Statutory Suppression Under Colorado's Wiretapping and Eavesdropping Act

• Publication year: 2001
• Pages: 77

30 Colo.Law. 77 Colorado Lawyer 2001.

2001, August, Pg. 77. Statutory Suppression Under Colorado's Wiretapping and Eavesdropping Act

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77

Vol. 30, No. 8, Pg. 77

The Colorado Lawyer
August 2001
Vol. 30, No. 8 [Page 77]

Specialty Law Columns
Criminal Law Newsletter
Statutory Suppression Under Colorado's Wiretapping and Eavesdropping Act
by Mark G. Walta

Colorado courts have repeatedly recognized that the use of certain surveillance techniques by state and local law enforcement officials, such as the surreptitious monitoring of wire or oral communications, "is governed and comprehensively regulated by the [Colorado] Wiretapping and Eavesdropping Act. . . ."1 ("Act"). This article generally examines the body of decisional law surrounding the Act2 and further explores its utility as a vehicle for suppressing incriminating statements and derivative evidence. After discussing the Act's historical and legislative underpinnings, the article turns to the plain language of the Act itself and the manner in which Colorado courts have construed its operative provisions. The article concludes with a synopsis of recent developments in this area and their likely impact on future cases

Historical and Legislative Background

A complete understanding of the precise scope and full force of the Act's regulatory features requires a certain familiarity with the case law and the unique historical and legislative circumstances that ultimately gave rise to this statutory scheme. Most discussions of the Act's history necessarily commence with an overview of Title III of the Omnibus Crime Control and Safe Streets Act of 19683 ("Title III"), the federal statute after which most states', including Colorado's, wiretapping and eavesdropping statutes are patterned.4 Title III represents the culmination of congressional efforts to strike a balance between the U.S. Supreme Court's decisions in Olmstead v U.S.5 and Nardone v. U.S.6

In Olmstead, the Court held that wiretapping by federal law enforcement officials implicated neither Fourth nor Fifth Amendment concerns. Congress responded swiftly to Olmstead by passing legislation that appeared to implement a comprehensive ban on wiretapping and eavesdropping activities. The Court thereafter held, both in Nardone and Benanti v. U.S.,7 that this legislation did, in fact envision a complete ban on the use of telephonic wiretaps by private citizens as well as state and federal law enforcement officials.

Although Nardone and Benanti sparked considerable concern among members of Congress, legislative efforts to reverse these decisions consistently met with defeat. Significantly, Congress would not revisit its prior legislative attempts at regulating wiretapping and eavesdropping activities until the Court's overruling of Olmstead in the landmark decision of Katz v. U.S.,8 which held that electronic eavesdropping activities implicate Fourth Amendment interests.

Borrowing heavily from the Fourth Amendment analysis developed in Katz, Title III details the circumstances in which law enforcement agencies may seek to obtain judicial authorization to conduct wiretapping and eavesdropping operations. Moreover, Title III sets forth the procedures for obtaining valid authorization orders. Spurred on by federal action in this area, numerous states enacted wiretapping and eavesdropping acts modeled after Title III. Although Colorado had already implemented a wiretapping and eavesdropping statute prior to the passage of Title III, the General Assembly substantially amended that statute's provisions in 1971 so as to comport with federal practice under Title III.9 Various provisions of Colorado's Act have been amended numerous times since 1971, with significant amendments coming in both 1988 and 1991.

Given this historical background, it is hardly surprising that Colorado courts have, on occasion, sought guidance from Title III and the case law construing its provisions when faced with novel questions concerning the operation of this state's Act.10 Nonetheless, as discussed below, a cursory review of the amendments leading to the present version of the Act, along with the plain language of the Act itself, demonstrates that there are clear limitations on the extent to which Colorado courts can rely on federal law for guidance in interpreting the Act's provisions.

Operative Provisions Of the Act

As an initial matter, CRS § 16-15-102 (1)(a), requires an "ex parte order authorizing or approving the interception of any wire, oral, or electronic communication" in cases where "there is probable cause to believe that evidence will be obtained of the commission of any one of the crimes enumerated" or that such a crime will be committed. As a general rule, such orders can be obtained only on application by the attorney general or the district attorney.11 Absent strict compliance with these procedural provisions or some showing as to the existence of certain exceptional circumstances set forth under CRS § 16-15-102(16) through (18), evidence obtained as a result of wiretapping or eavesdropping operations will be subject to suppression.12

CRS § 16-15-101, in turn, supplies definitions of the statute's key terms. Although it is important to achieve a command of all the definitions set forth under this section, this article limits itself to a few critical concepts: namely, what constitutes an "interception" and what types of "communications" are covered by the Act. "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device."13 CRS § 16-15-101(3) defines "contents," while CRS § 16-15-101(4) offers a definition for "electronic, mechanical or other device."

CRS § 16-15-101(4)(a) and (b) exempt certain types of equipment or devices from the statute's operation. The exemptions set forth under CRS § 16-15-101(4)(a) apply to telephonic equipment or devices that are (1) furnished by...