Thе PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Casey CORR, Defendant-Appellee.
No. 83SA415.
Supreme Court of Colorado, En Banc.
April 30, 1984.
Rehearing Denied May 21, 1984.
682 P.2d 20
LOHR, Justice.
LOHR, Justice.
In an indictment returned by a statewide grand jury on February 19, 1982, Casey Corr was charged with possession of more than one ounce of marijuana,1 and conspiracy to possess more than one ounce of marijuana.2 Her husband, Michael Aukes, was charged with possession of cocaine;3 possession of more than one ounce of marijuana; three counts of conspiracy to possess more than one ounce of marijuana; and sale, dispensing, distribution, possession or importing of more than one hundred pounds of marijuana.4 Three others were also charged with possession and conspiracy. Corr moved to suppress evidence obtained from telephone toll call records and a wiretap. Her motion was granted on August 26, 1983.5 The district attorney then filed an interlocutory appeal challenging the suppression order.6 We affirm the suppression of the toll records, reverse the suppression of the wiretap evidence, and remand the case to the district court for further proceedings.
I.
Corr questions whether Organized Crime Strike Force (Strike Force) investigators, who obtained the toll records through the use of grand jury subpoenas, had the authority to do so. It is necessary to detail the Strike Force‘s structure and sources of authority in order to evaluate this claim.
The grand jury indictments in this case resulted from an investigation conducted by the Strike Force beginning in 1980. The original leads grew out of a wiretap in the Denver Comets volleyball team drug investigation. See People v. Gable, 647 P.2d 246 (Colo.App.1982).
At the time of the investigation of the defendants’ activities, the Strike Force comprised a group of police officers and attоrneys headed by an assistant attorney general, who reported to former Attorney General J.D. MacFarlane. The officers were assigned to the Strike Force by local law enforcement authorities throughout the state. They carried badges and cards issued by the Attorney General identifying them as Strike Force investigators. Their salaries were paid by the local authorities, but the Attorney General‘s office provided for their overtime pay, expenses and insurance coverage. In contrast to the investigators, the Strike Force attorneys were all members of the Attorney General‘s staff. The investigators generally initiated and carried out investigations, while the attorneys advised them on legal matters and presented evidence resulting from their investigations to state grand juries.
Also at this time, the Attorney General annually petitioned the chief judge of a district court to empanel a statewide grand jury pursuant to section
At the time of the investigations leading up to the indictment of the defendants in the present case, the Strike Force had no specific statutory basis, although the legislature had appropriated funds for it at least since 1977 or 1978.8 The grand jury functions of the Strike Force staff attorneys derive authority from section
There are several possible statutory sources of investigative authority. By statute, the Attorney General may appoint such deputies and assistants as are necessary for the efficient operation of his office, within appropriation limits. Section
Corr‘s central contention is not that the police officers on the Strike Force had no authority derived from the Attorney General to investigate drug rings, but that whatever authority they had was insufficient to validate the investigative techniques employed in this case. This assertion requires a detailed discussion of the facts of the case.
After formal investigation of the defendants began in 1980, members of the Strike Force and cooperating police officers in Teller County, Colorado, tried to learn about the alleged drug distribution network through a variety of means. The legitimacy of most of these methods, including surveillance, license plate checks, criminal record checks and the cultivation of informants, is not challenged by Corr. However, on several occasions the Strike Force sought and obtained telephone toll call records for a telephonе registered in the name of Casey Corr, at a home in Florissant, Colorado, where she and her husband, Michael Aukes, lived. Corr claims that these were illegal searches.
