April 12, 2011
People v. Gallegos Wiretapping / Statutory Violation and Remedy / Neutral and Detached Magistrate / Appearance of Impropriety of Judge
Facts: The Chief Judge in El Paso County, Judge Samelson, signed a series of wiretaps that ensnared five separate people the prosecution accused of some drug distribution conspiracy. The Court consolidated all the interlocutory appeals. Judge Samelson previously recused himself from criminal cases because his son works in the District Attorney’s Office in El Paso County as an assistant DA. Judge Deb Grohs, former PD in Colorado and Chicago, with cajones the size of Saturn suppressed everything gained from these series of wiretaps. Judge Grohs found that Judge Samelson did not fulfill the requirement of being a neutral and detached magistrate.
Issue: Whether suppression of evidence is the proper remedy when a judge with an appearance of impropriety signs warrants authorizing wiretaps?
Reasoning: Simply put, the Court found no actual bias on the part of Judge Samelson, that the ethical rules of recusal do not necessarily warrant suppression, and that the affidavits established probable cause to issue a search warrant for the wiretaps.
Constitutional Rules for a Wiretap:
(1) Signed by a neutral and detached magistrate;
(2) Affidavit and supporting documents establish probable cause;
(3) Wiretaps will disclose evidence of specific crimes.
(4) Wiretaps are presumed valid – even on appeal;
(1) Pecuniary interest - See Connally v. Georgia, 429 U.S. 245, 250 (1977)(magistrates paid per warrant); or
(2) Acting in a law enforcement capacity - See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979)(magistrate who signed the warrant joined in the search with police). (Interestingly, the Colorado Supreme Court went on to list a series of cases where the magistrate acted in a neutral fashion: previously prosecuted the accused, attorney for an adverse party prior to becoming a judge, represented the accused as his criminal defense lawyer prior to becoming a judge, magistrate’s husband a deputy sheriff. The Court found in each case probable cause existed, and the defense did not produce any evidence of actual bias.)(citations omitted)
Thus, the issue here was whether Judge Samelson acted in a neutral and detached manner - in fact – not appearance. The court found that ethical canons, rules or statutes may be relevant to the analysis; however, a violation of any would not necessite suppression unless the judge actually evinced bias against the accused.
Statutory Violations of the Wiretap Statute § 16-15-102:
Evidence can be suppressed if:
(1) unlawfully intercepted; or
(2) the order of authorization or approval is insufficient on its face; or,
(3) the interception was not made in conformity with the order of authorization or approval. § 16-15-102(10).
However, the Court then limited the breadth of the statute, “Suppression is the appropriate remedy only if there is both lack of compliance with the wiretap statute and prejudice to a defendant.” The Court then dismissed the statutory violations in this case as insignificant (an aggravating result when each statutory violation seemed significant on its own without the cumulative blow-off of the entire statute by the police and the District Attorney):
- wrong date (clerical or if not, no evidence of shenanigans on the part of the police or DA);
- no progress reports on the investigation when the judge granted an extension on the wiretap warrant (reports up to issuing judge’s discretion, thus, suppression not warranted for failing to comply); see §16-15-102(7)
- failure to give notice to tapped party, as §16-15-102(8)(d) requires; all A-OK, and suppression not warranted.
- finally, failure to disclose to the defense the wiretap application, affidavits, and orders at least ten days prior to the hearing on the matter, as required by §16-15-102(9), did not warrant suppression.
In Re: People v. Williamson Rape Shield / Definition of “Sexual Conduct”
Facts: The prosecution charged Mr. Williamson with kidnapping and sexual assault. Mr. Williamson claimed the complaining witness works as a prostitute, and wanted to admit other instances of her prostitution to prove she is in fact a prostitute. Justice Rice, in the first paragraph, wrote, “[He] concedes that he never paid the victim.” Mr. Williamson moved to introduce five instances where the complaining witness solicited prostitution to undercover cop. None of the five instances that Mr. Williamson sought to admit involved actual intercourse or any kind of sexual contact
Issue: Whether “sexual conduct” in the Rape Shield statute encompasses instances where no sexual contact or intercourse occurred?
Reasoning: In People v. Cobb, 962 P.2d 944, 951 (Colo. 1998), the defense sought to admit police contact cards on the complaining witness. In Cobb, the complaining witness told the police Mr. Cobb raped her when she ran out of gas and that she was unfamiliar with the area. However, the contact card showed she used the same excuse when the police contacted her in the same area with another man. Mr. Cobb sought introduction of the evidence to impeach the complaining witness for claiming she was not familiar with the area. The Court drew a difference between the scenario in Cobb and here. The Court stated Rape Shield did not encompass inferences of sexual conduct, as was the situation in Cobb. Here the defense did not make mere inferences of prostitution, but sought prior instances of soliciting prostitution. Thus, the Court held that even where no actual sexual contact or intercourse takes place, sexual conduct is broad enough to include prior acts of simply soliciting prostitution.
People v. Hernandez Leaving the Scene of An Accident / Sufficiency of the Evidence
Facts: Chivalry is not dead. Mr. Hernandez allegedly drove an SUV after a party, and crashed into another car. The occupants of the other car suffered some serious injuries. At the scene, Mr. Hernandez’s girlfriend told the police she was driving, and gave the police her information. Mr. Hernandez remained on scene, gave his girlfriend his information to write in under ‘passenger’, and never disclosed that he was the one actually driving. Mr. Hernandez left after the police took his girlfriend in for a blood alcohol test. Later, after the prosecution charged her with DUI, the girlfriend recanted her story. The state subsequently prosecuted Mr. Hernandez for leaving the scene of an accident.
Issue: Whether the prosecution can sustain a conviction where the accused never left the scene of the accident but also never disclosed that he was the actual driver?
Reasoning: The Court held that although the statute does not specifically require identifying oneself as the actual driver that is what the driver must do if she or he is involved in an accident. Justice Martinez dissented. Thus, the Court held the evidence of not identifying himself and allowing a misrepresentation of the identity of the actual driver was sufficient to sustain a conviction.