Colorado § 16-15-102 - Ex parte order authorizing the interception of wire, oral, or electronic communications.

§ 16-15-102. Ex parte order authorizing the interception of wire, oral, or electronic communications.

(1) (a) An ex parte order authorizing or approving the interception of any wire, oral, or electronic communication may be issued by any judge of competent jurisdiction of the state of Colorado upon application of the attorney general or a district attorney, or his or her designee if the attorney general or district attorney is absent from his or her jurisdiction, showing by affidavit that there is probable cause to believe that evidence will be obtained of the commission of any one of the crimes enumerated in this subsection (1) or that one of said enumerated crimes will be committed:

(I) Murder in the first or second degree as defined in sections 18-3-102 and 18-3-103, C.R.S.;

(II) Kidnapping in the first or second degree as defined in sections 18-3-301 and 18-3-302, C.R.S.;

(III) Gambling, meaning professional gambling, as defined in section 18-10-102 (8), C.R.S., and subject to prosecution under section 18-10-103 (2), C.R.S.;

(IV) Robbery as defined in section 18-4-301, C.R.S., aggravated robbery as defined in section 18-4-302, C.R.S., or burglary in the first or second degree as defined in sections 18-4-202 and 18-4-203, C.R.S.;

(V) Bribery as defined in section 18-8-302, C.R.S., compensation for past official behavior as defined in section 18-8-303, C.R.S., attempt to influence a public servant as defined in section 18-8-306, C.R.S., designation of supplier as defined in section 18-8-307, C.R.S., or misuse of official information as defined in section 18-8-402, C.R.S.;

(VI) Dealing in controlled substances as covered by part 1 of article 280 of title 12 or part 2 of article 80 of title 27, as such offenses are subject to prosecution as felonies;

(VII) Crimes dangerous to life, limb, or property, meaning extortion, as defined as menacing by use of a deadly weapon in section 18-3-206, C.R.S., theft by means other than the use of force, threat, or intimidation as defined in section 18-4-401 (5), C.R.S., arson as defined in sections 18-4-102 to 18-4-105, C.R.S., as these offenses are subject to prosecution as felonies, assault in the first or second degree as defined in sections 18-3-202 and 18-3-203, C.R.S.;

(VII.5) Escape, as defined in section 18-8-208, C.R.S., or introducing contraband in the first or second degree, as defined in sections 18-8-203 and 18-8-204, C.R.S.;

(VIII) A criminal conspiracy as defined in section 18-2-201, C.R.S., to commit any of the aforementioned enumerated crimes;

(IX) Limited gaming as defined in article 30 of title 44 or in violation of article 20 of title 18; or

(X) Human trafficking as described in section 18-3-503 or 18-3-504.

(b) Anything to the contrary notwithstanding, an ex parte order for wiretapping or eavesdropping may be issued only for a crime specified in this subsection (1) for which a felony penalty is authorized upon conviction.

(c) For the purposes of paragraph (a) of this subsection (1):

(I) The district attorney shall designate the assistant district attorney or the chief deputy district attorney; and

(II) The attorney general shall designate either the chief deputy attorney general or the deputy attorney general of the criminal section of the office of the attorney general.

(d) A court shall not issue an ex parte order for wiretapping or eavesdropping to obtain any wire, oral, or electronic communication that relates to an investigation into a legally protected health-care activity, as defined in section 12-30-121 (1)(d).

(2) Each application for an order authorizing or approving the interception of any wire, oral, or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:

(a) The identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b) A complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including: Details as to the particular offense that has been, is being, or is about to be committed, except as provided in subsection (17) of this section, a particular description of the nature and location of the facilities from which, or the place where, the communication is to be intercepted; a particular description of the type of communication sought to be intercepted; and the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c) A complete statement as to whether or not other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried, or to be too dangerous;

(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, there shall be required a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur thereafter.

(e) A complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application; and

(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain those results.

(3) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(4) Upon an application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving the interception of any wire, oral, or electronic communication within the territorial jurisdiction of the court in which the judge is sitting and outside that jurisdiction but within the United States in the case of a mobile interception device, if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause for belief that a person is committing, has committed, or is about to commit a particular offense enumerated in this section;

(b) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

(c) Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous;

(d) Except as provided in subsection (17) of this section, there is probable cause for belief that the facilities from which or the place where the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of an offense or are leased to, listed in the name of, or commonly used by the person alleged to be involved in the commission of the offense.