On February 17, 1981, the Attorney General petitioned the chief judge of the Denver District Court to empanel a statewide grand jury pursuant to section
On February 19th, in mid-March, and on May 15th and August 12th, Strike Force attorneys moved for the issuance of a subpoena duces tecum in connection with the grand jury proceedings to obtain Casey Corr‘s toll records.11 On each occasion, the court ordered that the subрoena be issued, and the clerk of the court issued a subpoena to Mountain States Telephone and Telegraph Company (Mountain Bell) commanding the delivery of the toll records to this Court or to an authorized representative of the State Grand Jury.12 Mountain
On September 14, 1981, Robert L. Simmons, another Strike Force investigator, filed a 164-page affidavit in the District Court for Teller County in support of an application to intercept wire communications (a wiretap) on Casey Corr‘s telephone line in connection with the continuing drug trafficking investigation, pursuant to section
On November 17, 1981, Strike Force Investigator Simmons obtained a search warrant for the residence of Corr and Aukes. Aukes, Corr and two others were then arrested.13
On December 2nd, approximately two weeks after the arrests, a Strike Force attorney filed a motion for authorization for state grand jury to investigate matter, requesting authorization of a grand jury investigation of the marijuana and cocaine trafficking activities of Aukes, Corr and others. The supporting affidavit by Investigator Simmons averred that it is essential to seek the statewide investigative powers of the State Grand Jury, in order to conduct and complete the investigation. Books, records, tolls and the production of testimony are essential to the successful prosecution of the conspirators in this trafficking system. Thе affidavit neglected to mention that Aukes, Corr and the others had already been arrested. Also on December 2nd the court issued an order authorizing the requested grand jury investigation.14 Two Strike Force investigators then were sworn in as grand jury investigators. They testified before the statewide grand jury, and the grand jury returned the indictments in this case on February 19, 1982.
The Strike Force investigators were appointed as grand jury investigators under Crim.P. 6.5, which allows the appointment of investigators to assist the grand jury in its investigative functions. Such investigators may be officers presently investigat-
It is unclear whether the toll records subpoenaed in the name of the grand jury ever reached the grand jury. Simmons remembered telling the grand jury that he had subpoenaed toll records, but he could not recall whether the toll records themselves were presented to the grand jury.
The positions of the parties may be framed as follows. Corr claims that the use of grand jury subpoenas by the Strike Force to obtain toll records circumvented the warrant and probable cause requirements recognized in People v. Sporleder, 666 P.2d 135 (Colo.1983), and constituted grand jury abuse, and that therefore the toll records and derivative evidence must be suppressed. The prosecution asserts that the use of grand jury subpoenas by the Strike Force was legitimate, and that in any event the ruling in Sporleder does not apply to toll records. After discussing the impact of Sporleder on this case, we will return to the grand jury subpoena issue.
II.
In People v. Sporleder, 666 P.2d 135 (Colo.1983), this court held that the use of a pen register to record the numbers dialed on a telephone constituted a search within the meaning of Article II, section 7 of the Colorado Constitution, and therefore that law enforcement officers generally must obtain a search warrant supported by probable cause before installation. The prosecution would distinguish bеtween pen registers, which record all telephone numbers dialed from a specific telephone, and toll records, which record only those calls individually billed, because of an asserted lesser expectation of privacy in the latter. We reject this distinction. It is clear from the rationale of Sporleder that individually billed calls enjoy the same expectation of privacy as other calls do. We said in Sporleder:
A telephone subscriber such as the defendant has an actual expectation that the dialing of telephone numbers from a home telephone will be free from governmental intrusion. A telephone is a necessary component of modern life. It is a personal and business necessity indispensable to one‘s ability to effectively communicate in today‘s complex society. When a telephone call is made, it is as if two people are having a сonversation in the privacy of the home or office, locations entitled to protection under Article II, Section 7 of the Colorado Constitution. The concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed by the telephone subscriber does not alter the caller‘s expectation of privacy and transpose it into an assumed risk of disclosure to the government....
We view the disclosure to the telephone company of the number dialed as simply the unavoidable consequence of the subscriber‘s use of the telephone as a means of communication and the telephone company‘s method of determining the cost of the service utilized....
