People v. Vazquez, 84CA1173

• Citation: 768 P.2d 721
• Decision Date: 07 July 1988
• Docket Number: No. 84CA1173,84CA1173
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eduardo VAZQUEZ, Defendant-Appellant. . II
• Court: Court of Appeals of Colorado

Page 721

768 P.2d 721

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eduardo VAZQUEZ, Defendant-Appellant.

No. 84CA1173.

Colorado Court of Appeals Div. II.

July 7, 1988.

Rehearing Denied Aug. 11, 1988.

Certiorari Granted (People) Feb. 6, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Timothy E. Nelson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, Eduardo R. Vazquez, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession, distribution, and conspiracy to sell a schedule two controlled substance and sentencing under the special offender statute. He contends that there were grand jury abuses, that various searches were done without probable cause, that there were various evidentiary errors, and, that the special offender statute is unconstitutional. We agree in part and reverse.

In August, 1982, defendant, his family, and several other persons were brought to the attention of narcotics investigators as possibly involved in the importation and distribution of controlled substances. Investigators obtained "tips" from various informants and conducted surveillance of defendant's family. They obtained grand jury subpoenas for the telephone toll records of the Vazquez family's business and residence telephones. Pen registers were placed on the telephone lines, and, upon application by a 97 page affidavit to the district court in early February, 1983, authorization was obtained for wiretaps which culminated in the arrest of defendant and the search of several locations and automobiles. The affidavits in support of the wiretap applications included information from various informants, facts accumulated through surveillance, and information obtained from the toll records and pen registers.

The grand jury subpoenas were obtained in early September and December, 1982, and in mid-January, 1983, based on the affidavits of agents working with the Colorado Bureau of Investigation Strike Force. One agent was sworn in as a grand jury investigator in December, 1982.

The court held that the agents investigating the case misused the grand jury process. It found that "subpoenas" were obtained from the grand jury absent an ongoing investigation. It also found that the records were used in a manner inconsistent with the secrecy requirements of the grand jury by being disclosed to persons who were not investigators nor under the required oath of secrecy. The court concluded that the officers involved merely used the grand jury process to circumvent Mountain Bell's policy not to release customer information without a judicial order.

The trial court nevertheless denied defendant's motion to suppress evidence obtained from use of the toll records and pen registers based on a good faith reliance by investigators on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) which held that there is no requirement under the federal constitution for a warrant to install a pen register. Thus, the court held that there existed a statutory technical violation exception to the exclusionary rule. See § 16-3-308(2)(b), C.R.S. (1986 Repl. Vol. 8A).

Upon further consideration of the grand jury abuses at the hearing on defendant's motion for new trial, the court determined that its initial decision relative to the toll records and pen register had been in error. See People v. Corr, 682 P.2d 20 (Colo.1984); see also People v. Sporleder, 666 P.2d 135 (Colo.1983). The court nevertheless reaffirmed its determination that the prosecution had established sufficient probable cause in the affidavit for the wiretaps even if all the information from the toll records, pen registers, and any conclusory statements were omitted.

However, the court did not address the propriety of having admitted evidence of the toll records and pen register. Further, it did not excise information gained from such procedures before testing the residual evidence in the affidavits in support of probable cause.

After a jury trial in March, 1984, defendant was convicted of four counts: conspiracy, possession, distribution, and special offender.

I.

Defendant first contends that because the prosecution improperly obtained subpoenas authorizing it to obtain telephone toll records and pen registers in violation of the grand jury process, the court erred in failing to suppress evidence derived as a result of such violation of his Fourth Amendment rights. We agree and therefore reverse and remand for a new trial.

The "fruit of the poisonous tree" doctrine excludes evidence discovered as a result of a Fourth Amendment violation. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. McFall, 672 P.2d 534 (Colo.1983). Thus, where a search pursuant to a warrant follows an illegal warrantless search, evidence acquired during the second search will be suppressed if it is tainted by the first illegal search. People v. McFall, supra; People v. Turner, 660 P.2d 1284 (Colo.1983). To avoid application of the doctrine, the burden is on the prosecution to show that it obtained the evidence from an independent source untainted by illegal police conduct. See People v. McFall, supra.

