Petition for Writ of Certiorari — Colorado v. Corr

§ 4. ‘ss 1 08 /) ) ee es U.S.

JUN 29 1984

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES"

OCTOBER TERM, 1983

THE PEOPLE OF THE )

STATE OF COLORADO, )

) PETITION FOR

Plaintiff-Petitioner, ) WRIT OF

) CERTIORARI TO

vs. ) THE SUPREME

) COURT OF

CASEY CORR, ) COLORADO

)

Defendant-Respondent. )

ROBERT L. RUSSEL

(3043)

District Attorney

GEORGE VAHSHOLTZ

(7179)

Asst. District

Attorney

DAVID H. ZOOK (3031)

Chief Deputy District

Attorney

Colorado Fourth Judicial

District

Colorado Springs, CO

80903

Tel:(303) 471-5861

Attorneys for

Plaintiff-Petitioner

QUESTION PRESENTED FOR REVIEW

Did the Supreme Court of Colorado have an

adequate, bona _ fide, separate, independent,

non-federal ground upcn which to distinguish Article

Il, Section 7 of the Colorado Constitution from the

Fourth Amendment?

TABLE OF CONTENTS

Question Presented for Review

Table of Contents

Table of Authorities

Jurisdictional Statement

Statement of Case

Argument - Issue

Conclusion

Appendix

Opinion of Colorado

Supreme Court - Appendix

Application for Stay

Pending Certiorari - Appendix

Order of Colorado Supreme

Court - Appendix

16

18

40

44

TABLE OF AUTHORITIES

1. Carroil v. U.S., 267 U.S. 132, 45 S.

Ct. 280, 69 L-Ed. 543 (1925)

2. Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975, 26 L.Ed. 2d 419, 1970

3. Charnes v. DiGiacomo, Colo. 612 P.2d

1117

4. Hernandez v. People, 153 Colo. 316,

385 P.2d 996 (1963) & 385 P.2d 996, 998

5. Katz v. U.S., 389 U.S. 347, 88 S.Ct.

507, 19 L.Ed. 2d 576 (1967)

6. Mapp v. Ohio, (367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed. 2d 1081, 1961)

7. Michigan v. Long, 103 S.Ct. 3469, 77

L.Ed 2d 1201 (1983

8. People v. Bannisier, Colo. 607 P.2d

987 (1980), 449 U.S. 1; 101 S.Ct. 42;

66 L.Ed. 2d | (1980)

9. People v. Sporleder, Colo. 666 P.2d

135 (1983)

10. Rakas v. Illinois, (439 U.S. 128, 99

S.Ct. 421, 58 L.Ed. 2d 387, 1978)

ll. Smith v. Maryland, 442 U.S. 736, 61

L.Ed. 2d 220, 99 S.Ct. 2577 (1979)

12. United States v. Miller, 425 U.S.

435, 96 S.Ct. 1619, 48 L.Ed. 2d 71

13. Weeks v. U.S., (232 U.S. 383, 1914)

14. Wolf v. Colorado, 1i7 Colo. 279, 187

P.2d 926, 1947

PAGE

12

12

13, 14,15

10,11

6,13,14

15,17

11

15

12

13,14,15

12

5,6,9, 13,

14,15

13

10

10

JURISDICTIONAL STATEMENT

On April 30, 1984, the Colorado Supreme Court

ordered that evidence of telephone toll records be

suppressed and striken from an affidavit offered in support

of a wiretap application on the ostensible ground that such

records had been obtained in violation of Article Il, Section

7, of the Colorado Constitution.

The Court's. order came in response to an

interlocutory appeal prosecuted by the People. Rule 4.1 (g)

C.A.R. prohibits petitions tor rehearing and so none was

sought.

This Petition tor a Writ of Certiorari to the Colorado

Supreme Court is authorized under 28 U.S.C.A. 1257 and

2101 as well as Rule 17 of the Revised Rules of the

Supreme Court of the United States. The decision of the

Colorado Supreme Court rejects this Court's construction

of "search" as set forth in Smith v. Maryland, 442 U.S. 736,

61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979); and places upon

those charged with investigating crime in Colorado a

- 2. 2 oo oe

handicap unique to this state. !

While the Colorado Supreme Court purports to find

that its decision does not involve a question of federal law,

it is ultimateiy bottomed on this Court's decision in Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed. 2d 576

(1967). The Colorado Supreme Court's erroneous

interpretation of Katz, id., conflicts with the applicable

decision of this Court, ie., Smith, supra.

Further, this attempt of the Colorado Supreme Court

to differentiate Article II, Section 7 of the Colorado

Constitution from the Fourth Amendment constitutes

nothing more than a pretense designed to preclude the

review by this Court that the People of the State of

Colorado now seek.

| Surely a point may be reached when the unreasonable

extension of accused's rights deprives the rest of the

citizens of equal protection of the law as assured by the

14th Amendment. Indeed, the very records which the

Supreme Court of Colorado holds can only be obtained upon

a showing of probable cause are often necessary to

establish probable cause. Such a rule is a most crippling

blow to law enforcement.

—

STATEMENT OF CASE

The cgefendant was indicted by a statewide grand jury

for possession cf more than one ounce of marijuana and

conspiracy. Her husband was charged with possession of

cocaine, possession of more than one ounce of marijuana,

and conspiracy and importing of more than one hundred

pounds of marijuana. Three others were also charged with

possession and conspiracy (opinion, p. 2).

During the investigation by the Colorado Organized

Crime Strike Force, investigators obtained telephone toll

records, using grand jury subpoenas (opinion, p. 3). The toll

record information was then used to obtain a wiretap which

produced the evidence resulting in the indictments

(opinion, P. 11, 12, 24, 27, 29).

