Henderson v. People

HENDERSON, Petitioner, Bernard State of

The PEOPLE

Colorado, Respondent.

No. 93SC339. Colorado,

Supreme Court of

En Banc. 13, 1994.

June July

Rehearing Denied

ing rеporter news who flew the assert could the Colorado statuto- ry newsperson’s privilege and therefore testify required suppression at a hear- ing. judgment We affirm the of the court of appeals.

I Bohlen, July, Greg an Officer investigator undercover narcotics for the Force, anony- Metro Task received an South telephone call. mous The caller informed had Officer Bohlen that Bernard Henderson marijuana recently and cultivated sold Bowles Avenue his residence at West Littleton. caller stated that he also $5,000 cash, that com- observed scales marijuana, monly weigh used and a num- information, weapons. Based on this ber placed Bohlen the residence under Officer days several but did not ob- surveillance for any illegal activity. serve F. September Detective Daniel On Rupp anonymous implicating an call received illegal Henderson in activities. The caller West indicated that Henderson lived Avenue, Chevy was pickup Bowles there Vela, Harley motorcycle F. Colorado State Public De- truck and a Davidson David fender, Barnes, residence, marijuana Deputy and that Douglas parked D. State Defender, Denver, petitioner. being in a house. grown Public for was shed behind the conveyed information to Rupp Detective Norton, Gen., Atty. Stephen A. K. Gale and the two officers went Officer Bohlen Gen., ErkenBrack, Deputy Atty. Timo- Chief it, residence, walked аround but saw Gen., Tymkovich, thy M. John Daniel Sol. nothing unusual. Gen., Atty. Dailey, Deputy Mark Robert Russel, Gen., 8,1989, Bil- Bohlen Atty. Roger September Asst. G. Prior to Officer First Denver, lotte, Gen., helicop- Atty. respon- attempted use of a Asst. for had to secure the in an fly-over for a of another location dent. ter un- investigation. was unrelated When he helicopter, Opinion able to obtain a law-enforcement ERICKSON delivered the Justice agreement for entered into Officer Bohlen of the Court. helicopter operated television the use of a granted review We certiorari to agreed to Channel 9. KUSA station KUSA Henderson, (Colo.App.1993), P.2d 239 helicopter to Officer Bohlen provide the observations which involved could Agent Dan so that officers Johnson helicopter of from a television news officer exchange photographs of the location take marijuana property. plants on residential drug investiga- right report on appeals court held tion. property flight over defendant’s 8, morning Boh- September Officer On search and that warrant fly-over supported by prob- participate was to property was len defendant’s another property, he received appeal, claims unrelated able cause. On the defendant call- from the same anonymous telephone call appeals erred detеrmin- drug Guns, alleged activity equipment 4466 vation regarding er fertilizer. again scales, bags, The informant indicated pipe, bag West Bowles. that marijuana that he had been to the found inside the house. growing in a shed Henderson was felony complaint On October informant his house. The stated behind in Arapahoe County charging filed Court marijua- a five-foot-tall Henderson retrieved Henderson with one count of cultivation of plant na from the shed sold it to the marijuana,1 conspiracy and one count of companion for informant’s Additional- $500. marijuana.2 pleaded cultivate Henderson ly, informed Bohlen that he the caller Officer guilty April drug was aware of a substantial deal place took a week Henderson’s residence trial, subpoe- Prior to Henderson issued prior the call that had to and Henderson Peelgrane in an attempt na to to elicit testi- weapons in his house. result automatic As a mony hearing him a from on motion to informant, anonymous of the calls of the suppress evidence. Counsel for KUSA and helicopter pilot Officer Bohlen asked the for Peelgrane quash subpoena, to moved in- KUSA, if Peelgrane, Peelgrane Peter would voking newsperson’s privilege set forth in fly Peelgrane him over house. Henderson’s (1993 13-90-119, 6A Supp.). section C.R.S. agreed fly to over Henderson’s house after trial that privilege applied court held subject flying that was over quashed subpoena. and theAt conclu- investigation. of the unrelated hearing, suppression sion the trial Bohlen, Johnson, Agent Peelgrane, Officer sup- court denied Henderson’s to motion photographer and a for KUSA four or made press. passes five over Henderson’s residence dur- 22, jury August Trial to a commenced on ing period approximately five minutes. 1990, 30, 1990, August jury and on re- Officer Bohlen observed shed to south guilty turned a charges. verdict of on both the residence with “with roof 1990, 19, On December the trial sen- green plant growing material underneath eight years tenced Henderson to on the sub- plastic.” Officer stated that heli- Bohlen years stantive count four conspir- and on the copter stayed between 500 and 700 feet acy count with run the sentences to concur- He based altitude. his altitude estimate on rently. experience flying

his in helicopters. Al- though plants he could not describe the appealed ap- Henderson and the court of detail, special on drug based education in peals affirmed the convictions. The court of law identification and on his enforcement ex- fly-over appeals by held that the the KUSA perience, Officer Bohlen concluded that helicopter did not constitute a search under plants marijuana. Photographs were either the Fourth Amendment United the two takеn officers. Additional- II, States Constitution article section 7 of ly, tape video was taken KUSA news Constitution, the Colorado that the search photographer subsequently was used infirm, warrant issued Peel- a news broadcast. grane protected giving testimony day, At about four o’clock same newsperson’s privilege. People v. anonymous telephoned again caller and told Henderson, (Colo.App.1993). 847 P.2d 239 Officer Bohlen that Henderson had seen fly over his residence and had II illegal gardening pursuits by ended his

uprooting moving marijuana plants. appeals fly-over The court of held subsequently not a

The authorities a was search under the Fourth Amend- obtained no-knoek search ment to the warrant and seized evi- United States Constitution and dence, roots, stalks, leaves, including II, did not violate article section Henderson, other remnants of as well as culti- Colorado Constitution. 18-18-106(8), (1986). 18-2-201, (1986). §1. § 8B C.R.S. 8B C.R.S. case, society recognize cy prepared is we the facts of 241. Under (quoting infringed.’”) United reasonable

