O'Hara v. People

2012 CO 18

271 P.3d 503

Thomas Lynn O'HARA, III, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 10SC386.

Supreme Court of Colorado, En Banc.

March 5, 2012.

Davide C. Migliaccio, Colorado Springs, Colorado, Attorney for Petitioner.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice MÁRQUEZ delivered the Opinion of the Court.

¶ 1 In this case, we interpret Colorado's wiretapping statute, which permits a judge to issue an ex parte order approving a wiretap only “upon application of the attorney general or a district attorney.” § 16–15–102(1)(a), C.R.S. (2006). Defendant–Petitioner, Thomas Lynn O'Hara, III, was convicted of distribution of a schedule II controlled substance, adjudicated a habitual criminal, and sentenced to ninety-six years in the Department of Corrections. Prior to trial, O'Hara moved unsuccessfully to suppress the State's wiretap evidence against him, contending, among other things, that the wiretaps were not properly authorized because the elected district attorney had not personally prepared or signed the applications to initiate or extend the wiretaps.

¶ 2 On appeal, O'Hara renewed his challenge to the wiretap evidence. The court of appeals held that section 16–15–102(1)(a) requires the attorney general or a district attorney to “specifically authorize a specific wiretap application,” but the elected official “need not sign or personally submit the application.” People v. O'Hara, 240 P.3d 283, 285 (Colo.App.2010). Because the court of appeals concluded that the record contained no finding by the trial court that the elected district attorney specifically authorized the wiretaps, it remanded the case for further proceedings. Id. at 284, 291.

¶ 3 We granted O'Hara's petition for writ of certiorari to review the court of appeals' interpretation of section 16–15–102 and the propriety of its remand order.¹ We agree in substance with the court of appeals' statutory interpretation and we affirm the court of appeals' decision to remand for further proceedings.

¶ 4 We hold that section 16–15–102(1)(a) requires the attorney general or an elected district attorney to personally authorize an application to initiate or extend a wiretap, but does not require the elected official to personally prepare or submit the application. Personal authorization of the application by a senior, publicly accountable elected official plays a central role in the statutory scheme and provides a necessary safeguard against unlawful government intrusion into the privacy of citizens through the extraordinary investigative device of electronic surveillance. Thus, an application that lacks the requisite personal authorization of the elected official renders a court's approval of the wiretap or extension invalid, and the interception of communications pursuant to that court approval “unlawful” under section 16–15–102(10).

¶ 5 The elected official's personal authorization can be established, by his or her signature on the application. An application to initiate or extend a wiretap containing the signature of the elected official is presumed to be properly authorized; an aggrieved person seeking to rebut such a presumption must introduce some evidence sufficient to make a threshold showing that the signature was inauthentic or that someone else authorized the application. While the lack of the elected official's signature on the application is not fatal, in the absence of the elected official's signature, the requisite personal authorization cannot be presumed. Under such circumstances, the prosecution must show compliance with section 16–15–102(1)(a) by establishing that the application was personally authorized by the attorney general or elected district attorney. This compliance may be shown through the sworn testimony or affidavit of the elected official, or similar proof.

¶ 6 We agree with the court of appeals that the record in this case does not presently support a finding that the elected district attorney personally authorized each of the applications and extension requests at issue. We also affirm the court of appeals' decision to remand this case for further proceedings, albeit on different grounds. We conclude that a remand to the trial court is appropriate in this case given that neither the parties nor the trial court had the benefit of our interpretation today of section 16–15–102(1)(a). Accordingly, we remand this case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.

