People v. Timmons

(App.1984); Idaho Corporation Parker S. Guard-Life Manufacturing Corp.,

Hardware

N.Y.2d 428 N.Y.S.2d 406 N.E.2d Olympian fact that is not liable damages, does indicate

that this case should be dismissed. In its

complaint, Memorial Gardens asked that

Olympian enjoined inducing cus

tomers to breach cancel their contracts Therefore,

with Memorial Gardens. we re

mand Appeals this case to the Court of

with directions to remand to the district

court for proceedings further on Memorial request Olympian

Gardens’ be en

joined interfering with Memorial Gar

dens contracts.

III.

Our result mandates a reversal of portion judgment district court

awarding attorneys Olym fees and costs to

pian. 54(d), Under C.R.C.P. costs are al

lowed prevailing party, and this

opinion makes clear that Memorial Gar bringing

dens’ of this action was not frivo § groundless.

lous or 13-17-101 et

seq., 6 Supp.).

Judgment reversed and remanded. Colorado,

The PEOPLE of the State

Plaintiff-Appellant, TIMMONS,

Linda J. Patrick Allen Tim mons, Timmons, Timothy Edward Jesse Morris, Stoops, Gino William Otto De Russel, Robert L. Atty., Douglas Dist. S. fendants-Appellees. Wamsley, Deputy Atty., Chief Dist. Clif- No. 84SA49. Cronk, Deputy ford R. Atty., Dist. Colora- Springs, plaintiff-appellant.

Supreme Court of En Banc. Torbet, Randolph John Springs, Colorado for Linda J. Timmons. Oct.

Benjamin Waxman, Tegtmeier S. & Sears, P.C., Springs, for Patrick Allen Timmons. Gonzales, Fla., Tampa, Utilizing grand jury subpoenas, detec-

Anthony F. for tives from the S.C.A.T. unit Timmons. also obtained Timothy Edward the telephone toll records of Timmons and Aurora, Dulaney, L. for Jesse Patrick during Vicars on at least three occasions Morris. Gino 1981 and 1982. These toll records were Boulder, Bittman, for William Howard working available to all the case officers on Stoops. presented grand and Otto were never to the

jury, although Detective Kessler testified grand jury as to their contents before the DUBOFSKY, Justice. of the December after the arrest interlocutory appeal under In this C.A.R. records, Through defendants. these toll 4.1, an El County contest Paso officers located and conducted surveillance suppressing order District Court evidence conspirators, suspected including Timo- toll gathered telephone Timmons, thy and Patrick and Florida wiretap, and a as well register1 as all Ohio. thereof. fruits We affirm order of the August On with court authori- district court. zation, officers install- S.C.A.T. unit Early two confidential infor- pen register ed a on the apprised Springs police mants of- suppression hearing, Holmes Road. At the defendants, ficers Linda Timmons parties stipulated all that the court authori- Vicars, distributing James large and were permitting zation installation of the quantities marijuana from their house at a search was not Holmes in El County. equivalent Road Paso finding and not state did informants, According to Timmons pen register operat- cause.3 The routinely fly continuously Vicars recruited couriers to ed until October Florida, pick up cars loaded with marijuana date, On that El County Paso District drive back to Colorado. The Florida Attorney applied under section operation, stated, end one informant Supp.) court for a Timothy was under the direction of permitting interception order of wire Timmons. Patrick (wiretap) communications on the support 14350 Holmes Road. In of this Beginning April Detectives Don- application, the district attorney appended Kessler ald and C.R. Lucht of the Metro Kessler, the affidavit of Detective summar- unit2 an op- S.C.A.T. mounted undercover izing gathered the information confi- corroborating eration aimed at the infor- informants, opera- dential the undercover allegations. Posing electricians, mants’ pen register. The affidavit the officers were admitted 14350Holmes stated, also and Detective Kessler acknowl- there, Road number of times. While edged hearing, at the that the toll records bag Detective Lucht containing saw a trash preparing were used in The affidavit. an estimated eight pounds marijuana. approved thirty-day wiretap, He also noted one that on occasion an subsequently extended its order an ad- associate Timmons and Vicars arrived thirty days. ditional pouch currency. with leather full of addition, a friend of Timmons and day Vicars On December same told Lucht that had terminated, Vicars once wiretap “fronted” search warrants drugs to person. another Vicars, were issued for the homes of Linda pen register composed 1. A County records numbers dialed of officers from the El Paso from a and counts the Springs Sheriff’s office and the Colorado Police incoming number of It calls. does not record Department. or monitor conversations. authorizing pen register 3.The court order Metropolitan Spe- 2. "Metro S.C.A.T.”stands not in before this the record court. Apprehension cial Criminal Team. This unit is Angela Stoops, that such evidence was the fruit Timmons and William wiretap, Jesse Morris’ automobile. and toll record well as for evi- Timmons, Pat- for Linda Arrest warrants dence. Timmons, Timmons, Timothy Jesse