(5) Each order authorizing or approving wiretapping or eavesdropping shall specify:

(a) The identity of the person, if known, whose communications are to be intercepted;

(b) Except as otherwise provided in subsection (17) of this section, the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(c) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(d) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

(e) The period of time during which an interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication is first obtained.

(6) An order entered under this section may not authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization nor in any event longer than thirty days. Such thirty-day period begins the first day on which the investigative or law enforcement officer begins to conduct an interception under the order or ten days after the order is entered, whichever occurs earlier. An extension of an order may be granted but only upon application for an extension made in accordance with subsection (2) of this section and the court making the findings required by subsection (4) of this section. The period of an extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and each extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception under this section, and must terminate upon attainment of the authorized objective, or in any event in thirty days. No more than three extensions may be granted for any order entered under this section. In the event that the intercepted communication is in a code or foreign language and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception made pursuant to this section may be conducted in whole or in part by government personnel or by an individual operating pursuant to a contract with the government and acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(7) If an order authorizing interception is entered pursuant to this section, the order may require reports to be made to the judge who issued the order, showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such report shall be made at such times as the judge may require.

(8) (a) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this section shall, if possible, be recorded on tape, wire, or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection (8) shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon expiration of the period of the order, or extension thereof, the recording shall be made available to the judge issuing the order and sealed under his directions. Custody of the recording shall be wherever the judge orders. A recording shall not be destroyed except upon an order of the judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of this section. The presence of the seal provided for by this subsection (8), or a satisfactory explanation for the absence thereof, is a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived under this section.

(b) Applications made and orders granted under this section shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction, and shall not be destroyed except on order of the judge to whom presented, and in any event shall be kept for ten years. Information obtained pursuant to a court order authorizing interception of wire, oral, or electronic communications shall not be used, published, or divulged except in accordance with the provisions of this article.

(c) Any violation of the provisions of this subsection (8) may be punished as contempt of court.

(d) Within a reasonable time, but not later than ninety days after the filing of an application for an order of approval under this section, which application is denied, or after the termination of the period of an order or extensions thereof, the judge to whom the application was presented shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion is in the interest of justice, notice of the following:

(I) The fact of the entry of the order or application;

(II) The date of the entry and the period of authorized, approved, or disapproved interception, or the denial of the application; and

(III) The fact that during the period wire, oral, or electronic communications were or were not intercepted. The judge, upon the filing of a motion, may, in his discretion, make available to any such person or his counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the matter required by this paragraph (d) may be postponed.

(9) The contents of any intercepted wire, oral, or electronic communication or the evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court, unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the court if it finds that it was not possible to furnish the party with the information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving this information.

(10) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Colorado, or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication or the evidence derived therefrom on the grounds that: The communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. This motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication or the evidence derived therefrom shall not be received as evidence. The remedies and sanctions provided for in this section with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this section involving such communications.

(11) In addition to any other right to appeal, the state of Colorado has the right to appeal from an order granting a motion to suppress made under subsection (10) of this section, or the denial of an application for an order of approval, if the person making or authorizing the application certifies to the judge granting the motion or denying an application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.

(12) Any investigative or law enforcement officer who, by any means authorized by this section, has obtained knowledge of the contents of any wire, oral, or electronic communication or the evidence derived therefrom may disclose such contents to another investigative or law enforcement officer to the extent that this disclosure is appropriate in the proper performance of the official duties of the officer making or receiving the disclosure.

(13) Any investigative or law enforcement officer who, by any means authorized by this section, has obtained knowledge of the contents of any wire, oral, or electronic communication or the evidence derived therefrom may use those contents to the extent the use is appropriate in the official performance of his official duties.

(14) Any person who has received, by any means authorized by this section, any information concerning a wire, oral, or electronic communication or any evidence derived therefrom, intercepted in accordance with the provisions of this section, may disclose the contents of that communication or derivative evidence while giving testimony in any criminal proceeding in any court of this state or in a grand jury proceeding.

(15) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this section shall lose its privileged character.

