People v. Sprowl , 1986 Colo. LEXIS 556 ( 1986 )


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  • DUBOFSKY, Justice,

    specially concurring in part:

    I agree with the majority opinion that the district court erred in ruling that section 16-15-102(l)(a)(VI), 8 C.R.S. (1978 & 1985 Supp.), did not apply to the narcotic- and drug-related activities set forth in sections 18-18-101 to -109, 8 C.R.S. (1985 Supp.), but the basis for my conclusion is that the General Assembly clearly intended to allow wiretaps based on probable cause to believe that there was a violation of sections 18-18-101 to -109. I therefore specially concur with part II of the majority opinion.

    The applicable portion of the wiretapping and eavesdropping statute provides as follows:

    (l)(a) An ex parte order for wiretapping or eavesdropping, or both, as those offenses are described in sections 18-9-302 to 18-9-304, C.R.S. 1973, may be issued by any judge of competent jurisdiction of the state of Colorado upon application of the attorney general or a district attorney, showing by affidavit that there is probable cause to believe that evidence will be obtained of the commission of any one of the crimes enumerated in this, subsection (1) or that one of the said enumerated crimes will be committed:
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    (VI) Dealing in controlled substances as covered by part 3 of article 22 of title 12, C.R.S., as such offenses are subject to prosecution as felonies....

    § 16-15-102(l)(a)(VI), 8 C.R.S. (1978 & 1985 Supp.) (emphasis added). I agree with the implication in the majority opinion, at 527-528, that the word “dealing” in section 16-15-102(l)(a)(IV) describes the alleged unlawful conduct in this case. In interpreting statutory language, courts give effect to the plain meaning of the words used by the General Assembly. People v. Deadmond, 683 P.2d 763 (Colo.1984). In this case, “deal” means “to do a retailing or distributing business” or to “trade or traffic” in or with a controlled substance. See Webster’s Third New International Dictionary 581 (3d ed. 1976). However, unlike the majority, I would not equate “dealing” with “dispense” in section 12-22-102(9) or 12-22-314(l)(b), 5 C.R.S. (1985), in order to allow a wiretap pursuant to section 16-15-102(l)(a)(VI) to aid investigation of the narcotic- and drug-related activities prohibited by sections 18-18-101 to -109.1 Rather, I would find that, despite the language in section 16-15-102(l)(a)(VI) referring to “part 3 of article 22 of title *53012,” which applies to pharmacists, the General Assembly has clearly intended since 1971 that the wiretapping and eavesdropping statute apply to the unlawful conduct proscribed by sections 18-18-101 to -109.

    A court’s primary task in construing a statute “is to discern the intent of the General Assembly.” Engelbrecht v. Hartford Accident and Indemnity Co., 680 P.2d 231, 233 (Colo.1984). While the general rule is that criminal statutes are to be strictly construed, “the rule of strict construction of penal statutes should not be used to defeat the obvious intention of the legislature.” Olinyk v. People, 642 P.2d 490, 494 (Colo.1982). In this case, therefore, the court should attempt to make the statute effective in accord with its legislative purpose even though the replacement or reenactment of sections may have created confusion. Id.

    Despite the problems caused by recodifi-cation and amendment to the statutes, the legislature clearly intended the wiretap statute to apply to offenses set forth in sections 18-18-101 to -109. The General Assembly enacted section 39-24-2, the original version of section 16-16-102, in 1971 with an effective date of July 1, 1972. Ch. 121, sec. 2, 1971 Colo. Sess. Laws 388, 486-490. The statute noted that a wiretapping or eavesdropping order could be obtained whenever there was “probable cause to believe that evidence may be obtained” of the commission of a list of crimes or violation of section 48-5-20, which at that time prohibited the possession for sale, sale, dispensing, or inducing or attempting to induce others to administer or unlawfully transport, carry, dispense, manufacture or use narcotic drugs. C.R.S. 1963, 48-5-20(l)(a).

    In 1972, the General Assembly amended the wiretapping and eavesdropping statute to list separately each crime to which the statute applied, including “‘[d]ealing in narcotic or other dangerous drugs’ as covered by sections 48-5-20 and 48-8-10, C.R.S. 1963.” Ch. 45, sec. 1, § 39-24-2, 1972 Colo. Sess. Laws 269, 269-270. Section 48-5-20 still contained the prohibitions against dealing in narcotic drugs, while 1969 Perm. Supp., C.R.S. 1963, 48-8-10 provided penalties for dealing in dangerous drugs. During the revisions of C.R.S. 1973, the wiretapping and eavesdropping statute became section 16-15-102, 8 C.R.S. (1973). The enumerated crimes covered by the statute included “[djealing in narcotic or other dangerous drugs as covered by sections 12-22-322 and 12-22-412.” § 16-15-102(l)(a)(VI), 8 C.R.S. (1978). Section 12-22-322, 5 C.R.S. (1978), included the prohibitions and penalties for dealing in narcotic drugs of section 48-5-20. Section 12-22-412, 5 C.R.S. (1978), included the prohibitions and penalties for dealing in dangerous drugs of section 48-8-10.