The defendant moved to suppress the use of the toll

records and of the wiretap evidence on the basis that the

toll records were seized as the res ilt of an unconstitutiona!

search and the wiretap evidence was the poisonous fruit of

such search (opinion, p. 2, 15). The trial court granted the

motion to suppress and the People filed an interlocutory

appeal with the Colorado Supreme Court. The Colorado

Supreme Court affirmed the suppression of the toll

records, ordered the toll record information excised from

the affidavit offered in support of the wiretap and ordered

the triai court to reconsider the admissibility of the

wiretap evidence by testing the sufficiency of the wiretap

affidavit sans the toll record information (opinion, p. 2, 3,

27, 28 and 29). Chief Justice Erickson and Justice Rovira

dissented.

On May 24, 1984, the Colorado Supreme Court stayed

its order affirming the trial court's suppression of the toll

records until June 29, 1984, stating that any further stay

would have to be ordered by this Court.

It is from the order of suppression of the telephone

toll records that the People now petition this Court for

relief.

ARGUMENT

ISSUE

Did the Supreme Court of Cclorado have an

adequate, bona ffide, separate, independent,

non-federal ground upon which to distinguish Article

Il, Section 7 of the Colorado Constitution from the

Fourth Amendment?

The issue presented for review is really one of

jurisdiction. Indeed, Smith v. Maryland, supra is clearly

the "law of the land." Whether the Colorado Supreme

Court must follow its edict will be determined by whether

this Court has jurisdiction to review the Colorado decision.

The Constitution of Colorado states at Article Il,

Section 7,

"Security of person and property - searches -

seizures - warrants. The people shall be secure in

their perscns, papers, homes and effects, from

unreasonable searches and seizures; and no warrant

to search any place or seize any person or things shall

issue without describing the place to be searched, or

the person or thing to be seized, as near as may be,

nor without probable cause, supported by oath or

affirmation reduced to writing."

The Fourth amendment to the United States

Constitution states,

"Searches and seizures regulated. The right of the

people to be secure in their persons, houses, papers

and effects against unreasonable searches and

seizures shall not be violated; and no warrant shail

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to

9

be searched, and the persons or things to be seized."

It is apparent that, save for the requirement of the

former that the probable cause be reduced to writing (see

Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963),

the two provisions are virtually identical.

The Constitution of our Centennial State was, of

course, adopted one hundred years after the Constitutional

Convention held in Philadelphia in 1776. Who could

reasonably deny that Article Il, Section 7, was derived

from and modeled after the Fourth Amendment? History

belies the only recent representation of the Colorado

Supreme Court that the Constitution of Colorado requires

a view of “search and seizure" more restrictive on the

government than does the Fourth Amendment. Indeed, the

development of the exclusionary rule in Colorado is the

direct result of the requirements of the Fourth Amendment

as construed by this Court. Ironically, it was in Wolf v.

Colorado, 117 Col. 279, 187 P.2d 926 (1947), that the

Colorado Supreme Court reiterated its then long-standing

refusal to exclude evidence which had _ been

unconstitutionally obtained --- despite the doctrine of

Weeks v. United States, (232 U.S. 383 (1914).

This narrow view of the Colorado Constitution was

10

=e SSR REESE

later, of course, found by this Court not to conflict with

the Fourth and Fourteenth Amendments ( id, 338 U.S. 25,

69 S.Ct. 1359, 93 L. Ed. 1782 (1949).

Thus, until Mapp v. Ohio, (367 U.S. 643, 81 S.Ct.

1684, 6 L. Ed. 2d 1081, (1961), the Supreme Court of

Colorado refused to apply the exclusionary rule to illegally

obtained evidence, a sanction which this Court had imposed

in Federal prosecutions since 1914 (see Hernandez v.

People, supra). One could hardly seriously contend, then,

that from 1914 to 1961, the Constitution of Colorado was

more restrictive regarding matters of search and seizure

than was the Federal Constitution.

Directly in response to Mapp, supra, the Colorado

Supreme Court issued Rule 41, Colorado R. Crim. P.,

providing for the manner in which search warrants should

be issued and making evidence obtained by an unlawful

search and seizure inadmissible in Colorado Courts

(Hernandez v. People, supra, 385 P.2d 996, 998). At that

point, then, Colorado's adoption of the exclusionary rule

was wholly and completely the creature of the Fourth

Amendment as interpreted by the United States Supreme

Court. Since 1961, the Colorado Constitutional provision

has remained literally unchanged.

ll

From 1961 forward, the development of Colorado

search and seizure law was premised on the decisions of

this Court. 1980, however, marked the beginning of a

departure by the Colorado High Court from search and

seizure law as understood and interpreted by this Court.

Whether the Colorado detour began as one of intent or

simply mistake, is not entirely clear. People v. Bannister,

Colo., 607 P.2d 987 (1980), 449 U.S. 1; LOL S.Ct. 42; 66 L.

Ed. 2d 1 (1980), involved the search of a mobile motor

vehicle prompted by the plain view in the car's open glove

box of some stolen lug nuts. The case was a classic

example of a search governed by Chambers v. Maroney,

399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed. 2d 419 (1970), yet

the Colorado opinion made no reference to or citation of

Chambers, or for that matter, of Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925), in

upholding the trial court's order of suppression. This Court

later reversed the Colorado Supreme Court upon the

People's Petition for Certiorari.

In Bannister, supra, the Colorado Court provided

some portent of things to come when it said,

"...We note that this Court has not yet considered

whether the standing limitations imposed by Rakas v.

Illinois, (439 U.S. 128, 99 S.Ct. 421, 58 L. Ed. 2d

387 (1978)... apply to suppression motions based on

12

the provisions of Article II, Section 7, of the

Colorado Constitution." id, 607 P2d, 987, 988.

In Charnes v. DiGiacomo, Colo., 612 P.2d 1117

(1980), the Colorado Supreme Court, while admitting the

Colorado Constitutional protection from unreasonable

searches to be "similar to the Fourth Amendment," held

that the test in Colorado regarding one's expectation of

privacy in bank records was that enunciated by this Court

in 1967 in Katz v. United States, 389 U.S. 347, 88 S.Ct.

507, 19 L. Ed. 2d 576, rather than the 1976 decision of this

Court directly on point of United States v. Miller, 425 U.S.

