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Colorado Wiretap Violations and Remedies

People v. Gallegos (Colo. April 11, 2011)

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?

Held: No.

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;

    Non-neutral Magistrate
  • (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;
  • (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; and
  • 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.

***Commentary provided by Eric Sims Jr., Esq. (used with permission)***


Fourth Amendment – Neutral and Detached Magistrate – Wiretapping.


In this case, the Colorado Supreme Court consolidates five
separate interlocutory appeals by the People, each concerning
the suppression of evidence obtained through wiretap
surveillance.  The five defendant-appellees joined in a Motion
to Suppress Evidence Derived from Illegal Wiretaps, claiming
that the orders authorizing wiretap surveillance were invalid
because the judge who issued the orders did so while his son
worked for the District Attorney‟s Office.
The trial court granted the Motion to Suppress, citing
statutory and ethical rules of judicial conduct for its
determination that the wiretap orders were void for lack of a
detached and neutral magistrate.  The trial court also found a
number of violations of the wiretap statute and wiretap orders.
Because the suppression of evidence is governed foremost by
constitutional principles, the supreme court holds that the
proper inquiry in a motion to suppress is not whether a
magistrate should have recused himself under rules of judicial
conduct, but instead whether a magistrate manifested the
neutrality and detachment demanded by the Fourth Amendment.
Accordingly, if a warrant or wiretap application is supported by
probable cause, evidence should not be suppressed without proof
of actual bias by the issuing magistrate.  Actual bias is more
than an appearance of impropriety; it is an actual conflict so
substantial that the magistrate cannot be considered neutral and
Because the wiretap orders in this case were
supported by probable cause and because there was no evidence
that the judge who issued the orders had an actual conflict, the
supreme court holds that the judge who issued the wiretap orders
was a neutral and detached magistrate.  Furthermore, the
violations of the wiretap statute were not sufficient to warrant
Therefore, the Supreme Court REVERSES the decision
of the trial court.

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