agree. Jacobsen, 109, 113, 466 U.S. States (1984)). 1656, 80 L.Ed.2d 85 A whether the order determine protects: Fourth Amendment expecta- privacy is reasonable or “what in their people be secure right “The constitutionally ‘justifi- are tions houses, ” against papers, and effects persons, White, able,’ States v. United and seizures.” unreasonable searches Const, purpose “The bаsic amend. IV. (1971), facts and circumstances of each safeguard pri ... this Amendment analyzed if must case determine against arbi vacy security of individuals objec- expectation of defendant’s by government officials.” trary invasions tively Oliver v. United reasonable. Court, Municipal Camara L.Ed.2d 930 (1984) (concluding L.Ed.2d 214 (1967). Therefore, generally warrants single no factor determines whether an governmental agency or required before a may legitimately individual assert claim may a search. See United official conduct he should under Fourth Amendment that Karo, 705, 714-15, 104 468 U.S. States v. intrusion); governmental be free from Unit- (stat (1984) 3296, 3303, 82 L.Ed.2d 530 S.Ct. Fisch, 1071, 474 F.2d 1077-78 ed States v. presump ing searches are that warrantless Cir.1973) (“The (9th applied test as soci- unreasonable). tively rests, ety’s of as it tolerance the search has years, upon facts and circum- for ‘the however, only required, A is warrant atmosphere total stances —the case.’ A when when occurs. search occurs a search formula, ready ‘each case is There no government on an area where a intrudes its facts circum- upon own decided person “constitutionally protected rea has stances.’”) (footnotes omitted); v. Hoffman privacy.” expectation of Katz v. sonable (Colo.1989) (“The 471, People, 780 P.2d 474 States, 347, 360, U.S. 88 S.Ct. United 389 priva- legitimate expectation of existence of a (1967) J., (Harlan, 507, 516, 576 19 L.Ed.2d examining must after all cy be determined Ciraolo, concurring).3 v. See also California particu- the facts and circumstances each 1809, 1811, 207, 211, 106 90 476 S.Ct. U.S. case.”). lar (1986) (stating that a 210 reasonable L.Ed.2d applied Supreme privacy “society The United States Court expectation [is] of is one that reasonable”); totality the facts and circumstances ... willing recognize as (“A Karo, 712, determine if a defendant had 104 at 3302 standard to 468 U.S. at S.Ct. expectation privacy in Florida priva- expectation an reasonable ‘search’ occurs Vhen subjective expectations objective expecta are inextri Although subjective inasmuch as both privacy de cably have been considered when whether soci tions of termining linked to determination of reasonable); had a the defendant constitu whether expectation ety United considers the expectation pri tionally protected reasonable Taborda, 131, (2d Cir. v. 635 F.2d 137 States 361, 347, vacy, U.S. v. 389 see United Katz 1980) (declaring purely subjective criteri "a 507, 516-17, (1967) 19 L.Ed.2d 576 88 S.Ct. (Harlan, subjective appropriate," "use of a on is J., concurring); also v. see California possible government for ... would be test it 211, 1811, Ciraolo, 207, 1809, S.Ct. 476 U.S. 106 practice systematic to condi edict or known (1986); Maryland, 442 210 Smith v. 90 L.Ed.2d populace expectations such tion 2580, 735, 740, 2577, ‍‌‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌‌‍61 L.Ed.2d U.S. 99 S.Ct. hope way any have real no one would 143, Illinois, 128, (1979); 220 v. 439 Rakas Fisch, 1071, privacy”); v. 474 F.2d United States 421, 430, (1978); L.Ed.2d 387 United (9th Cir.1973) (noting that a dеfendant of Miller, v. States expectation privacy when he ten an manifests Hillman, (1976); People v. 48 L.Ed.2d 71 Wayne activity); attempts R. conduct illicit (Colo. 1992); v. Hoffman LaFave, 2.1(c) (1987), § un Search Seizure (Colo.1989), People, but see case, subjective inquiry is in this der the facts "White, United States controlling as we hold that inasmuch (1971) (Harlan, privacy expectation is not one J., Henderson's dissenting) (stating that tran must recognize expectations” society prepared as reasonable. subjective the "search for scend Riley, police 102 tion of because were in (1988). Riley, 1,000 legal airspace L.Ed.2d 835 the Court at an altitude of feet observing police viewing determined that the defen- what member could backyard helicopter flying from a dant’s an observe from aircraft. The Court stated: did 400 feet not conduct Fourth The observations Officers Shutz and purposes. Amendment Rodriguez place took this case within Riley public navigable airspace.... The defendant in lived a mobile That of property. home located on five acres from observation aircraft was directed at greenhouse Near mobile was a identifying plants home and the officers were fence, trees, by a was obscured from view recognize marijuana trained to is irrele- greenhouse, and shrubs. The contents of the Any vant.... public flying member however, from above were visible beсause airspace glanced in this who down could missing. panels two of the roof were the As have everything seen these officers observed_ police anonymous tip, helicop- result of an expecta- [The defendant’s] passes ter made two over an garden protected tion that his was observing altitude 400 feet. The officer such observation is unreasonable is not marijuana thought grow- viewed what he society prepared ing greenhouse. police Based honor. anonymous tip, officer’s observations and the Ciraolo, 213-14, 106 at 1812 executed, a search warrant was obtained and (footnote omitted). found and seized. Riley The Court also considered Court held that the actions whether the defendant had a reasonable ex officer did not constitute a search within the pectation upon based the intru meaning of the Fourth at Amendment. Id. siveness of the observations. The Court held 450, 109 S.Ct. at 697. only there that was a minimal intrusion. The plurality A of Court the concluded that one Court stated: primary in determining the factors wheth- Neither is there intimation here that expectation er the defendant’s was helicopter respondent’s the interfered with helicopter unreasonable was that the was greenhouse normal or use the other flying navigable airspace in within the Feder- parts curtilage. As far as the rec- (FAA) al guidelines.4 Aviаtion Administration reveals, no ord intimate details connected 451, Thus, Id. at 109 at S.Ct. 697. the Court curtilage with the use the home relied on the fact that the observation itself observed, noise, and there was no undue Giradlo, legal. Supreme was In the Court wind, dust, injury. and no or threat of legality fly- addressed the issue the of a 452, 109 over. The Court held Riley, that an aircraft used 488 U.S. at 697. S.Ct. at backyard view defendant’s not helicopter did fact that circled twice over Riley’s violate the expecta- defendant’s reasonable curtilage5 residence and was not opinion, concurring 4. ways pass In her Justice O'Connor muster under Fourth Amend- controlling states that the should be factor not simply plane ment because the within is helicopter right that the had a to be over the navigable airspace specified by But law. it is property “helicopter defendant's but whether importance helicopter of obvious that the in public airways was in the at an altitude at which law, violating this case was not there is regu- members of the larity cy travel with sufficient nothing suggest in the record or before tous expectation priva- [the that defendant's] helicopters flying that ly 400 at feet are sufficient- society prepared recog- was not 'one that country rare in this lend [the substance to " Riley, nize as reasonable.' 445, Florida v. 488 U.S. reasonably claim he defendant's] antici- 454, 693, 699, 109 S.Ct. 102 835 L.Ed.2d pated greеnhouse subject that his would not J., (1988) (O’Connor, concurring) (quoting Katz to observation from that altitude. States, 361, 347, 507, v. United U.S. 389 88 S.Ct. 451-52, Riley, 488 U.S. at at 109 S.Ct. 697. 516, (1967)). plurality, 19 L.Ed.2d 576 how- ever, solely Curtilage space did not base buildings its decision on the fact inclosed helicopter flying directly surrounding was with accordance a residence. See United Dunn, 294, According plurality: 299-301, FAA standards. to the States v. 480 U.S. 107 S.Ct. 1134, (1987); inspection say This is not to that an 94 L.Ed.2d 326 Hoffman curtilage 471, (Colo.1989); People, of a house al- from an aircraft will see v. 472 also

