The trial court had no authority to order access to a third party’s home as a part of a discovery order. It was a sex case, and defendant wanted access to the scene of the alleged crime. It was beyond discovery orders, and it would be an unreasonable invasion of the homeowner’s privacy. [By that time, what would it actually reveal? Staleness alone is an argument.] People In Interest of E.G., 2016 CO 19, 2016 Colo. LEXIS 359 (April 18, 2016), rev’g People in the Interest of E.G., 2015 COA 18, ___ P.3d ___:
III. Analysis
[*P7] Defendant argues that the trial court erred when it denied his motion for investigatory access to a non-party’s private home. The threshold question we must answer—and a question we address in conjunction with a related case, also issued today, In re People v. Chavez, 2016 CO 20, ___ P.3d ___—is whether a trial court has any authority to issue such an order in the first place. We analyze the potential sources of authority and conclude that nothing authorized the trial court to grant the defendant’s request for access to a private home. Because we hold that the trial court’s original ruling was correct—it did not have authority to order the access—we now affirm the court of appeals on alternate grounds.
A. The Right to be Free From Unreasonable Intrusion Into One’s Home
[*P8] The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Colorado Constitution contains a nearly identical provision. See Colo. Const. art. II, § 7 (“The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures ….”). “The clearest right is to be free from unreasonable governmental intrusion into one’s home.” People v. O’Hearn, 931 P.2d 1168, 1172-73 (Colo. 1997). A court order forcing an individual to open her private home to strangers is certainly government intrusion.
[*P9] Under these circumstances, (1) the deprivation would be “caused by the exercise of some right or privilege created by the State” (namely, a court order) and (2) E.G., the “party charged with the deprivation,” would qualify as a state actor “because he [would have] acted together with or … obtained significant aid from state officials”—in this case, the district court judge. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); cf. Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980) (Blackmun, J., dissenting) (“[T]he Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.”); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65 L. Ed. 1048 (1921) (holding that there was no Fourth Amendment violation where “no official of the … government had anything to do with the wrongful seizure”). Accordingly, E.G.’s grandmother had a constitutional right to be free from an unreasonable search of her home conducted by the defense.
[*P10] Against this backdrop, we must analyze whether E.G.’s own constitutional rights granted him the ability to obtain access to the home. Thus, this case directly confronts the tension between the constitutional rights of an innocent third party who had the misfortune of seeing her home become the scene of a crime and the constitutional rights of the criminal defendant charged with that crime.
B. Development of Criminal Discovery
[*P11] “The right of discovery in criminal cases is not recognized at common law.” Walker v. People, 126 Colo. 135, 248 P.2d 287, 302 (Colo. 1952); see also Michael Moore, Criminal Discovery, 19 Hastings L.J. 865, 865 (1968) (“It is an often-cited proposition that at common law the defendant in a criminal trial had no right to discover any of the prosecution’s case against him.”). Early American courts, with some exceptions, adopted the common-law doctrine that they lacked the power, absent authorizing legislation, to order the prosecutor to provide discovery to a defendant. Moore, supra, at 866. In the ensuing years, however, many courts left the common-law doctrine behind. See id. at 867-69 (explaining that in almost all states, criminal discovery is in the discretion of the trial judge). The twentieth century saw many changes to the law of criminal pretrial disclosure. In 1963, the seminal case of Brady v. Maryland established a constitutional right to the disclosure of exculpatory information in the prosecutor’s possession. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Around the same time, states and legislatures began to expand criminal discovery rights through statute and through the rules of criminal procedure. See, e.g., Crim. P. 16; Utah R. Crim. P. 16.
[*P12] Despite, or perhaps as a result of, the wide expansion of discovery rights through statutes and court rules, Colorado remains one of the few states that has never deviated from the traditional doctrine holding that courts lack power to grant discovery outside of those statutes or rules. See Walker, 248 P.2d at 302. In Walker, a defendant had requested and was denied pretrial access to certain physical evidence specimens upon which he wished to conduct “chemical experiments.” Id. This court rejected his assignment of error, explaining that the trial court properly denied his request because it had no authority to do otherwise: “[T]he doctrine of discovery is … a complete and utter stranger to criminal procedure, unless introduced by appropriate legislation.” Id.
[*P13] Because Colorado law establishes that a trial court has no freestanding authority to grant criminal discovery beyond what is authorized by the Constitution, the rules, or by statute, we must scrutinize those sources to determine whether the trial court had the ability to grant E.G. access to his grandmother’s private home.
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