People v. Carlos Christopher Galvadon

MARTINEZ, Justice.

The sole issue before this court, in this case is the preliminary question of whether the defendant is entitled to protection of the Fourth Amendment of the U.S. Constitution. The central inquiry in determining whether the Fourth Amendment protects the defendant is whether the defendant had a reasonable expectation of privacy from government intrusion in the area searched. If the defendant here, Carlos Galvadon (Galvadon), can demonstrate a reasonable expectation of privacy in the place searched, the search of the area thus protected by the Fourth Amendment must be reasonable and pursuant to a warrant or within an exception to the warrant requirement.

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I. Facts and Proceedings Below

Galvadon worked as the night manager of a liquor store owned by his mother-in-law. Galvadon and his mother-in-law were the only employees of the store.

The store is located in a strip shopping center and occupies a narrow rectangular retail space. The front two-thirds of the retail space make up the publicly accessible portion of the store. The back of the store, however, is separated from the front of the store by a large refrigerator to create a separate room (“back room”) used for inventory storage, an office and a bathroom. The only access to the back room from the front of the store is through a narrow corridor between the wall of the store and the refrigerator.

The front of the store consists of large glass windows and a glass-paned door with a checkout counter in front. The store has four surveillance video cameras. One is located in the back room and three others are located throughout the front of the store. The video recorder and monitor are also located in the back room.

As night manager, Galvadon was left by himself to take care of the store. His responsibilities included ordering liquor, making bank deposits, writing checks for the store, and restocking shelves. Galvadon used the back room to conduct all of these activities. According to Galvadon, the only people who had unrestricted access to the back room were himself and the owner. Delivery persons were regularly permitted in the back room, but only if supervised or otherwise granted access.

On November 20, 2003, Galvadon was working at the liquor store as night manager. Two other people, Jeffery Hogan (Hogan) and David Flores (Flores), were at the store with him for about an hour. Although the record is not clear as to what exactly transpired, the parties recite the same sequence of events: Shortly before midnight, Flores and Hogan were outside of the store standing in the parking lot. Galvadon stood in the open doorway at the front of the store. Flores was sprayed in the face with pepper spray.

At the same time, or immediately thereafter, Sergeant Juhl of the Colorado Springs Police Department (“Sergeant Juhl”) drove by the store. Sergeant Juhl became suspicious when he saw Flores drop to the ground. He called for backup officers, turned around, and pulled into the parking lot.

When Sergeant Juhl arrived, Galvadon was inside the store, but Hogan and Flores were still in the parking lot. Hogan explained that he and Flores had been “assaulted” by someone around the corner and that Flores was sprayed with pepper spray. Hogan explained that he wanted to take Flores to get his face washed off and then began to escort Flores into the store. Sergeant Juhl followed them.

Once in the store, Hogan asked if he and Flores could use the bathroom. Galvadon stated that no one was allowed in the back. Hogan urged Galvadon that Flores was in pain and needed to use the bathroom to wash off his face. Galvadon again insisted, several times, that no one was allowed in the back room. Hogan, however, ignored Galvadon and escorted Flores to the back room. Sergeant Juhl followed them. Galvadon followed all three of them into the back room.

While Flores was washing his face, backup officers arrived and went to the back room. Galvadon again told everyone in the back room that no one was allowed in back. Galvadon then returned to the front of the store. The officers stayed in the back room with Flores and Hogan while Sergeant Juhl went to the front of the store to speak with Galvadon. While in the back room, one of the officers discovered a “brick” of marihuana sitting in the bottom of an open cardboard box. Shortly thereafter, another brick was discovered sitting in a bag on the floor of the bathroom. Later, the owner of the store arrived and consented to a search of the store. During the search a third brick of marihuana was discovered in the back room.

After Flores, Hogan and the officers cleared out of the back room, Galvadon went into the back room by himself. Sergeant Juhl followed him. When Sergeant Juhl reached Galvadon, he discovered him attempting to hide a surveillance video tape in his pants. Galvadon explained that he had been drinking in the store earlier that night and was hiding the tape because he did not want the owner to find out. The video was later viewed by the investigating officers and showed Galvadon placing what the officers believed to be the bricks of marihuana in the back room.

