The Fourth Amendment to the United States Constitution provides that warrantless searches and seizures are presumptively invalid.
Warrants are required before law enforcement may conduct a wiretap.
Neutral and Detached Judicial Officers May Issue Warrants
A judge or magistrate issuing a search warrant must be neutral and detached. Judges and magistrates are not to be mere rubber stamps for the police.
A judge or magistrate should be disqualified from making this decision if he or she has the appearance of bias. Actual bias is not required. The reason for this principle is a desire for public confidence in judicial decisions. If there is an appearance of bias, the public will lack confidence in the judicial decision, whether or not there is actual bias.
Evidence of a wiretap will only be suppressed based upon bias, however, if the judge or magistrate is actually bias. Evidence will not be suppressed if the judge or magistrate only has the appearance of bias but is not actually motivated by bias.
For suppression, the question becomes whether the judge or magistrate issued the warrant based upon the existence of probable cause rather than the judge or magistrate’s own bias. If a judge or magistrate is motivated by bias in issuing a warrant, there may as well have been no warrant at all.
Warrant Applications and Judicial Decisions
An application for a warrant for wiretap by law enforcement contains an affidavit by a police officer which must contain sufficient information to establish probable cause before a warrant may issue. This application must seek evidence for certain specifically enumerated crimes.
Once law enforcement applies to a court for a warrant permitting a wiretap, the court must determine whether there is probable cause to believe that evidence of specifically alleged crimes will be obtained through the use of a wiretap.
The court must view only what is contained within the officer’s affidavit. In other words, if the affidavit is insufficient to show probable cause for a warrant to issue, the court may not look elsewhere for additional information to establish probable cause. The court must not issue a warrant.
Colorado Closely Follows Federal Law in this Area
Colorado’s wiretap laws closely follows the laws regulating federal wiretaps and therefore federal laws related to wiretap are given great weight by Colorado courts in interpreting Colorado’s wiretapping statute.
Failure to Comply with Wiretap Statutes
Not every failure to comply with Colorado’s wiretap statute will render the wiretap unlawful.
A failure to comply with any statutory requirements that undermines the purposes of the wiretap statute and prejudices the defendant will render the wiretap unlawful and the evidence seized must be suppressed.
Often courts will require progress reports regarding the wiretap being conducted by police be filed periodically with the court.
This is permitted, but not required, by Colorado statutes.
Notice of Wiretap
Colorado statutes do require the subject of a wiretap, the person being wiretapped, be notified about the interceptions no later than 90 days after the wiretap is terminated. However, failure to notify the person being wiretapped after the wiretap is over will not make the wiretap itself unlawful.
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