I. Background

¶ 7 In 2006, while investigating a major methamphetamine ring in Grand Junction, a task force officer with the Drug Enforcement Administration Western Colorado Drug Task Force, submitted a wiretap application (“initial application”) to a district judge (Judge Bottger), seeking approval for wiretaps on two cell phones allegedly used by the drug ring. The initial application was signed and sworn only by the task force officer but stated, “[a]pplication for this order is being submitted by Peter G. Hautzinger District Attorney for the Twenty First Judicial District, State of Colorado, his appointed Deputy District Attorney, Daniel P. Rubenstein, and I.” The district judge approved both wiretaps for thirty days. Thereafter, the task force officer applied for wiretaps on additional phones associated with the drug ring, and also applied for thirty-day extensions of the wiretaps. The district judge approved each of these additional wiretaps and the thirty-day extensions. The subsequent applications in the record before us were signed and sworn only by the task force officer. These subsequent applications did not contain the language stating that the application was “being submitted by” the elected district attorney or the deputy district attorney; rather, they simply incorporated the initial application by reference.

¶ 8 Based on evidence gathered from the wiretaps, the People charged O'Hara with distribution of a schedule II controlled substance, in violation of section 18–18–405(1), (2)(a)(I)(B), C.R.S. (2006). Prior to trial, O'Hara moved to suppress the evidence against him obtained and derived from the wiretaps, arguing that the wiretaps were unlawful because the district attorney had not personally compiled or signed the applications to initiate and extend the wiretaps, in violation of section 16–15–102(1)(a).

¶ 9 In response, the People argued that Colorado law does not require someone from the district attorney's office to sign a wiretap application if the district attorney's office has actually authorized the application. The People observed that the task force officer's application identified Pete Hautzinger, District Attorney for the 21st Judicial District, and Dan Rubenstein, Chief Deputy District Attorney, as the authorizing attorneys. The People asserted that Hautzinger and Rubenstein “did, in fact, authorize the wiretap.” The People also noted that the initial application stated that it was being “submitted by” District Attorney Hautzinger and Chief Deputy District Attorney Rubenstein. The People further argued that under Colorado law, the deputy district attorney could authorize the applications himself in any event, without express authorization from the elected district attorney. Notably, the People asserted that Chief Deputy District Attorney Rubenstein, the lead prosecutor in the case, “read and personally approved all applications and extensions thereof” and that “Judge Bottger was aware that [Rubenstein] was the person who was authorizing the documents.”

¶ 10 The trial court (Judge Colt) held a hearing on O'Hara's motion to suppress. At that hearing, the task force officer testified regarding the authorization of the initial application:

Q. [By Chief Deputy District Attorney Rubenstein] To the best of your knowledge, when you signed and swore [the statement in the initial application that it was being “submitted by” the district attorney] under oath, was that information accurate?

A. Absolutely.

Q. Were there things that occurred after that that would corroborate to you in your mind that it was, in fact, with the knowledge and authorization of Pete Hautzinger, the District Attorney?

A. Yes, there was.

Q. Can you explain those to the Court?

A. Yes. First of all, like I mentioned earlier, you had told me that you had spoken with him and he had authorized the staffing levels for your office to assist us in this investigation. Also, I spent numerous hours in your office at the District Attorney's Office where Pete Hautzinger would come in, in person and talk to you and I in person about the investigation and how it was going and what was going on within the investigation.

Q. Was it evident from those discussions that he was fully aware ... of what we were doing?

A. Yes.

¶ 11 Later in the hearing, when a second prosecutor on the case sought to call Rubenstein as a witness, O'Hara's counsel objected on the grounds that Rubenstein could not, under the Colorado Rules of Professional Conduct, act as both an advocate and a witness, and would have to be disqualified from the case. This objection prompted Rubenstein's co-counsel to make the following offer of proof:

[W]ithin his office, [Rubenstein] is responsible for handling cases such as this one that involve wiretaps. He is familiar with the process. He would testify to that process and how both he and his superior, the elected District Attorney—he would be able to testify to the process that they use in determining whether to go forward on a wiretap and effectively establishing the authorization issue that [defense counsel] has raised on Mr. O'Hara's behalf.

[Rubenstein] would specifically testify to what happened in this particular case in that regard. I would anticipate that his testimony would be similar and corroborative of what the Court heard earlier from the agent...