574 F.2d 856 (5th Cir. 1978), 77-5482, United States v. Hyde

Docket Nº:77-5482, 77-5489.
Citation:574 F.2d 856
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Louis Lee HYDE, Joseph Burtis Middlebrooks, Jr., Patricia Jean Middlebrooks, and Pedro Rocha Arenas, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Burtis MIDDLEBROOKS, Patricia Jean Middlebrooks, and Pedro Rocha Arenas, Defendants-Appellants.
Case Date:June 09, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 856

574 F.2d 856 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

Louis Lee HYDE, Joseph Burtis Middlebrooks, Jr., Patricia

Jean Middlebrooks, and Pedro Rocha Arenas,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph Burtis MIDDLEBROOKS, Patricia Jean Middlebrooks, and

Pedro Rocha Arenas, Defendants-Appellants.

Nos. 77-5482, 77-5489.

United States Court of Appeals, Fifth Circuit

June 9, 1978

Rehearing and Rehearing En Banc Denied Aug. 14, 1978.

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Michael B. Mann, Lynn Haven, Fla. (Court-Appointed), for Joseph and Patricia Middlebrooks.

Franklin R. Harrison, Panama City, Fla. (Court-Appointed), for Louis Lee Hyde.

G. Rudolph Garza, Jr., Corpus Christi, Tex., Pedro Rocha Arenas, pro se, for Pedro Rocha Arenas.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before COWEN [*], Senior Judge, GOLDBERG and AINSWORTH, Circuit Judges.

COWEN, Senior Judge:

Louis Lee Hyde, Joseph Middlebrooks, Jr., Patricia Middlebrooks, and Pedro Arenas appeal from convictions on drug charges in the United States District Court for the Northern District of Florida. The defendants were indicted for conspiracy to possess, with intent to distribute, marijuana and cocaine, and for possession of, with intent to distribute, marijuana and cocaine, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 2. A jury found them guilty on all counts. Several issues are raised on appeal, including the validity of a wiretap order, a warrantless search and arrest, and denial of due process in the conduct of the trial. We find no error in the proceedings below, and we affirm the convictions.

In 1974, agents of the Florida Department of Criminal Law Enforcement (FDCLE) began to investigate drug traffic

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in the area of Panama City, Florida. They soon learned of a widespread conspiracy whose members smuggled marijuana and cocaine from Mexico across the border into Texas and distributed it to various cities throughout the South, including Panama City. The defendants in this case were suspected of participation in the conspiracy. Several attempts were made to gather incriminating evidence against the conspirators, but none resulted in a conviction.

On February 14, 1977, Special Agent Clarence S. Rowell of the FDCLE applied to Justice James C. Adkins of the Supreme Court of Florida for an order authorizing the interception of wire communications under the provisions of Florida Statutes section 934. The telephone line sought to be "tapped" was number (904) 265-5833, registered to Debbie Yarbrough, the stepdaughter of Mr. Hyde. On February 15, 1977, Justice Adkins issued an order authorizing interception of communications pertaining to narcotics traffic on that telephone line for 30 days.

State officers intercepted and recorded many such communications between February 15, 1977, and March 15, 1977. The defendants discussed marijuana and cocaine transactions over the phone. The tape recordings of those conversations were admitted into evidence at the trial; witnesses positively identified the voices of all four defendants.

Information obtained from this wiretap was passed on to law enforcement officers in several parts of the country. In particular, narcotics agents in McAllen, Texas, a border city near Brownsville where it was thought narcotics were entering the country, were kept informed of the activities of the conspirators, and several suspects were kept under surveillance in Texas. Information discovered by the Texas agents concerning the movements of the suspects, their presence in or absence from Texas, and their meetings with each other checked with information obtained through the wiretap.

Towards the end of the 30-day wiretap period, the monitoring agents learned that Mr. Middlebrooks was in Austin, Texas, to consummate a narcotics transaction that was to take place between March 14 and March 16, 1977. Mr. Arenas was to drive Mr. Middlebrooks' car from Austin to McAllen, pick up a quantity of marijuana, and return the car to Mr. Middlebrooks. 1 The agents knew all the details of the transaction except its exact date and time and the place where the car was to be returned to Mr. Middlebrooks.

