United States v. Hunt, Cr. No. 5-485.

Citation366 F. Supp. 172
Decision Date14 November 1973
Docket NumberCr. No. 5-485.
PartiesUNITED STATES of America v. Nelson Bunker HUNT and W. Herbert Hunt.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas

COPYRIGHT MATERIAL OMITTED

Frank D. McCown, U. S. Atty., Fort Worth, Tex., by Richard H. Stephens, Asst. U. S. Atty., Dallas, Tex., for plaintiff.

Philip K. Hirschkop, Alan J. Cilman, Alexandria, Va., Travis D. Shelton, Lubbock, Tex., Ralph B. Shank, Dallas, Tex., for defendants.

MEMORANDUM OPINION

WOODWARD, District Judge.

The defendants are charged with willfully, knowingly and unlawfully intercepting and endeavoring to intercept wire communications of persons calling to and from telephones located at the residences of six different persons in Dallas, Texas, in violation of Title 18, United States Code, section 2511(1)(a) and section 2. A separate count charges such a violation for each of the six telephones.

The defendants have duly filed a motion to suppress certain evidence, alleging that it was acquired in a manner which was violative of their rights under the fourth amendment. Specifically, they seek to prevent the admission by the government of any evidence obtained in or as a result of the search of a red Ford Mustang in Richardson, Texas on or about January 16, 1970. More specifically, the defendants complain of the seizure of a certain tape recorder from that automobile and the subsequent playing of the recording tape located thereon by the Richardson police and the Federal Bureau of Investigation. The contents of this tape alerted the investigating authorities to the violations alleged in the indictment.

Patrick W. McCann III and Jon Joseph Kelly have previously been charged in a four-count indictment flowing from four of the wire interceptions involved in the present case. McCann and Kelly were convicted in another court and sentenced to 3 years in prison. Their conviction was affirmed by the United States Court of Appeals for the Fifth Circuit in United States v. McCann, 465 F.2d 147 (5th Cir. 1972). The trial court denied the defendant's motion to suppress in that case and the denial was specifically reviewed and affirmed by the Court of Appeals in its opinion. The defendants Hunt are, however, certainly entitled to a separate and de novo consideration of their motion to suppress by this court.

Defendants have been afforded two evidentiary hearings in this case during which much testimony and several documents were introduced by both sides. After considering that evidence, along with the briefs and oral arguments of counsel, the court files this Memorandum Opinion which shall constitute the Findings of Fact and Conclusions of Law pertinent to defendants' motion to suppress.

FACTUAL BACKGROUND

For several days prior to the arrest of Kelly and the search of the Mustang on January 16, 1970, the Richardson Police Department had received several complaints from residents of that city that certain automobiles would be left unattended on residential streets for periods of a day or so and that then another automobile would be substituted for the first and similarly left unattended until it too was replaced. An investigation by the Richardson police revealed that all of these automobiles had been rented by certain persons who gave various hotels as their local addresses but listed fictitious Houston home and business addresses. The police also determined that these persons changed hotels more than once during the period in which the car switching occurred. A factor which was considered to be significant by the police was the presence of an identically arranged pile of newspapers several inches high and on a level with the transmission hump on the right front floorboard of all of the involved vehicles.

According to the testimony, the investigating officers discussed these facts periodically (there is conflicting testimony as to whether these discussions were daily or weekly) at meetings held between shift changes. Included among various interpretations of these facts that were discussed were the possibilities that these cars were being used as a "narcotics drop," that they were being used in conjunction with a scheme to burglarize residences in the area and that they were somehow being used by private detectives involved in a domestic investigation. These facts had been communicated to George M. Taylor, the arresting officer, through these various meetings and discussions prior to the time of the arrest.

On January 16, 1970, officer Taylor was assigned to conduct a "stake-out" and surveillance of the Mustang, which was one of the cars that had been left unattended by the suspects on this particular day. He relieved officer Ray Pennington, who had been watching the parked Mustang during the day, and parked his own automobile in the driveway of a nearby residence, out of the view of anyone in or standing next to the Mustang. At the September 17, 1973 hearing on the motion to suppress, Taylor testified that, on the basis of the facts determined by or communicated to him, he "would go out there and do it and set up surveillance" and also that he was "going to stop the car and, if somebody came to pick it up, talk to them." (Transcript, p. 30) He further testified that, at that time, he had no knowledge that a crime was being committed by anyone connected with the automobile-switching.