389 quash support subpoena, of his motion to intrusiveness of the to increase the found Peelgrane complied avers that he with all degree to constitute to such a as observation Riley sense, regulations. presented FAA no Cir- Henderson a search.6 In broad helicopter evidence that use of the consti- ordinary aolo recognize that unintrusive visu- regulations.7 tuted a violation of FAA public navigable from air- al observations under the space not constitute do aspect analysis The critical of this Fourth Amendment. helicopter is not the number of times the considerations, these Court Based on residence, Riley, passed over Riley expectation that the defendant’s held 445, (implying at 693 it not was greenhouse privacy in the contents twice), dispositive helicopter circled society recognize not would as was one or the fact it was and not reasоnable. aircraft, 450, id. fixed-winged S.Ct. (stating type that the of aircraft was 696-97 B military dispositive), not or how often either presents passed aircraft over the residence The instant case issues civilian First, 451, Riley. id. year, presented during the course of a those similar to evidence, (noting greenhouse helicop S.Ct. at 697 that the was according to the KUSA “public protected or official obser flying at an altitude of between 500 ter vation”); rather, feet, permissible it is the fact that the mari and 700 which is a altitude See juana plain anyone legally regulations. view to under current FAA (1988). helicopter.8 viewing § affidavit the shed from the 91.79 C.F.R. 212, 207, Ciraolo, proper Amendment's function is to con- [Fourth] California (1986) strain, such, ("At against all but L.Ed.2d 210 intrusions law, curtilage against justified area to which common intrusions which are not circumstances, activity with improp- intimate associated extends the or which are in the made privacies States, manner.”); 'sanctity home of man's er Oliver United States, ") 1735, 1741-42, (quoting v. United life.' Oliver 80 L.Ed.2d (1984) (stating that there is diminished (1984) Boyd (quoting v. United open in an (1886))). 29 L.Ed. 746 "provide open field because an field does not setting for intimate activities that those 6.In several other in which courts have cases is to from [Fourth] Amendment intended shelter analyzed a if a whether search occurred or war- surveillance”); government interference or Unit- search, degree required a -the Taborda, 131, rant was for (2d ed v. 635 138-39 States F.2d intrusiveness of the observation has been сrucial ("The Cir.1980) viewing telescopic vice of into the war- court’s determination whether of a home is that it risks observation the interior observation was reasonable. See rantless Cali- only not of what the householder should realize Acevedo, 565, 1982, S.Ct. v. 500 111 viewing, fornia might also be seen unenhanced but (1991) (noting 619 that "a search of 114 L.Ed.2d life.”). person's private of a intimate details priva- paper bag on a intrudes far less individual cy in than does incursion sanctioned Carroll notes, appeals the defendant 7. As the court of 132, 280, 267 U.S. 45 S.Ct. 69 [v. United demonstrating that a carries the burden (1925)], agents prohibition where L.Ed. 543 place. Riley, 488 U.S. at search has taken 451-52, Dep't upholstery”); Michigan a car’s slashed (stating 109 S.Ct. at 697 that the record Sitz, 444, 453, v. State Police 496 enough facts to demonstrate did not establish 2481, 2486, (1990) (recognizing 412 110 L.Ed.2d 455, occurred); Id. at that a search surrounding checkpoint a that the circumstances J., (O'Connor, (noting Riley concurring) 699 stop are much less intrusive than the and search flights no introduced evidence show surrounding roving-patrol stop); a circumstances rare). proving an feet are The burden 400 4, Sokolow, 1, n. v. 490 U.S. 17 109 United States requirement a exception tb warrant after 4, (1989) 1581, 1 1591 n. 104 L.Ed.2d S.Ct. (Marshall, occurred, however, is on search has warrantless ("[T]he dissenting) manner which J. Hoffman, prosecution. 780 P.2d particularly a carried whether search is out—and needlessly have taken law enforcement offiсers analogous analysis Fourth 8. This steps highly important a index of intrusive —is determining plain analysis. view In Amendment Fourth Amendment doc- reasonableness under 760, something Lee, 753, observing plain trine.”); someone is whether Winston v. 1611, 1616, (1984) conducting not a "search” quoting view and therefore 84 L.Ed.2d 662 Amendment, meaning it California, of the Fourth v. within Schmerber (1966) ("[T]he walking if the is not determinative observer 16 L.Ed.2d 908 Second, posed only very analysis the observation Constitution. The additional degree helicop- limited of intrusiveness. The necessary Colorado Constitution is because approximately passes ter five over impression made the issue is one of first before this property over the course of sev- Henderson’s court. eral minutes and never flew below altitude court, Although construing this article feet.9 There little evidence of the II, Constitution, section 7 of the Colorado noise, wind, dust, injury, threat of or inter- interpreted our has state constitution as curtilage. with the use of ference protective rights privacy more of certain addition, the court trial found there was Supreme than some United States Court de people neigh- no that other indication addressing cisions similar factual situations fly-over significantly found the in- borhood on Fourth search Amendment and seizure neighbors to cause trusive Henderson’s issues, Oates, People 811, see v. 698 P.2d response come of their homes in out (Colo.1985) (beepers commercially 815-16 Pollack, helicopter.10 People v. 796 P.2d Cf. items); Corr, purchased People v. 682 P.2d 63, (Colo.App.1990) (noting during (Colo.), denied, 27-28 cert. feet, fly-over at 200 heli- noise (1984) (tele copter neigh- caused six defendant’s records); phone People Sporleder, toll helicopter). look at the bors to (Colo.1983) (telephone phone criteria, all examining After of the relevant records); DiGiacomo, Charnes v. 200 Colo. totality of the circumstances indicates (1980) (bank 612 P.2d Henderson did have reasonable records), we see no reason do so in his case. fly-over

therefore did not constitute a search under Fourth Amendment to the legitimate expectation We have held that a Accordingly, United States Constitution. we society is one ‍‌‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌‌‍that considers rea- appeals affirm on the Fourth Hillman, sonable. Amendment issue. (Colo.1992). We have also held that by government “the mere observation offi-

C plainly anyone cials of that which is visible to Having fly-over determined that the does constitute constitutional proscribed by Hoffman, was not a purposes.” warrantless search 780 P.2d at 473. Ad- ditionally, Fourth Amendment to United analyzing States when search and seizure Constitution, we review the claim of a viola issues under both the federal and state con- II, stitutions, tion of article section 7 Colorado have that “in general, we held quiсkly slowly, passes object or one of view around the car or a sniff over the trunk times, flashlight Fisch, time five even compartment”); shines United v. States 474 F.2d object; 1071, the the essential (9th Cir.1973) determination is wheth (noting 1078 that it was not object plain er the is in view to someone who is police a a search when officer overheard a con- lawfully present. shire, Coolidge Hamp See v. New by lying versation held in a hotel room down and 465, 443, 29 against placing his ear crack the between the (1971) (stating police may 564 L.Ed.2d seize floor). door the plain evidence view without warrant the if present lawfully they are the when view Riley significant 9. The court did not as view the seized); Dunn, 305, object see also 480 U.S. at pass fact there was more than one over the (stating 107 1114 that it was an not property. the unreasonable search illuminate inside of a flashlight inspect barn awith the contents of. 10. The Garner, trial court found that com barn); 60, Henderson's United v. States 907 F.2d ing leaving out of (8th his house and then area Cir.1990) as (concluding 62 that there was no fly-over result was not because of the investigating burglary search when the officer helicopter, of the complaint headlights noise observing but because someone was garden shined his into a illegal adjacent marijuana plants. pres marijua the residence and observed plants); na States ence was noticed Henderson United v. Martinez-Mira 808, montes, (9th Cir.1974) (hold testimony presence 494 F.2d indicated 810 ing “plain helicopter precipitated in a smell" context that there was “no the removal of the mari juana plants olfactory organs distinction in the use from the shed and Henderson’s revealing flight whether odor detected in a stroll from his Residence. 584, 416-17, 89 protected from observations curtilage not (1969); Leftwich, 869 lawfully pe- from its made outside intrusion,” reviewing P.2d 1266. In of the determina- involving physical rimeter not cause, Riley approval. probable and Ciraolo with tion must be satisfied" cited we Hoff- man, magistrate 780 P.2d 474. that the had substantial basis Gates, probable cause rule that existed. that the Henderson did establish 2332; People v. U.S. at 103 S.Ct. at that it constituted a fly-over was so intrusive (Colo.1990). Abeyta, 795 P.2d Accordingly, there hold that we search. II, purposes of section 7 no search for article Officer Bohlen’s affidavit relied Because the of the Colorado Constitution. types proba two information to establish II, section 7 protections of article anonymous tips cause: informant’s ble not extend to inves do Colorado Constitution information obtained from airborne activity not amount to a tigative that does totality cir observations. Under Hillman, search, affirm 834 P.2d at we to Officer Bohlen at the cumstances known appeals. search, probable time there cause to issue a search warrant. Ill claims that affidavit sub- Henderson circumstances, an Under some was insufficient to mitted Officer Bohlen will not sat anonymous tip alone informant’s probable support finding cause. isfy probable requirement. cause warrant Henderson asserts that search Diaz, 1266; Leftwich, People 869 P.2d at v. and that the evidence therefore was valid (Colo.1990). Howev 793 P.2d 1184-85 from of his residence that resulted the search er, anonymous informant that tips an suppressed. disagree. We should be reliability have indicia of or those additional support To the issuance of a may provide a that are corroborated substan warrant, the Fourth Amendment to probable for tial basis a determination II, article the United States Constitution and Paquin, cause. See section Colorado Constitution re (Colo.1991); Abeyta, P.2d at 1328-29. probable an quire cause and oath or affirma anonymous tip with “Corroboration of an describing particularly place tion investigating officer is facts learned objects searched and be seized. Peo practical, common-sense sufficient (Colo. Leftwich, 869 P.2d ple v. judgment making probable called for 1994). Probable for a search warrant cause Diaz, 793 P.2d at determination.” cause support the affidavit exists when alleges sufficient facts to warrant a warrant person of reasonable caution to believе that case, anony four In this there other criminal ac contraband or evidence of tips. described mous informant tivity place at the to be searched. located detail, as activities in well Henderson’s (Colo. Bartley People, at the Henderson residence. located 1991). exists, probable if cause To determine specifically Officer Bohlen The caller told totality of the facts and circumstances marijuana in a growing that Henderson was to the officer at the time of known and that near Henderson’s residence shed Gates, must be considered. Illinois v. marijuana. Al the informant had seen the 2317, 76 L.Ed.2d 527 knowledge is not though a “bare assertion of (1983).11 an to establish informer’s basis sufficient knowledge,” Leftwich, 869 P.2d Offi probable cause magistrate’s information with cer Bohlen corroborated the given great deference and is determination was be- Spinelli his observations de v. United own not reviewed novo. Pannebaker, People v. adopted totality-of-the-cir- Constitution. has Colorado 11. This court (Colo.1986). applying test in Gates in cumstances formulated principles espoused in the the search and seizure son,” ing grants immunity newspersons cultivated the Henderson residence.12 to given Due consideration should be to a law testifying except under limited circum- experience training enforcement officer’s and stances: evaluating significance of the officer’s shall, newsperson [N]o without such news- probable observations relevant cause. person’s consent, express compelled