(16) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized in this section, intercepts wire, oral, or electronic communications relating to an offense other than one specified in the order of authorization or approval, the contents thereof and the evidence derived therefrom may be disclosed or used as provided in subsections (12) and (13) of this section only if an offense other than one specified in the order is an offense which constitutes a felony under Colorado statutes. The contents thereof and the evidence derived therefrom, as authorized by this section, may be used under subsection (14) of this section only when authorized or approved by a judge of competent jurisdiction when the judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this section. This application shall be made as soon as practicable.

(17) (a) The requirements of paragraph (b) of subsection (2), paragraph (d) of subsection (4), and paragraph (b) of subsection (5) of this section relating to the specification of the facilities from which, or the place where, the communications are to be intercepted do not apply if:

(I) In the case of an application with respect to the interception of an oral communication:

(A) The application is made by an investigative or law enforcement officer and is approved by the attorney general or the district attorney of the district in which the application is sought;

(B) The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and

(C) The judge finds that such specification is not practical; and

(II) In the case of an application with respect to the interception of a wire or electronic communication:

(A) The application is made by an investigative or law enforcement officer and is approved by the attorney general or the district attorney of the district in which the application is sought;

(B) The application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and

(C) The judge finds that such purpose has been adequately shown.

(b) An interception of a communication under an order with respect to which the requirements of paragraph (b) of subsection (2), paragraph (d) of subsection (4), and paragraph (b) of subsection (5) of this section do not apply pursuant to the provisions of paragraph (a) of this subsection (17) shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order pursuant to subparagraph (II) of paragraph (a) of this subsection (17) may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall decide such a motion expeditiously.

(18) (a) Any other provision of this article notwithstanding, any investigative or law enforcement officer specifically designated by the attorney general or a district attorney may intercept wire, oral, or electronic communications for a period not to exceed twenty-four hours under the following circumstances:

(I) When an emergency situation exists that involves the holding of hostages or kidnapping by the use of physical force, a deadly weapon, or an explosive device, and there is imminent danger of serious bodily injury or death to any person, or where one or more suspects in a felony crime have barricaded themselves in a building and there is a reasonable belief that one or more of the suspects is armed with a deadly weapon or explosive device; and

(II) There are reasonable and sufficient grounds present upon which an order could be entered to authorize such interception.

(b) Any emergency interception shall terminate upon attainment of the authorized objective as set forth in subparagraph (I) of paragraph (a) of this subsection (18) or at the end of the twenty-four-hour period, whichever comes first.

(c) The investigative or law enforcement officer designated pursuant to paragraph (a) of this subsection (18) and the official making such designation shall submit an application for the interception of wire, oral, or electronic communications to a judge of competent jurisdiction within the twenty-four-hour period described in paragraph (a) of this subsection (18). Such application shall be submitted regardless of whether or not the interception was terminated within the twenty-four-hour period. Such application shall comply in all respects with the requirements of this section and sections 16-15-101, 16-15-103, and 16-15-104.

(d) If, after the application described in paragraph (c) of this subsection (18) is made, the application is denied, any interception shall immediately cease. In such case, all recordings shall be sealed by the court as soon as practicable, and any communication intercepted shall be treated as a communication which has been obtained in violation of section 18-9-305, C.R.S., and an inventory shall be served in accordance with this article. Any such communication shall not be admissible in any legal action against any person whose communication was intercepted.

(e) All provisions of this article shall be applicable with respect to the execution of any interception under emergency circumstances.

(f) Repealed.