The pen register recorded each telephone number dialed by the defendant as well as the date and time of each telephone cаll. Knowledge of these facts can often yield inferential knowledge of
the content of the conversation itself. In addition, a pen register record holds out the prospect of an even greater intrusion in privacy when the record itself is acquired by the government, which has a technological capacity to convert basic data into a virtual mosaic of a person‘s life. One‘s disclosure of certain facts to the telephone company as a necessary concomitant for using an instrument of private communication hardly supports the assumption that the company will voluntarily convey that information to others.... The expectation that information acquired by the telephone company will not be transferred[,] without legal process, to the government for use against the telephone subscriber appears to us to be an eminently reasonable one.
666 P.2d at 141-42. Here, as in Sporleder, disclosure of the number dialed was an unavoidable consequence of the telephone company‘s method of determining the cost of the service utilized. The toll records reflected the number dialed as well as the date and time of each call. It is clear that the reasonable expectation of privacy found in Sporleder is not based on the fact that some calls are individually billed to the subscriber, as the prosecution would have it, but rather on the expectation that the telephone company will not voluntarily disclose dialed numbers to the government. We conclude that the constitutional protections applied to pen register information in Sporleder also apply to toll records.15
The prosecution urges that the toll records should not be suppressed under the Sporleder ruling because the action of the Strike Force investigators constituted a technical violation under
III.
On each of the four occasions when Strike Force investigators obtained Casey Corr‘s toll records, they did so under the authority of whаt was purported to be a grand jury subpoena specifically authorized by the chief judge of the Denver District Court. Under Crim.P. 6.1, grand jury subpoenas shall be issued in accordance with the rules of criminal procedure and [the grand jury] rules; under Crim.P. 17(a) a subpoena is issued by the court clerk under seal of the court.17 The requirement that the grand jury must rely upon the courts to compel the production of documents is a significant limitation upon the grand jury. Losavio v. Robb, 195 Colo. 533, 579 P.2d 1152 (1978); see also A v. District Court, 191 Colo. 10, 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977). Crim.P. 17(c) states that the court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. This rule embodies the restriction of section
The prosecutor cites Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), and its Colorado progeny19 for the proposition that if a grand jury subpoena is for a lawfully authorized purpose, is relevant to the grand jury inquiry, and is reasonably particular, this is equivalent under the Fourth Amendment to the establishment of probable cause for a search warrant. Id. at 208-09, 66 S.Ct. at 505-06. However, a grand jury subpoena without probable cause not only must pass constitutional muster, but also must comport with the not unreasonable or oppressive standard under Crim.P. 17(c) and section
It is unnecessary to determine whether the subpoenas for toll records here were unreasonable or oppressive, because we are satisfied that under the facts of this case the subpoenas were not bona fide grand jury subpoenas. Here, as in Gher v. District Court, 183 Colo. 316, 516 P.2d 643 (1973), grand jury subpoenas were used for an improper purpose. See also People v. Vesely, 41 Colo.App. 325, 587 P.2d 802 (1978).
It is apparent that what the Denver District Court labelled grand jury subpoenas were in fact obtained on the initiative of Strike Force investigators. They framed the requests to the court, served the subpoenas on Mountain Bell, took the toll records to their offices, analyzed them, and incorporated them into the wiretap af-
In reviewing the purported sources of investigative authority for the Strike Force discussed above, it is clear that neither their status as peace officers nor legislative support for the Strike Force through continuing appropriations could render Strike Force investigators grand jury investigators. The prosecution has not alleged that these subpoenas were, in effect, civil investigаtive demands under the Colorado Organized Crime Control Act.23 No members of the Strike Force were appointed as grand jury investigators under Crim.P. 6.5 for this investigation until several months after the subpoenas were issued. Therefore, the only basis by which the Strike Force investigators could claim to be authorized representatives of the statewide grand jury arises from the Attorney General‘s duties under the statewide grand jury statute in conjunction with his appointment power.
We hold that the responsibility of the Attorney General or his designee to present evidence to the statewide grand jury (section
IV.