Agents in Texas went to Mr. Arenas' apartment in McAllen, where they observed Mr. Middlebrooks' car parked outside. Two men left the apartment; one entered Mr. Middlebrooks' car and one entered Mr. Arenas' car. Both vehicles left McAllen, heading north towards the border checkpoint. The agents followed. Over citizens' band radio they heard the defendants say that there were no state police in the area and that the border checkpoint was closed. The agents followed the two cars to Houston, Texas, where the two drivers met Mr. Arenas. Mr. Arenas began driving the Middlebrooks car, while the other two men followed in Mr. Arenas' own car. Both cars drove to a Ramada Inn in Corpus Christi, Texas, where Mr. Arenas parked Mr. Middlebrooks' car and entered room 326. The other two men waited in Mr. Arenas' car.

Mr. Arenas emerged from the apartment shortly thereafter and joined the other two men in his car. As they prepared to leave, they were arrested. Mrs. Middlebrooks, coming out of room 326, saw the arrests and ran back into the motel room. Agents rushed to the room, knocked, and identified themselves. They received no answer and forced the door. The noise of a commode flushing was heard; Mr. Middlebrooks was immediately apprehended in the bathroom. Mrs. Middlebrooks was arrested in the living room. The agents found and seized cocaine paraphernalia. They also obtained

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the keys to the Middlebrooks' car and found 217 pounds of marijuana in the trunk. Mr. Hyde and several other members of the conspiracy were arrested shortly thereafter.

I. The Wiretap Order

The issues generated by the wiretap order were argued strenuously by the parties, and deserve the greatest part of our attention in this opinion. The defendants 2 have contended that there was no probable cause justifying the issuance of the order; that the information contained in the affidavit supporting the request for an order was stale; that the affidavit contained misrepresentations; and that the affidavit failed to demonstrate that other investigative procedures had failed or would be unlikely to succeed. 3

1. Probable Cause. The most serious attack on the wiretap order in this case is that the affidavit submitted in support of the application was insufficient as a matter of law to give rise to probable cause. An order authorizing a wiretap, like an ordinary search warrant, must of course be supported by probable cause found by a magistrate. In examining this order, we are guided by a relatively strict standard of review.

In issuing a search warrant the magistrate must exercise his own judgment as to whether the facts alleged in the affidavit constitute probable cause for issuance of the warrant, he must act on the entire picture disclosed to him, he is entitled to use his common sense, and the courts have gone so far as to say that when this is done his determination is conclusive in the absence of arbitrariness * * *. (Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).)

Where, as here, much of the information contained in the supporting affidavit comes from confidential informants, the magistrate's search for probable cause must be guided by and measured against the familiar standards set forth in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under those standards, the magistrate must be told of the underlying circumstances and particular facts which support the confidential informant's conclusions, and he must also be told why the informant should be considered reliable. The application for the order is insufficient if either of these tests is unmet.

The first test is plainly satisfied here. A drug smuggling conspiracy of wide scope and long standing is described in some detail, and it is alleged that the telephone sought to be tapped was used in furtherance of the conspiracy. Some of the defendants argue that their own connection with the conspiracy is insufficiently set forth in the application, but we have never required that a defendant be named in a wiretap application or accused of using the suspected telephone before evidence obtained by the wiretap can be used against him. One of the objects of wiretapping is to ascertain the full extent of participation in criminal activity, and we need not limit retrospectively the pool of potential defendants.

The second test is more difficult to satisfy. The affidavit itself states only that the confidential informants are "believed to be reliable" without giving any reason or support for this belief. The defendants make much of this apparent lack of evidence of reliability and urge that we strike down the order on this basis. If this were all we had to go on, we should probably have to agree.

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But we are not constrained to rely solely on these bald assertions in our search for probable cause. Probable cause is to be gleaned from a "common-sense reading of the entire affidavit," Spinelli v. United States, supra, at 415, 89 S.Ct. at 588, informed by indices of reliability that courts have traditionally found worthy of respect. Examining the application as a whole, we find that a magistrate could reasonably conclude that the confidential informants were reliable and that probable cause was therefore established.

Several of the traditional tokens of...

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