About 5:00 P.M. on this same day Taylor observed a man approach the Mustang, stop near it, stoop to pull up his socks, look at all the tires and, finally, get in it and drive away. Taylor then followed the Mustang but he admitted that to this point the driver appeared to be engaged in purely legal activity. However, Taylor then switched on the red lights on his car so that the man in the Mustang would pull over for questioning. Taylor testified that the driver of the other car ran a stop sign before he pulled over to the curb and stopped. It should be noted that Jon Joseph Kelly, who in fact was the driver of the Mustang at this time, testified that he did not run a stop sign. Taylor further stated that Kelly did not attempt to escape or in any other way avoid the officer's signal to stop. After Taylor stopped his car within a few feet of the Mustang, both drivers stepped out of their cars and met about midway between the vehicles. Taylor stated that he immediately informed Kelly that he was being charged with running a stop sign and with violation of "the suspicious persons ordinance." Interestingly, both of these charges were later dropped. Upon the officer's request, Kelly produced a valid Texas driver's license.

From this point there are significant contradictions between the testimony of the two men. Taylor testified that he asked Kelly "would it be okay if I go ahead and look in the car" that Kelly replied, "okay, go ahead." (Transcript, pp. 48, 49). Kelly, however, testified that Taylor did not seek permission to search the car but rather stated that, "I'm going to look in your car, I want to see what's in it, I want to see what's under the newspapers." Kelly flatly denied that he granted permission for the search.

In any event, officer Taylor walked to the driver's side of the car, leaned across the front seat and unlocked the passenger door. At that point Taylor noticed a green briefcase protruding from beneath the pile of newspapers on the floorboard. Taylor testified that he then asked Kelly what was in the briefcase, to which the reply was, "I have no idea." Taylor also stated that Kelly told him that a friend had dropped him off at the Mustang but that he did not know the friend's name nor could he further identify him. He then lifted away the newspapers, opened the attaché-type briefcase and discovered a tape recorder located therein.

Taylor testified that Kelly was close behind him during this search but Kelly contended that he had remained at his original position between the automobiles. Taylor testified that he asked Kelly certain questions, among which was whether he was a private investigator working on a divorce case. According to Taylor's version of this episode, Kelly's reply was, "I think I need to call my attorneys," and at this point Taylor decided to arrest Kelly. Kelly, though, has denied requesting an attorney until he reached the police station, sometime later. Taylor then instructed Kelly to get inside the police car. By this time other officers had arrived to assist Taylor, and one of them drove the Mustang, which still contained the briefcase and recorder, to the police station. The car was parked in the station house lot and locked, and the keys were delivered to officer Taylor. Taylor reported to his supervisor, officer Burleson, and then retrieved the briefcase from the locked Mustang, without further seeking permission from Kelly or any other person. Taylor's testimony reveals that at this time he still did not have specific knowledge that a crime had been committed.

At no time did any of the investigating officers apply for or obtain a warrant to search or seize the Mustang or any of its contents nor, more pertinently, did they seek a warrant to search the seized tape by playing and listening to it. The evidence establishes, however, that a Magistrate or Justice of the Peace was located within five or six miles of the police station and, therefore, that the search warrant procedure was readily available to the police.

Despite the proximity of a Magistrate, officers Taylor and Burleson did indeed listen to the tape on this same day, and the record indicates that they were able to identify one of the persons whose voice was recorded on the tape. The officers then notified a security officer at the offices of Southwestern Bell Telephone Company, who in turn notified Special Agent Holloman of the F.B.I. After arriving at the police station about 7:00 P.M., Holloman listened to the tape and then accompanied Burleson to the Richardson home of a Mr. Rothermel, whose wife identified her voice as...

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4 cases
  • U.S. v. Ochs
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 13, 1979
    ...for evidence of bookmaking, viewed the films (on a projector on the premises) and seized them as obscene. See also United States v. Hunt, 366 F.Supp. 172, 181 (N.D.Tex.1973), Rev'd on different grounds, 505 F.2d 931 (5 Cir. 1974). Short of this, the question seems to have been raised only i......
  • U.S. v. Hunt
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 23, 1974
    ...of the auto and that the officer had no probable cause to search the vehicle in any case. The district court below found otherwise, 366 F.Supp. 172, and concluded that the stop and search of Kelly's auto were proper. The court also found, however, that the playing of the tape constituted a ......
  • Leniart v. Bundy
    • United States
    • U.S. District Court — District of Connecticut
    • March 16, 2017
    ...of the Fourth Amendment. See Doc. #274 at 4 (citing Walter v. United States, 447 U.S. 649, 657 (1880); United States v. Hunt, 366 F. Supp. 172, 181 (N.D. Tx. 1973), rev'd on other grounds 505 F.2d 931 (5th Cir. 1974)). Although these cases generally stand for the proposition cited, it is si......
  • State v. Weber
    • United States
    • Wisconsin Court of Appeals
    • July 3, 1990
    ...constitutes a search); and Stanley v. Georgia, 394 U.S. 557, 571-72 (1969) (Stewart, J., concurring); see also, United States v. Hunt, 366 F.Supp. 172, 181 (N.D.Tex.1973) (playing of audio tapes constitutes a search), rev'd on other grounds, 505 F.2d 931 (1974), cert. denied, 421 U.S. 975 (......

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