People v. Timmons

¶1In this interlocutory appeal under C.A.R. 4.1, the People contest an El Paso County District Court order suppressing evidence gathered from telephone toll records, a pen register1 and a wiretap, as well as all fruits thereof. We affirm the order of the district court.

¶2Early in 1981, two confidential informants apprised Colorado Springs police officers that the defendants, Linda Timmons and James Vicars, were distributing large quantities of marijuana from their house at 14350 Holmes Road in El Paso County. According to the informants, Timmons and Vicars routinely recruited couriers to fly to Florida, pick up cars loaded with marijuana and drive back to Colorado. The Florida end of the operation, one informant stated, was under the direction of Timothy and Patrick Timmons.

¶3Beginning in April 1981, Detectives Donald Kessler and C.R. Lucht of the Metro S.C.A.T. unit2 mounted an undercover operation aimed at corroborating the informants’ allegations. Posing as electricians, the officers were admitted to 14350 Holmes Road a number of times. While there, Detective Lucht saw a trash bag containing an estimated eight pounds of marijuana. He also noted that on one occasion an associate of Timmons and Vicars arrived with a leather pouch full of currency. In addition, a friend of Timmons and Vicars told Lucht that Vicars had once “fronted” drugs to another person.

¶4Utilizing grand jury subpoenas, detectives from the S.C.A.T. unit also obtained the telephone toll records of Timmons and Vicars on at least three occasions during 1981 and 1982. These toll records were available to all officers working on the case and were never presented to the grand jury, although Detective Kessler testified as to their contents before the grand jury in December 1982, after the arrest of the defendants. Through these toll records, officers located and conducted surveillance of suspected conspirators, including Timothy and Patrick Timmons, in Florida and Ohio.

¶5On August 23, 1982, with court authorization, officers of the S.C.A.T. unit installed a pen register on the telephone at 14350 Holmes Road. At the suppression hearing, all parties stipulated that the court authorization permitting installation of the pen register was not a search warrant or its equivalent and did not state a finding of probable cause.3 The pen register operated continuously until October 12, 1982.

¶6On that date, the El Paso County District Attorney applied under section 16-15-102, 8 C.R.S. (1978 and 1983 Supp.) for a court order permitting the interception of wire communications (wiretap) on the telephone at 14350 Holmes Road. In support of this application, the district attorney appended the affidavit of Detective Kessler, summarizing the information gathered from confidential informants, the undercover operation and the pen register. The affidavit also stated, and Detective Kessler acknowledged at the hearing, that the toll records were used in preparing the affidavit. The court approved a thirty-day wiretap, and subsequently extended its order for an additional thirty days.

¶7On December 10, 1982, the same day the wiretap was terminated, search warrants were issued for the homes of Vicars, Linda *215Timmons and William and Angela Stoops, as well as for Jesse Morris’ automobile. Arrest warrants for Linda Timmons, Patrick Timmons, Timothy Timmons, Jesse Morris and William Stoops were also issued. The applications for all warrants were supported by the affidavit of Sergeant Daniel Shull, describing the contents of a number of intercepted phone calls and observations derived from surveillance of the suspects, and by the Kessler affidavit that had been used to obtain the wiretap.

¶8On December 17, 1982, the defendants were indicted for conspiracy to possess marijuana for distribution,4 possession of marijuana with intent to dispense,5 and as special offenders.6 Before trial, the defendants moved to suppress all evidence gathered through the use of the pen register and toll records. The district court7 granted this motion, applying People v. Sporleder, 666 P.2d 135 (Colo.1983) retroactively8 to suppress all pen register and toll record evidence9 obtained without a search warrant, and holding that the statutory “good faith exception,” § 16-3-308, 8 C.R.S. (1983 Supp.), did not apply. On this basis, the district court struck from the affidavit supporting the wiretap application all toll record and pen register information, along with all surveillance evidence derived from the toll records and pen register, and found that without this information the affidavit failed to establish probable cause; therefore, the court also suppressed all wiretap evidence. Finally, the district court suppressed evidence gathered from out-of-state surveillance and the residence and vehicle searches in Colorado, holding that such evidence was the fruit of the wiretap, pen register and toll record evidence.

¶9The People argue on appeal that the district court erred in applying Sporlederretroactively and in refusing to apply the statutory “good faith exception” to the pen register and toll record evidence. We reject both of these contentions and affirm the suppression order.

¶10I.

