People v. Gallegos

• Decision Date: 11 April 2011
• Docket Number: 10SA189,10SA188,10SA190.,Nos. 10SA186,10SA187,s. 10SA186
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellantv.Ignacio Byron GALLEGOS, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellantv.Fernando Lopez, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellantv.Josiah Angelo Gallegos, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellantv.Demetrius Clyde Santistevan, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellantv.Jorge Perez, Defendant–Appellee.
• Court: Colorado Supreme Court

251 P.3d 1056

The PEOPLE of the State of Colorado, Plaintiff–Appellant

v.Ignacio Byron GALLEGOS, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellant

v.Fernando Lopez, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellant

v.Josiah Angelo Gallegos, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellant

v.Demetrius Clyde Santistevan, Defendant–Appellee.The People of the State of Colorado, Plaintiff–Appellant

v.Jorge Perez, Defendant–Appellee.

Nos. 10SA186

10SA187

10SA188

10SA189

10SA190.

Supreme Court of Colorado, En Banc.

April 11, 2011.

Daniel H. May, District Attorney, Fourth Judicial District, Terry Sample, Deputy District Attorney, Deborah F. Pearson, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Plaintiff–Appellant.Davide C. Migliaccio, Colorado Springs, Colorado, Attorney for Defendant–Appellees Ignacio Gallegos, Fernando Lopez, Josiah Gallegos, and Demetrius Santistevan.Barker & Tolini, P.C., Joshua Tolini, Jeff J. Barker, Colorado Springs, Colorado, Attorneys for Defendant–Appellee Jorge Perez.

Justice MARTINEZ delivered the Opinion of the Court.

In this case, we consolidate five separate interlocutory appeals by the People. All of the defendants were allegedly part of the same conspiracy to distribute illegal narcotics, and their arrests resulted from the same set of wiretap orders. The five defendants then joined in a Motion to Suppress Evidence Derived from Illegal Wiretaps, which was subsequently granted by the trial court. Because the appeal concerns the same trial court order granting the motion to suppress as well as the same set of wiretap orders, applications, and affidavits, the facts giving rise to the appeal are identical for all five defendants. Each appeal concerns whether evidence obtained from a series of wiretap orders should have been suppressed due to alleged violations of the wiretap statute and the neutral and detached magistrate requirement of the Fourth Amendment. We hold that the judge who issued the wiretap orders properly acted as a neutral and detached magistrate and that the violations of the wiretap statute were not sufficient to warrant suppression. Therefore, we reverse the decision of the trial court.

I.

The five defendants in this case were all arrested on various drug-related charges as part of a conspiracy to sell illegal narcotics. Law enforcement gathered information on the defendants through the use of wiretap surveillance. The orders authorizing the use of wiretap surveillance were signed by Chief Judge Samelson, the Chief District Court Judge in the Fourth Judicial District. Between February 2009 and September 2009, Chief Judge Samelson's son, Mike Samelson, was employed as a deputy district attorney in the County Court Division of the Fourth Judicial District Attorney's Office, but had no involvement in the instant case. At the start of his son's employment, Chief Judge Samelson transferred administrative supervision of the County Court to another judge. Additionally, in response to a motion to recuse, Chief Judge Samelson recused himself from an unrelated homicide case due to the “appearance of a potential conflict.” ¹ The wiretap orders at issue were signed during the period that Mike Samelson was employed by the District Attorney's Office.

Because Chief Judge Samelson issued the wiretap orders while his son worked for the District Attorney's Office, defendant Jorge Perez filed a Motion to Suppress Evidence Derived from Illegal Wiretaps, and the other codefendants adopted and joined in the Motion. On May 27, 2010, the trial court issued an order granting the Motion to Suppress and the People then filed this interlocutory appeal.

In the Order granting the Motion to Suppress, the trial court ruled that the wiretap orders were invalid on the basis that they were not issued by a neutral and detached magistrate. After asserting that Chief Judge Samelson had already disqualified himself from all criminal cases based on his son's employment, the trial court decided that he could not have provided valid authorization for the wiretaps, and therefore, the orders were void. When asked to overlook the disqualification issue and examine the four corners of the application, the trial court declined to do so, finding that it “would in essence nullify the need for disqualification in any case.” ²

In addition to the disqualification issue, the trial court found a number of violations of the wiretap statute and the wiretap orders. The trial court thus ruled that the wiretap evidence was inadmissible against any of the defendants because it was obtained in violation of section 16–15–102, C.R.S. (2010), “coupled with the fact that the judge issuing the orders and monitoring compliance with the orders had already disqualified himself from hearing matters involving the district attorney's office.” As a result, the trial court suppressed all of the evidence from the wiretaps. The People filed an interlocutory appeal for each of the five defendants in order to challenge the suppression.