Bartley, Additionally, 817 P.2d at 1033. al- any ... disclose news information re- though growing plants observation of in a ceived, observed, procured, processed, pre- may ordinary shed seem innocuous to an pared, newsperson, written or edited a observer, fact sig- this does diminish the acting capacity newsper- while in the of a nificance the observation would have to an son .... experienced drug officer and trained en- Hill, forcement. 690 P.2d 856 (1993 13-90-119(2), § Supp.). 6A C.R.S. (Colo.1984). broadly “newsperson” statute defines in clude member the mass media and/or case, independent, anony- the four any employee engaged who is “gather, tips specifically mous were detailed were receive, observe, write, process, prepare, independent police through corroborated ob- 13-90-119(1)(c), § edit news information.” Additionally, veracity servations. (1993 6A Supp.). C.R.S. tips was confirmed. Application of the totali- ty-of-the-circumstances test announced statute, For purposes of the Peel- Gates establishes that there was a substan- grane acting “newsperson” as a when he concluding tial basis for Henderson was en- piloted 13-90-119(1)(c), § helicopter. 6A gaged illegal activity drugs and that would (1993 Supp.). Peelgrane C.R.S. was em property. Accordingly, be found at his we ployed by a reporter KUSA as full-time judgment appeals affirm the reports regularly featured on KUSA sufficiency supporting the affidavit assigned news Peelgrane broadcasts. KUSA the search warrant. gather regarding observe and information police attempts illegal drug uncover IV activity. Although Peelgrane was also the Henderson’s final contention Peel- helicopter pilot police who flew the officers grane newsperson’s is not entitled to immuni- over property, acting the Henderson he was ty testify suppres- therefore must at the newsperson as as defined subsection hearing regarding sion flight the altitude and (l)(c), and not agent. as pattern helicopter. of the KUSA In this case, Peelgrane the .record indicates that statutory

entitled to newsperson’s immu- B nity and that Henderson has met The statute defines infor “news proving exception burden of an to the immu- as: mation” nity. Accordingly, we affirm the court of appeals. [A]ny observation, knowledge, notes, docu- ments, films, photographs, recordings, vid-

A eotapes, reports, audiotapes, and and the 13-90-119, (1993 Supp.), thereof, Section 6A C.R.S. contents and sources obtained provides “privilege which newsper- newsperson such, engaged [a] while According to Officer Bohlen's pho- affidavit: Affiant Your was able to take some aerial tographs, specific photographs Your Affiant observed a wood structured shed plants. plants Your to the Affiant that the garge south the home and believes west of are Marihuana which was in based on the above [sic] the same area that the information caller anonymous advised Henderson caller and from obtained five foot Mari- his Police plant experience. huana from. Your Affiant Your Affiant has been to observed through Drug green leafy plant recognition the clear hour identification cultivating put Drug which is consistent the with School on the Mar- Enforcement Ad- plants appeared pushing ihuana. The to be ministration. Your Affiant has seen Marihua- against the clear cover. Your Affiant na on numerous occasions and the believes was plants above five hundred feet of the house. to be Marihuana. subpoena outweighs provided issuing the the interests to have been such items whether in confi- newsperson newsperson public such and the under the or obtained dence. to the United States Con- First Amendment (1993). 13-90-119(3), (1993 § 6A 90—119(l)(b), Supp.). stitution. C.R.S. § C.R.S. 6A 13— by Peelgrane garnered information case, In failed this Henderson has to statutory definition of “news falls the within not 13-90-119(l)(b), show that he could obtain the evidence § 6A C.R.S. information.” (1993 sought requested to have from some other Supp.). Henderson reasonable helicop altitude of the Peelgranе example, question reveal the For the means.14 path help that flight its to establish ter and airspace prop over Henderson’s whether the conducting a search. Bohlen was Officer zone, restricted, no-fly or a erty was was knowledge and Peelgrane’s observations by calling an FAA could be answered official helicopter flight path of the the and altitude testify by subpoenaing FAA to or records. (l)(b). Statutory protected subsection testimony regarding the Additionally, alti strictly privileges must be construed. given by tude of the was both (Colo. Court, v. District fact, In Offi Henderson and Officer Bohlen. 1987). during flight, that cer Bohlen testified the the the altitude was discussed and that heli C copter’s all altitude was at times between 500 privilege Although newsperson’s the also Officer Bohlen stated that feet. broad, forth several the also sets statute experienced helicopters and he was with was privilege in which the does not situations able to estimate altitude. 13-90-119(2)(a) instance, apply. For section (d) privilege that through provides operating Peelgrane Given apply to does not information nondisclosure knowledge newsperson, his observations (1) conference; a press is: received area, to flight path taken and the (3) (2) broadcast;13 on a or based published protected helicopter, un- altitude personal of a newsperson’s observation The record reflects that der the statute. crime, cannot be rea- when such information not meet burden Henderson did estab- means; sonably through obtained other privilege should waived lishing that the be (4) of a newsperson’s on a observations based Peelgrane hold that limited. Because we felony. or 3 class privilege in newsperson’s to entitled specific In addition to the instances failed to meet his and that Henderson case privilege newsperson’s does not which privilege, proof burden of to overcome provides a method sub- apply, the statute by granting did not err Peel- the trial court hearing on a poena newsperson news- subpoena sum- grane’s quash motion subpoena. quash person’s motion testify suppression moning him to at the party privilege, issu- to defeat order hearing. show, by ing preponder- subpoena must (1) evidence, that: the informa- ance “directly sought newsperson is

