specially concurring:
The majority holds that the police officers’ initial encounter with Johnny Maurice Melton (Melton) was consensual and was not an investigatory stop requiring reasonable suspicion. Maj. op. at 678. Accordingly, the majority reverses the trial court’s suppression order. Although I would reverse the suppression order and remand for further proceedings, my analysis differs from that of the majority. Accordingly, I specially concur.
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” For constitutional purposes, “ ‘a ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ ” People v. Shorty, 731 P.2d 679, 684 (Colo.1987) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1662, 1656, 80 L.Ed.2d 85 (1984)). The “legitimacy of the defendant’s expectation of privacy” depends on whether he or she manifested a subjective expectation of privacy in the area involved in the search, and whether society is willing to recognize that expectation as a reasonable one. People v. Unruh, 713 P.2d 370, 377 (Colo.), cert. denied, 476 U.S. 1171, 106 S.Ct. 2894, 90 L.Ed.2d 981 (1986).
Fourth Amendment protections are at their highest in the home including its curti-lage. “At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’ ” Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). Courts have held that the curtilage is an area where individuals have reasonable expectations of privacy. Id. at 170, 104 S.Ct. at 1737. In contrast, public areas such as sidewalks, shopping malls, and bus terminals are afforded less protection because of the individual’s lack of a reasonable expectation of privacy. See 4 Wayne R. LaFave Search and Seizure § 9.3(a) (3d ed. 1996).
Here, the police officers’ initial encounter with Melton occurred on the front lawn of Melton’s home. The trial court made no *679mention of the distinctions between public and private property in its oral ruling granting the motion to suppress. Melton raised the distinction between public and private property at the hearing for reconsideration of the suppression motion. Melton’s attorney stated:
The only language [in the case law] that perhaps the People are trying to rely on involves a police officer approaching someone on a public street or public place, which is clearly not the fact here at all. We were on private property, so I don’t think anything in this case would be applicable.
The People argued in response that:
It’s the People’s position that it doesn’t matter specifically whether it’s a public place or private place, but that by asking if he is willing to answer questions, or by putting questions to him, that that is a voluntary consensual stop by a police officer.
Although the trial court addressed the distinctions between public and private property at the reconsideration hearing, the court failed to make any findings as to Melton’s reasonable expectations of privacy on the front lawn of his residence prior to the search of his fanny pack.
Hence, I would soundly reject the People’s assertion that the public or private nature of the place of encounter is irrelevant. In my view, a consensual encounter cannot be initiated by a police officer who is in a place where he or she has no right to be. I would remand this case to the trial court for a factual determination of Melton’s reasonable expectations of privacy while on the front lawn of his residence. Such a determination entails consideration of three factors: First, the general nature of the area subjected to the governmental intrusion. See California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). Second, the use to which the defendant put the area in question. See Oliver, 466 U.S. at 170, 104 S.Ct. at 1737. Finally, the police conduct that led to the search and seizure. See People v. Gomez, 632 P.2d 586 (Colo.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). It may very well be that this police-citizen encounter did not occur within the curtilage of the defendant’s home, and that the police were in a place where they were entitled to be when they initiated the contact with Melton. However, the facts in the record are not now sufficiently developed for that conclusion to be reached.
For these reasons, I specially concur in the majority opinion.
KIRSHBAUM and SCOTT, JJ., join in this special concurrence.