People v. Gable

• Decision Date: 04 March 1982
• Citation: People v. Gable, 647 P.2d 246 (Colo. App. 1982)
• Docket Number: 80CA0073
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gregory J. GABLE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 246

647 P.2d 246

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Gregory J. GABLE, Defendant-Appellant.

No. 80CA0073.

Colorado Court of Appeals, Div. I.

March 4, 1982.

Rehearing Denied March 25, 1982.

Certiorari Denied May 24, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol.Gen., Morgan Rumler, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Keene, Munsinger & Stuckey, Stephen M. Munsinger, Denver, for defendant-appellant.

ENOCH, Chief Judge.

Defendant appeals his judgment of conviction of conspiracy to dispense dangerous drugs.Defendant was one of 23 individuals charged in a large-scale conspiracy to dispense dangerous drugs, most of whom pled guilty.However, defendant pled not guilty and was tried together with one other co-defendant, Chuck Ginnis, a/k/a Chuck Reick, on November 13, 1979.We affirm the judgment.

The hub of the conspiracy consisted of two brothers who arranged for the delivery of large shipments of marijuana to Colorado.These individuals then distributed the drug to a large array of secondary participants, of which defendant was one, who resold the drugs.The prosecution's evidence consisted primarily of tape recorded telephone conversations containing statements by defendant, and statements about defendant by co-conspirators.

I.WIRETAP

A.THE EXHAUSTION REQUIREMENT

Defendant's first contention is that there was an insufficient showing in the application for the wiretap that the police exhausted other investigative techniques prior to wiretapping.We disagree.

Section 16-15-102(2)(c), C.R.S.1973(1978 Repl.Vol. 8), which is similar to 18 U.S.C.A. § 2518(1)(c)(1970), requires that every application for a wiretap order include a "complete statement as to whether or not other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried, or to be too dangerous."This language does not require that wiretapping be used only as a last resort, and the requirements of this section are satisfied if the application "inform(s) the authorizing judge of the difficulties encountered, and the lack of success in using conventional investigatory methods."People v. Milnes, 186 Colo. 409, 417-18, 527 P.2d 1163, 1167(1974), quotingUnited States v. Staino, 358 F.Supp. 852(E.D.Pa.1973).

Contrary to defendant's contention, the affidavit which accompanied the request for the wiretap satisfied the requirements of § 16-15-102(2)(c), C.R.S.1973(1978 Repl.Vol. 8).Detective Pietrafeso's affidavit stated that four of five informants on which the application was based specifically refused to testify at trial because they feared reprisal.According to the affidavit, three of the informants also stated that the main participants in the conspiracy rarely came into contact with the drugs personally, and were very careful not to deal with strangers, thus limiting the effectiveness of search warrants and undercover agents.In fact, on at least one occasion, one informant had tried, and failed, to introduce a newcomer to the principals of the conspiracy.

The affidavit also alleged that periodic surveillance of suspects, seizure of evidence when possible, and controlled purchasing of drugs from suspects had been tried, but had failed to produce sufficient evidence to prosecute the principal conspirators or their underlings.The affidavit also detailed the conspirators' criminal records, to show their familiarity with normal investigative techniques, and sketched the manner of the organization's operation, to show that the key participants were insulated from conventional investigations.

The statements set forth in the wiretapping applications are more than sufficient to satisfy the exhaustion requirement.SeePeople v. Milnes, supra;United States v. Clerkley, 556 F.2d 709(4th Cir.1977), cert. denied, 436 U.S. 930, 98 S.Ct. 2380, 56 L.Ed.2d 775;United States v. James, 494 F.2d 1007(D.C.Cir.1974);United States v. Mainello, 345 F.Supp. 863(E.D.N.Y.1972).

B.THE WRITING REQUIREMENT

Defendant's second basis for suppression of the intercepted communications lies in his contention that the trial court failed to comply with § 16-3-303(2), C.R.S.1973(1978 Repl.Vol. 8), which requires that any sworn testimony, taken to supplement the written affidavit presented to support issuance of a search warrant, be reduced to writing, and that, as a result, the wiretap order was invalid.We agree with the trial court that suppression was unwarranted.