tion from the V issue involved relevant a substantial ease, fly-over the facts of this Under (2) information “cannot be proceeding,” search, the warrant was did not constitute through any other reasonable obtained valid, granted (3) Peelgrane properly means,” strong party interest of interest of privilege court also found 14. The trial This limitation provides outweighed Henderson’s the First Amendment regard to information waived actually рublish- eliciting we Because interest testimony. but ed or broadcast a news report, failed show hold that Henderson nonbroadcast information other unpublished obtained could not information reasonably 13-90-119(4), § which is based. the report through do need to we source, some other (1993 Supp.). C.R.S. 6A against interest the interest Henderson's balance Amendment. under the First immunity. Accordingly, newsperson’s by police we af- the latter two were received judgment appeals. September year. court of 8 of firm the days July On beginning four consecutive J., dissents, LOHR, KIRSHBAUM, J., 24, 1989, police officers conducted surveil- joins in the dissent. of 4466 peri- lance West Bowles Avenue for ranging ods from one-half hour to two hours dissenting: LOHR Justice day. They each learned that 4466 West majority police inspection of The holds that Bowles Avenue was situated on the south- property by helicopter use of a residential west corner of an A foot intersection. six passes prop four or five over that that made along wooden fence extended the east side of provided vantage erty, place, in hovered property. From the sidewalks points police from which officers took a num street, and the see officers could inside property photographs ber of of the did not identify garage, house and could meaning constitute a search within the of the shed, and some stables ‍‌‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌‌‍behind house. to the United Fourth Amendment States During the surveillance the officers saw II, Constitution Article Section of the nothing suggesting activity that criminal was majority Colorado Constitution. The there taking place. approves fore the inclusion information majority opinion, As in detailed gained by inspection in affidavit used police cooperation officers obtained search property. to obtain a warrant KUSA, television station in Channel trans- Consequently, judgment it affirms the of the porting inspect property two officers to Appeals upholding Colorado Court of the tri helicopter. maj. op. use of KUSA See al court’s denial of the defendant’s motion September at 385-386. On heli- suppress evidence obtained a search of copter passes made four to five over the property by who officers entered onto property, including directly one resi- over the authority property under of the warrant. dence, ranging at altitudes 500 and between Henderson, (Colo. People v. 847 P.2d 239 Once, 700 feet. in hovered App.1993). I conclude Because that the aeri place directly property. over the ac- These inspection al constituted a warrantless search occupied minutes, approximately tivities five proscribed by both the federal and state during photo- which the still officеrs took constitutions, gained and that the information graphs and a KUSA news support that search was essential to photographer recorded observations awith warrant, respectfully issuance I search part videocamera. Based on the informa- parts majority dissent to II and III of the inspection, tion obtained from the the officers opinion judgment and would reverse the warrant, obtained conducted a appeals the court of and return the case premises, acquired search of the that court with directions remand for a incriminating evidence of cultiva- new trial.1 subject tion that became of the defen- suppress dant’s motion to evidence. I. Bohlen, Greg Officer who received the first inspection by helicopter anony- at issue here and last of the three calls from the precipitated by anonymous informant, three tele- mous was one the two officers officers, phone stating calls to flight. vari- on the He executed the affidavit for defendant, degrees of ous detail only search warrant and participant was the Henderson, engaged growing helicopter flight Bernard in the who testified at the selling marijuana hearing. affidavit, at his suppression residence In the he Littleton, flight 4466 West Bowles Avenue in during Colo- stated that he observed July rado.2 first plastic type call came 1989 and with a shed “cleаr consis- roof’ Although necessary I do findings not find it to reach the 2. The trial I court’s brief. derive newsperson privilege part facts, does, issue discussed IV majority necessarily as the es- majority opinion, agree I with that discus- sentially undisputed evidence the record. sion.