rick People argue appeal The that the dis- Stoops also is- and William were Morris in applying Sporleder trict court erred ret- for all warrants applications sued. roactively refusing and in the stat- affidavit of supported Ser- were utory “good exception” Shull, describing the contents geant Daniel register and toll record evidence. We re- intercepted phone calls and of a number ject both of these affirm contentions and surveillance of derived from observations suppression the order. suspects, by the Kessler affidavit the wiretap. used to obtain the that had been I. the defendants On December In we held that the use of a conspiracy possess to indicted for were pen register is a search and seizure under distribution,4 marijuana possession of section 7 of the Colorado Consti- dispense,5 and as marijuana with intent to tution, and that the installation of trial, special Before the de- offenders.6 preceded by the register therefore must be suppress all evidence fendants moved to The district issuance of search warrant. pen regis- gathered through the use of the court, applying retroactively this rule to The district court7 ter and toll records. place events that took in 1981 and motion, applying People v. granted this register suppressed all toll record and (Colo.1983) 666 P.2d 135 retro- People argue that the evidence. The court actively8 suppress pen register all to applying Sporleder retroactively. erred toll record evidence9 obtained without determining retroactivity In the of a rule warrant, holding that the statu- search procedure, of criminal this court has con- § 16-3-308, tory “good exception,” 8 sistently followed the lead of the United (1983 Supp.), apply. did not this C.R.S. On See, e.g., People Court. basis, the district court struck from the Hardin, 199 607 P.2d 1291 Colo. wiretap application supporting affidavit the (1980); Moreno, People v. 176 Colo. information, pen register all toll record and recently, in 491 P.2d 575 Most Peo along evidence derived with all surveillance Walker, (Colo. ple P.2d 117 666 pen register, from the toll records 1983), adopted retroactivity analysis the we information af- found that without this the Denno, cause; set forth Stovall v. fidavit failed to establish L.Ed.2d therefore, 1199 suppressed all the court also “(a) (1967), purpose which considers to wiretap Finally, evidence. district standards, (b) be served the new suppressed gathered evidence enforcement au and the extent of reliance out-of-state surveillance residence standards, (c) old and vehicle searches thorities on the 18-2-201, inaccuracy proposition, C.R.S. and 18-18- of this the effect Sections 106(8)(b) (1983 ruling Sporleder retroactively Supp.). was to (Sporleder was decided after the 18-18-106(8)(b), (1983 Supp.). was installed and indictments obtained this 5. Section case), how we treat the district and that ruling appeal. court’s Supp.). 6. Section judge suppressed applied Sporleder 9.The district court to toll 7. The district court who judge pen register. who had au- records as well as the Since that evidence was not the same ruling, thorized have extended the reason- the use we wiretap. ing require a search police may People v. before obtain toll records. the issue "[s]ince 8. The district court ruled challenge prescience prior ques- arose or trial the of the court’s rul- conviction Despite not arise.” on this issue. does justice protects privacy administration of of a Colorado Constitution on the effect application of the new stan- retroactive customers institutional records. States v. dards.” In United Charnes 200 Colo. 587, 102 L.Ed.2d we held that customers the United States expectation retain reasonable analysis abandoned this three-factor in bank records of the customer’s financial cases, holding instead in fourth amendment transactions. A customer does not intend rulings all fourth amendment expectation by opening to forfeit all applied retroactively convic shall account, reasoned, bank we both because not final at the time of the tions that are disclosure of information is incidental to urge The defendants now decision. main purpose, customer’s and because again we once follow necessity use banks is a business adopt Supreme Court and the Johnson entirely voluntary. and thus not In so “bright approach in line” search and sei finding, contrary conclu People suggest while the zure Miller, sion in United States v. 425 U.S. application analysis would Walker 435, 1619, 96 S.Ct. 48 L.Ed.2d 71 in retroactivity defeat in this case. which the Court held that custom require This case does not us to choose pri no of expectation ers have reasonable approaches. between these two John- vacy in bank records. son, the are Court noted that there three categories retroactivity of cases in which Sporleder explicitly ration- extends the firmly have been rules established pen registers. ale of Paral- DiGiacomo precedent, so that a court should case, leling reasoning of earlier our analysis neither Stovall nor John- telephone necessity found that use is “bright approach. line” Among son these supplied telephone that information to the categories is the in situation which the company merely is incidental to that neces- “merely applied prece- has settled therefore, sity; voluntary no forfeiture of dents to and different new factual situa- telephone privacy occurs when a is used.11 cases, tions .... In such it has been a Sporleder, P.2d at We 141. concluded foregone conclusion that of rule cases, case in applies later earlier because later any decision has not difference between a altered the bank custom- way.” Johnson, in any rule material privacy er’s interest in bank records U.S. S.Ct. at We 2587. view privacy subscriber’s interest Sporleder falling category within this record numbers dialed cases. from a house is too insubstan- justify tial to Sporleder is one of a a constitutional differentia- series cases II, affirming that article 7 of section tion in treatment. Illinois, Quoting Adams v. 405 U.S. n. 2586-87 L.Ed.2d 202 S.Ct. 31 L.Ed.2d 202 we also complete retroactivity held Walker that is to be afforded constitutional rule whose “ma Sporleder expands adopts as well as the ra- jor purpose aspect ... is to overcome an tionale DiGiacomo. We noted in substantially impairs criminal trial example, subjec- that the customer retains a truth-finding function and so raises serious expectation imparted tive that information questions accuracy guilty about ver purposes business will be used not also for Contrary dicts-” at 117-18. to the police purposes. expec- We also found that this People’s position appeal, in this reasonable, such rules are objectively is tation inasmuch as applied ones that retroac government use of the information disclosed rather, tively; merely comprise such rules one poses privacy a risk to far in excess of the risk category of cases in which has posed by telephone company use of that same through application analy been afforded P.2d at information. 666 141-42. This reason- set forth sis in Walker and Stovall. See United equally applies well to bank records and is Johnson, n. 548-49 reasoning in consonant with the DiGiacomo. DiGiacomo, 18-1-901(3)(1), C.R.S., As in our