435, 96 S.Ct. 1619, 48 L. Ed. 2d 71. Thus, contrary to

Miller, id., the Colorado Court found that a bank customer

did, indeed, have an expectation of privacy in such records.

In People v. Sporleder, Colo., 666 P.2d 135 (1983), the

Colorado Supreme Court continued in its refusal to accept

the more recent rulings of the United States Supreme

Court. This time it was Smith v. Maryland, 442 U.S. 735,

61 L. Ed. 2d 220, 99 S.Ct. 2577, that the Colorado majority

found "“unpersuasive" and "unconvincing", (People v.

Sporleder, supra, Footnote 6). The Colorado High Court

again admitted that the Colorado Constitution is

"substantially similar to its federal counterpart." But, the

13

near identicalness of Article Il, Section 7 of the Colorado

Constitution to the Fourth Amendment notwithstanding,

the Colorado majority observed "we are not bound by the

United States Supreme Court's interpretation of the Fourth

Amendment when determining the scope of state

constitutional protections" (id., p. 140). The Court then

proceeded to find 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 that prior to its installation, unless a

search warrant had been obtained, the evidence so derivea

would be suppressed (opinion, p. 15).

Sporleder, supra, spawned two dissents. Chief

Justice Erickson noted that “our expectation of privacy

analysis is based on Katz v. United States .... supra .... and

its progeny" (id., p. 144).

In the case at hand, the Colorado Supreme Court

expanded its holding in Sporleder, supra, to encompass

telephone toll records as well. Explained Justice Lohr,

writing for the majority,

"Of course, Sporleder did not ‘overrule’ Smith;

Sporleder construed Article II, Section 7 of the

Colorado Constitution. It was explicitly (emphasis

supplied) based on, and foreshadowed by, Charnes v.

DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980)."

(opinion, p. 19).

14

Thus we see that Corr is based on Sporleder is based

on DiGiacomo is based on Katz.

Michigan v. Long, 103 S.Ct. 3469, 77 L. Ed. 2d 1201

(1983) addresses the issue of jurisdiction for review of State

Court decisions. Therein this Court said,

"we find that we have jurisdiction in the absence of

a plain statement that the decision below rested on

an adequate and independent state ground. It appears

to us that the state court 'felt compelled by what

it understood to be federai constitutional

consideration to construe...its own law in the manner

it did'." id., 103 S.Ct. 3469, 3478.

In the instant matter, we do indeed have a plain

statement that the decision of the Colorado Supreme Court

is rested on a state ground. But, is that ground truly

separate, adequate, independent and, most of all, "bona

fide"? (id. 103 S.Ct. 3469, 3476).

Chief Justice Erickson, would likely agree with

Petitioner that any independent basis for the Colorado

majority's rejection of Smith, supra, is contrived,

unpersuasive and anything but bona fide. Again writing in

dissent, he said,

",..Although I remain convinced that the Colorado

Constitution must ultimately be interpreted by

the Supreme Court of this state, 1 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

15

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A

from the Supreme Court's analysis of the Fourth

Amendment in favor of an interpretation of Article

Il, Section 7 of the Colorado Constitution is

never plainly demonstrated." (opinion, p. 3)

Clearly, saying so doesn't make it so. The

protestations of the Colorado Supreme Court that Article

Il, Section 7 of the Colorado Constitution differ markedly

from the Fourth Amendment in its restrictions upon the

government ring hollow. Clearly no true distinction exists.

CONCLUSION

While the Colorado Supreme Court has represented

its order of suppression to be independently bottomed on a

non-federal ground, this Court ought to require that the

Colorado Court, in effect, prove it. This Court ought to

ascertain whether such independent basis is "adequate"

and "bona fide".2

2 To require otherwise would mean to encourage a state

court to claim an independent non-federal ground in bad

faith in order to escape review. Indeed, what if the

Colorado Court had held that Article II, Section 7,

precludes the use of any documentary evidence obtained

from any source?

16

The Colorado exclusionary rule is, without question,

the child of the Fourth Amendment. The pyramid of

Coiorado decisions from eich the Colorado majority

claims support for its assertion of "independence" simply

piggy-back one another and have their genesis in the

federal decision of this Court in Katz, supra.

Petitioner urges this Court to find that the Colorado

Supreme Court has failed to demonstrate that the

"independent" basis for its order of suppression is genuine

and bona fide. Absent such showing its order ought be

reversed.

ROBERT L. RUSSEL (3043)

District Attorney

(7179)

Asst. District Attorney

DAVID H. ZOOK (3031)

Chief Deputy

District Attorney

Colorado Fourth Judicial

District

11 East Vermijo

Colorado Springs, CO 80903

Tel: (303) 471-5861

17

Xorg Vbel$-

\A AVR LTZ y |

APPENDIX

i8

SUPREME COURT, STATE OF COLORADO April 30,1984

CASE NO. 83SA415

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellant,

V.

CASEY CORR,

Defendant- Appellee.

Interlocutory Appeal from the District Court, Teller

County

Hon. William E. Rhodes, Judge

EN BANC RULING AFFIRMED IN

PART, REVERSED IN

PART, AND

CAUSE REMANDED

Robert L. Russel, District Attorney

Kenneth H. Jaynes, Deputy District Attorney

Colorado Springs, Colorado

Attorneys for Plaintiff-Appellant.

Robert S. Berger, P.C.

Robert S. Berger

Attorney for Defendant-Appellee.

JUSTICE LOHR delivered the Opinion of the Court.

CHIEF JUSTICE ERICKSON dissents and JUSTICE

ROVIRA joins in the dissent.

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,! and

conspiracy to possess more than one ounce of marijuana.2

Her husband, Michael Aukes, was charged with possession

of cocaine; 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

mar ijuana.4 Three others were also charged with

possession and conspiracy. Corr moved to suppress

evidence obtainec from telephone toll call records and a

wiretap. Her motion was granted on August 26, 1983.)

1/ Section 18-18-106(4), C.R.S. 1973 (1983 Supp.).

