People v. Corr
| Decision Date | 30 April 1984 |
| Docket Number | No. 83SA415,83SA415 |
| Citation | 682 P.2d 20 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Casey CORR, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Robert L. Russel, Dist. Atty., Kenneth H. Jaynes, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
Robert S. Berger, P.C., Robert S. Berger, Denver, for defendant-appellee.
In an indictment returned by a statewide grand jury on February 19, 1982, Casey Corr was charged with possession of more than one ounce of marijuana, 1 and conspiracy to possess more than one ounce of marijuana. 2 Her husband, Michael Aukes, was charged with possession of cocaine; 3 possession of more than one ounce of marijuana; three counts of conspiracy to possess more than one ounce of marijuana; and sale, dispensing, distribution, possession or importing of more than one hundred pounds of marijuana. 4 Three others were also charged with possession and conspiracy. Corr moved to suppress evidence obtained from telephone toll call records and a wiretap. Her motion was granted on August 26, 1983. 5 The district attorney then filed an interlocutory appeal challenging the suppression order. 6 We affirm the suppression of the toll records, reverse the suppression of the wiretap evidence, and remand the case to the district court for further proceedings.
Corr questions whether Organized Crime Strike Force (Strike Force) investigators, who obtained the toll records through the use of grand jury subpoenas, had the authority to do so. It is necessary to detail the Strike Force's structure and sources of authority in order to evaluate this claim.
The grand jury indictments in this case resulted from an investigation conducted by the Strike Force beginning in 1980. The original leads grew out of a wiretap in the Denver Comets volleyball team drug investigation. See People v. Gable, 647 P.2d 246 (Colo.App.1982).
At the time of the investigation of the defendants' activities, the Strike Force comprised a group of police officers and 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 empanel a statewide grand jury pursuant to section 13-73-101, C.R.S.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. 7
At the time of the investigations leading up to the indictment of the defendants in the present case, the Strike Force had no specific statutory basis, although the legislature had appropriated funds for it at least since 1977 or 1978. 8 The grand jury functions of the Strike Force staff attorneys derive authority from section 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).
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)(l ), 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 9 (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.Sess.Laws 1015, 1022-25. 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
Corr's central contention is not that the police officers on the Strike Force had no authority derived from the Attorney General to investigate drug rings, but that whatever authority they had was insufficient to validate the investigative techniques employed in this case. This assertion requires a detailed discussion of the facts of the case.
After formal investigation of the defendants began in 1980, members of the Strike Force and cooperating police officers in Teller County, Colorado, tried to learn about the alleged drug distribution network through a variety of means. The legitimacy of most of these methods, including surveillance, license plate checks, criminal record checks and the cultivation of informants, is not challenged by Corr. However, on several occasions the Strike Force sought and obtained telephone toll call records for a telephone registered in the name of Casey Corr, at a home in Florissant, Colorado, where she and her husband, Michael Aukes, lived. Corr claims that these were illegal searches.
On February 17, 1981, the Attorney General petitioned the chief judge of the Denver District Court to empanel a statewide grand jury pursuant to section 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 the grand jury proceedings to obtain Casey Corr's toll records. 11 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 toll records "to this Court or to an authorized representative of the State Grand Jury." 12 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.
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 15th. Corr claims that the wiretap evidence is derived from the toll records, which were...
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