People v. Martin

• Decision Date: 08 November 1971
• Docket Number: Nos. 24983,24984,25034,25012,s. 24983
• Citation: 176 Colo. 322,490 P.2d 924
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. Marshall MARTIN, Defendant-Appellee, Cross-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Eldon Howard COTT and Elizabeth Ann Cott, a/k/a Betty Cott, Defendants-Appellees, Cross-Appellants. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eldon Howard COTT, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marshall MARTIN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 924

490 P.2d 924

176 Colo. 322

The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. Marshall MARTIN, Defendant-Appellee, Cross-Appellant.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Eldon Howard COTT and Elizabeth Ann Cott, a/k/a Betty Cott,

Defendants-Appellees, Cross-Appellants.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eldon Howard COTT, Defendant-Appellant.

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Marshall MARTIN, Defendant-Appellant.

Nos. 24983, 24984, 25012, 25034.

Supreme Court of Colorado, En Banc.

Nov. 8, 1971.

Robert R. Gallagher, Jr., Dist. Atty., James Macrum, John A. Topolnicki, Jr., Deputy Dist. Attys., Arapahoe County, Jarvis W. Seccombe, Dist. Atty., Coleman M. Connolly, Paul D. Cooper, William O. Perry, Deputy Dist. Attys., City and County of Denver, for plaintiff-appellee, cross-appellee.

Montgomery, Little & Freeland and David A. Ogilvie, Denver, for Marshall Martin.

Peter Ney, Englewood, for Elizabeth Ann Cott and Eldon Howard Cott.

DAY, Justice.

These four interlocutory appeals pertain to various challenges to an electronic surveillance involving an interception of telephone communications (wiretap) conducted in Arapahoe County from April 2--7, 1970. Upon motion of the parties, the four separate appeals (involving trial courts in both Arapahoe County and the City and County of Denver) were consolidated in this court. A brief recitation of the pertinent facts is appropriate.

On March 10, 1970, officers of the Denver and Littleton police departments commenced a surveillance of a Littleton residence. On April 1, 1970, they had reason to believe that illegal drug traffic was centered there. Since they were unable to gather sufficient information to establish probable cause to arrest the occupants or to search the premises, application was made to an Arapahoe County District Judge for permission to intercept telephone communications (pursuant to the provisions of 1969 Perm.Supp., C.R.S., 40--4--30). An order permitting the telephonic interception issued for a period not to exceed 30 days for the phone listed under the name of the resident, Eldon Cott, at the address which had been under surveillance.

A report was filed with the court on April 27, 1970 indicating that the subject phone was tapped from April 2--7 with a total of five hours of conversations recorded. On April 8, a search warrant was issued (supported in part by information gathered during the interception) for the above address, and also for a 'Bronco' truck.

Based upon the evidence gathered through the interception of telephone conversations and during the search conducted pursuant to the above warrant, the defendants in this consolidated proceeding have been charged as follows:

Eldon Cott in Arapahoe County: Possession of Narcotic Drugs (C.R.S.1963, 48-- 5--2); Conspiracy to Possess Narcotic Drugs (C.R.S.1963, 48--5--20).

Eldon Cott in Denver: Possession of Narcotic Drugs; Conspiracy to Possess Narcotic Drugs; Possession of Narcotic Drugs for Sale (C.R.S.1963, 48--5--20); and Conspiracy to Possess Narcotic Drugs for Sale (C.R.S.1963, 40--7--35).

Elizabeth Ann Cott in Arapahoe County: Possession of Narcotic Drugs and Conspiracy to Possess Narcotic Drugs.

Marshall Martin in Arapahoe County: Conspiracy to Possess Narcotic Drugs.

Marshall Martin in Denver: Possession of Narcotic Drugs; Conspiracy to Possess, Possession for Sale, and Conspiracy to Possess for Sale.

Defendants Martin and the Cotts subsequently filed, in both Denver and Arapahoe County district courts, motions to suppress all evidence obtained either directly or indirectly from the telephone interceptions. These motions were granted by the court in Arapahoe County and denied by the court in Denver County. The grounds relied upon by the court in Arapahoe County have been disposed of by subsequent holdings of this court (See Arguments I and II, infra). In addition to these grounds, we also dispose of additional constitutional issues raised by the defendants. We reverse the suppression rulings of the Arapahoe County district court and affirm the ruling rendered in the Denver district court denying the suppression.

I.