2/ Section 18-2-20!, C.R.S. 1973 (1978 Repl. Vol. 8).

3/ Section 18-18-105(1a), C.R.S. 1973 (1983 Supp.).

4/ Section 18-18-107(1)(e), C.R.S. 1973 (1983 Supp.).

The district attorney 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, whe 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

5/ ‘The incomplete record supplied on appeal does not

disclose who moved to suppress the toll record and wiretap

evidence. We have been informed through telephone

inquiry to Teller County District Court that Corr, Aukes

and defendant Abbott filed separate motions to suppress,

followed by an amended motion to suppress submitted by

Corr on behalf of herself, Aukes, Abbott and defendant

Black. These motions were denied. Corr alone then filed a

motion to reconsider, which was granted by the district

court. Because only Corr has made an appearance before

this court, she has been treated as the sole appellee.

6/ This interlocutory appeal was brought pursuant to

section 16-15-102(11), C.R.S. 1973 (1978 Repl. Vol. 8),

section 16-12-102, C.R.S. 1973 (1978 Repl. Vol. 8), and

C.A.R. 4.1.

amouwge&kigeag@g&@e&@ea@ig®ga& &eaas &

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 attorneys 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 empane! a

statewide grand jury pursuant to section 13-73-101, C.R.S.

See SB 8B SB ZB SSC RC aaa =

1973, to deal with Strike Force-related investigations.

Drug cases constituted the largest share of such

investigations. It was such a statewide grand jury that

handed down the indictments in this case, after hearing the

testimony of Strike Force investigators and others,

presented to it by Strike Force attorneys.’

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

7/_ The organization of the Strike Force has changed

substantially since the investigation in this case was

undertaken. In 1983, the legislature incorporated the

Strike Force into the Colorado Bureau of Investigation.

Ch. 267, sec. 1, 24-32-416 to -423, 1983 Colo. Sess. Laws

901. This removed the Strike Force from the Attorney

General's jurisdiction. At the same time, the legislature

established a special prosecution unit under the control of

the Attorney General to render legal advice to the Strike

Force. Ch. 267, sec. 2, 24-3!-105, 1983 Colo. Sess. Laws

901, 903.

or 1978.8 The grand jury functions of the Strike Force

staff attorneys derive authority from section 13-73-106,

C.R.S. 1973, which states that the presentation of evidence

to a state grand jury shall be made by the attorney general

or his designee. The authority for the investigative

functions of the Strike Force police officers at that time is

more difficult to ascertain. The Attorney General asserted

at the suppression hearing in this case that such

investigations were legitimated by the Attorney General's

"inherent authority." Yet this court has stated that the

Attorney General has no powers beyond those granted by

the general assembly. People ex rel. Tooley v. District

Court, 190 Colo. 486, 489, 549 P.2d 774, 777 (1976); see

section 24-31-101, C.R.S. 1973 (1982 Repl. Vol. 10).

8] The Strike Force was originally funded by the Law

Enforcement Assistance Administration (LEAA), a federal

agency. The LEAA required the creation of an "Organized

Crime Advisory Council" to set policy for the Strike Force.

The Advisory Council was made up of persons appointed

periodically by the governor and consisted of the Attorney

General, various district attorneys and police chiefs, and

others. After LEAA funds ran out in 1977 or 1978, the

Advisory Council continued to meet without any statutory

authority two to four times a year, at least until November

1982. In 1983 the legislature created an "advisory

commission" to set investigative guidelines for the Strike

Force. See ch. 267, sec. i, 24-32-419, 1983 Colo. Sess.

Laws 901, 902.

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 24-31-101(3), C.R.S. 1973;

see also section 24-31-104, C.R.S. 1973. The Colorado

Criminal Code defines peace officers as_ including

authorized investigators of the Attorney General; hence

the appointment by the Attorney General of investigators

in appropriate instances was contemplated by the

legislature. See section 18-1-901(3)(1), C.R.S. 1973 (1978

Repl. Vol. 8). The Attorney General claims that

investigation is ancillary to his duty to present evidence to

the state grand jury. Furthermore, under the Colorado

Organized Crime Control Act? (which went into effect on

July 1, 1981, while the investigation in the case at hand

was underway), when the Attorney General "has reason to

believe" that any person or enterprise may be in possession

of documents relevant to a racketeering investigation he

may issue a "civil investigative demand" requiring

production of the material for examination. Ch. 229, sec.

1, 18-17-107, 1981 Colo.

9/ Ch. 229, sec. 1, 18-17-101 to -109, 1981 Colo. Sess.

Laws 1015.

Sess. Laws 1015, 1022-25. ("Racketeering" includes the

drug charges alleged in this case. Ch. 514, sec. 48,

18-17-103(5\bX XIV), 1981 Colo. Sess. Laws 2022, 2032; ch.

229, sec. 1, 18-17-103(5XbXXIV), 1981 Colo. Sess. Laws

1015, 1018.) Presumably, the Attorney General could

develop such "reason to believe" through staff

investigations like those of the Strike Force. The Attorney

General claims that his appointment power, the definition

of peace officers, his duties under the statewide grand jury

statute and the Colorado Organized Crime Control Act,

and continuing appropriations for the Strike Force add up

to legislative sanction of the investigative activities of the

Strike Force. 10

1U/ In addition to elaboration of the grand jury and

investigative powers of the Strike Force, there was

prolonged testimony and discussion at the suppression

hearing concerning the prosecutorial powers of Strike

Force attorneys and other members of the Attorney

General's staff. By law, the Attorney General "shall

appear for the state and prosecute and defend all actions

and proceedings, civil and criminal, in which the state is a

party or is interested when required to do so by the

governor... ." Section 24-31-101(1Ma), C.R.S. 1973 (1982

Repl. Vol. 10); see also People ex rel. Tooley v. District

Court, 190 Colo. 486, 549 P.2d 774 (1976); People ex rel.

