As described in Esparza, 2012 CO 22, para. 8 and 11, the Colorado Constitution provides greater
protection than the 4th Amendment in situations where a person exposes something with a legitimate
expectation of privacy to third parties during a commercial activity
“… in the past interpreted our own constitution to protect as reasonable even privacy
interests necessarily exposed to third-party businesses or service providers in the course of
using of their commercial service.” Id at para. 8.
“our state constitutional exception for disclosure of private matters to commercial third
parties, nor can we find differences in the language or history of article II, section 7”. Id. at
para. 11. Citing
See, e.g., People v. Corr, 682 P.2d 20 (Colo. 1984)(finding reasonable expectation of privacy
in telephone toll records, despite that information necessarily being available to service
provider); People v. Sporleder, 666 P.2d 135 (Colo. 1983)(same for out-going calls monitored
by pen-registers); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980)(finding
reasonable expectation of privacy in bank transactions, despite their necessary disclosure to,
and recording by, bank personnel).
Recently, Justice Sotomayor in her concurring opinion in Jones, 1/23/2012) noted:
More fundamentally, it may be necessary to reconsider the premise that an
individual has no reasonable expectation of privacy in information
voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United
States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the
digital age, in which people reveal a great deal of information about
themselves to third parties in the course of carrying out mundane tasks.
People disclose the phone numbers that they dial or text to their cellular
providers; the URLs that they visit and the e-mail addresses with which they
correspond to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers.
I.
BOTH THE COLORADO AND UNITED STATES CONSTITUTIONS PROHIBIT
UNREASONABLE SEARCHES AND SEIZURES
The Fourth Amendment to the United States Constitution states:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized."
Article II, Section 7 of the Colorado Constitution provides, in pertinent part, "[t]he people shall
be secure in their persons . . . from unreasonable searches and seizures."
Mr. ******** has an undeniable right of privacy in his home that is protected by both the
Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado
constitutions. As stated by the United States supreme Court in Payton v. New York, 445 U.S. 573, 100 S.
Ct. 1371, 63 L. Ed. 2d 639 (1980):
The Fourth Amendment protects the individual's privacy in a variety of settings.
In none is the zone of privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual's home -- a zone that finds its roots in
clear and specific constitutional terms: "The right of the people to be secure in their . . .
houses . . . shall not be violated." That language unequivocally establishes the
proposition that "[at] the very core [of the Fourth Amendment] stands the right of a
man to retreat into his own home and there be free from unreasonable governmental
intrusion." Silverman v. United States, 365 U.S. 505, 511. In terms that apply equally to
seizures of property and to seizures of persons, the Fourth Amendment has drawn a
firm line at the entrance to the house. Absent exigent circumstances, that threshold
may not reasonably be crossed without a warrant. Payton v. New York, 445 U.S. at 590,
100 S.Ct. at 1382, 63 L.ed.2d at 653.
Although both the Colorado and United States Constitutions are applicable, the Colorado
Constitution, written to address the concerns of Colorado citizens and tailored to their unique regional
location, is a source of protection for individual rights that is independent of and supplemental to the
protections provided by the United States Constitution and at times will provide greater protections for
Colorado citizens than do similarly or identically worded provisions of the United States Constitution.
People v. Young, 814 P.2d 834 (Colo. 1991).
For example, in Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) the Colorado
Supreme Court found a bank customer has a reasonable expectation of privacy in bank records of his
financial transactions under the Colorado Constitution even though the United States Supreme Court
had rejected this analysis under the United States Constitution in United States v. Miller, 425 U.S. 435,
96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). Likewise, in People v. Sporleder, 666 P.2d 135, 139-140 (Colo.
1983) the Court found that a governmental installation of a pen register to record numbers dialed from
defendant's home telephone is a search under the Colorado Constitution even though the United States
Supreme Court found that this was not a search under the United States constitution in Smith v.
Maryland, 442 U.S. 735, 99 S. Ct. 2577 , 61 L. Ed. 2d 220 (1979). In reaching this conclusion the Court
stated: "Although Article II, Section 7 of the Colorado Constitution is substantially similar to its federal
counterpart, we are not bound by the United States Supreme Court's interpretation of the Fourth
Amendment when determining the scope of state constitutional protections."
Two years later, in People v. Oates, 698 P.2d 811, 815 (Colo. 1985) the Colorado Supreme Court
found the warrantless installation of an electronic tracking device in a drum of chemicals prior to sale
violated the purchaser's right to protection against unreasonable searches under the Colorado
Constitution even though United States Supreme Court had previously determined this was not a search
under the United States Constitution in United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296 , 82 L. Ed. 2d
530 (1984). The Court recognized: "Several times we have determined that the Colorado proscription
against unreasonable searches and seizures protects a greater range of privacy interests than does its
federal counterpart." Id. See Also, People v. Young, 814 P.2d 834, 842-43 (Colo. 1991)("We have
recognized and exercised our independent role on a number of occasions and on several occasions have
determined that the Colorado Constitution provides more protection for our citizens than do similarly or
identically worded provisions of the United States Constitution."); People v. Mason, 989 P.2d 757, 759
(Colo. 1999)("[W]e have afforded suspects in Colorado greater rights than are available under the
federal Constitution."); People v. Haley, 41 P.3d 666 (Colo. 2001) (cases cited therein).