Id. at 143. as a result of a Sporleder relied on the Colorado Consti- good faith mistake or of a technical viola- tution and tion. contrary. Smith (2) As used in subsection of this sec-

Maryland, tion:

Thus, Sporleder and DiGiacomo (b) “Technical single problem both violation” apply a rationale means a reason- good customer institutional able faith reliance upon a statute solely and both rest unconstitutional, which is later ruled section 7 of the Colorado Constit warrant which is later invalidated due to is ution.12 It for this reason that we have good mistake, prece- or a court recently explic noted “was dent which is later overruled. on, itly by, based foreshadowed People argue that the reason- ”, Spor- Charnes v. DiGiacomo and that ably in good relied faith upon Smith category leder therefore fell within that of Maryland, permitting the warrantless use delineated in in which set pen registers, could not realize that precedent applied tled to a factual misplaced this reliance was until our deci- situation. 682 P.2d Thus, sion in was announced. today We reaffirm Spor- maintain, they the evidence here was seized basically applies principles leder enun as a result of a “technical violation” and properly ciated in thus it should be admitted under section 16-3-308. applied retroactively was this case.13 ago, We affirm Several therefore the district court’s months we suppression argument There, of and toll record this in Corr. we ex evidence. plained that Sporleder did not “overrule” Smith; contrary, Sporleder derived