Witcher v. District Court, 190 Colo. 483, 549 P.2d 778

(1976). District Attorneys may also appoint members of

the Attorney General's staff as special deputy district

attorneys to prosecute cases. Ch. 184, sec. 1,

20-1-201(1Xc), 1979 Colo. Sess. Laws 769; cf. People ex

rel. Brown v. District Court,

Corr's central contention is not that the police

officers on the Strike Force had no authority derived from

the Attcrney 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, liense 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

TUT (Continued) 196 Colo. 359, 585 P.2d 593 (1978) (no

such appointment allowed under previous law). Corr

asserts that when neither the governor nor a district

attorney has requested action by the Attorney General's

office under these provisions, the Attorney General lacks

not only prosecutorial authority but investigative authority

as well. She cites Standards for Criminal Justice 3-3.1 (2d

ed. 1982) for this proposition. This standard describes how

a prosecutor should carry out his investigative function; it

does not purport to restrict a prosecutor's investigative

authority, from whatever source derived. We agree with

the Attorney General that statutory investigative powers

can exist independent of prosecutorial powers.

9

records for a telephone registered in the name of Casey

Corr, at a home in Forissant, Colorado, where she | 4d 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

13-73-101, C.R.S. 1973, to investigate gambling, theft,

conspiracy and drug charges. One of the stated bases for

seeking creation of a statewide grand jury was the

assertion that the Strike Force, responsible for the

investigation of multi-county criminal acts, would

"require" statewide grand jury investigations. The court

issued an order on February 18th empaneling a statewide

grand jury.

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

10

the grand jury proceedings to obtain Casey Corr's toll

records.!! On each occasion, the court ordered that the

subpoena 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

\!/ The following averments were made in support of the

motions:

1. A State Grand Jury is presently impaneled

pursuant to the provisions of Title 13, Article

73, C.R.S. 1973.

2. The Attorney General or his designee is

authorized to present evidence to the State

Grand Jury.

3, 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.

4, 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 iterms sought to be

produced is necessary.

5. The disclosure of the existence of this

request could impede the investigation being

conducted and thereby interfere with the

enforcement of the law.

11

toll records "to this Court or to an authorized

representative of the State Grand Jury."!2 Mountain Bell

was instructed in each subpoena not to disclose the

existence of the request until further order, and to direct

any questions to Karen Dunafon, a Strike Force

investigator. According to testimony at the suppression

hearing, the subpoenas were served on Mountain Bell by

David Kinard, another Strike Force investigator, and the

toll records were brought back by him to Strike Force

offices. The records, which were in the form of telephone

bills for individually billed calls, were then analyzed by

Dunafon and others trying to establish the dimensions of the

alleged drug network. They telephoned or wrote to

Mountain Bell to obtain subscriber information for the

numbers called, and then tried to determine whether those

called were involved in the criminal endeavor.

i2/, The motion and order for the subpoena issued on

March 24th are not in the record, but the record is

consistent with the inference that the procedure followed

for that subpoena was the same, and the parties have not

suggested otherwise.

12

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 16-15-102, C.R.S. 1973 (1978 Repl. Vol. 8). The

affidavit set forth information obtained during the

investigation from informants, other police officers,

surveillance and the toll records to establish the

requirements for wiretapping under subsections

16-15-102(2) and (4). The district court authorized the

wiretapping. It began on September 15th, the court

extended the duration of the wiretap authorization on

October 13th, and wiretapping was discontinued on

November |L5th. Corr claims that the wiretap evidence is

derived from the toll records, which were obtained through

an assertedly illegal search, and therefore must be

suppressed as fruits of that search under the rule of Wong

Sun v. United States, 371 U.S. 471 (1963).

On November 17, 1981, Strike Force

Investigator Simmons obtained a search warrant for the

13

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." The affidavit

neglected to mention that Aukes, Corr and the others had

13/' The arrests and the search were performed by Strike

Force investigators together with Teller County police

officers. The investigators, as peace officers, had

authority to arrest and search. See sections 16-3-102,

16-3-305, C.R.S. 1973 (1978 Repl. Vol. 8). There is some

discussion in the record concerning whether or not the

authority of the investigators as peace officers was

statewide - see People v. Wolf, 635 P.2d 213 (Colo. 1981)

and no arrest warrant appears in the record, but we do not

address these issues because they are not related to the

trial court's suppression order, and not presented for

review.

14

already been arrested. Also on December 2nd the court

issued an order authorizing the requested grand jury

investigation. !4 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 investigating grand jury subjects. Id.

The suppression hearing record is ambiguous concerning

what kinds of investigation, if any, the newly-appointed

grand jury investigators performed. Strike Force

Investigator Simmons testified that there was no further

field investigation of the four defendants arrested on

November |7th. However, he characterized his testimony

to the

14/ At the suppression hearing, a Strike Force attorney

stated that such an order was neither required nor

authorized by any legal authority, but it was customary for

the Attorney General to obtain one. Corr offers it as

evidence of irregularity, without claiming that the

procedure contravened law.

15

grand jury regarding these four after he was appointed a

grand jury investigator as investigative. A Strike Force

attorney also characterized the grand jury proceedings

following the arrest of the four as investigative, because

the seeking of witnesses, compelling of sworn testimony

and offers of immunity aided in ascertaining the scope of

the alleged drug trafficking conspiracy. Simmons noted

that the grand jury also indicted a fifth person who had not

been arrested on November 17th. The record does not

disclose the disposition of charges against this defendant,

who apparently did not join in the motions to suppress.

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

-T"1

ine

records and derivative evidence must be suppressed.

16

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.

il.

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 between 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:

av

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 conversation

in the privacy of the home or office,

locations entitled to protection under

Article Il, Section 7 of the Colorado

Constitution. The noncomitant 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 nurnber 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 call.

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.

18

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 we!l 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/ Although the United States Supreme Court held in

Smith v. Maryland, 442 U.S. 735 (1979), that there was no

legitimate expectation of privacy under the Fourth

Amendment in numbers dialed, it too rejected a distinction

between individually billed calls and other calls.