Galvadon was subsequently charged with possession of marihuana, possession with intent to distribute marihuana and assault in the third degree.

Prior to trial, Galvadon sought to suppress the evidence seized from the liquor store as the fruit of an illegal search. In response, the prosecution argued that Galvadon did not have “standing” to challenge the police intrusion because he had no expectation of privacy in the back room of the store. More specifically, the prosecution claimed that because Galvadon was only an employee he could have no reasonable expectation of privacy. In addition, the prosecution asserted that because others had access to the back room and Galvadon was aware he was being videotaped by the in-store surveillance system while in the back room, that Galvadon could not have a reasonable expectation of privacy. The trial court disagreed and found that Galvadon had “standing” to assert Fourth Amendment protection on the basis of his reasonable expectation of privacy in the back room.

The trial court went on to rule that the warrantless intrusion into the back room could not be justified by any of the exceptions at law argued by the prosecution. Specifically, the court found there were no exigent circumstances, the intrusion was not based on emergency aid and Galvadon did not give consent. These rulings were not appealed by the prosecution and therefore we do not address them here. Instead, the prosecution only appeals the trial court's ruling that Galvadon had Fourth Amendment “standing.”

II. Analysis

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The Fourth Amendment to the U.S. Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” It is fundamental “that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States,. . .

In Katz v. United States, . . . the U.S. Supreme Court delineated the parameters of Fourth Amendment protection. Prior to Katz, the Court struggled with a method of determining when a person is afforded Fourth Amendment protection. . . . Protection at the time was generally based on traditional notions of property law, where one must have a property interest in the place or thing searched. . . Such an inquiry focused on the place or thing searched, rather than the person asserting protection. . . . The Court in Katz rejected this idea because it lost sight of what the Fourth Amendment actually protected. . . . The Court held that the Fourth Amendment protects people and their privacy from government intrusion, not simply places based upon a person's property interests or their right to be in that place. . . . Because the Fourth Amendment protects a person's privacy from government intrusion, the Court determined that the proper inquiry should focus on the reasonably justified privacy expectations of the defendant as they relate to the place searched rather than the direct legal relationship between the place or property searched and the defendant.

Based upon privacy expectations set forth in Katz, the U.S. Supreme Court found that protection afforded by the Fourth Amendment is not limited to a literal reading of “houses,” but instead extends beyond the home and may be asserted in the workplace. . . . Specifically, the U.S. Supreme Court found that an employee has standing to object to the search of his office as well as his home. . . . In Mancusi, the defendant was a union official charged with misusing his office for coercion, extortion, and conspiracy. . . . The defendant shared an office with several other union officials. . . . When the defendant refused to comply with a subpoena to produce union records, the state officials that served the subpoena searched the office and seized various records without a warrant. . . . The defendant was present for the search and objected to it. . . . The papers seized did not belong to the defendant. . . .

The Court applied the expectation of privacy analysis established in Katz to hold in Mancusi that the defendant could object to the search on Fourth Amendment grounds. . . . Specifically, the Court found that Fourth Amendment protection applied in the workplace if the defendant had a “reasonable expectation of freedom from governmental intrusion” in the area invaded. . . . While the physical characteristics of the area were important, the overriding consideration was the defendant's privacy expectation in that area. . . . The Court found that despite sharing the office with several others, the defendant maintained a reasonable expectation of privacy from government intrusion in the office. . . . The Court discussed that the defendant would clearly hold such an expectation if the office were private and the records were seized from a desk or filing cabinet, and went on to find that sharing the office did not “fundamentally” change the defendant's expectation of privacy. . . . Specifically, the defendant could “reasonably have expected that only those persons and their personal or business guests would enter the office, and the records would not be touched except with their permission or that of union higher ups.” . . .

Since the decisions in Katz and Mancusi, the Court has made clear that the reasonable expectation test is the best way to protect a person's privacy interests from government intrusion as afforded by the Fourth Amendment. . . . Although the test does not provide “law enforcement officials with a bright line between the protected and unprotected,” the test remains “faithful to Fourth Amendment purposes.” . . .

