People v. Sporleder

Decision Date27 June 1983
Docket NumberNo. 81SC233,81SC233
Citation666 P.2d 135
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Diane Ruth SPORLEDER, Respondent.
CourtColorado Supreme Court

Alexander M. Hunter, Dist. Atty., Randall J. Paulsen, Richard F. Good, Deputy Dist. Attys., Boulder, for petitioner.

James B. Breese, Marna Mel Lake, Legal Aid and Defender Program, University of Colorado School of Law, Boulder, for respondent.

QUINN, Justice.

We granted certiorari to review an order of the Boulder District Court affirming the ruling of the Boulder County Court which suppressed evidence obtained by the use of a pen register. The district court reasoned that under Article II, Section 7 of the Colorado Constitution a telephone subscriber has a legitimate expectation that information relating to telephone numbers dialed on a home telephone will remain private and that in the absence of exigent circumstances law enforcement officers must obtain a search warrant supported by probable cause prior to the installation of a pen register. We affirm the order of the district court.

I.

The defendant, Diane Ruth Sporleder, was charged in the Boulder County Court with several misdemeanor counts of harassment by telephone, section 18-9-111(1)(f), C.R.S.1973 (1978 Repl.Vol. 8). 1 The defendant filed a motion to suppress the records of all telephone numbers dialed by her which were obtained by the installation of a pen register. A hearing was held on the defendant's motion to suppress and the following facts were established.

In October of 1979 Mountain Bell Telephone Company (Mountain Bell) received several complaints alleging that the defendant had made a series of harassing telephone calls. Robert Sprouse, Mountain Bell's Security Manager, called the defendant and advised her of the complaints, but she denied being the source of the calls. The record does not indicate that Sprouse took any further action at that time.

Later, in February of 1980, the Boulder District Attorney's Office received a complaint in the form of a sworn affidavit from Robert L. Finch, an attorney in Farmington, New Mexico. Finch stated that he and his law partner had received a series of anonymous, annoying telephone calls at their office and homes. According to the affidavit, once the telephone was answered the caller would hang up immediately. Finch's affidavit continued:

"By coincidence I have discovered that a client of mine, Mr. Dudley Pounders, had endured these types of calls for months. The source of the telephone calls has been identified by Mountain Bell employees as coming from the residence of Diane Ruth Spoleder [sic], 1604 Sunset, Louisville, Colorado. This office represented Mr. Pounders in a particularly acrimonious divorce action with Ms. Spoleder [sic] and is currently handling another matter between the parties. Additionally, other attorneys in this locale who formerly represented Ms. Spoleder [sic] are receiving similar calls. The pattern with all calls to all individuals is identical."

In the meanwhile Mountain Bell continued to receive complaints of abusive telephone calls. Security Manager Sprouse contacted James Smith, Chief Investigator for the Boulder District Attorney's Office, and was assured that the district attorney's office was "handling the case" and would keep Sprouse advised. On April 24, 1980, Sprouse again called Smith to determine the status of the investigation. Smith at this time initially requested Sprouse to disconnect the defendant's telephone, but later they both decided to conduct a joint "deterrent interview" with her and they accordingly telephoned her at home on that date. When she answered the telephone Sprouse identified himself and warned her that if the calls continued her telephone service would be disconnected. The defendant denied making any harassing telephone calls, at which point Smith revealed his presence on the line and warned her that criminal charges could be filed. The following day Mountain Bell sent the defendant a follow-up letter advising her that it knew of her harassing telephone calls, that "Mr. Jim Smith of the Boulder District Attorney's Office is also aware of this situation," and that "if we are notified that you have made one more call to harass or threaten any of the [complainants] your telephone service will be terminated immediately."

On May 8, 1980, a pen register was installed on the defendant's home telephone. A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released, without, however, recording or monitoring the telephone conversation. 2 The pen register was installed at the office of Mountain Bell and recorded the date, time and telephone number of the calls from the defendant's telephone. The tape of the pen register indicated that between May 9 and May 16 several telephone numbers listed to the persons who had previously complained of harassing calls were dialed from the defendant's telephone.

At the close of the evidentiary hearing on the motion to suppress the county court continued the matter for briefs and legal argument. The People filed a brief challenging the defendant's suppression motion on the single ground that the defendant had no legitimate expectation of privacy in the telephone numbers dialed by her on her telephone. During the subsequent legal argument before the county court, the court expressly inquired of the deputy district attorney whether the prosecution was contending that there was a lack of any governmental action in this case. The deputy district attorney responded that the prosecution's basic contention was that a telephone user had no legitimate expectation of privacy in telephone numbers dialed by her. The county court granted the motion to suppress the evidence obtained from the use of the pen register, ruling that in the absence of exigent circumstances, Article II, Section 7 of the Colorado Constitution requires law enforcement officials to obtain a search warrant in order to install a pen register on a suspect's telephone.

The People appealed this ruling to the Boulder District Court, arguing that because the defendant had no legitimate expectation of privacy in the telephone numbers dialed by her, the installation of the pen register implicated no right under the Colorado Constitution. The district court, also noting that "[t]he presence of governmental action is not contested," affirmed the suppression ruling of the county court and concluded, in pertinent part, as follows:

"Although the state has a legitimate interest in maintaining public order, the telephone subscriber has a legitimate privacy interest in the records of telephone calls made from [her] own home. Before the state is permitted to search or create these records by means of a pen register, a search warrant must be issued upon a showing of probable cause. The pen register search of defendant Sporleder's telephone was conducted without a warrant and is therefore violative of Article II, Section 7 of the Colorado Constitution. Accordingly, the suppression of the pen register tapes is affirmed."

The People's principal argument before this court is that the defendant had no legitimate expectation of privacy in the telephone numbers she dialed and, hence, the use of the pen register to obtain that information was not an unconstitutional search and seizure in violation of Article II, Section 7 of the Colorado Constitution. Alternatively, the People argue that even if the defendant's privacy expectation was a legitimate one, the installation of a pen register should be authorized on a standard less than the probable cause required for a search warrant. Before considering these arguments, it is necessary that we address the threshold matter of state action.

II.

The People contend that there was no state action in the installation of the pen register and, therefore, no violation of the defendant's constitutional rights. Although the record suggests an ongoing joint investigation by the district attorney's office and Mountain Bell during the period when the pen register was installed on the defendant's telephone line, we need not determine here whether the interactions between the district attorney's office and Mountain Bell were sufficient to render the telephone company a "state agent" for purposes of the constitutional protection against unreasonable searches and seizures. 3 See Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) (as long as federal agent was in some way involved before the object of the search was accomplished, it is immaterial whether he initiated or joined in the search); Corngold v. United States, 367 F.2d 1 (9th Cir.1966) (search of airline shipment which was joint operation of federal and airline agents deemed state action). The reason we need not decide the issue in this case is because the prosecution during the proceedings below did not oppose the defendant's suppression motion on the basis of any lack of state action in regard to the installation of the pen register. Rather, the prosecution's basic contention throughout the suppression hearing as well as in the district court appeal was that the defendant, as a telephone subscriber, had no legitimate expectation of privacy in the telephone numbers dialed by her. Indeed, the district court expressly noted the prosecution's concession of state action in its written order affirming the county court's suppression ruling, and the prosecution never raised the issue of state action in its petition for certiorari. Under the circumstances of this case, therefore, the People have clearly abandoned any claim relating to the asserted lack of state action in the installation of the pen register on the defendant's telephone line. 4 See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (government loses its right to raise a defendant's lack...

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