2012 CO 18
Colo.2012Background
- O'Hara was convicted of distribution of methamphetamine and sentenced to 96 years; wiretap evidence was challenged as improperly authorized because the elected district attorney did not personally sign the applications.
- Court of Appeals held that section 16-15-102(1)(a) requires personal authorization by the attorney general or district attorney, but not personal signing/submission by the elected official.
- Initial wiretap applications and extensions were signed only by a task force officer, with later language indicating the applications were being submitted by the district attorney and deputy, not directly signed by the elected official.
- Trial court found the district attorney was involved and that the statute was followed, but did not make a finding of personal authorization for each application.
- Court granted certiorari to review interpretation of personal authorization and remand procedures; the majority agrees with remand and clarifies that each application to initiate or extend must be personally authorized.
- Colorado’s 2008 amendments clarified designee language, but the analysis here applies to the 2006 statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the elected DA must personally authorize, not necessarily sign, wiretap apps | O'Hara—signature of elected DA required | People—authorization suffices; not need signature | Yes; personal authorization required, not necessarily signing by DA |
| Whether extensions require personal authorization by the elected DA | Extensions follow initial authorization; status unclear | Same officer authorization framework applies to extensions | Yes; extensions require personal authorization by the elected DA |
| Appropriateness of remand for factual findings on authorization | Remand unnecessary; convictions should reverse | Remand appropriate to resolve authorization facts | Remand appropriate to determine if each application was personally authorized |
Key Cases Cited
- Milnes v. People, 186 Colo. 409 ( Colo. 1974) (initial vs. extension signatures distinction)
- Gallegos v. People, 251 P.3d 1056 (Colo. 2011) (personal authorization; suppression standards)
- Giordano, 416 U.S. 505 (1982) (centralized authorization; suppression when ignored)
- Tortorello, 480 F.2d 764 (2d Cir. 1973) (chief prosecutor authorization; not require personal appearance)
- Chavez, 416 U.S. 562 (1974) (affidavit testimony of authorizing official possible)
- Ceraso, 467 F.2d 647 (3d Cir. 1972) (authorization procedures; corroboration of authorization)
- Turner, 528 F.2d 143 (9th Cir. 1975) (presumption of proper authorization when signed)