395 1989). right, a marijuana. safeguard In order to He the cultivation with tent required gov- generally before a through warrant is the clear “observed stated that he may conduct a See ernment official search. leafy plastic green plant which is a consistent Karo, 705, 714-15, States v. United that he believed the with Marihuana” (1984). 3296, 3303, 82 L.Ed.2d 530 marijuana based on the informa- plants to be pre- particular, In warrantless searches are his anonymous and on own from the calls tion sumptively contravening invalid as the feder- hearing, At Bohlen ac- observations. protections against al and constitutional state knowledged plastic was not “clear that the searches, subject only to a few unreasonable that neither like a window” but maintained specifically exceptions. Hoffman, delineated “[sjhow- curtain, a because it like shower was 780 P.2d at 474. really through. I hard to see curtains are er through He also testified could see this.” present is presented The issue case than 20-20 and eyesight inspection was better that his whether of the defendant’s by eye curtilage naked he could obtain clearеr constituted residence depict- undisputed than is that no warrant premises what was a search. It vision defendant, support inspection the aerial The on was obtained photographs. on the ed excep- group of hand, and that none of the small covering on testified that the other requirement applica- is tions to the warrant layers four consisted of shed govern- ble. The determination of whether The trial court reinforced chicken wire. requires mental activities constitute covering up made was noted protected by the of the interests delineation layers plastic” “some but resolved Hoffman, In we sum- Amendment. Fourth by finding credibility that Bohlen “did issue principles which marized well-settled ability, expertise, his based on have the those to be identified: interests are significant from the plants of size see such touchstone of fourth amendment space it.” area of 500 feet air above person analysis whether a has “consti ruling the defendant’s motion tutionally expectation protected reasonable evidence, held suppress the trial court privacy” area or item searched expectation privacy had an the defendant U.S., v. 389 88 seized. Katz U.S. curtilage,3 but held that house and (1967) (Har 507, 516,19 L.Ed.2d 576 S.Ct. helicopter operating as did the one in this Ciraolo, lan, J., concurring). expec- a reasonable “violatе[ ] case does not 211, 106 1811; v. Oliver United privacy that a normal citizen would tation of 1735, U.S. 466 principally Ri- Relying on Florida v. have.” (1984). 1740-41, That de L.Ed.2d 214 80 102 L.Ed.2d ley, 488 U.S. requires court to ascertain termination (1989), Appeals 835 the Colorado Court has exhibited sub whether an individual Henderson, 847 P.2d affirmed. v. jective partic in the (Colo.App.1993). 241-43 object question and wheth place ular subjective expectation soci er is one II. Katz, ety recognizes as reasonable. 361, 88 at 516. The existence A. legitimate expectation must of a examining all the facts be determined after right people be secure their particular case. circumstances each houses, papers, against persons, and effects Oliver, guar- seizures 104 S.Ct. at unreasonable searches and 1740-41; People Shorty, P.2d Constitu- v. anteed both United States Oates, (Colo.1987); People v. 698 P.2d tion and the Colorado Constitution. Const, Const, (Colo.1985); 7; People Savage, 630 IV; II, § v. art. Colo. amend. (Colo.1981). (Colo. People, 780 P.2d Hoffman (Colo. 1989). undisputed It that the "Curtilage concept which n. is a common-law space ground growing generally to the enclosed refers shed in which immediately surrounding buildings a dwell- curtilage. within inghouse.” People, 780 P.2d Hoffman Hoffman, “readily at 474. A determination of a home and to the discernible person constitutionally- eye marijuana” of has a airplane whether a naked as from an protected expectation 1,000 privacy lawfully operating reasonable of anat of altitude feet searched, therefore, in an expectation privacy area item be did “an not violate of First, requires two-part analysis. Id., the is reasonable.” 476 U.S. at court must whether the High ascertain defendant at 1812. six S.Ct. fences and ten feet subjective priva expectation manifested a of property tall prevented surrounded the and cy in the area item to be eight searched. Cali of high observation the to ten feet Ciraolo, 207, 211, 106 plants ground S.Ct. In reaching from level. its fornia (1986); conclusion, 90 L.Ed.2d Katz v. the Court it found irrelevant that flight United 88 S.Ct. purpose identify the towas the 607, 516-17, (1967); plants 19 L.Ed.2d 576 and that the officers were trained to Hoff man, marijuana. 213, 106 at 474. Once it recognize has been Id. at at S.Ct. demonstrated that mani acknowledged the defendant did 1812. The Court that Fourth expectation, fest an step such the next is to protections Amendment extend to the curti- determine whether that lage, was ob supra see note but noted that is, jectively society reasonable —that one that place public observations took “within navi Ciraolo, recognizes as gable reasonable. airspace” physically “in a and nonintra- Katz, 1811; at 106 S.Ct. 389 U.S. at “[a]ny sive manner” and that member of the 516-17; Hoffman, 88 S.Ct. public flying airspace glanced in this who at 474. everything down could have sеen that these officers observed.” Id. at subjective The defendant manifested a ex at 1813. The Court summarized: pectation of the interior covered shed. The took precau defendant age private “In an where and commercial tions protect the contents of the shed from flight public routine, airways it is observation. The shed itself was located respondent unreasonable for to expect that backyard home, within defendant’s marijuana plants constitutionally were curtilage. The sides of the shed shielded protected being from observed with observation, ground-level the interior from eye 1,000 naked from an altitude feet.” layers top. covered the A six Id. at foot along wooden fence east side Ciraolo, years issuing Three after property adjoining the street offered further Riley. Court decided That case involved an protection. Under these circumstances there greenhouse by aerial observation of heli- can no doubt the defendant intended copter. greenhouse was located behind and expected that the shed would not be parcel mobile home on a five acre of rural open public inspection. Riley, property. greenhouse Two sides were 450, 109 Thus, U.S. at S.Ct. at 697. the first enclosed, but the contents the struc- prong analysis has been satisfied. trees, ture were obscured frоm view It prong expec is the second —whether shrubs, and green- the mobile home. The tation society recognizes is one up roof house was made of both translucent reasonable —that is at deeply issue here. A opaque panels, panels, but two constitut- Supreme divided United States Court has ing approximately percent ten of the roof involving delivered two decisions sur aerial area, missing. Operating tip, on a provide guidance veillance that for resolution being unable see the contents of this issue. The first is v. Cir California greenhouse road, from investigating an aolo, 207, 106 1809,.90 L.Ed.2d officer circled twice over (1986), Riley, the second Florida v. 488 helicopter height and, of 400 feet roof, through openings the sides and (1989). identify thought was able to what he to be Court, Ciraolo the in a five four growing in the A plu- structure. decision, held that rality justices officers’ aerial ob- four held that Ciraolo con- plants servations of growing curtilage in the inspection trolled and that was not a Const, IV). Justice O’Connor amend. subject to the Fourth Amendment. U.S. impor- emphasizing echoed Ciraolo in reasoning [in ] Ciraolo “Our necessarily curtilage are not in Fourth Amendment curtilage its tance home and “ inspection protection no ‘The the cur- involves doctrine: afforded protected Riley, essentially U.S. at tilage protection invasion.” of families physicаl Noting person intimately at 696. that what a personal property area exposes home, in his knowingly psy- even physically linked to the both subject or is not to Fourth chologically, privacy expectations own home office are where ” police protection, generally Ciraolo, that heightened.’ Amendment (quoting Id most may public 1812). from may 212-13, be seen see what at at 106 S.Ct. Justice be, they to vantage point right have a noted, however, where that officers O’Connor flight by private helicop- commercial required eyes are not to shield their when airways is public routine this ter the passing by public thoroughfares a home on country, helicopter was within and that the had likened the and that in Ciraolo specified by navigable airspace law and Fed- plane to from the such observa- observation (FAA) regula- Administration eral Aviation ways. analogy public applied from This tions tions, rejected plurality respondent’s 1,000 public air at is a “because travel feet reasonably anticipated he that the claim that part sufficiently routine of modern life it subject to greenhouse would not be observa- ground to persons is for on the unreasonable 449-52, altitude. Id. at tion from that curtilage will not ob- expect that their be cautioned, plurality 696-97. The S.Ct. at from the air at that altitude.” Id. 488 served however, curtilage inspection that an Noting at at 698. will not a house from an aircraft necessari- pa- practical concealing difficulties outdoor pass Fourth ly always muster under yards from all conceivablé aerial tios plane simply Amendment because views, that “[t]he Justice O’Connor stated space, navigable air id. at within the lawful conceivably ob- helicopter that a could fact 697, and S.Ct. at concluded: any curtilage virtually at altitude serve the is intimation here that violating regulations,

Neither there angle, without FAA helicopter respondent’s interfered with not in itself mean that an individual has does greenhouse or of other normal use of expectation privacy from no reasonable as parts curtilage. As far this rec- 454, 109 Id. at such observation.” reveals, ord no intimate details connected for deter- She then articulated test curtilage of the home or expec- with the use mining one has a reasonable whether observed, noise, and there was no undue as this: privacy cases such tation wind, dust, injury. and no or threat of Riley had a rea- determining whether at 697. Id. privacy from aerial expectation of sonable observation, inquiry relevant after Cir- opinion concurring in Justice O’Connor’s supplied the aolo is whether judgment Riley vote nec- right FAA to be under essary up majority holding where it had to make Katz, Rather, with regulations. consistent inspection by helicopter not vio- that the did helicopter was in society must ask whether the expectation is we late an airways at which public at an altitude recognize as reasonable and prepared to public with travel a search. She members therefore did not constitute suffi- Riley’s expectation however, regularity that cient plurality approach, criticized aerial observation was scope of Fourth Amend- it because “rests recognize society prepared heavily compliance too “one that protection ment ... Nor is it conclusive ‘reasonable.’” purpose as regulations with FAA whose may fly at 400 police helicopters often protect right safety, not to promote ‘[t]he air ever, rarely, if travels public If the persons, in their feet. people to be secure altitudes, the observation effects, against at such houses, unrea- overhead papers, ” (O’Con- vantage point to be from a cannot be said and seizures.’ Id. sonable searches Riley public and nor, generally used J., concurring judgment) (quoting in the “knowingly they cannot said have ex- examined as bear on the reasonableness pose[d]” greenhouse view. expectation privacy. See also Oli- 177-78, ver United (emphasis Id. at 109 S.Ct. at 699 1735, 1740-41, added). L.Ed.2d well, plurality, considered (1984); Hoffman, 780 P.2d at 474. frequency overflights of low-level to be of significance: nothing “[TJhere some B. suggest helicop- us to record before sufficiently flying ters 400 feet rare in majority purports apply totality respon- country to lend substance to the circumstances test to determine whether anticipated reasonably claim that he dent’s Henderson had a reasonable greenhouse subject that his would not be However, privacy. majority relies on observation from that altitude.” Id. at 451- only arriving two factors at its conclusion (plurality opinion). inspection that the aerial of the defendant’s First, a Riley in no evi- was not search. because The defendant introduced helicopter flying concerning public of the “was at an altitude of frequency dence the use feet, permis- of in between 500 and 700 which is airspace question. the at the altitude a Riley, regula- See at sible altitude under current FAA 488 U.S. 109 S.Ct. at 699. tions,” marijuana, majority’s opin- in Justice the the O’Connor resolved the search issue ion, by plain anyone legally in holding “was view to that the defendant must bear the viewing helicopter.” proving expectation Maj. of the shed from the burden of concluded, “[bjecause op. Second, at 390. the was reasonable.4 She observation “posed only very degree a there is limited reason to believe that there is con- of ‍‌‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌‌‍intru- public airspace of siveness” of the siderable use altitudes of because duration and alti- at above, flight of Riley 400 feet tude the and the and because intro- limited evidence of “noise, wind, dust, contrary no injury, duced evidence to the threat of before the or inter- courts, Riley’s curtilage.” I ference with use expec- Florida conclude that of the Id. at curtilage protected tation that his