Source: L. 71: p. 486, § 2. C.R.S. 1963: § 39-24-2. L. 72: pp. 269, 270, §§ 1, 2. L. 75: (1)(a)(VII) amended, p. 631, § 3, effective July 1. L. 81: (1)(a)(VI) amended, p. 737, § 19, effective July 1. L. 85: (1)(a)(III) amended, p. 1360, § 11, effective June 28. L. 87: (1)(a)(VII) amended and (1)(a)(VII.5) added, p. 615, § 3, effective May 8. L. 88: (2)(b), (2)(e), IP(4), (4)(d), (5)(b), (6), (8)(a), (8)(b), (8)(d)(III), (9), (10), and (12) to (16) amended and (17) added, p. 686, § 2, effective May 29. L. 91: IP(1)(a), IP(2), and IP(4) amended and (18) added, p. 433, § 1, effective May 18; (1)(a)(IX) added, p. 1581, § 6, effective June 4. L. 92: (1)(a)(IX) amended, p. 2172, § 21, effective June 2. L. 95: (18)(f) repealed, p. 463, § 4, effective July 1. L. 2007: (18)(a)(I) amended, p. 327, § 1, effective April 2. L. 2008: IP(1)(a) and (6) amended and (1)(c) added, p. 47, § 1, effective August 5. L. 2012: (1)(a)(VI) amended, (HB 12-1311), ch. 281, p. 1617, § 35, effective July 1. L. 2017: (1)(a)(IX) amended and (1)(a)(X) added, (HB 17-1040), ch. 69, p. 217, § 1, effective September 1. L. 2018: (1)(a)(IX) amended, (SB 18-034), ch. 14, p. 239, § 12, effective October 1. L. 2019: (1)(a)(VI) amended, (HB 19-1172), ch. 136, p. 1673, § 87, effective October 1. L. 2023: (1)(d) added, (SB 23-188), ch. 68, p. 246, § 12, effective April 14.

Cross references: For the legislative declaration in SB 23-188, see section 1 of chapter 68, Session Laws of Colorado 2023.

ANNOTATION

I. General Consideration.

II. Application.

III. Order.

V. Suppression of Contents and Evidence.

I. GENERAL CONSIDERATION.

Law reviews. For note, "Right of Privacy and Emotional Distress in Colorado", see 43 U. Colo. L. Rev. 147 (1971). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with electronic beepers and state wiretap statutes, see 62 Den. U. L. Rev. 159, 186 (1985). For article, "Discovery and Admissibility of a Sound Recordings and Their Transcripts", see 14 Colo. Law. 999 (1985).

Annotator's note. Since § 16-15-102 is similar to repealed § 40-4-30, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

Section held constitutional. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Section is not an unconstitutional invasion of privacy. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Because the benefits to society from crimes solved or frustrated by the use of wiretapping outweigh the limited invasion. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Federal authorities given great weight in interpreting subsection (8)(a). Because subsection (8)(a) is closely patterned after and designed to implement a federal wiretapping statute, federal authorities explaining the federal statute should be accorded great weight in interpreting subsection (8)(a). People v. Baez-Lopez, 2014 CO 26, 322 P.3d 924.

Problem of electronic surveillance. The reason for the seriousness of the problem arises not from the fact that particular conversations are not specifically described and specifically authorized, but rather from the unmanageability generally of electronic surveillance, for the area is peculiarly sensitive due to its effort to probe the thoughts of man who is the object of the search. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

This section allows law enforcement officers to intercept telephone communications after having obtained judicial authorization upon a showing of probable cause. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Court order to be scrutinized under stringent standards. A court order authorizing the wiretapping of telephonic communications must be scrutinized under the same stringent standards as other fourth amendment searches and seizures. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

Crime within scope of section. Where the crimes for which the defendant is charged (possession, conspiracy to possess, possession for sale, conspiracy to possess narcotic drugs for sale) have a minimum penalty of from 2 to 10 years in the state penitentiary, he falls within the scope of this section. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Monitoring conversations between husband and wife in visiting room of jail is not wiretapping or eavesdropping because such conversations are not within the statutory definitions of "wire communication" and "oral communication". People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).

Consensually overheard conversation not "eavesdropping". By the terms of § 18-9-304 (1)(a), a consensually overheard conversation is not eavesdropping. People v. Palmer, 652 P.2d 1092 (Colo. App. 1982).

Wiretap need not be used as last resort. Subsection (2)(c) does not require that wiretapping be used only as a last resort. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Agents to minimize interception of nonrelevant conversations. This section does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct surveillance in such a manner as to "minimize" the interception of such conversations. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Factors considered in determining whether such interceptions minimized. Factors to consider in determining whether the agents have acted reasonably to minimize the interception of nonrelevant conversations include: The nature and scope of the alleged criminal enterprise; the government's reasonable expectations as to the contents of, and parties to, the conversations; the degree of judicial supervision of the wiretap; the length of the conversations; the phase of the investigation; whether the parties used coded language; and the percentage of calls intercepted which are incriminating. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Whether warrantless police eavesdropping violates the fourth amendment depends on whether the defendant had a justified expectation of privacy at the time and place of the communication. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

II. APPLICATION.

Requirements for an ex parte order for a wiretap are to be interpreted in a practical and common sense fashion to effectuate their purpose. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988).