To determine if an expectation of privacy is reasonable, a defendant must have an actual expectation that the area or activity subjected to governmental intrusion would remain free of such intrusion and such an expectation must be one that “society is prepared to recognize as reasonable.” . . .

Where the government search at issue takes place in a highly regulated industry such as the liquor business, under certain circumstances proprietors of such businesses might have a diminished expectation of privacy because of long-standing government oversight and consequently have less Fourth Amendment protection. . . . The expectation of privacy in the liquor industry, however, is only diminished to the extent that searches are specifically authorized pursuant to constitutional administrative inspection regulations and conducted pursuant to the purpose of the regulatory scheme. . . . Where, as here, the search of the liquor store was investigatory in nature and not an administrative search conducted pursuant to any regulation or statute, the defendant maintains his otherwise reasonable expectation of privacy.

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In examining the circumstances of a particular case, courts have chosen to focus on different factors. Some courts look to the “nexus” between the area searched and the work space of the defendant. . . . Other courts have looked to a defendant's right to exclude others from accessing the area for which the defendant asserts privacy. . . . Regardless of the factors considered, an “employee's expectation of privacy must be assessed in the context of the employment relation.” . . .

We now turn to the question of whether Galvadon had a reasonable expectation of privacy from government intrusion in the back room. . . .

We look to several factors to determine whether Galvadon's expectation of privacy against government intrusion would exist absent the in-store surveillance system. First, we look to the physical characteristics and actual use of the back room and determine that the room was not publicly accessible and was used by Galvadon to conduct the business affairs of the store. Next, we look to Galvadon's authority as night manager and determine that he had control over the store such that he maintained the power to exclude the public from the back room. In addition, delivery persons' limited access to the back room was within the control of Galvadon. We conclude, based upon these factors, that Galvadon maintained a reasonable expectation of privacy from government intrusion without the video surveillance.

First, the back room of the liquor store is an exclusive area reserved for use by the owner and Galvadon. Its physical separation from the rest of the store indicates that public access is restricted in this area. The testimony of Sergeant Juhl indicates that even he assumed upon his first entry to the store that the public was not allowed in the back room. The room was specifically set apart as a private place for the owner and Galvadon to conduct the business affairs for the store shielded from the view and access of the public.

Second, Galvadon had the power to exclude access to the back room. As the night manager, and at the time of the police intrusion in this case, Galvadon was in charge and the only person in the store that controlled access to the back room. Because this incident occurred near midnight and Galvadon was left alone by the owner to manage the store, Galvadon could reasonably expect that only persons to whom he granted permission would be given access to the back room. Furthermore, Galvadon attempted several times to keep out Sergeant Juhl, Flores, and Hogan, as well as the emergency medical technicians and other officers that arrived at the liquor store. This is a clear manifestation of Galvadon's belief that he could control access to the back room and maintain an expectation of privacy from intrusion of others into that area.

Despite the prosecution's argument to the contrary, the fact that the back room was accessible by a limited number of people does not eliminate Galvadon's expectation of privacy. Galvadon testified that there was a store policy that no one other than himself and the owner were permitted in the back room. Exceptions were made for delivery persons; however, Galvadon's expectation of privacy was not diminished simply because the space was occasionally accessed by someone else.

. . . Access could only be granted at the instance of Galvadon or the owner, whoever was present. With respect to delivery persons, such access was only granted for the limited purpose of delivering beer and liquor, a circumstance necessary for the continued operation of the liquor store. Because Galvadon, as night manager and sole person operating the store, could control the access of delivery persons, such access has no effect on Galvadon's reasonable expectation of privacy from government intrusion.

We find that it was reasonable, without considering the effect of the surveillance system, for Galvadon to expect privacy from the government intrusion in the back room of the liquor store-an expectation, based on the foregoing circumstances, we believe “society is prepared to recognize as reasonable.”