    In 1981 the General Assembly repealed the statutes concerning narcotic drugs and reenacted the statutes with amendments, entitling the new part “Controlled Substances.” Ch. 128, sec. 1, 1981 Colo. Sess. Laws 707, 707-28. The General Assembly also repealed the statutes concerning dangerous drugs, id., sec. 39, at 741, and at the same time, added article 18 of title 18, entitled “Offenses Relating to Controlled Substances,” to the criminal code. Id., sec. 2, at 728-34. As a result of these changes, “narcotic drugs” and “dangerous drugs” ceased to exist and in their place the legislature enacted statutes concerning “controlled substances” and “narcotic controlled substances.” See § 12-22-303(7), (19), 5 C.R.S. (1985).2 The General Assem*531bly then amended section 16-15-102(l)(a)(VI), deleting the reference to narcotic or other dangerous drugs and inserting “controlled substances” and a reference to “part 3 of article 22 of title 12.” Ch. 128, sec. 19, 1981 Colo. Sess. Laws 707, 737. These changes also separated the listing of controlled substances and provisions for licensing those who dispense the controlled substances, §§ 12-22-301 to -322, 5 C.R.S. (1985), from the provisions governing offenses related to controlled substances. §§ 18-18-101 to -109.

    It is therefore clear that, from the very first version of the wiretapping and eavesdropping statute in 1971, the legislature intended wiretapping and eavesdropping orders to be available to aid in the investigation into the sale of narcotic and dangerous drugs. The fact that the General Assembly neglected to refer to sections 18-18-101 to -109 in section 16-15-102(l)(a)(VI) does not bar a court from granting a wiretapping or eavesdropping order when there is probable cause to believe there is a violation of sections 18-18-101 to -109, where the legislature for ten years has intended that wiretapping and eavesdropping orders be granted for drug-related activities. The legislature’s reference to “controlled substances” in section 16-15-102(l)(a)(VI) indicates that it intended that courts continue to grant wiretapping and eavesdropping orders for investigation into offenses covered by sections 18-18-101 to -109, and the reference in section 16-15-102(l)(a)(VI) to “part 3 of article 22 of title 12” should not be used to defeat the obvious intention of the legislature. Cf. Olinyk v. People, 642 P.2d 490. On this basis I would reverse the district court’s ruling that section 16-15-102(l)(a)(VI) does not apply to the narcotic- and drug-related activities set forth in sections 18-18-101 to -109. >

    Accordingly, I concur with the result in part II of the majority opinion.

    I am authorized to say that Justice LOHR and Justice KIRSHBAUM join this special concurrence.

    . The definitions section for part 3 of article 22 of title 12, section 12-22-303(11), 5 C.R.S. (1985), states that "dispense” shall have the same meaning as set forth in section 12-22-102(9), 5 C.R.S. (1985). Section 12-22-102(9) defines "dispense" as meaning "to prepare a drug or device pursuant to a lawful prescription order of a practitioner, together with an appropriate label, in a suitable container for subsequent administration to or use by a patient or other individual entitled to receive the prescription order.”

    . Section 12-22-301(16), 5 C.R.S. (1978), defined "narcotic drugs" as coca leaves, opium, coca or opium derivatives, and any other drug except cannabis that the federal Controlled Substances Act of 1970 deemed a narcotic drug. Section 12-22-303(19), 5 C.R.S. (1985), now defines a "narcotic controlled substance” as opium, an opiate, or an opium equivalent. Section 12-22-403(4), 5 C.R.S. (1978), defined “dangerous drug” as “cannabis, cannabis concentrate, or any depressant drug, hallucinogenic drug, stimulant drug, or tranquilizer” or any such mixture. Section 12-22-303(7), 5 C.R.S. (1985), now defines a “controlled substance” as a substance or its precursor defined by part 3. Section 12-22-309 declares the following to be controlled substances: marijuana, marijuana concentrates, cocaine, opium, opiate derivatives, *531stimulants, depressants, and narcotic controlled substances.

Document Info

Docket Number: Nos. 85SA426, 85SA466 and 85SA473

Citation Numbers: 718 P.2d 524, 1986 Colo. LEXIS 556

Judges: Dubofsky, Kirshbaum, Lohr, Vollack

Filed Date: 5/12/1986

Precedential Status: Precedential

Modified Date: 11/13/2024