naked-eye aerial observation from that alti- helicopter flying It true that the at tude was reasonable one.” Id. by regulations permitted altitudes FAA general principle emerges that from in that sense the observations were made Riley person Ciraolo and that has no occupants while and its This, reasonable however, of with re- at a lawful location. is not spect to those features of a dispositive, residence and its as both plurality and Justice curtilage can agreed Riley. be observed from the air in Riley, O’Connor See 488 (“This eye with by the naked at at altitudes flown 109 697 S.Ct. at is not to public regularity. say members with some inspection curtilage that an of a apparent analyses As is from the always Court’s house from an pass aircraft will mus- however, cases, those the facts and circum- ter under the Fourth simply Amendment stances of each plane individual case must also be navigable because is within the J., proof (Brennan, 4. The burden of issue has dissenting). not been defini- 109 704 S.Ct. at tively plurality Riley rеsolved. The does Justice Blackmun in dissent would have resolved directly, although it proof address judicial absence of evi- the burden of based estimate and, concerning rarily helicopter flights probabilities believing private dence heli- employed copters rarely fly curtilages at 400 feet was a factor to the disad- over at an altitude of feet, vantage party asserting imposed upon of the the aerial prosecu- 400 would have inspection Riley, was a search. proving contrary 488 U.S. at tion burden of as to 451-52, Brennan, 1,000 flight S.Ct. at 697. Justice in a lower than the foot at elevation issue 467-468, dissenting opinion joined by justices, two other Id. at Ciraolo. 109 S.Ct. at 705-06 (Blackmun, J., frequency disagree would have dissenting). resolved issue of the I with the therefore, helicopter flights by taking judicial low majority, Riley level no- resolves the bur- flights by privately helicopters proof maj. op. tice that owned at at den issue. See 389 n. 7. I populated regard question particular an altitude feet over areas “are do not as of im- rarity case, however, entirely ap- portance resolving are present almost limited to proaching leaving airports reporting toor because the defendant here testified to the ab- congestion major roadways.” helicopter flights traffic near Id. at sence of in the area. curtilage their opin- сompletely and enclose cover by (plurality specified law.” airspace ‘precautions (“Although than the ion)); at to demand more at 109 S.Ct. id. priva- limits customarily seeking the lower ‘helicopters not bound taken those ” 454,109 to other navigable airspace allowed cy.’ Riley, at S.Ct. at 699 ante, at there aircraft,’ 697] (O’Connor, J., [109 at concurring judgment) (quot- compliance with to assume that Illinois, is no reason ing Rakas v. ‘ “whether regulations alone determines (1978) (Powell, FAA 58 L.Ed.2d infringes upon government’s intrusion J., concurring)). I discover no basis for protected personal and values societal of the the use translucent conclusion ’ ” (O’Connor, J., the Fourth Amendment.” exposed plants roofing material Ciraolo, (quoting concurring judgment) view. (in at 1812 turn of the two factors considered The second Oliver, quoting major- majority by the is intrusivéness. 1743)). all, purpose of FAA After posed ity “the observation pro- concludes that promote safety, not to regulations is to “ only very intrusiveness” degree limited right people be secure ‘[t]he tect effects, houses, papers is little evidence persons, “[t]here in their because dust, injury, noise, wind, and sei- or inter- against unreasonable searches threat ” Riley, curtilage” U.S. at zures.’ with the ference use (O’Connor, judg- concurring in J. neighbors out their homes did not come Const, IV). ment) amend. (quoting Maj. U.S. at This helicopter. op. 390. see the analysis aspect intrusiveness neglects an of Furthermore, contents of the covered the Here, to Amendment values. central Fourth fairly as simply described shed cannot making occupants helicopter, by of the Ciraolo, plain having in view. Unlike been hovering passes and over four or five “[a]ny of the where member this not case positioned to the en- property, examine were glanced public flying airspace in who any to activities curtilage tire observe everything that these down would have seen an of Ciraolo, taking place there. Such examination at 213- observed.” officers as “inti- recognized helicopter an area that has been at The 1812-13. home, physically both mately over linked to passes, made four to five hovered here expecta- privacy property, psychologically, and took five minutes to enable where Ciraolo, plants heightened,” were Bohlen determine tions are most Officer layers plastic degree in posed growing underneath the “very As as can be deter- covered shed. well lim- greater far than intrusiveness record, suffi- the roof was acknowledged mined from the degree of intrusiveness” ited permit only ciently a determi- translucent maj. op. majority. by See from the air upon close examination nation analyzing the relevant isolating and When plants large, green were type of that some circumstances, not important it is facts and Boh- being implicit It in Officer grown. Here, larger picture. sight of the to lose testimony findings of the trial and the len’s minutes over spent approximately five police provided that absent the information scrutinizing the curtilage a residence and tips, Bohlen would by anonymous Officer attempt taking photos order area and opinion to arrive at an not have been able of a shed covered the contents determine marijuana. growing plants were This not material. with translucent open growing in the plants were of the a member type information that Ciraolo, there an unobstructed nor was passing readily while ascertain public could open through sides or roof of them view helicop- airplane an Rather, over they Riley. as in were a structure that, fact, ac- was one In the location ter. by up layers a roof made covered testimony cording to unrebutted protected from view from and were any defendant, path not within ways ground. As Justice O’Connor on the air traffic and or other ongoing commercial concurring judg- opinion in her noted or air- overflown had not been require individuals Riley, “[t]o ment plane.5 things upon All these are relevant when stitutional means cannot be relied warrant). totality considering support circumstances. The issue thеre- Riley I fore legally do not believe that either Ciraolo becomes “whether the obtained sufficient, surveillance, can be read to hold that aerial information in the affidavit is inde- nature, regard pendent without to its duration or will of that secured unconstitutional means, Id.; long probable never constitute a search as as FAA to establish cause.” McFall, regulations transgressed, supra People are not see accord 672 P.2d (Colo.1983) (search principle majority warrant tainted opinion dangerously to adopting. provided comes close where affidavit sufficient reliable maj. op. independent See at 389-390. information information ille- obtained). gally Absent the information un- Certainly, the activities the defendant constitutionally obtained from the aerial reprehensible judicial and can evoke no overview, only the affidavit here contained sympathy. permit But we cannot this to anonymous allegations of an informant. divert our attention the fact that principles established cases such as this Whether an affidavit based on information delineate the extent to which official intru- provided by anonymous informant is suffi sion into the citizen will be cient probable to establish cause must be constitutionally permissible. my opinion, totality evaluated the basis of the conduct in this case violated the circumstances test formulated the United defendant’s reasonable Gates, Supreme States Court in Illinois v. and constituted a forbidden warrantless search under (1983). both United States Consti- Paquin, 811 P.2d

tution and the Colorado (Colo.1991)(confidential Constitution.6 informant); Peo Pannebaker, (Colo. ple v.