Here, the court should have reviewed the affidavits in support of both the wiretap applications and the search warrants to determine if they established probable cause after the toll record and pen register information, and the evidence derived therefrom, were stricken. See People v. Corr, supra. Moreover, it is imperative that prior to the new trial the court enter specific findings on these issues in order that proper evidentiary decisions may be made during the course of trial.

II.

Next, defendant argues that the prosecution failed to show an exhaustion of other alternatives prior to seeking authorization for the wiretaps. He also contends that there were insufficient facts to justify the non-termination provisions of the orders. We disagree.

The requirements of an ex parte order for a wiretap, § 16-15-102(1)(a), C.R.S. (1986 Repl. Vol. 8A), are to be interpreted in a practical and common sense fashion to effectuate their purpose. People v. Ingram, 684 P.2d 243 (Colo.1984).

Contrary to defendant's assertion, there is no requirement that wiretapping be used only as a last resort, see § 16-15-102(2)(c), C.R.S. (1986 Repl. Vol. 8A), and the requirements of § 16-15-102(4)(c), C.R.S. (1986 Repl. Vol. 8A) may be satisfied if the application informs the judge of the difficulties encountered and the lack of success or danger in using conventional investigatory methods. People v. Gable, 647 P.2d 246 (Colo.App.1982). Moreover, the wiretapping statute merely requires that the order authorizing or approving wiretapping specify the period of time in which an interception is authorized including a statement as to whether the interception automatically terminates when the described communication is first obtained. Section 16-15-102(5)(e), C.R.S. (1986 Repl. Vol. 8A). An order entered under that section may not be longer than the period necessary to achieve the objective of the authorization and is limited, absent an extension, to thirty days. Certain provisions mandating prompt execution are required to be in the order and minimization of the interception is required. See § 16-15-102(4), C.R.S. (1986 Repl. Vol. 8A). However, there is no requirement that specific findings be set forth detailing why the order does not automatically terminate when the described communication is first obtained.

As to the duration of the wiretap, where the target of an order is conspiracy and there is continuing conduct, the permissible duration of the wiretap is necessarily longer. People v. Gable, supra; People v. Ball, 639 P.2d 1078 (Colo.1982). The use of coded language, as here, is a factor among others to consider in determining if there was proper minimization of the interception. People v. Gable, supra.

Here, the record reflects that informants feared defendant and his organization and believed that he would kill any individual who disrupted his organization. Surveillance was ineffective since defendant would employ continued erratic driving techniques to thwart such surveillance. Thus, we conclude that there was a sufficient basis for use of wiretaps of the scope ordered.

III.

Defendant also contends that the more restrictive standards derived from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) should be used to evaluate the existence of probable cause. We disagree.

Our supreme court has gone beyond the Aguilar- Spinelli test for probable cause and adopted the "totality of the circumstances" analysis outlined in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) which places particular importance on the value of corroboration of the details of an informant's tip by independent police work. See People v. Pannebaker, 714 P.2d 904 (Colo.1986). Furthermore, in Peltz v. People, 728 P.2d 1271 (Colo.1986), our supreme court approved the court of appeals' retrospective application of the "totality of the circumstances" test to a case which, as here, predated the decision in People v. Pannebaker, supra. See People v. Peltz, 697 P.2d 766 (Colo.App.1984), aff'd 728 P.2d 1271 (Colo.1986). See also People v. Smith, 685 P.2d 786 (Colo.App.1984); People v. Sullivan, 680 P.2d 851 (Colo.App.1984); People v. Gallegos, 680 P.2d 1294 (Colo.App.1983). That test continues to rely on former elements of probable cause determination--the informant's veracity or reliability and his basis of knowledge--but also places particular importance on the value of corroboration of the details of an informant's tip by independent police...