Wiretapping need not be used only as a last resort. The requirements of subsection (4)(c) 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. Vazquez, 768 P.2d 721 (Colo. App. 1988).

Application showing probable cause required. An ex parte order for wiretapping or eavesdropping may be issued only upon application stating that there is probable cause to believe that evidence may be obtained. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Affidavits in support of a request for an ex parte wiretap order must establish that there is probable cause to believe that evidence of specific enumerated crimes will be obtained through the substantial intrusion upon the individual's privacy. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

An interception order may be issued only after a judge of competent jurisdiction has determined that specific grounds exist which justify the use of the intercepting devices. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Supporting affidavit for wiretap order serves same function as affidavit used to establish probable cause for search warrant. People v. Wahl, 716 P.2d 123 (Colo. 1986).

Aguilar-Spinelli test applicable under section. The standards of probable cause for issuance of a search warrant based on information given to an affiant police officer by an unidentified informant as set forth in the Aguilar-Spinelli test are applicable under this section. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Under the Aguilar-Spinelli test, the affidavit must provide sufficient underlying circumstances to enable the magistrate to determine independently whether there is probable cause to believe that illegal activity is being carried on in the place to be searched and must set forth sufficient facts to allow the magistrate to determine independently that the informant is credible or his information reliable. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

Probable cause ceases to exist when it is no longer reasonable to presume that the criminal activities are still being carried on in the place to be searched. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

Element of time is crucial to determination of existence of probable cause; if information provided the issuing magistrate does not reasonably demonstrate that the suspect is continuously engaged in criminal activity, a warrant based on dated, or "stale", evidence is invalid. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

Fact that magistrate was not in his regular office when he authorized search, and made himself readily available to law enforcement officers, did not alter his character as a neutral and detached magistrate. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

Authorization sustained where affidavit established probable cause despite its errors. Even though a substantial amount of information in the affidavit is either extraneous or innocuous, and thus could not serve alone as the basis for a determination of probable cause, and included in the affidavit is some information which is allegedly erroneous, if after striking this information probable cause still exists, the wiretap authorization must be sustained. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980).

The constitutional requirement that probable cause be reduced to writing is met regardless of any provision within the wiretap statute allowing the judge to take additional testimony. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Identity of person allegedly committing offense must be included in application or affidavit. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

District attorney need not personally make application for supplemental use. There is no doubt that the district attorney must personally initiate the wiretap, and that he must apply personally for any extension of the duration of the wiretap; however, the provision for supplemental use contains no such requirement. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Subsection (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. People v. O'Hara, 240 P.3d 283 (Colo. App. 2010), aff'd, 2012 CO 18, 271 P.3d 503.

Application to inform judge of difficulties of other methods. The requirements of this section are satisfied if the application informs the authorizing judge of the difficulties encountered, and the lack of success in using conventional investigatory methods. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

III. ORDER.

The officer is required to obtain a court order before the interception begins. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

This section calls for specific findings and restrictions after careful scrutiny of the application by the judge to whom the application is presented. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

The wiretap statute authorizes the judge to issue an order for interception of communications if he determines from the facts submitted that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

An authorization order will impose strict limitations on the officer who is to execute the authorization. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

It is not a general warrant or roving commission to seize any and all conversations coming into the area covered by the device. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Order authorizing wiretapping must 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; however, there is no requirement that specific findings be set forth detailing why the order does not so automatically terminate. Such an order may not, however, continue longer than necessary to achieve the objective of the authorization and is limited to 30 days, unless extended. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988).

The wiretapping must cease when the objective is attained, and there is an overall 30 day limitation which may be extended for an additional 30 days should the judge make new findings sufficient to uphold an original authorization. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

More latitude given where target is conspiracy. Where the target of the wiretap is a large scale conspiracy, courts must be given more latitude to formulate a sufficiently broad wiretap order. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Such as longer duration. Where there is continuing conduct and one of the objectives of the wiretap is to identify the scope and participants of the conspiracy, the permissible duration of the wiretap is necessarily longer than where the investigation concerns only a single criminal episode. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Order for wiretapping in connection with alleged gambling violation permissible only when the person involved has been previously convicted of professional gambling under § 18-10-103 twice within five years so that a felony is authorized upon conviction as required by subsection (1)(b). United States v. McNulty, 729 F.2d 1243 (10th Cir. 1983).

