People v. Ortega

485 P.2d 894 (1971)

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William B. ORTEGA, Defendant-Appellant.

No. 25165.

Supreme Court of Colorado, En Banc.

June 14, 1971.

*895 Jarvis W. Seccombe, Dist. Atty., Second Judicial Dist., Coleman M. Connolly, Silvana Del Piccolo, Deputy Dist. Attys., Denver, for plaintiff-appellee.

Epstein, Lozow & Preblud, Donald L. Lozow, Gary Lozow, Denver, for defendant-appellant.

LEE, Justice.

This case was originally before us in People v. Ortega, Colo., 481 P.2d 727. It was remanded to the trial court for another evidentiary hearing so that we might have the benefit of the trial court's findings.

The evidence sought to be suppressed consisted of heroin, marijuana and LSD (lysergic acid diethylamide). After a full evidentiary hearing, the trial court denied the suppression motion.

The trial court made extensive findings of fact, among which were the following: that the police had received a tip from a previously reliable informant that Ortega was hiding narcotics in a weeded area in the backyard behind his apartment residence; that the police had had previous dealings with Ortega with respect to narcotics; that because of this information the police established a surveillance of Ortega's residence; that while conducting the surveillance the police saw Ortega emerge from the back of the residence, walk to a weeded area, bend in a crouching position for a few seconds, stand up, and begin walking back to the residence; that the police called to Ortega and saw him throw an object with his right hand; that the police then arrested Ortega without a warrant; that one of the officers retrieved a tinfoilwrapped package containing balloons of heroin; and that thereafter the other officer found marijuana and LSD hidden in the weeded area from which Ortega had come. The court's findings of fact are supported by ample competent evidence and will not be disturbed on review.

The trial court concluded from the foregoing findings that the heroin had been abandoned by Ortega and ruled that the heroin was properly seized. We agree. Johnson v. People, 171 Colo. 150, 465 P.2d 128; Martinez v. People, 169 Colo. 366, 456 P.2d 275; Smith v. People, 167 Colo. 19, 445 P.2d 67.

We also agree with the court's conclusion that Ortega's warrantless arrest was based upon probable cause and that the marijuana and LSD, which were thereafter found in an area of the backyard in close proximity to Ortega, were lawfully seized as an incident to Ortega's arrest. People v. Nanes, Colo., 483 P.2d 958.

*896 It is argued that the officers had no right to conduct the surveillance under the circumstances of this case. The record is not clear whether this argument was presented for consideration by the trial court. However, as we understand it, because Ortega was walking within the backyard of the apartment house where he lived, it is argued that he was then within an area where he was entitled to a reasonable expectation of privacy, free from unconstitutional visual intrusions; and that, therefore, the officers' surveillance, even though from a position outside of the property, was forbidden; and the knowledge thus gained from Ortega's activities could not be used to bolster the officers' basis for probable cause. We do not find merit to this contention.

In Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898, it was held that observation of a dwelling and its curtilage may lawfully be made without a warrant. See also United States v. Campbell, 395 F.2d 848 (4th Cir.); cert. denied, 393 U.S. 834, 89 S. Ct. 106, 21 L. Ed. 2d 105.

We do not agree that there was a reasonable expectation of privacy in the backyard, such as the record herein discloses, and we find nothing in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, that would necessitate a different conclusion. In Katz it was stated:

"* * * What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 17 L. Ed. 2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 71 L. Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877."

See also People v. Snelling, Colo., 484 P.2d 784, announced May 3, 1971.

There was no evidence presented of any facts from which a reasonable expectation could be logically inferred. For an analogous backyard situation wherein the court held there was no reasonable expectation of privacy, see People v. Bradley, 1 Cal. 3d 80, 81 Cal. Rptr. 457, 460 P.2d 129.

The ruling is affirmed.