People v. Wahl, s. 84SA441
| Decision Date | 31 March 1986 |
| Docket Number | 84SA481,Nos. 84SA441,s. 84SA441 |
| Citation | 716 P.2d 123 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Marvin Eugene WAHL, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. George A. INGRAM, Robert Ray Jones, Michael A. Allison, Manuel E. Romero, David A. Montgomery, and Jan M. Full, Defendants-Appellees. |
| Court | Colorado Supreme Court |
James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy Atty., Brighton, for plaintiff-appellant.
Gerash, Robinson, Miller & Miranda, P.C., Christopher A. Miranda, Denver, for defendant-appellee, Marvin Eugene Wahl.
Jeralyn E. Merritt, Denver, for defendant-appellee, Robert Ray Jones.
Samuel R. Escamilla, Westminster, for defendant-appellee, Michael A. Allison.
Chris Melonakis, Northglenn, for defendant-appellee, Manuel E. Romero.
Bonham & Peake, Kathy P. Bonham, Denver, for defendant-appellee, David A. Montgomery.
The Law Firm of Leonard M. Chesler, John S. Tatum, Denver, for defendant-appellee, Jan Full.
No appearance for defendant-appellee, George A. Ingram.
This is the second time that we have been called upon to review suppression orders entered by the Adams County District Court in this case. The defendants are variously charged with manufacturing, selling, and distributing methamphetamine and conspiring to manufacture, sell, distribute, or possess methamphetamine or other controlled substances in violation of section 18-18-105, 8 C.R.S. (1985 Supp.). After the charges were filed, the district court granted the defendants' motions to suppress evidence obtained by police officers during a wiretapping operation. In People v. Ingram, 684 P.2d 243 (Colo.1984), we reversed and remanded for further proceedings. On remand, the defendants filed additional motions to suppress based upon People v. Sporleder, 666 P.2d 135 (Colo.1983). Following a hearing, the district court again ordered the suppression of the wiretap evidence, and the district attorney appealed. We now reverse and remand to the district court for further proceedings consistent with this opinion.
On May 14, 1982, the Adams County District Attorney filed an application in the district court for an ex parte order authorizing the Lakewood Department of Public Safety to install a wiretap on the telephone line of a house in Aurora, Colorado. The district attorney alleged that there was probable cause to believe that evidence concerning the unlawful manufacture and sale of controlled substances would be obtained by the wiretap. The telephone communications that investigating law enforcement officers sought to intercept were those of the subscribers to the telephone line, George Ingram and Marcella Hinshaw, and other persons suspected of involvement in the drug violations. The application for a wiretap order was supported by lengthy, comprehensive, and factual affidavits executed by two Lakewood police officers. One of the affidavits specified that a pen register would be installed on the telephone line along with the wiretap. The application and affidavits were accompanied by a proposed wiretap order for the district court's approval and adoption. The order permitted a wiretap on the Ingram/Hinshaw telephone line for thirty days but did not specify that a pen register would be used in the wiretapping operation.
The district court signed the wiretap order on the day that it was submitted, May 14. A wiretap and pen register were installed on the line the same day and police officers monitored calls from that time until June 9. The conversations of many incoming and outgoing calls were recorded by the wiretap, while the pen register revealed the telephone numbers dialed on the Ingram/Hinshaw telephone. On May 25, relying in part on information acquired through the wiretap, police officers sought and obtained a search warrant for a residence and garage located in Adams County. The officers executed the warrant the following day and seized equipment and material in a laboratory that was used to manufacture methamphetamine.
The telephone conversations recorded by the wiretap and the discovery of the methamphetamine laboratory formed the basis for indictments in October 1982 against all of the defendants except Marvin Wahl. 1 The defendants were variously charged with unlawfully manufacturing, selling, and distributing methamphetamine and conspiring to manufacture, sell, distribute, or possess methamphetamine, dilaudid, percodan, heroin, morphine, P2P, or methaqualone. § 18-18-105, 8 C.R.S. (1985 Supp.).