The crime of "dealing in controlled substances" may be defined by its relation to part 3 of article 22 of title 12 and it is sufficient to serve as a basis for a wiretapping order under this section. People v. Sprowl, 718 P.2d 524 (Colo. 1986).

Interceptions by personnel of agencies not specifically identified by a wiretap order did not violate the wiretap order so long as such personnel are under the supervision and control of the authorized agency. People v. Ingram, 684 P.2d 243 (Colo. 1984).

Wiretap order failing to specify that a pen register would be used is valid nonetheless. People v. Wahl, 716 P.2d 123 (Colo. 1986).

Definition of "sealed" or "seal" under subsection (8)(a). Subsection (8)(a) requires immediate sealing under the authorizing judge's direction to prevent tampering but does not require the judge's physical involvement or any specific manner of sealing. Subsection (8)(a) does not require an official seal on recordings. Further, subsection (8)(a) does not require the sealing directions to be delivered in written form. Prosecution may present alternate forms of proof as to judge's sealing directions when the directions are not set out in written directions or orders. People v. Baez-Lopez, 2014 CO 26, 322 P.3d 924.

IV. USE OF CONTENTS AND EVIDENCE.

A. In General.

B. Of Other Offenses.

A. In General.

Information usable in proper performance of officer's duties. Information obtained as a result of authorized surveillance may be used or disclosed by the officer to the extent appropriate to the proper performance of his duties. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Subsection (9) applies to a hearing that is ancillary to, and distinct from, a grand jury proceeding. The prosecution must comply with subsection (9) when adjudicating the applicability of crime-fraud exception to the attorney-client privilege when it intends to present the attorney-client records and conversations to the grand jury. In re 2015-2016 Jefferson County Grand Jury, 2018 CO 9, 410 P.3d 53.

Recording played on telephone handset before every telephone call placed by a prisoner using that telephone stating that the call would be recorded, and the short jail orientation at which prisoners agreed to read and abide by rules contained in a handbook, which stated that outgoing telephone calls would be recorded, provided notice to the defendant that his calls would be recorded. When a prison inmate is required to permit monitoring of telephone calls as a condition of using prison telephones, the prisoner impliedly consents if he or she has notice of monitoring and still places calls on prison telephones. People v. Mares, 263 P.3d 699 (Colo. App. 2011).

B. Of Other Offenses.

This section extends to offenses different from those named within the authorization order; it does not extend to persons other than those named. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Use of information of other offenses permitted. It would be the height of unreasonableness to distinguish between information specifically authorized and that which is unanticipated and which develops in the course of an authorized search, and thus irrational to hold that officers authorized to listen to conversations about one offense, upon learning of another offense, must at once close down the project and not use the information to prevent the other offense since the information is tainted. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

It would be unreasonable and unrealistic to suppress evidence of other crimes, which was obtained through valid interception by wiretap, simply because they are not designated originally in the statute. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

But courts should not hesitate to suppress evidence obtained where the investigation of designated offenses is used as a subterfuge to obtain evidence not otherwise available. Good faith requirements, as well as the statutory requirements of probable cause, are sufficient safeguards of the defendants' rights in this regard. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Evidence of a nondesignated offense obtained in the course of a lawful wiretap may be later used, if the offense constitutes a felony, and if such use is authorized and approved by a judge of competent jurisdiction. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974).

Sexual assault is not included in the list of crimes for which an eavesdropping authorization order is available and no implied exception can be read into the statute. People in Interest of A.W., 982 P.2d 842 (Colo. 1999).

Provisions of this article should not be so narrowly interpreted as to enable offenders against the laws of a state to find permanent asylum in another state. Glenn v. Baker, 184 Colo. 211, 519 P.2d 349 (1974).

Time for filing application, as to other offenses. This section requires that application be made to the court as soon as practicable after information as to offenses other than those specified in the authorization are intercepted. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

V. SUPPRESSION OF CONTENTS AND EVIDENCE.

Prerequisites to application of subsection (10). For the exclusionary application of subsection (10) to be operative, it must not only be at the behest of an aggrieved party, but, critically, it must be shown that the communication was unlawfully intercepted. Moreover, in order to make that determination, one must look to the prohibitory statutes on wiretapping and eavesdropping. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975); People v. Richardson, 2014 COA 50, 350 P.3d 905.