19

The prosecution urges that the -oll records

should not be suppressed under the Sporleder ruling because

the action of the Strike Force investigators constituted a

"technical violation" under ch. 188, sec. 1, 16-3-308, 1981

Colo. Sess. Laws 922. Under 16-3-308(2)(b), a technical

violation includes reasonable good faith reliance upon a

court precedent which is later overruled. Under

16-3-308(1), evidence seized by a peace officer as a result

of a technical violation shall not be suppressed. See People

v. Mitchell, 83SA224 (Colo. Mar. 5, 1984). The prosecution

suggests that the toll records should not be suppressed

15(Coritinued)

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) de-

pending 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.

20

because the Strike Force investigators were acting in good

faith reliance upon Smith v. Maryland, 442 U.S. 735 (1979),

which held that the release of information from pen

registers, and by implication toll records, did not

contravene any reasonable expectation of privacy under the

Fourth Amendment to the United States Constitution. Of

course, Sporleder did not "“overrule" Smith; Sporleder

construed Article II, Section 7 of the Colorado Constitution.

It was explicitly based on, and foreshadowed by, Charles v.

DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980). In Charnes

this court held that a bank customer has a reasonable

expectation of privacy under Article II, Section 7 of the

Colorado Constitution in the bank records of his financial

transactions.!6 But cf. United States v. Miller, 425 U. S.

435 (1976) (no such expectation of privacy under the Fourth

Amendment). When the courts apply settled precedent to

different factual situations, no real question of

retroactivity arises. United States v. Johnson, 457 U.S.

537, 549 (1982). In light of our decision in Charnes, Smith

v. Maryland supplied no basis for good faith reliance that a

16/ Without discussion, the standards enunciated in

Charnes were given retroactive application in Pignatiello v.

District Court, 659 P.2d 683 (Colo. 1983).

21

telephone customer enjoyed no reasonable expectation of

privacy in telephone toll records under Article II, Section 7

of the Colorado Constitution. Therefore, we hold that the

warrant and probable cause requirements recognized in

Sporleder as generally applicable to telephone records apply

to the searches here that took place in 1981, unless the

fact that they were done in the name of the statewide

grand jury dictates otherwise. We now turn to that

question.

Ill.

On each of the four occasions when Strike

Force investigators obtained Casey Corr's toll records, they

did so under the authority of what 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.!7 The requirement that the grand jury

17 For the purposes of the introductory portion of

Crim.P. 17, the grand jury stands in the place of the

prosecutor or defendant, and grand jury proceedings fall

within the scope of the phrase "trial or other hearing."

22

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, 597 P.2d 1152 (1978); see

also A v. District Court, 191 Colo. 10, 550 P.2d 315 (1976),

cert. denied, 429 U.S. 1040 (1977). Crim.P. 17(c) states

that the court "on motion made promptly may quash or

modify the subpoena if compliance would be unreasonable

cr oppressive." This rule embodies the restriction of

section 16-5-204(4)(iMI]I, C.R.S. 1973 (1978 Repl. Vol. 8),

which states that production of documents subpoenaed by a

grand jury shall not be required if upon motion and hearing

the court finds, among other things, that compliance would

be unreasonable or oppressive. !8

18/ Under section 16-5-204(4)(i), C.R.S. 1973 (1978 Repl.

Vol. 8),

No person subpoenaed to testify or to pro-

duce books, papers, documents, or other

objects in any proceeding betore 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 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

23

The prosecutor cites Oklahoma Press Publishing

Co. v. Walling, 327 U.S. 186 (1946), and its Colorado

progeny |? 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.

However, a grand jury subpoena without probable cause not

18/ (Continued)

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 before

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).

19/ Pignatiello v. District Court, 659 P.2d 683 (Colo.

1983); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117

(1980); Losavio v. Robb, 195 Colo. 533, 579 P.2d 1152

(1978); People ex rel. MacFarlane v. American Banco Corp.,

194 Colo. 32, 570 P.2d 825 (1977XAttorney General's

consumer protection subpoenas); A _v. District Court, 191

Colo. 10, 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040

(1977); see Gher v. District Court, 183 Colo. 316, 516 P.2d

643 (1973).

24

only must pass constitutional muster, but also must

comport with the "not unreasonable or oppressive" standard

under Crim.P. 17(c) and section 16-5-204(4)iXI1). Losavio

v. Robb, 195 Colo. 533, 537-38, 579 P.2d 1152, 1155-56

(1978). Where, as here, disclosure of seizure is withheld

indefinitely from a party having an expectation of privacy

in the subpoenaed materials (i.e., the telephone subscriber)

so that that party is denied the predisclosure hearing to

which he is entitled under section 16-5-204(4)i), it is left

to the court in subsequent proceedings to evaluate whether

the subpoena could have been quashed if tested under the

standards of that statute and, if so, to fashion an

appropriate remedy.29

20/ It is unclear whether indefinite nondisclosure is fully

consistent with the provisions of section 16-5-204(4) and

Crim.P. 6.9 protective of grand jury witnesses. It is also

unclear whether Oklahoma Press, which was premised on

the assumption that when documents are subpoenaed, "no

officer or other person (seeks) .... to seize or examine

(the subpoenaed) books, records or papers without .. .

sassent, otherwise than pursuant to orders of court

authorized by law and made efter adequate opportunity to

present objections," 327 U.S. a: 195, applies to a case where

records are obtained from a telephone company without

the subscriber's assent or is opportunity to present

objections. Aithough the situation was analogous, these

issues apparently were not raised in Charnes v. DiGiacomo,

200 Colo. 94, 612 P.2d 1117 (1980). In light of our holding,

they need not be resolved here.

25

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 aiso 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

affidavit. The mere fact that the toll records later were

referred to in grand jury testimony, although apparently

never presented to the grand jury, is insufficient to

establish through usage by the grand jury that the toll

records were the product of a grand jury subpoena.2! The

only other reason why these subpoenas might be deemed

jury subpoenas is that the toll records were turned over to

41 To hold otherwise would imply that any evidence of

which the grand jury was merely later informed could be

subpoenaed, without a warrant based on probable cause.