The trial court issued its wiretap order on the basis of an 84 page affidavit and testimony received at two informal hearings, at which the attorney general and the affiant police officer were present.There was no record made of the testimony taken at the two hearings.Therefore, this testimony may not supply the foundation for the wiretap order.People v. Padilla, 182 Colo. 101, 511 P.2d 480(1973).However, the facts which are stated in writing in the affidavit show probable cause for the issuance of the wiretap order and are sufficient to support the trial court's findings.

The fact that some portions of an affidavit must be stricken because they are erroneous, or as here, that a portion of the evidence relied on for a finding of probable cause is not properly recorded and may not be considered, does not require the issuing magistrate to ignore the other information supplied by the affidavit.SeePeople v. Hampton, 196 Colo. 466, 587 P.2d 275(1978), overruled on other grounds, People v. Bannister, Colo., 619 P.2d 71(1980);People v. Padilla, supra;People v. Montoya, Colo.App., 616 P.2d 156(1980).

Because the affidavit contained sufficient information showing probable cause for the issuance of the wiretap order, the order was valid, and it was not error to deny defendant's motion to suppress the recorded conversations.

C.THE DURATION ISSUE

Defendant's third contention is that the wiretap failed to terminate upon the expiration of the authorized time period.We disagree.

The wiretaps which yielded the tape recorded conversations played at trial were in operation for a full 60 days, which included a 30-day initial authorization, and a 30-day extension.Defendant argues that the police's objectives were attained prior to the expiration of the full time and that the wiretaps should have been terminated earlier than they were.

Although § 16-15-102(6), C.R.S.1973(1978 Repl.Vol. 8), puts an outer limit of 30 days on the duration of a wiretap, and a limit of 30 days on an extension of the initial wiretap order, it also requires that "(n)o order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization ...."All the wiretap orders provided for automatic termination of the wiretap, upon accomplishing the objective of the authorization.

Where the target of the wiretap is a large scale conspiracy, such as this, courts must be given more latitude to formulate a sufficiently broad wiretap order.SeeUnited States v. Clerkley, supra;United States v. Tortorello, 480 F.2d 764(2d Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86.Where there is continuing conduct and one of the objectives of the wiretap is to identify the scope and participants of the conspiracy, see, e.g., United States v. Vento, 533 F.2d 838(3d Cir.1976), the permissible duration of the wiretap is necessarily longer than where the investigation concerns only a single criminal episode.United States v. James, supra.

We agree with the trial court's finding, which is supported by the evidence, that the objectives of the authorization were not achieved prior to the expiration of the full time, and that the wiretaps were properly left in place for the full 60 days.

D.THE MINIMIZATION ISSUE

Defendant next argues that the interception was not properly minimized as required by § 16-15-102(6), C.R.S.1973(1978 Repl.Vol. 8).Defendant contends that the police acted unreasonably because they intercepted conversations to which he was a party, even though they had no idea at the time the wiretap commenced, that he was a co-conspirator.We disagree.

Section 16-15-102(6), C.R.S.1973(1978 Repl.Vol. 8), requires that "(e)very order ... shall be conducted in such a way as to minimize the interception under this section ...."Nearly identical language in the Federal Omnibus Crime Control & Safe Streets Act of 1968, 18 U.S.C.A. 2510 et seq.(1970), was interpreted in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168(1978).There, it was stated that: "The statute does not forbid the interception of all non-relevant conversations, but rather instructs the agents to conduct surveillance in such a manner as to 'minimize' the interception of such conversations.Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case."436 U.S. at 140, 98 S.Ct. at 1724, 56 L.Ed.2d at 179.

Factors to consider in determining whether the agents have acted reasonably to minimize the interception include: The nature and scope of the alleged criminal enterprise, the government's reasonable expectations as to the contents of, and parties to the conversations, and the degree of judicial supervision of the wiretap.United States v. Clerkley, supra.Other factors that should also be considered include the length of the conversations, Scott v. United States, supra, the phase of the investigation, United States v. Falcone, 364 F.Supp. 877(D.N.J.1973)505 F.2d 478(3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432, whether the parties used coded language, United States v. James, supra, and the percentage of calls intercepted which are incriminating, United States v. Bynum, 485 F.2d 490(2d Cir.1973).

Under the circumstances of this case, we agree with ...