Having found that Galvadon could maintain an expectation of privacy in absence of the in-store surveillance system, we now turn to the question of whether his expectation of privacy from government intrusion was diminished by the presence of the surveillance system.

The surveillance system consists of four video cameras; one was located in the back room. The video monitor and tape machine were also located in the back room. The prosecution generally asserts that because Galvadon was aware that the back room was under in-store surveillance, any activities that occurred in the back room were “knowingly exposed” to the store owner and the public. The prosecution further claims that Galvadon made an “informed choice to expose his criminal conduct to the scrutiny of others ....” This general assertion, however, ignores the fundamental inquiry supporting Fourth Amendment standing-whether the defendant has a reasonable expectation of privacy from government intrusion.

To be faithful to the purpose of the Fourth Amendment, we must carefully examine from whom the defendant in this case had a reasonable expectation of privacy, if any, given the presence of the surveillance camera. In doing so, we must examine how activities exposed to the public and Galvadon's employer affect Galvadon's reasonable expectation of privacy from government intrusion. We look first to determine if Galvadon was exposed to the public and whether such exposure diminished his expectation of privacy from government intrusion. Here, however, we find that Galvadon's activities were not exposed to the public through the surveillance system. Next, we consider if Galvadon's activities were open to the scrutiny of the store owner and, if so, whether he could still maintain a reasonable expectation of privacy from government intrusion. We find that although the in-store surveillance video camera might have diminished Galvadon's expectation of privacy from the owner of the store, the surveillance system does not diminish his expectation of privacy from government intrusion. We conclude that under the totality of the circumstances, Galvadon maintained a reasonable expectation of privacy from government intrusion in the back room of the store such that he may assert protection of the Fourth Amendment.

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We next consider if the surveillance system exposed Galvadon's activities in the back room to the store owner and, if so, whether the exposure eliminates Galvadon's expectation of privacy from government intrusion. The parties do not dispute that the surveillance system exposed Galvadon's activities in the back room to the owner of the store. As such, we proceed with the analysis to determine if such exposure to the store owner eliminated Galvadon's reasonable expectation of privacy from government intrusion.

The U.S. Supreme Court has found that defendant-employees may have little or no expectation of privacy from their employer, but may still maintain a reasonable expectation of privacy from government intrusion. In Mancusi, the defendant shared his office with several others. . . . The Court found that this factor alone was insufficient to extinguish the defendant's expectation of privacy from government intrusion. Id. The Court held that despite the anticipation of intrusions by his co-workers and supervisors, these intrusions did not diminish the defendant's expectation of privacy from government intrusion. . . . The Court specifically found that where a defendant could reasonably expect that work-related intrusions into his privacy would be limited to guests and invitees of himself and his supervisors, the defendant could still maintain a reasonable expectation that his privacy would not be “defeated” by government officials. . . .

Similarly, we can assume here that because of the surveillance system, Galvadon had a diminished expectation of privacy from the owner of the store. Although the record is void of any reference to how often, if at all, the owner reviewed the surveillance tapes, such evidence would only demonstrate Galvadon's diminished expectation of privacy from the store owner. This, however, does not indicate that he had no reasonable expectation of privacy from government intrusion.

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We conclude under the totality of circumstances that the sole person in control of the store, the night manager, maintained a reasonable expectation of privacy from government intrusion in the back room of the store, an area without public access, such that he may assert protection of the Fourth Amendment. The use of a surveillance system reviewable only by the night manager and the owner of the store did not diminish his reasonable expectation of privacy from government intrusion. For these reasons, we conclude that Galvadon is entitled to the protections of the Fourth Amendment.

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Chief Justice MULLARKEY, dissenting.

The majority concludes that the defendant, Carlos Galvadon, had a reasonable expectation of privacy in the back room of a retail liquor store based on his “exclusive control over the back room of the store.” . . . I respectfully dissent. I would find that Galvadon, as an employee of a retail liquor store, had no reasonable expectation in the store's back room because it was a liquor storage place subject to inspection at any time when the liquor store did business. Alternatively, I would hold that the police entered the back room under the emergency aid exception to the warrant requirement and properly seized the marihuana found in plain view.

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