26

investigators who were, in some sense, affiliated with the

grand jury. The toll records were turned over to the Strike

Force investigators, although the subpoenas instructed that

they be delivered "to (the Denver District) Court or to an

authorized representative of the State Grand Jury." because

Mountain Bell believed that Strike Force investigators

were authorized representatives of the statewide grand

jury.22

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

22/ If the Strike Force investigators were authorized

representatives of the statewide grand jury, then, contrary

to Corr's allegations, the grand jury secrecy provisions of

Crim.P. 6.2 and 6.9(c) were not contravened.

27

investigative 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 13-73-106) together with his

power to appoint deputies and assistants necessary for the

23/ It was held in People v. Vesely, 41 Colo. App. 325,

587 P.2d 802 (1978), that misuse of grand jury subpoenas by

a prosecutor was harmless error if the prosecutor could

have obtained the same evidence by another avenue. We

note that there are substantial procedural requirements for

civil investigative demands under ch. 229, sec. 1,

18-17-107, 1981 Colo. Sess. Laws 1015, 1022-25 that may

or may not have been satisfied by the procedure followed

here, and that the Colorado Organized Crime Control Act

took effect on July 1, 1981, which was after three of the

four subpoenas under consideration here were issued.

28

efficient operation of his office (section 24-31-101(3) do

not give him the authority to confer full grand jury

subpoena power upon police officers by naming them Strike

Force investigators. The contrary result would, in effect,

create a special police force not bound by the requirement

that searches generally be conducted by warrant supported

by probable cause. This is abhorrent to the constitutional

guarantee of security against unreasonable searches and

seizures. We recognize that it may sometimes be difficult

to discern when an investigator is acting as a peace officer

subject to full constitutional restraints, and when he shares

in the greater authority of the grand jury as its authorized

representative. See People v. Coto, 199 Colo. 508, 611

P.2d 969 (1980)Strike Force investigators as peace officers

performed illegal search). We cannot resolve this

ambiguity here; we hold only that under the facts of this

case Strike Force investigators exceeded their authority in

using grand jury subpoenas to obtain the toll records.24

Therefore, the trial court properly suppressed the toll

records.

24/ Our holding is not based strictly on the distinction

between investigators appointed by the Attorney General

and investigators appointed upon motion of the grand jury

pursuant to Crim.P. 6.5. We need not consider whether

29

IV.

The order suppressing the wiretap evidence was

appealed to this court under section 16-15-i102(11), C.R.S.

1973 (1978 Repl. Vol. 8), which allows the prosecution to

appeal an order to suppress’ intercepted wire

communications. The wire communications in question are

those obtained from the wiretapping of defendant Corr's

phone from September 15, 1981, to November 15, 1981.

The trial court suppressed the products of the wiretap

because the affidavit in support of the wiretapping

evidence included toll record information. That affidavit,

however, aiso included extensive informant, surveillance

and other information.

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 16-15-102(1aX(VD),

C.R.S. 1973 (1978 Repl. Vol. 8). This is analogous to the

24/ (Continued)

wholesale swearing in of Strike Force officers as grand jury

investigators could effectively confer upon them the full

powers of the grand jury, but it is clear that employment

of grand jury subpoenas by police officers for the sole

purpose of evading the search warrant requirement would

constitute grand jury abuse.

30

J ~~

probable cause requirement for search warrants. See

section 16-3-303, -304, C.R.S. 1973 (1978 Repl. Vol. 8);

Crim.P. 41. In People v. Turner, 660 P.2d 1284 (Colo.

1983), we explained how an affidavit containing some

constitutionally tainted evidence is to be evaluated in ruling

on the validity of a search warrant issued on the basis of

that affidavit:

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 toil record information and

31

HBEBEEEBREEBSBSBRB SSS *

derivative evidence were striken.2> Therefore, we reverse

the suppression order and remand the case to the district

court for further proceedings consistent with this opinion.

CHIEF JUSTICE ERICKSON dissents and JUSTICE

ROVIRA joins in the dissent.

25 After ordering the toll records suppressed, the trial

court continued, "of course, that will cover the evidence

that was later obtained from the wire taps (sic) as being

part of the fruit of the poisonous tree doctrine." There are

no conclusions in the record regarding the sufficiency of the

wiretap affidavit minus the evidence derived from the toll

records. Corr argues that this issue was not preserved for

appeal because the prosecutor did not mention it

immediately after the trial court's ruling, as shown by the

transcript of the proceedings. However, the trial court's

ruling was based on briefs that are not in the record, and

there may be oral argument that is not in the record as

well. The issue of sufficiency of the affidavit with the toll

record evidence excised is raised in the prosecution's

opening brief on appeal. Under these circumstances, we

have elected to address it.

32

PEOPLE v.CORR NO, 83SA415

CHIEF JUSTICE ERICKSON 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 subpoena. 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

(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.

33

United States, 389 U.S. 347 (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 (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. at 351-353.

This inquiry normally embraces a two-prong

analysis:

"The first is whether the individual, by this

conduct, has ‘exhibited an actual (subjective)

expectation of privacy,' .. . whether, in the

words of the Katz majority, the individua! 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 (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

34

the Fourth Amendment to the United States Constitution.

In the view of the Court, individuals do not have a

legitimate expectation of privacy in the telephone numbers

they dial. The Court found further that, even if there was a

subjective expectation of privacy, that expectation was not

reasonable.

Four years later, this court held in People v.

Sporleder, 666 P.2d 135, 144 (Colo. 1983), under virtually

individual identical factual circumstances:

"That Article Il, 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 reason that I set out in my dissent 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

35

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 individuai 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 applies 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

36

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 defendant.

See section 16-3-308(2)(b), C.R.S. 1973 (1978 Repl. Vol. 8)

& 1983 Cum. Supp.). I believe that the Strike Force

officers were acting in conformity with, and in reliance

upon, the United States Supreme Court's decision in Smith

v. Maryland, when they obtained the toll records and that

their conduct constituted a “technical violation" under

section 16-3-308(2)b).

