August 18, 2019

CJDs Regarding Wiretapping and Access to Court Records Amended

Two of the Colorado Supreme Court’s Chief Justice Directives were amended last week. CJD 85-02, regarding wiretap reports, was updated on March 31, 2016, to include the location of the electronic wiretap form on the United States Court website, provide updated information for submission to the U.S. courts, and to clarify that all applications and extensions are to be reported whether granted or denied.

CJD 05-01, regarding access to court records, was revised on April 1, 2016, based on the review of a subcommittee of Public Access Committee members. The revisions to CJD 05-01 were substantial. A summary of the most substantial changes is reprinted here:

Section 3.00: General Provisions
• Section 3.00 was expanded to include additional definitions of common terms used in this policy.
• Section 3.01 defines the Department’s Case Management System (CMS) as all Department information systems designed to capture, monitor, and track court and probation content.
• Section 3.02 defines the role of the State Court Administrator, Clerks of Court, and Chief Probation Officers as custodians of court records. This Section also states that Clerks of Court are responsible for assigning document or case security levels.
• Section 3.03 provides the definition of “court record” for purposes of this policy. Section 3.03(a)(2) was added to clarify that any records related to a defendant or probationer that are created, collected, received, and maintained by a probation department are court records.

Section 4.40: Access to Aggregate and Compiled Data from Court Records
• Section 4.40(a)(2)(ii) was added to allow (but not require) requests for compiled or aggregate data specific to one judicial district to be submitted to, prepared by, and released from that judicial district. Data requests specific to one judicial district may also be submitted to, prepared by, and released from SCAO.
• Section 4.40(a)(4) was added to clarify that all reports generated from the Department’s CMS constitute compiled or aggregate data. If a request is made to release these reports outside of the Department, all provisions of CJD 05-01 must be met. This includes all reports created through COGNOS, and management reports generated through ICON/Eclipse/JPOD, etc.
• Section 4.40(f)(4) was added to recognize the need of interagency teams/Best Practice Teams to share information within the team that includes personally identifiable data, and to require the use of a Memorandum of Understanding regarding the protection and use of data.

Section 4.60: Court Records Excluded from Public Access
• Section 4.60(b)(7) was amended to add Probate protected proceedings case types to those case classes/types that are not accessible to the public unless the court orders otherwise.
• Section 4.60(d) was amended to alphabetically list records that are not accessible to the public without a court order.
• Additional records were added to the list, including: (1) Audio/Video recordings collected, received, and maintained by the Court; (7) Domestic Relations Memoranda of Understanding, and Qualified Domestic Relations Orders; (19) Medical marijuana registry application or card; (20) Motion for Informa Pauperis; and (21) National Crime Information Center (NCIC) or Colorado Crime Information Center (CCIC) printed reports.
• Criminal history records checks were removed from this list.
• Section 4.60(e)(6) was amended to clarify that Social Security Numbers (SSNs), including partial SSNs, are to be redacted from pleadings or documents prior to being released.
• Section 4.60(e)(7) was added and requires that tax identification numbers be redacted from pleadings or documents prior to being released.

Section 5.00: Accessing Court Records
• Section 5.00 was amended to align more closely with the requirements outlined in P.A.I.R.R. 2 (Public Access to Administrative Records of the Judicial Branch) regarding the procedure to access records.
• Section 5.00(d) was amended to clarify that if court records cannot be provided upon request, the custodian will provide court records within three business days. If, due to extenuating circumstances, the custodian cannot provide records within three business days, the custodian may have an additional seven business days to respond.
• Sections 5.00 (d)(1-5) provides definitions of the extenuating circumstances under which the custodian may provide court records within the seven business day extension.

Addendum C: Data Request for Purposes or Research, Including Personally Identifiable Data, Pursuant to Section 4.40(f) was created to be used with researchers that request compiled data that includes personally identifiable data components.

Although e-filing specifications are not defined in CJD 05-01, this policy does address “court records subject to remote access” (Section 4.20). As a result, the Public Access Committee also approved case information for Probate trust and estate case types to be opened via remote access in ICCES. ITS requires sufficient time to make necessary updates to ICCES, therefore, this change will occur on or before 9/1/2016. For probate trust and estate cases filed prior to 9/1/16, the security level of public documents filed in these cases will be “protected”; after 9/1/16, only certain public documents (to be specified by the Clerks of Court) will be auto-protected.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Court of Appeals: Parental Consent Not Required for Victim to Consent to Recorded Phone Conversation

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, April 24, 2014.

Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

Summary and full case available here.

