dissenting:
The majority concludes that remand is necessary to determine whether the Hoff-mans enjoyed a subjectively and objectively reasonable expectation of privacy in their backyard. See majority at 475-76. I dissent because I believe under the facts of this case that no such expectation of privacy is reasonable as a matter of law. I also dissent because I believe that any error in failing to suppress the marijuana was harmless beyond a reasonable doubt.
I.
A.
I agree with the majority in part II.C. that the three cases cited by the court of appeals are not dispositive of whether the Hoffmans enjoyed a reasonable expectation of privacy in their backyard. The three cases are factually distinguishable. See People v. Shorty, 731 P.2d 679, 682 (Colo. 1987) (warrantless seizure of drugs beneath welcome mat in front of apartment does not violate fourth amendment because defendant had no legitimate expectation of privacy in common area in front of his apartment at bottom of public stairwell not secured in any manner); People v. Gomez, 632 P.2d 586, 592 (Colo.1981) (warrantless seizure of drugs observed from public area through motel window does not violate fourth amendment because of exigent circumstance that defendant’s companion saw police observing the drugs and the defendant would certainly have moved or destroyed the drugs before a warrant could be secured), cert, denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); People v. Ortega, 175 Colo. 136, 139, 485 P.2d 894, 896 (1971) (warrantless seizure of drugs located in weedy area of backyard of apartment building does not violate fourth amendment because defendant had no reasonable expectation of privacy where police, acting on an informant’s tip that defendant was hiding drugs in weedy area, saw defendant go to weedy area and crouch over it for a few seconds and where police saw defendant throw away object in his hand immediately after police called his name). Whether a defendant enjoys a legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. Oliver v. United States, 466 U.S. 170,177-78, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984); Shorty, 731 P.2d at 681; People v. Oates, 698 P.2d 811, 819 (Colo.1985).
*479B.
I also agree with the majority that this case presents a curtilage question. At 475. Whether a particular area qualifies as curtilage for fourth-amendment analysis depends on four factors. These factors include:
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1184, 1139, 94 L.Ed.2d 326 (1987) (citations and footnote omitted). If remand were necessary in this case, then the Dunn test is the appropriate test to apply.
Even if the backyard in this case is properly characterized as curtilage under Dunn, however, suppression is not required where the defendant has no reasonable expectation of privacy. Shorty, 731 P.2d at 681 (“the fact that a search occurs within the curtilage is not dispositive if the area’s public accessibility dispels any reasonable expectation of privacy”); cf. People v. Becker, 188 Colo. 160, 163, 533 P.2d 494, 496 (1975) (“The curtilage' concept, properly understood, merely restates what the Supreme Court expressed in Katz as to a reasonable expectation of privacy.”).
Whether a person has a constitutionally protected reasonable expectation of privacy requires “a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986); see also California v. Greenwood, 486 U.S. 35,108 S.Ct. 1625,1628,100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in contents of garbage bags left on curb outside home); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Shorty, 731 P.2d at 681; Oates, 698 P.2d at 819.
The majority reads the suppression ruling as considering solely the visibility of the marijuana but not the other relevant circumstances that the backyard was fenced and that the contraband was located in a garden containing other plants. At 475. I read the suppression ruling as concluding that the height of the marijuana plants over the top of the fence and the transparency of the wire fence that failed to obscure the smaller plants so negates a reasonable expectation of privacy as to compel the conclusion that suppression is not required even if the plants were located within the curtilage of the house. The order stated:
I have difficulty in this case accepting the proposition that the ... defendants had any expectation or reasonable expectation of privacy where the fence as I gather was transparent, that is to say, it was a wire fence, was a situation where you had a garden that was readily visible at least from an alley and, at least according to the evidence received, from a public highway.
It seems under those circumstances there is no expectation of privacy as to the items that can be observed. If there is no expectation of privacy, I frankly don’t see that there is any violation, constitutional violation of such gravity that it requires the suppression of evidence in this case.
Whether a particular area adjoining the home is entitled to fourth-amendment protection from police seizure depends on the facts of each case. Ciraolo, 476 U.S. at 213, 106 S.Ct. at 1812. Certain facts, however, can figure so prominently in fourth amendment analysis that a trial court could conclude as a matter of law that the defendant could not hold a reasonable expectation of privacy. The size of the plants in relation to the fence and the unobscuring quality of the wire fence in this case are two such factors. See, e.g., People v. Schmidt, 168 Ill.App.3d 873, 880, 119 Ill. Dec. 458, 463, 522 N.E.2d 1317, 1322 (1988) (no reasonable expectation of privacy in marijuana patch in unfenced but partially hedged backyard where no steps were taken to shield the six-foot-tall plants from the *480view of passersby or to limit public access to the garden); Diehl v. State, 461 So.2d 157, 158 (Fla.Dist.Ct.App.1984) (no reasonable expectation of privacy in six-foot-tall marijuana plants visible both from above in aerial exploratory search and from public road); Lightfoot v. State, 356 So.2d 331, 334 (Fla.Dist.Ct.App.1978) (no reasonable expectation of privacy in marijuana plants in pots in chain-link fenced backyard where plants were in open view to public).