DID THE ARAPAHOE COUNTY DISTRICT COURT

ERR IN HOLDING THAT THE AFFIDAVIT INSUPPORT OF THE

SEARCH WARRANT WAS DEFECTIVE IN THAT IT FAILED TO SET FORTH

THESPECIFIC GROUNDS FOR ISSUANCE LISTED IN CRIM.P. 41(b)?

We hold that it did. The precise issue was before this Court in People v. Whisenhunt, Colo., 476 P.2d 997 (1970), in which we held as follows:

'To establish the grounds in an affidavit it is not necessary that the person seeking the search warrant specifically allege therein the conclusion that the possession of the drugs is illegal. The rule (Crim.R. 41) provides that if the judge is satisfied from the facts alleged in the affidavit that the existence of one or more of the grounds has been established or that there is probable cause to believe that one or more of the grounds for issuing the warrant exist, then it should issue.'

The affidavit in question identified the drugs as 'suspected marijuana (Cannabis Sativa L.)' and alleged that they were at the home of the Cotts, but did not state that the possession or use of the drugs was illegal. This is the ground which we rejected in Whisenhunt, supra, and we adhere to the holding in that case.

II.

WAS THE SEARCH WARRANT DEFECTIVE BECAUSE IT DID NOT CONTAIN

OR HAVE ATTACHED THERETO THE CONTENTS OF THE

AFFIDAVIT AS REQUIRED BY 1965

PERM.SUPP., C.R.S., 1963, 48--5--11(3)?

The defendants have abandoned this argument in light of this court's subsequent ruling in People v. Leahy, Colo., 484 P.2d 778 (1970), that the relevant portion of the statute is unconstitutional:

'Therefore, the statute deprives a court of the discretion which a court must exercise in finding probable cause as required by our Constitution and the United States Constitution. This particular portion of the statute is an integral part of the entire C.R.S.1963, 48--5--11(3) and is non-severable. Therefore, the entire sub-section (3) of the statute is declared to be unconstitutional.'

Arguments I and II in effect dispose of the grounds for suppression argued in the courts below with one exception: Defendants contend that the intercept order issued to tap the phone at the Cotts' residence was invalid. Consequently, they assert, any evidence obtained either directly or indirectly as a result of the intercepted communications should be suppressed (the information gathered through the wiretap was used, Inter alia, to establish probable cause to issue the search warrant).

III. IS THE COLORADO WIRETAP STATUTE UNCONSTITUTIONAL?

The Colorado statute, 1969 Perm.Supp., C.R.S.1963, 40--4--26 et seq. (hereinafter called the Colorado wiretap statute) is modeled after the provisions of Title III of the 1968 Omnibus Crime Control and Safe Streets Act allowing law enforcement officers to intercept telephone communications after having obtained judicial authorization upon a showing of probable cause. The purpose and objectives of this federal act have recently been summarized as follows:

'Title III imposes an overall ban on the interception and disclosure of wire or oral communications, but it authorizes interception in connection with the investigation of particular serious crimes by either federal law enforcement officers or state officers acting pursuant to state statute. In most instances the officer is required to obtain a court order before the interception begins. Such an order can be issued only after a judge of competent jurisdiction has determined that specific grounds exist which justify the use of the intercepting devices. When the objective is attained the wiretapping must cease, and there is an overall 30 day limitation which may be extended for an additional 30 days should the judge make new findings sufficient to uphold an original authorization. Information obtained as a result of authorized surveillance may be used or disclosed by the officer to the extent appropriate to the proper performance of his duties and while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or any state or political subdivision thereof.' Cox v. United States, 449 F.2d 679 at 684. (10th Cir.).

We will discuss first specific constitutional imperfections alleged by one or more of the defendants, and then discuss generally the constitutionality of the model for our state statutory scheme, Title III of the 1968 Federal Act.

(A) The defendants first argue that since the Colorado wiretap statute requires nothing more than a statement of the district attorney or other applicant that one of the offenses set forth in 1969 Perm.Supp. C.R.S.1963, 40--4--30(1) is to be committed, it therefore violates the requirements of the Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) cases, which require the stating of the specific offense for which the order is sought. The specific language referred to by the defendants, Inter alia, is found in Berger, supra:

'The Fourth Amendment commands that a warrant issue not only upon probable cause supported by oath or affirmation, but also 'particularly describing the place to be searched, and the persons or things to be seized.' New York's statute lacks this particularization. It merely says that a warrant may issue on the reasonable ground to believe that evidence of crime may be obtained by the eavesdrop. It lays down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor 'the place to be searched,' or 'the persons or things to be seized' as specifically required by the Fourth Amendment. The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is...