CO--Justices reject search, pot seizure

The high court rules 6-1 that a Colorado Springs liquor store had an "expectation of privacy" for its back room.

By Howard Pankratz
Denver Post Staff Writer
Tuesday, January 11, 2005 -


Blocks of marijuana found in the "back room" of a Colorado Springs liquor store can't be used as evidence against the store manager because he could reasonably expect privacy from searches of the back area under the U.S. Constitution, the Colorado Supreme Court ruled Monday. The Constitution's Fourth Amendment protects citizens from unreasonable searches and seizures.

Carlos Christopher Galvadon was the night manager of the store owned by his mother-in-law. The back room contained an office, bathroom and a video recorder and monitor. There, Galvadon watched the premises through four surveillance cameras.

On Nov. 20, 2003, Jeffrey Hogan and David Flores spent more than an hour at the store. Shortly before midnight, they were outside when Flores was sprayed with pepper spray. Prosecutors later charged Galvadon with the spraying.

A passing Colorado Springs police officer witnessed Flores fall to the ground, called for backup and pulled into the parking lot.

Hogan repeatedly asked Galvadon to let Flores into the bathroom to wash his face. Galvadon refused.

Hogan ignored Galvadon and, with the officers following, went to the back of the store.

There, officers spotted bricks of marijuana, one sitting in the bottom of an open cardboard box in the office and the other in a bag on the floor of the bathroom.

At one point, officers caught Galvadon trying to hide a surveillance video in his pants. Police, who later reviewed the video, said it showed Galvadon placing what they believed to be bricks of marijuana in the back room.

Galvadon was charged with possession of marijuana, possession with intent to distribute and third-degree assault.

But the majority of justices, in an opinion written by Justice Alex Martinez, said Galvadon had a reasonable expectation that the "back room" would never be searched by the police and the search was unreasonable under the Fourth Amendment.

"Galvadon was the night manager and the sole person in control of the store," Martinez wrote. "He used the back room to conduct the business of the store and maintained the right to exclude public access to the back room. ... For these reasons, we find that Galvadon maintained a reasonable expectation of privacy in the back room."

Dissenting in the 6-1 decision, Chief Justice Mary Mullarkey said the liquor industry is one of the most highly regulated in Colorado and that liquor stores are open to warrantless inspections during normal business hours and at all times when activity is occurring on the premises.

"Under this regulation, the back room of the liquor store ... was open to inspection because this policy specifically applies to storage areas in licensed premises," she said.

The case now goes back to the Colorado Springs trial court judge, and prosecutors will have to decide whether to pursue the case without the evidence.

Link to article: http://www.denverpost.com/Stories/0,1413,36~53~2646199,00.html#

 

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