The majority opinion states that, since

Sporleder “was explicitly based on and foreshadowed by

Charnes v. DiaGiacomo, 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 emphasised that the substance of the

requested bank records was a protected interest. We did

37

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 prescience that eluded even the

trial court judge. ! The concept of privacy can be traced to

the United States Suprere Court's development of Fou: th

Amendment jurisprudence.

1/- The record reveals that the trial court found initially

that the toll records were legally obtained. Appeilee then

filed a motion to reconsider which was granted. The trial

court, in reversing its earlier ruling, found:

"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 Sunreme Court decision.

Witi: that case decided, however, I feel that

I must reverse my previous ruling, and will order

that the evidence be suppressed."

(Emphasis supplied.)

38

Compare Goldman with Katz. See also Griswold v.

Connecticut, 381 U.S. 479 (1965). In my view, law

enforcement officers are entitled to rely upon the

decisions of our highest court, and should not have to

anticipate that a federally guaranteed constitutional right

will be given a broader interpretation under an al! but

identical provision in a state constitution. Address by

Professor William Greenhalgh, Georgetown University Law

Center, National Conference on Developments in State

Constitutional Law (March 9, 1984). "I cannot think of a

sounder basis for law enforcement officers to act upon than

a decision of the United States Supreme Court." Sporleder,

666 P.2d at 152 (Rovira, J., dissenting). See section

16-3-308(2\(b), C.R.S. 1973 (1978 Repl. Vol. 8 & 1983 Cum.

Supp.); Michigan v. Long, U.S... » 103 S.Ct.

3469, 77 L.Ed. 2d 1201 (July 6, 1983) (adopting a

presumption against the existence of adequate and

independent state grounds).

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.

39

IN THE SUPREME COURT, STATE OF COLORADO

Case No. 83SA415

APPLICATION FOR STAY PENDING CERTIORARI

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellant,

vs.

CASEY CORR,

Defendant- Appellee.

EN BANC

RULING AFFIRMED IN

PART, AND CAUSE

REMANDED

ROBERT L. RUSSEL

District Attorney

DAVID H. ZOOK

Chief Deputy District Atty.

Attorney for Petitioner

11 East Vermijo

Colorado Springs, CO 80903

Telephone: (303) 471-5861

40

Comes Now the appellant, the People of the

State of Colorado, by and through Robert L. Russel,

District Attorney and his Chief Deputy, David H. Zook, and

move this Honorable Court for a Stay of the proceedings

herein pending appellant's petition to the United States

Supreme Court for a Writ of Certiorari.

In support of this Application for a Stay, the

People state:

1. That on April 30, 1984, this Court ordered

that evidence of toll records be suppressed and stricken

from an affidavit in support of a wiretap application on the

grounds such records were unconstitutionally obtained. This

Court's order also upheld a district court order which,

presumably, also suppressed the use of such toll records at

trial.

2. That Rule 4.1(g) C.A.R. prohibits petitions

for rehearing.

3. That the evidence suppressed by this Court

and the evidence derived therefrom constitutes a

substantial part of the proof of the charge lodged against

the defendant-appellee.

4, That the issue decided by this Court

41

adversely to the People was one of first impression in

Colorado and was decided contrary to existing opinion of

the United States Supreme Court.

5. That said decision of inis Court, while

purporting to be bottomed on the Colorado Constitution, in

fact does not rest on a bona fide separate, adequate or

independent state grounds (Michigan v. Long, 103 S.Ct. 3469

(1983).

6. That the People intend to seek a Writ of

Certiorari in the Supreme Court of the United States

requesting a review of this Court's suppression orders.

7. That any such review would be moot as to

this case unless it occurs prior to defendant-appellee's trial.

8. That this petition is not taken for purposes

of delay.

9. That defendant-appellee is not incarcerated.

WHEREFORE, the People urge that this Court

stay the trial and all pretrial hearings regarding matters of

suppression until June 29, 1984, or until after the United

States Supreme Court has finally ruled upon the People's

42

Petition for Certiorari.

Respectfully Submitted,

ROBERT L. RUSSEL (3043)

District Attorney

DAVIDTR. ZOOK (3031

Chief Deputy Dist. Atty.

11 East Vermijo

Colorado Springs,CO 80903

Tele: (303) 471-5861

Attorneys for Appellant

CERTIFICATE OF MAILING

This is to certify that I have mailed a true and

correct copy of the foregoing Application for Stay Pending

Certiorari to opposing counsel of record on this 22nd day of

May, 1984, by placing same in the United States mail,

postage prepaid, to the office of: ROBERT S. BERGEN,

1737 Gaylord Street, Denver, Colorado 80206.

43

SUPREME COURT, STATE OF COLORADO

Case No. 83 SA 415

INTERLOCUTORY APPEAL FROM THE DISTRICT

COURT, TELLER COUNTY,

NO, 81CR49

ORDER OF COURT

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff-Appellant,

VS.

CASEY CORR,

Defendant- Appellee,

and

MICHAEL JASON AUKES, CHRISTOPHER ABBOTT,

JOHN BLACK and ROYCE ENGLEHART,

Defendants.

Upon consideration of the Application for Stay

Pending Certiorari filed by counsel for Plaintiff-Appellant

herein, and now being sufficiently advised in the premises,

It Is This Day Ordered that said Application

shall be, and the same hereby is, Granted, and the

remittitur issued in this case by this court on May 2, 1984 is

stayed until June 29, 1984.

It Is Further Ordered that all proceedings in

Case No. 81CR49 in the Teller County District Court shall

be stayed up to and including June 29, 1984.

44

It Is Further Ordered that any further stays

must be obtained from the United States Supreme Court.

BY THE COURT, EN BANC, MAY 24, 1984

cc: David H. Zook

Chief Deputy District Attorney

Robert S. Berger

Clerk of the District Court

Teller County

SUPREME COURT

STATE OF

COLORADO SEAL

May 29, 1984

By: K. Love

Deputy Clerk

45