People of The State of Colo. v. III
| Decision Date | 13 May 2010 |
| Docket Number | No. 07CA2311.,07CA2311. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Lynn O'HARA III, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Davide C. Migliaccio, Colorado Springs, Colorado, for Defendant-Appellant.
Opinion by Judge GRAHAM.
Defendant, Thomas Lynn O'Hara III, was charged with and convicted of distribution of a schedule II controlled substance, adjudicated a habitual criminal, and sentenced to ninety-six years in the Department of Corrections. He challenges the admission of wiretap evidence and the sufficiency of his Curtis advisement on appeal. Because there is no finding before us that the elected district attorney authorized the wiretap application, we remand for further proceedings to determine whether the elected district attorney authorized the wiretap application.
This case arises from a joint law enforcement task force operation based in Grand Junction, Colorado. The operation's purpose was to target major illegal drug dealers in the area. As part of the operation, task force officers, in conjunction with the local district attorney's office, applied for and received orders authorizing wiretaps on two phones belonging to R.P., a suspected drug dealer. Evidence gathered from these wiretaps implicated defendant as R.P.'s supplier of methamphetamine. Defendant challenged the admissibility of the wiretap evidence with a motion in limine. Following a hearing, the court found the evidence admissible. Defendant renews his challenge to the wiretap evidence on appeal.
Defendant argues that the application for the wiretap was fatally defective because the applicant was a Drug Enforcement Agency (DEA) task force officer (TFO), not the elected district attorney. Defendant argues that the Colorado wiretap statute requires that the elected district attorney must personally apply for the wiretap, and that this obligation cannot be delegated. Defendant further argues that the elected district attorney did not authorize the wiretap. We disagree with defendant's first contention and remand for further proceedings regarding the second.
Our review requires us to interpret provisions of the federal and Colorado wiretap statutes. Statutory interpretation is a question of law, subject to de novo review. Alvarado v. People, 132 P.3d 1205, 1207 (Colo.2006).
Because defendant properly objected to the admission of the wiretap evidence, he preserved the issue for appeal. See Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo.1986).
In construing the meaning of a statute, we are to determine and give effect to the intent of the legislature. M.S. v. People, 812 P.2d 632, 635 (Colo.1991). The statute is to be construed to further the legislative intent represented by the statutory scheme. State v. Nieto, 993 P.2d 493, 501 (Colo.2000). To discern the legislative intent, we look first to the plain and ordinary meaning of the statutory language, giving words and phrases their commonly accepted and understood meaning. Mason v. People, 932 P.2d 1377, 1378 (Colo.1997). We are to give effect to every word and are not to adopt a construction that renders any term superfluous. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000). Where the intended scope of a statute is ambiguous, we may look to the statute's textual context as well as the legislative history to determine the General Assembly's intent. § 2-4-203, C.R.S.2009; Corbetta v. Albertson's, Inc., 975 P.2d 718, 721 (Colo.1999).
Colorado's wiretap statute, section 16-15-102, C.R.S.2009, provides guidelines for the lawful authorization of wiretaps in the state. It is closely patterned on the federal wiretap statute, 18 U.S.C. §§ 2510-2520 (Title III), first passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. People v. Wahl, 716 P.2d 123, 128 (Colo.1986). Colorado's wiretap statute was enacted pursuant to Title III's provision authorizing states to enact laws governing state law enforcement agents' use of wiretaps. 18 U.S.C. § 2516(2). The Colorado statute was designed to implement the policies of Title III. Wahl, 716 P.2d at 128. Therefore, federal authorities interpreting Title III should be accorded “great weight” in interpreting the Colorado statute. Id.; see People v. Martin, 176 Colo. 322, 328, 490 P.2d 924, 927 (1971).
On review of the trial court's decision not to suppress the wiretap evidence, reversal is required for a “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).
Defendant argues that the application for the wiretap in this case was defective because the elected district attorney did not personally apply for the wiretap as required by section 16-15-102. Here, for the first time, we are asked to interpret the Colorado statute's requirement that court orders permitting wiretaps be issued only “upon application of the attorney general or a district attorney.” § 16-15-102(1)(a), C.R.S.2009. We conclude that, like the federal statute, section 16-15-102 requires that the attorney general or a district attorney specifically authorize a specific wiretap application, but that the elected official need not sign or personally submit the application. Here there was no specific authorization of a specific wiretap application. Further, there is no finding by the trial court that the district attorney specifically authorized the wiretap application and nothing in the record would support such a finding in any event.
Both Title III and section 16-15-102 establish procedures for obtaining orders authorizing wiretaps. Title III establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications, (1) “a duly-authorized law enforcement officer must obtain approval from the Attorney General of the United States or a specially designated assistant attorney general in order to apply to a federal judge for a wiretap”; (2) “once such approval is obtained, the officer must present a written application for a wiretap to the judge”; and (3) “the judge must make certain enumerated findings and issue an ex parte order containing specified elements.” United States v. Castillo-Garcia, 920 F.Supp. 1537, 1543 (D.Colo.1996), aff'd in part and rev'd in part, 117 F.3d 1179 (10th Cir.1997), and overruled on other grounds by United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n. 1 (10th Cir.2002).
The first tier of Title III's procedure, requiring the approval of the United States Attorney General or a specially designated assistant attorney general, achieves an important purpose of Title III: centralizing the authority to authorize wiretap applications. See Giordano, 416 U.S. at 512-23, 94 S.Ct. 1820, for a comprehensive analysis of the history of Title III and its requirement that wiretap applications be authorized by a senior, publicly accountable official.
Title III accomplishes this goal in the context of state-authorized wiretaps as well. In addition to establishing the application requirements for a federal wiretap, Title III provides for the existence of state-issued wiretaps, though the provision is not self-executing. Under Title III, state law enforcement officers may obtain state-issued wiretap orders, subject to the application requirements of both Title III and the relevant state statutes:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made....
18 U.S.C. § 2516(2); see United States v. Geller, 560 F.Supp. 1309, 1312 (E.D.Pa.1983) (), aff'd sub nom. United States v. DeMaise, 745 F.2d 49 (3d Cir.1984) (unpublished table decision). 18 U.S.C. § 2518 establishes the content requirements for a federal wiretap application.
Colorado's wiretap statute, section 16-15-102, was enacted pursuant to Title III's provision for the authorization of state wiretap orders. Section 16-15-102 adopts a parallel procedure to that of Title III, though instead of requiring the “authorization” of a designated official, the Colorado statute requires the attorney general or district attorney to “apply” for a wiretap, following the language of 18 U.S.C. § 2516(2) quoted above. At the time of the offense, the statute provided, as it does now, in relevant part:
An ex parte order authorizing or approving the interception of any wire, oral, or electronic communication may be issued by any judge of competent jurisdiction of the state of Colorado upon application of the attorney general or a district attorney....
§ 16-15-102(1)(a); cf. 18 U.S.C. § 2516(2). The language of section 16-15-102 describing the requirements for the wiretap application tracks the language of Title III. Compare 18 U.S.C. § 2518(1) with § 16-15-102(2), C.R.S.2009.
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