III. 1986) (same). judge issuing the search warrant must make Having that determined the evidence ob- by tained “practical, aerial surveillance was the result of common-sense decision wheth- search, er, a warrantless it given cannot be used all the circumstances set forth in support of him, issuance a search including warrant. the affidavit before the ‘ve- Bartley 1029, People, See v. racity’ 817 P.2d knowledge’ 1033 and ‘basis persons of of (Colo.1991) (information information, supplying hearsay obtained uncon- there is a (1984) (an Although 5. Officer it expectation privacy Bohlen testified that was 115 of in tele fly phone not unusual to over a residential area 500 toll records is reasonable under the Colo feet, speaking any particular to 700 he was not of holding despite rado constitution in Smith v. 735, location it is not clear he 2577, whether was refer- Maryland, 442 U.S. 99 S.Ct. 61 ring police helicopters helicopters (1979), trans- legiti L.Ed.2d 220 that there is no such porting public. Riley, members of the See 488 expectation mate Amendment); of under the Fourth 454-55, (O'Connor, U.S. at 109 S.Ct. at 698-99 135, People Sporleder, v. 666 P.2d J., concurring judgment) (emphasizing that it (Colo.1983) (defendant's expectаtion 140-42 traffic, police flights, not that determine privacy in the numbers dialed on his home tele frequency overflights purpose for the II, 7, phone is reasonable under Article Section resolving the issue of reasonableness of the ex- despite of the Colorado Constitution the Smith v. pectation privacy). decision); DiGiacomo, Maryland v. Charnes 200 1117, (1980) Colo. 612 P.2d 1120-21 n circumstances, a number of we have held (taxpayer-defendant expecta had a reasonable provides that the Colorado Constitution more tion the bank records his finan protection extensive than does the United States Miller, although cial transactions United States v. See, Oates, e.g., People Constitution. v. 698 P.2d 1619, 48 L.Ed.2d 71 (Colo.1985) (departing 815-16 from the rea (1976), expectation held that no such exists un Karo, soning in United v. States Amendment). der the Fourth my (1984), In view of conclusion that the aerial in- the court that held spection at purchased goods issue here constituted a gov search under commercial will be free of Amendment, unnecessary beepers the Fourth it ernment surveillance devices to con- such legitimate expectation privacy); sider whether the for standards aerial searches Corr, (Colo.1984), protective v. 682 P.2d 27-28 cert. are more under the Colorado Constitu- denied, 83 L.Ed.2d tion.

401 contraband evi- cer Bohlen that could be corroborated was a probаbility fair description a particu- general prop will be found in of the defendant’s dence of a crime name, car, erty place.” lar the defendant’s and his easily address —facts obtained someone Gates, (quoting Paquin, 811 P.2d at 397-98 Although defendant. it is unfamiliar with the 2332). 238, 103 462 U.S. at necessary that the details corroborated anonymous, it the informant was Because incriminating support order to a show impossible if this case to is difficult “[fjacts cause, ing probable easily that are veracity. There is no indication assess predictions easily obtained or made provided that the informant has ever reliable probable add little to decision whether occasions, past and the infor- information Leftwich, cause a search exists.” 869 no supplied mation included admission P.2d at 1268. or other indication of relia- criminal conduct bility. People Turcotte-Schaeffer, See v. Those Colorado cases decided after the (Colo.1993)(admissions against P.2d reasoning adopted in Gates was and in which traditionally been penal interest have relied a confidential informant’s statements have upon showing as a means of that information probable been found to establish cause are reliable); Paquin, (empha- 811 P.2d cases, distinguishable. In all those at least sising that the affidavit for search warrant some, reliability In some indicia of exist. that the informаnt had contained a statement informant, confidential, though proven had and, purchased narcotics from the defendant past. People Higbee, rehable further, previously the informant had (Colo.1990); People P.2d v. Arella felony in a provided information resulted no, (Colo.1990); People v. Var 791 P.2d 1135 arrest). rieur, (Colo.1989). others, 771 P.2d 895 more officers were able corroborate than

Although reliability “deficiency regarding simply a and the name defen location veracity strong be overcome can Pannebaker, (po dant. See showing as to the informant’s basis knowl suspicious lice observation of black edge reliability,” or some other indicia strong windows was corrob over defendant’s People Leftwich, oration); Abeyta, People v. P.2d 1324 (Colo.1994) (emphasis original), the affidavit did (Colo.1990) (heavy traffic flow and seizure of showing. not contain such a The informant marijuana cigarettes people leaving from two allegations regarding offered several detailed informants’ alle the residence corroborated operation. distribution He the defendant’s Quintana, gations); People v. 785 P.2d 934 Officer that he had observed advised Bohlen (Colo.1990) (electric usage records corrobo scales, marijuana, weapons, sacks report of use of rated informant’s defendant’s $5,000 property. in cash at the defendant’s fights grow marijuana); high-energy Peo He stated that he had seen the defen also (Colo.1988) Rowеrdink, v. P.2d 986 ple enter a shed to the southwest of the dant (corroboration impli of another interview a five foot house and ‍‌‌‌​‌‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌​​‌​‌‌‌‌‍exit with activity). finally, cated in the criminal And informant, plant. According to the the de others, against made the statements to a bagged plant and sold it fendant penal interests of identified informants. giving person. detailed “[T]he second 658; Turcotte-Schaeffer, People 843 P.2d reliability story by does establish itself (Colo.1988); Grady, v. 755 P.2d simply an informant could tell an because (Colo.1987). Lubben, 739 P.2d 833 Turcotte-Schaeffer, he.” 843 P.2d elaborate added). (emphasis at 662 Some other indicia case, present In the absent the unconstitu- necessary. reliability are corroborating tionally evidence ob- obtained overview, the affida- totality of tained The Gates the circumstances issuing judge a sub- importance provide vit did not “places particular on the val- test concluding that there was stantial basis for ue of corroboration of details an infor- drugs would probable cause to believe tip independent police work.” mant’s Pannebaker, property. The only in- be found on the defendant’s 714 P.2d at 907. invalid and evi- Offi- warrant was therefore provided formation that the informant pursuant dence obtained thereto must be

suppressed. poisonous The fruit of the tree

doctrine excludes evidence uncovered as a

result of Fourth Amendment violation. McCall, (Colo.

People v.

1983).

IV. reasons,

For foregoing I would reverse judgment appeals of the court of

return the ease to that court with directions

to remand to the trial court for new trial at illegally

which the obtained evidence would I Accordingly, respectfully

be excluded. dis-

sent. J.,

KIRSHBAUM, joins in this dissent.

Garry EVENSON, Plaintiff-Appellant, W.

COLORADO FARM BUREAU MUTUAL CO., Defendant-

INSURANCE

Appellee.

No. 92CA1297. Appeals,

Colorado Court of

Div. II.

Dec. 1993.

As Modified on Denial of Rehearing

March Aug. 29,

Certiorari Denied

Case Details

Case Name: Henderson v. People

Court Name: Supreme Court of Colorado

Date Published: Jun 13, 1994

Citation: 879 P.2d 383

Docket Number: 93SC339

Court Abbreviation: Colo.