Colorado Supreme Court: Suppression of Wiretap Evidence Not Necessary When Judge’s Oral Instructions Followed

The Colorado Supreme Court issued its opinion in three consolidated cases, People v. Baez-LopezPeople v. Canto-Bojorquez, and People v. Soto-Lopez, on Monday, April 21, 2014.

Colorado Wiretap Statute—Statutory Sealing Requirement for Wiretap Recordings—CRS § 16-15-102(8)(a).

The trial court suppressed wiretap evidence in three criminal cases when it concluded that the wiretap recordings were not sealed pursuant to written directions from the judge who authorized the wiretap. The Supreme Court held that CRS § 16-15-102(8)(a) does not require sealing directions to be written and that oral sealing directions are sufficient. The Court also held that the statute does not require a judge’s physical involvement in sealing wiretap recordings or any specific method of sealing. Accordingly, the Court reversed the suppression orders and remanded these cases to the trial court for further proceedings.

Summary and full case available here.

Tenth Circuit: Defendant’s Conviction of Conspiracy to Possess with Intent to Distribute Cocaine Affirmed

The Tenth Circuit published its opinion in United States v. Patterson on Friday, April 5, 2013.

The events that gave rise to Adrian Patterson’s indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations, which was presented at trial. Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine.

On appeal, Patterson raised a number of challenges to his conviction and sentence. He contended:

(1) The district court erred in denying his request for a pretrial hearing to determine his competency to stand trial.

A defendant’s right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in limited circumstances. These include “if there is  reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Based on the district court’s observations of Patterson, the Tenth Circuit held the district court did not abuse its discretion in denying his request for a competency hearing.

(2) The evidence offered by the government was insufficient to support his conviction and to provide a basis for the admission of testimony under the coconspirator exception to the hearsay rule.

The Tenth Circuit found that the district court’s factual finding as to the existence of a conspiracy was not clearly erroneous. Further, in the light most favorable to the government, a rational juror could draw the conclusion from the evidence that Patterson was involved in a conspiracy to distribute cocaine.

(3) His Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial.

Patterson argued that the admission of hearsay testimony violated principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). The Court held that the admission of statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial.

(4) The district court improperly instructed the jury.

The district court made statements about its schedule. Patterson argued the statements exerted undue coercion on the jury. The Tenth Circuit held Patterson’s interpretation of the comments as coercive had no basis in the record or in the law. The district court did not plainly err in its interaction with the jury over scheduling matters.

(5) The district court’s finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous.

Patterson next challenged the district court’s factual finding at sentencing that he was responsible for distributing fifteen kilograms of cocaine. The Tenth Circuit found Patterson did not meet his burden of showing clear error. The testimony supported a finding that up to sixty kilograms of cocaine was actually or intended to be distributed during the conspiracy.

(6) The indictment was insufficiently specific as to the counts charged against him.  

The two principal criteria by which the sufficiency of an indictment is assessed are “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011).

Based on this standard, the Tenth Circuit found no error.

(7) The district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

Patterson’s last claim is that the district court erred in not granting his motion to suppress evidence obtained from the government’s alleged illegal use of cell site location information. By failing to develop any argument on this claim in the Tenth Circuit, Patterson waived this claim.


Tenth Circuit: Wiretap and GPS Pinging Evidence Properly Admitted in Drug Conspiracy Case

The Tenth Circuit published its opinion in United States v. Barajas  on Monday, March 4, 2013.

Defendant-Appellant Samuel Barajas was convicted of drug charges and using a communication facility, a cellular telephone, in committing, causing, and facilitating the drug conspiracy. Barajas appealed the denial of his motion to suppress all evidence obtained from the wiretap surveillance and GPS pinging of certain cell phones.

The wiretaps were issued under California law, which conforms to federal law, so the Tenth Circuit applied federal standards to determine the evidence’s admissibility. After reviewing the affidavits used to obtain the wiretaps, the court found them sufficient to show the wiretaps were necessary. The government had explained why traditional investigative techniques were ineffective and why other techniques would prove ineffective if tried. The court affirmed the district court’s denial of the defendant’s motion to suppress the wiretaps.

Barajas also argued there was no probable cause in the affidavits to support the search for GPS data via pinging. The affiant had not requested GPS pinging in the affidavits, although the proposed orders contained the pinging. The Tenth Circuit assumed without deciding that pinging is a search, while pointing out the Sixth Circuit has held pinging is not a search under the Fourth Amendment. Because the affidavit did not contain an explanation of how Barajas’s location would reveal information about the conspiracy, the court found there may not have been probable cause. Even if there was not, however, the good-faith exception applied so the court affirmed the GPS data evidence’s admission.