The Colorado Court of Appeals issued its opinion in People v. O’Hara III on May 13, 2010.
Wiretap—Authorization—CRS § 16-15-102.
Defendant Thomas Lynn O’Hara III appealed the judgment of conviction entered on a jury verdict finding him guilty of distribution of a schedule II controlled substance. The case was remanded for further findings.
Task force officers, in conjunction with the local district attorney’s office, applied for and received orders authorizing wiretaps on two phones belonging to R.P., a suspected drug dealer. Evidence gathered from these wiretaps implicated defendant as R.P.’s supplier of methamphetamine.
Defendant argued that the application for the wiretap was fatally defective because the applicant was a Drug Enforcement Agency (DEA) task force officer, not the elected district attorney. CRS § 16-15-102 requires that the attorney general or a district attorney authorize a specific wiretap application; however, the elected official need not sign or personally submit the application. Here, the wiretap application submitted to the issuing judge was prepared by a DEA agent and a deputy district attorney. Neither the district attorney nor the deputy district attorney testified at the suppression hearing, and there was no finding by the trial court that the district attorney specifically authorized the wiretap application. Therefore, the case was remanded for further proceedings to determine whether the elected district attorney authorized the wiretap application. If the trial court determines that the wiretap and its extensions were authorized by the elected district attorney, the judgment of conviction must be affirmed. However, if the trial court determines that the elected district attorney did not authorize the wiretap or extensions, the conviction must be reversed.