II. DiGiacomo, directly from which turn II, Supp.) upon Section 8 based article 7 of section provides: Colorado Constitution. 682 27. indepen Given the existence of which this Evidence is otherwise admissi- precedent, dent state proceeding

ble in a enforcement au criminal shall not be suppressed by reasonably the trial court if the court thorities cannot have relied on determines that inappli the evidence was seized Smith.14 Section 16-3-308 thus officer, by peace as defined in section cable to search and seizure in this case. addition, the court in DiGiacomo under seizure section 7 of the Colora- noted requires that rationale of California case do Constitution. A search and seizure relied, Supe judicial varying which Burrows v. different authorization in con- County, rior may San Bernardino 13 Cal.3d texts. Administrative searches conduct- be of 238, 590, Cal.Rptr. subpoena, 529 P.2d 118 166 had ed under of while been extended to cover well searches for evidence to be used in criminal Mejia, People proceedings Cal.App.3d require supported bank records in 95 search (1979). Cal.Rptr. by probable Publishing 233 200 cause. Oklahoma Press Walling, Colo. at n. Company P.2d at n. 5. U.S. 66 S.Ct. govern- 90 L.Ed. Once a designated mental intrusion a search ultimately has been 13. We held in DiGiacomo that consti- meaning in the seizure constitutional of tutionally-protected bank in the context terms, matter, may those it be foreseen that a warrant of an administrative be seized required private police, through subpoena will be when the or a place of a search war- that, request police, institution make the People rant. The contend because of intrusion. holding, did in- DiGiacomo not foreshadow our sistence that seizure unit, requires by records mo, a search warrant. In DiGiaco- 14.The S.C.A.T. aided attor- district office, clearly governmental ney’s necessary held deemed it obtain prior regis- intrusion into bank is a records search court order to installation of the pervasive legislation. federal the district is af- exten- order of After studies, Congress III sive enacted Title firmed. Crime and Safe Omnibus Control ERICKSON, C.J., dissents, (Title III), and ROVI- Streets Acts of 1968 18 U.S.C. § seq., inter- J., regulates 2510 et which RA, joins in the dissent. ception certain wire and oral communica- ERICKSON, Justice, dissenting: Chief by tions both federal and state officials. respectfully I dissent. provides The federal statute latitude for legislatures to legislation state enact I. is consistent with and which furthers the I Sporleder was decided dissented When III, policies Title and Colorado’s statute because, view, my of a the use governing electronic was in surveillance in- implicate protectable does not closely patterned after act. the federal under either the United States or terests § seq., 16-15-101 et Constitutions. I continue to be- directly ap- federal While the act does not users not have a lieve ply registers, United v. New States expectation. in the legitimate Co., Telephone York 98 S.Ct. U.S. they Mary- dial. numbers See Smith federal authori- land, explain interpret policies 61 ties which underlying wiretap- (1979); aspects various L.Ed.2d ping great- nevertheless should be afforded (Erickson, (Colo.1983) 666 P.2d 144-48 weight er and deference states whose that, C.J., dissenting). while also believe subject product largely laws on the are ultimately the Colorado Constitution must of, designed implement, and are federal interpreted by Court of policies. Colorado, this court substantial- should not course, pronouncements, Federal can- ly depart from the decisions the United dispositive not be of state issues in areas interpret par- Court which fully preempted are not the federal language provisions allel in the federal government. constitution, The state’s own involving constitution or similar same statutes, policies provide adequate issues, principled doing without reasons independent grounds legitimate diver- Lowry, so. See State v. 295 Or. gencies from federal decisions. But this (1983)(Jones, J., specially concur- only look in exceptional should cir- Pollock, ring); Sep- State Constitutions to the state cumstances constitution when Rights, Sources arate Fundamental depart precedent it elects to the (1983). L.Rev. Rutgers Supreme interpreting United States Court view, my provisions In when of the Colo- provisions similar of the federal constitu- closely parallel rado Constitution the feder- attempt tion. A state court should to care- constitution, al or in areas in which state fully why set forth reasons it that believes or pursuant rules statutes are to enacted or policy state or law leads to a different closely policies, dovetail federal acts the or See, e.g., Right result. to Choose v. of the decisions (1982) Byrne, 91 N.J. 450 A.2d 925 should approached Court with defer- (divergence precedent The eavesdropping ence. area of electronic justified history is because the text wiretapping subject has expansive been the the constitution state is more Assuming amounting obtaining ter. facts of a arrest in home favor of a war- were indeed cause available to law enforcement time, U.S. at rant." 457 102 S.Ct. at Given judicial preference at that strong authorities it would have been no the for searches con- warrants, see, more troublesome to e.g., obtain a search warrant the ducted under Ventresca, to obtain the than court order. In United States United v. at U.S. 102 light v. Johnson the Court "in any stated that of the at 85 S.Ct. 741 13 L.Ed.2d 684 traditionally protection regarding validity constitutional accorded doubts a search should home, police obtaining of the officers be resolved in favor of likewise regarding validity should resolve doubts warrant. rule, (2) and due to a than the federal constitution extent of reliance law); body State v. pre-existing of state enforcement authorities on the old stan- dards, Hunt, (3) N.J. 450 A.2d 952 effect the administra- J., (structural (Handler, concurring) differ- justice of a application retroactive federal constitu- ences between state and new standards. See also tions, concern, Walker, matters of state justify

