305. It is thus apparent that safe compliance with the dictates of Karo will require the police to obtain a warrant prior to installation. Given this outcome, we do not foresee that our holding today will subject police officers to confusing and inconsistent standards of conduct.
B.
With respect to the reasonableness of defendant Oates' expectation of privacy, there is nothing in the record about the relationship of defendant Oates to the chemical drum. We therefore remand for the district court to determine whether the installation of the beeper violated Oates' legitimate expectations of privacy. We do not suggest that ownership of the drum is the sole means by which one might acquire an expectation of privacy in its use. See, e.g., Rakas, 439 U.S. at 149 (permissive use of apartment may give rise to legitimate expectation of privacy); Naranjo, 686 P.2d at 1346 (bailee of car has standing to contest search). In addition, one lacking any expectation of privacy in the drum itself may nonetheless suffer an invasion of privacy through law enforcement monitoring of the beeper if the beeper enters his residence or otherwise monitors information that he reasonably would expect to remain private. See Karo, 104 S. Ct. at 3303-04; Katz, 389 U.S. at 351-53. Ultimately, any determination that a legitimate expectation of privacy has been violated must be based upon the totality of circumstances surrounding the search and seizure. Spies, 200 Colo. at 440, 615 P.2d at 714.
The suppression order is affirmed as to defendant Kubosh. The case is remanded to the district court for a determination of whether defendant Oates had standing to seek the suppression order.
CHIEF JUSTICE ERICKSON dissents and JUSTICE ROVIRA joins in the dissent.
JUSTICE ROVIRA dissents.