Subsection (10) does not require the suppression of an aggrieved person's statements simply because they were derived from the illegally intercepted communications, but instead because the party who had illegally intercepted has been the one to "derive" other evidence therefrom. People in Interest of A.W., 982 P.2d 842 (Colo. 1999).

Consensual eavesdropping not an "unlawful interception". Since §§ 18-9-303 and 18-9-304 do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no "unlawful interception" within the meaning of subsection (10). Said subsection (10) is, therefore, not applicable, and the evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975).

1991 amendment to subsection (1) did not change holding in People v. Morton that consensual eavesdropping is not an unlawful interception that must be suppressed under subsection (10). People v. Watson, 53 P.3d 707 (Colo. App. 2001).

Because defendant was an aggrieved person within the meaning of subsection (1), defendant had standing to move for suppression of a communication with a minor on the basis that the communication was unlawfully intercepted because it lacked valid third-party consent. People v. Richardson, 2014 COA 50, 350 P.3d 905.

Eavesdropping becomes an "unlawful interception" when consent is secured by fraudulent inducement. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

Unlawfully intercepted communications may not be received into evidence for any reason, including for impeachment purposes. People in Interest of A.W., 982 P.2d 842 (Colo. 1999).

Eavesdropping statutes require use of subjective and objective tests to determine whether a person's conversation qualifies as protected oral communications. People v. Hart, 787 P.2d 186 (Colo. App. 1989).

Tape recording of defendant's conversation with accomplice made without his knowledge in the back of police car could properly be considered since, irrespective of defendant's subjective belief that his conversation while in the police vehicle was private, such belief was unreasonable and unjustified. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Wiretap of crimes excluded from section may be suppressed. A finding that lesser crimes are not intended by congress to be included in the class of crimes for which a wiretap can be authorized does not render the entire state statute invalid, but is merely grounds for suppression with a recognition to restrict application of the statute to crimes such as those with which a defendant is charged. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971).

Right to suppress not impaired by grant of immunity. A grand jury witness has a statutory right to seek the suppression of intercepted communications as well as evidence derived therefrom, and this right is not impaired by the court's grant of transactional immunity since, while such immunity adequately safeguards the witness's privilege against self-incrimination, it does not protect the witness's privacy interest in the contents of the intercepted communications. In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).

Discovery of documents supporting wiretap order cannot be withheld after contempt proceedings are instituted against grand jury witnesses who refuse to testify, claiming questions are based upon information obtained by means of illegal wiretap. Prior to time grand jury witnesses are cited for contempt, adequate protection is afforded witnesses by the requirement that the court examine all facts before imposing contempt sanction. Westerberg v. District Court, 181 Colo. 10, 506 P.2d 746 (1973).

Suppression hearing prematurely granted. Where no showing has been made that the court order which permitted electronic surveillance was invalid or was not properly followed, and what witnesses assert is a right to a hearing on a wiretap that might be illegal, and to suppress intercepted contents that might be used in the future in some manner, an order granting the witnesses a suppression hearing is premature and subject to prohibition. People ex rel. Dunbar v. District Court, 179 Colo. 321, 500 P.2d 819 (1972).

Supreme court has jurisdiction under subsection (11) over appeal from district court order which granted motion to suppress. People v. Wahl, 716 P.2d 123 (Colo. 1986).

Clerical errors do not invalidate a wiretap application, wiretap order, or a letter of inventory notice. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

Describing the results obtained by the wiretap in an affidavit for extension is sufficient; the results do not need to be included in the application for the extension. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

Since progress reports are permissive under this section, the sufficiency of any reports required by the court is left to the discretion of the judge. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

Although the district attorney did not timely provide defense counsel with copies of the application, affidavits, and orders for wiretap, there was no prejudice to defendant since defendant was able to timely file a motion to suppress. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

Sufficient evidence that recordings were sealed and preserved in a manner consistent with subsection (8)(a). Detective removed wiretap recordings from secure server room, initialed discs, and placed discs in a drug enforcement administration (DEA) self-sealing plastic evidence bag in the DEA evidence vault. This section does not require a written sealing order, and there was uncontroverted evidence that detective followed judge's oral directions relating to sealing evidence. People v. Baez-Lopez, 2014 CO 26, 322 P.3d 924.