¶11In Sporlederwe held that the use of a pen register is a search and seizure under article II, section 7 of the Colorado Constitution, and that the installation of a pen register therefore must be preceded by the issuance of a search warrant. The district court, applying this rule retroactively to events that took place in 1981 and 1982, suppressed all toll record and pen register evidence. The People argue that the court erred in applying Sporlederretroactively.

¶12In determining the retroactivity of a rule of criminal procedure, this court has consistently followed the lead of the United States Supreme Court. See, e.g., People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). Most recently, in People v. Walker, 666 P.2d 113, 117 (Colo.1983), we adopted the retroactivity analysis set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), which considers “(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the *216effect on the administration of justice of a retroactive application of the new standards.” 10 In United States v. Johnson, 457 U.S. 587, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), however, the United States Supreme Court abandoned this three-factor analysis in fourth amendment cases, holding instead that all new fourth amendment rulings shall be applied retroactively to all convictions that are not final at the time of the decision. The defendants now urge that we once again follow the United States Supreme Court and adopt the Johnson “bright line” approach in search and seizure cases, while the People suggest that application of the Walkeranalysis would defeat retroactivity in this case.

¶13This case does not require us to choose between these two approaches. In Johnson, the Court noted that there are three categories of cases in which retroactivity rules have been firmly established by precedent, so that a court should apply neither the Stovallanalysis nor the Johnson “bright line” approach. Among these categories is the situation in which the court “merely has applied settled precedents to new and different factual situations .... In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered the rule in any material way.” Johnson, 457 U.S. at 549, 102 S.Ct. at 2587. We view Sporlederas falling within this category of cases.

¶14Sporlederis one of a series of cases affirming that article II, section 7 of the Colorado Constitution protects the privacy of customers in institutional records. In Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980), we held that customers retain a reasonable expectation of privacy in bank records of the customer’s financial transactions. A customer does not intend to forfeit this expectation by opening a bank account, we reasoned, both because disclosure of information is incidental to the customer’s main purpose, and because the use of banks is a business necessity and thus not entirely voluntary. In so finding, we rejected the contrary conclusion in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), in which the Supreme Court held that customers have no reasonable expectation of privacy in bank records.

¶15Sporlederexplicitly extends the rationale of DiGiacomoto pen registers. Paralleling the reasoning of our earlier case, we found that telephone use is a necessity and that information supplied to the telephone company is merely incidental to that necessity; therefore, no voluntary forfeiture of privacy occurs when a telephone is used.11Sporleder, 666 P.2d at 141. We concluded that

any difference between a bank customer’s privacy interest in bank records and a telephone subscriber’s privacy interest in a record of telephone numbers dialed from a house telephone is too insubstantial to justify a constitutional differentiation in treatment.

¶16*217Id. at 143. As in DiGiacomo, our holding in Sporlederrelied on the Colorado Constitution and rejected United States Supreme Court authority to the contrary. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

¶17Thus, Sporlederand DiGiacomoboth apply a single rationale to the problem of customer privacy in institutional records, and both rest solely and explicitly upon article II, section 7 of the Colorado Constitution.12 It is for this reason that we have recently noted that Sporleder“was explicitly based on, and foreshadowed by, Charnes v. DiGiacomo ”, and that Spor-leder therefore fell within that category of cases, delineated in Johnson, in which settled precedent is applied to a new factual situation. People v. Corr, 682 P.2d 20, 27 (Colo.1984). We reaffirm today that Spor-leder basically applies the principles enunciated in DiGiacomo, and thus it properly was applied retroactively in this case.13 We therefore affirm the district court’s suppression of pen register and toll record evidence.

¶18II.

¶19Section 16-3-308, 8 C.R.S. (1983 Supp.) provides:

(1) Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as defined in section 18-1-901(3)(1), C.R.S., as a result of a good faith mistake or of a technical violation.

(2) As used in subsection (1) of this section:

(b) “Technical violation” means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.

¶20The People argue that the police reasonably relied in good faith upon Smith v. Maryland, permitting the warrantless use of pen registers, and could not realize that this reliance was misplaced until our decision in Sporlederwas announced. Thus, they maintain, the evidence here was seized as a result of a “technical violation” and should be admitted under section 16-3-308.

¶21Several months ago, we rejected this argument in Corr. There, we explained that Sporlederdid not “overrule” Smith; to the contrary, Sporlederderived directly from DiGiacomo, which in turn was based upon article II, section 7 of the Colorado Constitution. Corr, 682 P.2d at 27. Given the existence of this independent state precedent, law enforcement authorities cannot have reasonably relied on Smith.14Section 16-3-308 is thus inapplicable to the search and seizure in this case.

¶22*218The order of the district court is affirmed.