People v. INTEREST OF AW, 99SA35.
| Decision Date | 14 June 1999 |
| Docket Number | No. 99SA35.,99SA35. |
| Citation | 982 P.2d 842 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. In the Interest of A.W., Defendant-Appellee, and Concerning C.W., Respondent. |
| Court | Colorado Supreme Court |
David J. Thomas, District Attorney, First Judicial District, Donna Skinner Reed, Chief Appellate Deputy District Attorney, Golden, Colorado, Attorneys for Plaintiff-Appellant.
Patrick J. Mulligan, Denver, Colorado, Attorney for Defendant-Appellee.
In this interlocutory appeal brought pursuant to C.A.R. 4.1(a) and section 16-15-102(11), 6 C.R.S. (1998), the People urge us to overturn a trial court order suppressing videotaped statements made by the defendant during the initial portion of a stationhouse interview from use in their case-in-chief. Although the People concede that the latter portions of this interview should be suppressed, they further challenge the validity of the trial court's suppression of the defendant's statements therein for impeachment purposes. Upon review of the trial court's findings and the evidentiary record, we reverse the suppression order as to the defendant's initial statements, and affirm the order as to the impeachment use of the latter statements.
On July 3, 1998, Detective Tenny (the detective) of the Lakewood Police Department called A.W., a juvenile who was fifteen years of age at the time, and his father to request that they come to the police station to discuss sexual assault allegations against the juvenile. They agreed. On his way out to meet the juvenile and his father in the stationhouse lobby, the detective stopped off in a room adjoining the interview room in order to start a videotape recorder. Thereafter, the detective led the juvenile and his father into the interview room. Immediately upon entering the room, the juvenile's father noticed a large two-way mirror. To quell the suspicions of the juvenile's father, the detective told him not to worry because "nothing [was] behind there [the two-way mirror]." The detective further noted that, due to the July 4 holiday weekend, there were "not enough people for anyone to be behind there today." The detective also informed the juvenile that he was not under arrest. The juvenile's father testified that he took the detective's assurances to mean that "there was nothing back [behind the mirror] at the time [of the interview]."
In the initial stage of the interview, the juvenile admitted to having had consensual oral sex with the alleged victim. However, after the Detective asked the juvenile if he could think of any reasons why the alleged victim would make a sexual assault allegation against him, the juvenile answered "No," and continued, saying The officer then noted that the juvenile had stated that the alleged victim was saying, "Get off me." When the Detective asked the juvenile why the alleged victim would have made the statement "Get off me" if she, in fact, was performing oral sex on him, the juvenile responded that she would not have a reason to say something like that but, "She wasn't pushing me away."
Soon thereafter, the detective excused himself from the room, saying that he would return within a few minutes. Notably, the detective left the room on a total of three separate occasions. The detective never told the juvenile or his father that a video recorder would be taping their conversations in his absence. In fact, the detective went so far as to expound upon his initial assurances to the juvenile's father that "nothing's behind [the mirror]." For example, soon after the detective returned from his first absence, the juvenile's father repeatedly asked the detective if he could speak with his son in private. When the detective eventually agreed to this request, he explicitly stated that he would be right outside and that he would not be listening to the conversation between the juvenile and his father.
The juvenile's father testified at the motions hearing that, in light of the detective's assurances, he "without a doubt" believed that his communications with his son were "private and confidential" and that no one was listening during the detective's absences from the room.1 However, despite the detective's numerous assurances to the contrary, all of the juvenile's statements were in fact videotaped. The videotape intercepted not only the juvenile's statements to the detective, but also the communications between the juvenile and his father in the detective's absence.
Although the juvenile made certain potentially inculpatory statements during the course of his "private" conversations with his father, the juvenile made the bulk of his potentially incriminating statements when the detective returned from his second absence from the interview room. The detective subsequently integrated the juvenile's communications with his father into the police report that he filed with the district attorney. Based, in part, on the juvenile's incriminating statements that were noted therein, the juvenile was charged with one count of first degree sexual assault and one count of second degree sexual assault.
The juvenile moved to suppress all of the statements he made on July 3—not only his communications with his father, but also his communications with the detective. Notably, the juvenile argued that suppression was appropriate, not on Fourth Amendment grounds, but on the grounds that his statements were illegally recorded pursuant to the Wiretapping and Eavesdropping Act, sections 16-15-101 through XX-XX-XXX, 6 C.R.S. (1998), and the Criminal Eavesdropping Statute, sections 18-9-303 and -304, 6 C.R.S. (1998). The trial court granted the juvenile's motion, suppressing the juvenile's July 3 statements in their entirety. This appeal followed.
The People's principal contentions on appeal relate to the admissibility of the communications videotaped by the detective. It is undisputed that the detective recorded the interview and the conversations between the juvenile and his father without the knowledge or consent of either of the latter parties. Furthermore, the detective recorded the juvenile's interview and his conversations with his father without having first obtained a court order authorizing the surreptitious recording or interception of such communications.2
Eavesdropping by law enforcement officers in Colorado is governed and comprehensively regulated by the Wiretapping and Eavesdropping Act, sections 16-15-101 through XX-XX-XXX (hereinafter "the Act"). See also People v. Rivera, 792 P.2d 786, 788 (Colo.1990). This statutory scheme requires law enforcement officers to obtain ex parte orders of authorization before intercepting certain wire and oral communications. See §§ 16-15-101(1) to -101(7). The Act also limits the particular offenses for which such orders may be issued. See § 16-15-102(1)(a).3
Absent emergency circumstances delineated in section 16-15-102(19), the People may not introduce the contents of protected "oral communications" into evidence at trial unless their interception of same was authorized by a court order. To this end, section 16-15-102(9), 6 C.R.S. (1998), provides:
The contents of any intercepted wire, oral, or electronic communication or the evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court, unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved.
(Emphasis added.)
Section 16-15-102(10), 6 C.R.S. (1998), in turn, provides the means for invoking the foregoing sanction:
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Colorado, or a political subdivision thereof, may move to suppress the contents of any intercepted written, oral, or electronic communication or the evidence derived therefrom on the grounds that: The communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval.... If the motion is granted, the contents of the intercepted wire, oral, or electronic communication or the evidence derived therefrom shall not be received as evidence. The remedies and sanctions provided for in this section with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this section involving such communications.
(Emphasis added.)
In arriving at its conclusion that the Act required suppression of the entirety of the juvenile's videotaped statements, the trial court heavily relied upon the Act's expansive definition of what constitutes the "contents" of a communication. The Act defines the term "contents" in the following manner:
"Contents," when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.
§ 16-15-101(3). After analyzing this definition in conjunction with sections 16-15-102(9) and 16-15-102(10), the trial court found no basis upon which to distinguish the juvenile's initial statements to the detective from his statements that followed the detective's first departure from the room. As such, the trial court held that the entirety of the juvenile's recorded communication, including his initial communications, required suppression because they were illegally intercepted "contents."4
Contrary to the trial court's holding, our review of the suppression provision of the Act, ...
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