I would affirm the trial court’s refusal to suppress the marijuana because the Hoff-mans did not have a reasonable expectation of privacy in the garden under the facts of this case.1
II.
Larry and Robin Hoffman were convicted in separate trials of violating section 18-18-106(8)(a)(I) by knowingly cultivating marijuana on land they occupied. The evidence that may be suppressed on remand has relevance only in deciding whether the plants growing in the Hoffman’s garden were marijuana plants. Because I believe the evidence is overwhelming that the plants in the Hoffmans’ garden were identified as marijuana plants, any error in failing to suppress the marijuana was harmless beyond a reasonable doubt.
A trial error of constitutional dimension does not require reversal if the error was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); 'Key v. People, 715 P.2d 319, 323 (Colo. 1986); People v. Hickox, 751 P.2d 645, 647 (Colo.App.1987). A harmless error is any error which does not substantially affect the fairness of the proceedings. People v. Snook, 745 P.2d 647, 649 (Colo.1987); Crim P. 52(a). As long as the error did not contribute to the verdict, the error is harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Crespin v. People, 721 P.2d 688, 691 (Colo. 1986).
The evidence produced at the suppression hearing and certified to this court by both Hoffmans offers overwhelming proof that the plants cultivated in the Hoffmans’ garden were marijuana plants. Robert Au-fenkamp, the Log Lane Village Chief of Police, responded to an anonymous tip that marijuana was growing in the backyard garden at 109 Pine Street, which is the Hoffmans’ address. He asked Lieutenant Dana Speaks of the Morgan County sheriff’s office to accompany him because Speaks is an expert in identifying drugs and had taught classes on the subject to other police officers.
It was a sunny, late afternoon when the officers arrived at 109 Pine Street. After knocking on the front door but receiving no response, the officers drove through the alley behind the house. From the car they saw marijuana plants growing in the garden. The marijuana plants were from twenty inches to about six feet in height. When they got out of the car, the officers were standing ten to twelve feet from the garden. • They could see the plants clearly because many of the marijuana plants were taller than the fence and because the fence was made of wire. The fence was three to four feet tall. Officer Speaks identified the plants as marijuana plants. He took photographs of them from the alley.
It strains credulity to suggest that this evidence was not harmless beyond a reasonable doubt. Officer Speaks stated that the marijuana plants were “readily visible from Highway 144, which was 85-90 yards away.” His identification of the plants is corroborated by Chief Aufenkamp and the *481photographs taken from the alley. I believe that the identification of six-foot-tall marijuana plants seen from ten to twelve feet away on a sunny afternoon by two officers, one of whom was an expert in drug identification, is enough to conclude beyond a reasonable doubt that the plants growing in the Hoffmans’ backyard were marijuana plants. The police, like the public, are free to inspect a backyard garden from the street if their view is unobstructed. Florida v. Riley, — U.S. -, 109 S.Ct. 693, 696,102 L.Ed.2d 835 (1989). Any error in admitting the marijuana could not contribute to the verdict of either Hoffman because of the overwhelming evidence that marijuana plants were growing in the Hoff-mans’ garden. See People v. Myrick, 638 P.2d 34, 38 (Colo.1981) (even if trial court committed constitutional error in failing to suppress stolen televisions to show defendant committed theft by receiving, any error was harmless because defendant’s commission of the crime was overwhelmingly established by conversation of detectives with defendant and photographs of the defendant at the site of the transfer of stolen merchandise); People v. Taylor, 197 Colo. 161, 164, 591 P.2d 1017, 1019-20 (1979) (although trial court erred in admitting handwriting samples to prove defendant was kidnapper/robber because samples were not proved to be genuine, error was harmless because his identity was overwhelmingly established by lineup identification and personal observation of kidnapping); see also People v. Schmidt, 168 Ill.App.3d 873, 880, 119 Ill.Dec. 458, 463, 522 N.E.2d 1317, 1322 (1988) (warrantless seizure of marijuana plants in unfenced backyard partially obscured by hedge does not require reversal under plain error analysis because the plants were visible over the top of the hedge).
I would affirm both convictions.
I am authorized to say that Justice RO-VIRA joins in this dissent.
. I also disagree with the conclusion of the majority that remand is necessary to determine whether exigent circumstances were present to justify a warrantless seizure of the marijuana plants. At 478. The trial court impliedly found at the conclusion of the suppression hearing that no exigent circumstances were present when it stated: "If it will simplify the argument very much, I am not impressed with arguments of exigency," and when it stated: “I am looking at it as a reasonable expectation of privacy case" in response to defense attorney remarks that “I believe you said you weren’t impressed with any exigent situation in this case." Findings of the trial court may be express or implied from a fair reading of the record. See Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 763 P.2d 1037, 1041 (Colo.1988); Board of Assessment Appeals v. Colorado Arlberg Club, 762 P.2d 146, 150 (Colo.1988).