The order suppressing the wiretаp evidence was appealed to this court under
The affidavit was intended to establish that there was probable cause to believe that evidence would be obtained showing that felonious narcotics dealing had been or would be committed. Section
In analyzing a case in which there was an initial illegal search by the police followed by a search pursuant to a warrant, the court must determine whether the second search was tainted by the illegality of the first search. If there is clear and convincing evidence that the second search was conducted pursuant to a warrant based on information obtained before the illegal warrantless search, then the evidence would have been derived from a source independent of the initial illegality and should not be suppressed.... Therefore, we are required to determine whether the sufficiency of the affidavit submitted in support of the request for the warrant ... clearly and convincingly establishes an independent basis for the ... search.
Id. at 1288 (footnote omitted); see also People v. Montoya, 44 Colo.App. 234, 616 P.2d 156 (1980). It appears that the trial court failed to consider whether the affidavit in support of the wiretap application would establish probable cause if the toll record information and derivative evidence were stricken.25 Therefore, we reverse the suppression order and remand the case to the district court for further proceedings consistent with this opinion.
ERICKSON, C.J., dissents and ROVIRA, J., joins in the dissent.
ERICKSON, Chief Justice, dissenting:
I respectfully dissent from that part of the majority‘s opinion requiring that law enforcement officers obtain a search warrant supported by probable cause as a condition precedent to the obtaining of telephone toll call records for use as evidence. In my view, a telephone subscriber has no reasonable expectation of privacy in toll records.
In this case the toll records were obtained pursuant to a grand jury subpоena. Even if the majority is sound in its constitutional analysis of the requirements necessary for admission of the toll records at the time of trial, it would not extend to the use of the records before the grand jury. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). I believe the evidence in issue should be admitted not only before the grand jury, but also as substantive evidence in trial of the issues framed in the indictment.
In determining whether a particular form of governmental electronic surveillance is a search within the meaning of the Fourth Amendment, we are guided by the United States Supreme Court decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, government agents intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The United States Supreme Court, in overruling Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), rejected the assertion that a search can only occur when there has been a physical intrusion into a constitutionally protected area. Katz held that, since the government‘s monitoring of the conversation violated the privacy upon which he justifiably relied while using the telephone booth, it constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. Id. 389 U.S. at 351-353, 88 S.Ct. at 511-512.
This inquiry normally embraces a two-prong analysis:
The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ ... whether, in the words of the Katz majority, the individual has shown that ‘he seeks to preserve [something] as private.’ ... The second question is whether the individual‘s subjective expectation of privacy is ‘one that society is prepared to recognize’ as “reasonable,” ” ....”
Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979).
In Smith v. Maryland, the United States Supreme Court, applying the analysis articulated in Katz, held that a pen register does not constitute a search under the Fourth Amendment to the United States Constitution. In the view of the Court, individuals do not have a legitimate expec-
Four years later, this court held in People v. Sporleder, 666 P.2d 135, 144 (Colo.1983), under virtually identical factual circumstances:
[T]hat Article II, section 7 of the Colorado Constitution provides a telephone subscriber with a legitimate expectation of privacy in the records of telephone numbers dialed, that such material is protected from unreasonable searches and seizures, that the installation of a pen register to record the numbers dialed constitutes a search, that the acquisition by means of the pen register of the record of the numbers dialed constitutes a seizure, and that in the absence of exigent circumstances or consent law enforcement officers may not procure the installation of a pen register without first obtaining a search warrant supported by probable cause.
(Emphasis supplied.)
My dissent in this case is for substantially the same reasons that I set out in my dissеnt in Sporleder. Although I remain convinced that the Colorado Constitution must ultimately be interpreted by the Supreme Court of this state, I am uneasy with decisions of this court which reach a result different from the United States Supreme Court‘s interpretation of nearly identical language in the United States Constitution, particularly where, as in Sporleder, this court‘s rationale for departing from the Supreme Court‘s analysis of the Fourth Amendment in favor of an interpretation of Article II, section 7 of the Colorado Constitution is never plainly demonstrated.