II. Analysis

1. Standard of Review

A warrant authorizing the use of wiretapping procedures is subject to the same stringent standards as other Fourth Amendment searches and seizures. Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Montoya, 616 P.2d 156, 159, 44 Colo.App. 234, 237 (1980). Accordingly, the touchstone of a valid wiretap order is the determination by a detached and neutral magistrate that there is probable cause to believe that evidence of specific enumerated crimes will be obtained through use of the wiretap procedures. See Montoya, 616 P.2d at 159, 44 Colo.App. at 237; United States v. Ramirez, 63 F.3d 937, 941 (10th Cir.1995).

In addition to constitutional restraints, wiretapping procedures are governed by federal and state legislation. See 18 U.S.C. §§ 2510–2520 (2010); §§ 16–15–101 to –104, C.R.S. (2010). In fact, Colorado's wiretapping laws are “closely patterned after and designed to implement the policies of the federal act.” People v. Wahl, 716 P.2d 123, 128 (Colo.1986). Consequently, federal court opinions addressing the federal wiretapping statute should be accorded great weight in interpreting Colorado's wiretapping statute. Id.

In an appeal from a grant of a motion to suppress, we review the trial court's factual findings on a clearly erroneous standard and we review questions of law de novo. People v. Minor, 222 P.3d 952, 955 (Colo.2010). A wiretap order, however, is presumed proper, and the defendant carries the burden of overcoming this presumption even if the defendant has prevailed below. United States v. Mitchell, 274 F.3d 1307, 1310–11 (10th Cir.2001) (citing United States v. Castillo–Garcia, 117 F.3d 1179, 1186 (10th Cir.1997)).

2. Neutral and Detached Magistrate

We first address the issue of whether suppression of the wiretap evidence was warranted based on the fact that the Chief Judge's son was a deputy district attorney in the same district at the time the wiretap orders were issued. We conclude that when issuing the wiretap orders, the Chief Judge acted as a detached and neutral magistrate, and therefore, the evidence should not have been suppressed on this ground.

The decision whether to suppress evidence obtained through a warrant is governed foremost by the constitutional principles of the Fourth Amendment. See People v. McCarty, 229 P.3d 1041, 1044 (Colo.2010). In order to satisfy the guarantees of the Fourth Amendment, “it is essential that a magistrate issuing a search warrant be neutral and detached....” Ramirez, 63 F.3d at 941. The question of whether a judge should recuse himself from a case, on the other hand, is guided by statutes and canons of judicial ethics. People v. Julien, 47 P.3d 1194, 1197 (Colo.2002). In this case, which deals with a motion to suppress, the trial court's order conflates these two questions, engaging in a statutory and ethical analysis when the proper inquiry is constitutional. We hold that the proper inquiry in a motion to suppress is not whether the judge issuing the warrant should have recused himself, but instead whether the judge manifested the neutrality and detachment demanded by the Fourth Amendment.

We are not alone in concluding that a statutory disqualification analysis is not the relevant inquiry in determining whether a magistrate is detached and neutral under constitutional standards. Other courts have specifically declined to consider arguments based on statutory disqualification standards because they are “more demanding than that required by the Due Process Clause.” United States v. Harris, 566 F.3d 422, 434 (5th Cir.2009) (citing United States v. Couch, 896 F.2d 78, 81 (5th Cir.1990)); see also United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir.1985) (suggesting that judicial canons are not part of a Fourth Amendment analysis). The Supreme Court of Iowa explained that disqualification standards and rules of judicial ethics “are designed not to protect individual defendants, but to protect the judiciary from charges of partiality.” State v. Fremont, 749 N.W.2d 234, 242 (Iowa 2008).

Because disqualification standards protect different interests than the Fourth Amendment, there are notable differences between a motion for disqualification and a motion to suppress evidence. Aimed at protecting public confidence in the judiciary, disqualification standards are concerned with the mere appearance of impartiality. As a result, the standard for granting a motion for disqualification goes beyond a search for actual bias, and instead requires disqualification of any judge whose impartiality might reasonably be questioned. C.J.C. 2.11(A). Although this broad, over-inclusive standard may disqualify a judge who is in fact completely neutral, the grant of a motion for disqualification does not result in a loss of evidence, but merely a substitution of the judge.

On the other...