and state traditions a different re- IAnkletter, As in I rule believe the an- constitution). sult under the state’s nounced in does not affect the process. truthfinding The information ob- II. pen tained by register is a business holding in Sporleder, Given this court’s I generated record contemporaneous- would nevertheless decline de- ly with the use of a and is not retroactively. my view, cision In ra- addition, likely to be unreliable.1 In in the tionale of our decision Charnes Di light of the pen regis- differences between Giacomo, 200 Colo. 612 P.2d 1117 practices ters Chames, issue in necessarily does not extend to applicable and the clear standards registers “a foregone such that it is conclu registers Smith, announced in applies sion that the rule of the later case could reasonably have relied the Su- earlier because later decision preme my view, rule. Court’s the retro- has in fact in any altered rule active application of the new rule an- way.” material United States v. nounced would not advance 537, 549, 73 any policies underlying the exclu- registers Pen do not rule, sionary only would result implicate in the same interests that are suppression of relevant evidence. De- volved in of bank the disclosure States, sist United which was issue in As I stat Chames. 22 L.Ed.2d 248 way Sporleder: ed dissent in ROVIRA, does not say J., record authorized to conversation; of any content it joins me in dissent. empha-

records the number dialed. We

sized in Chames that substance of sought protected

the bank records was a

interest, not the there

may not have been a financial transac-

tion. The intrusion in into the Chames of a person’s substance economic life is MARSHALL, Donald greater much than recording of tele- Petitioner-Appellant, phone numbers which have been dialed. 666 P.2d at KORT, Haydee Superintendent, falling squarely case view this under Hospital, Colorado State Walker, Linkletter v. Respondent-Appellee. 1731,14 L.Ed.2d 601 In Link No. 82SA518. letter, formulated three-part resolving questions test for deal Supreme Court of with the of new constitu En Banc. tional procedure. rules of criminal Oct. test, Denno, restated Stovall v. 293, 297, (1967), requires a considera

tion of purpose served case, present 1. In obtaining obtained the information basis for a warrrant. from the used form

Case Details

Case Name: People v. Timmons

Court Name: Supreme Court of Colorado

Date Published: Oct 22, 1984

Citation: 690 P.2d 213

Docket Number: 84SA49

Court Abbreviation: Colo.