An individual has an expectation of privacy in the content of a telephone conversation, but no expectation of privacy attaches to the specific number which has been dialed. It is the content of a conversation which the Constitution protects and not the information necessary to make the telephone connection. Sporleder, 666 P.2d at 146 (Erickson, C.J., dissenting). The analysis aрplies with even greater force to toll records which document only those calls individually billed to the telephone subscriber.
When a person uses a telephone to make a toll call he knows that there will be a toll or charge incurred for the use of the phone. The calling number is billed on a monthly basis for toll calls reflected in the business records of the telephone company. Every person who uses a telephone expects to be billed for long distance calls and cannot reasonably invoke a claim that he has a right of privacy in the telephone records which reflect the toll calls he has made in a particular month.
In my view, the exclusionary rule should not be applied in this case because the law enforcement officers were acting with the reasonable belief that their conduct did not violate the constitutional rights of the defendаnt. See section
The majority opinion states that, since Sporleder was explicitly based on and foreshadowed by Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (decided prior to the complained of conduct in this case), appellant‘s good faith reliance on Smith v. Maryland was misplaced. In Charnes, we held that an individual has a reasonable expectation of privacy in the content of his bank records. There, we emphasized that the substance of the requested bank records was a protected interest. We did not find, however, that the fact that there may or may not have been a financial transaction was a protected interest.
The majority‘s finding in this case necessarily requires of police officers a presci-
In my view, telephone subscribers have no legitimate expectation of privacy in toll records of the telephone company. I respectfully dissent.
I am authorized to say that Justice ROVIRA joins me in this dissent.
Erin Lucele BOND; her parents, Wendell Anson Bond and Eileen Marie Bond; her brother, Ryan Ralph Bond; and her sister, Sydney Noterman Bond, Petitioners, v. The DISTRICT COURT In and For the COUNTY OF DENVER and The Honorable Roger Cisneros, One of the Judges Thereof, Respondents.
No. 83SA390.
Supreme Court of Colorado, En Banc.
April 30, 1984.
Rehearing Denied May 21, 1984.
Notes
(Emphasis supplied.)However, the Court finds that People v. Sporleder is controlling in this case. That is certainly a very restrictive case, particularly when we consider that it is, in effect, far broader than the United States Supreme Court decision.
With that case decided, however, I feel that I must reverse my previous ruling, and will order that the evidence be suppressed.
- A State Grand Jury is presently impaneled pursuant to the provisions of Title 13, Article 73, C.R.S.1973.
- The Attorney General or his designee is authorized to present evidence to the State Grand Jury.
- Certain information and allegations concerning violations of penal statutes have come to the attention of the Attorney General which may require investigation by the State Grand Jury.
- In order to determine whether a sufficient basis exists for a State Grand Jury investigation of said allegations or whatever other action may be deemed appropriate by the Attorney General, a review of the items sought to be produced is necessary.
- The disclosure of the existence of this request could impede the investigation being conducted and thereby interfere with the enforcement of the law.
The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference.... Fourth Amendment protection [cannot exist] depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls.... We are not inclined to make a crazy quilt of the Fourth Amendment ....
442 U.S. at 745, 99 S.Ct. at 2582.No person subpoenaed to testify or to produce books, papers, doсuments, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in this section, for his failure to so testify or produce such objects if, upon filing a motion and upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:
(I) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;
(II) Compliance with a subpoena would be unreasonable or oppressive;
(III) A primary purpose of the issuance of the subpoena is to harass the witness;
(IV) The witness has already been confined, imprisoned, or fined under this section for his refusal to testify bеfore any grand jury investigating the same transaction, set of transactions, event, or events; or
(V) The witness has not been advised of his rights as specified in paragraph (a) of this subsection (4).