The defendants filed motions to suppress all evidence derived from the use of the wiretap. The district court found that there was probable cause to support the issuance of the wiretap order. However, the court granted the motions to suppress on the ground that the participation of officers who were not members of the Lakewood Department of Public Safety in monitoring calls on the Ingram/Hinshaw line violated the wiretapping order. The prosecution appealed, and we reversed. People v. Ingram, 684 P.2d at 243. Our review in Ingram was limited to the issue of whether the wiretap order was violated when personnel not identified in the order participated in the wiretapping. We held that the Lakewood Department of Public Safety did not violate the terms of the wiretap order. We therefore reversed the suppression orders and remanded the case for further proceedings.
On remand the defendants filed additional motions to suppress on the ground that the use of a pen register without a search warrant violated Article II, section 7 of the Colorado Constitution, as interpreted in People v. Sporleder, 666 P.2d at 135. The district court granted the motions after finding that the wiretap order did not specifically authorize the use of a pen register. The court concluded that without specific authorization Sporleder prohibited use of a pen register without a search warrant. The prosecution has again appealed the district court's suppression orders under section 16-15-102(11), 8 C.R.S. (1978). 2
The prosecution first contends that a valid wiretap order includes authorization for the use of a pen register, even when the order does not specify that a pen register will be used. Second, the prosecution asserts that the only defendant who has standing to challenge the use of the pen register in this case is the subscriber of the telephone line, George Ingram. 3 As a third ground for reversal, the prosecution argues that, assuming the pen register was illegally placed on the Ingram/Hinshaw line, the trial court should have suppressed only the information obtained by the pen register, not the contents of conversations recorded by the wiretap. We conclude that the installation of the pen register under the circumstances of this case did not violate the defendants' constitutional rights. Therefore, we do not address the prosecution's second and third contentions. In the discussion below, we first consider whether the use of pen registers is governed by Colorado's wiretapping statute, sections 16-15-101 to -104, 8 C.R.S. (1978 & 1985 Supp.). We then consider whether the wiretap order permitting surveillance of the Ingram/Hinshaw line was sufficient to authorize the installation of a pen register.
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. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); People v. Sporleder, 666 P.2d at 135. A pen register records the date and time of the calls but does not monitor or record the contents of conversations. It does not indicate whether calls are actually completed and cannot determine the telephone numbers from which incoming calls were made.
By contrast, a wiretap records the contents of telephone communications. It also records the sound of electrical impulses created when a number is dialed on the monitored line. Expert analysis of the recorded sound can reveal the dialed numbers. A pen register, when used in conjunction with a wiretap, eliminates the need for analysis of the sound. The pen register is thus a technological refinement which merely expedites the determination of information already accessible to investigating officers by means of the wiretap. United States v. Kail, 612 F.2d 443 (9th Cir.1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980); United States v. Falcone, 505 F.2d 478 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).
Wiretapping is subject to pervasive federal and state regulation. See 18 U.S.C. §§ 2510-2520 (1970 & 1985 Supp.); §§ 16-15-101 to -104, 8 C.R.S. (1978 & 1985 Supp.). Section 16-15-102(1)(a) provides that an ex parte order for wiretapping may be issued upon application by the attorney general or a district attorney, who establishes by affidavit that evidence will be obtained of a crime specified in section 16-15-102(1)(a). Detailed requirements for the application are set forth in section 16-15-102(2). The supporting affidavit serves the same function as an affidavit used to establish probable cause for a search warrant. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984). See § 16-3-303, -304, 8 C.R.S. (1978); Crim.P. 41. The district court may enter an ex parte order authorizing wiretapping if it determines that there is probable cause to support the order. § 16-15-102(4). 4 The order must be specific as to the identity of the person whose communications are to be intercepted; the nature and location of the line to be monitored; the type of communication sought to be intercepted and the particular offense to which it relates; the agency authorized to intercept the communications; and the period of time during which interceptions are authorized. § 16-15-102(5).
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