588 F.2d 1227 (9th Cir. 1978), 76-3584, United States v. Martinez

Docket Nº:76-3584.
Citation:588 F.2d 1227
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Evelio MARTINEZ, Defendant-Appellant.
Case Date:October 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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588 F.2d 1227 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


Evelio MARTINEZ, Defendant-Appellant.

No. 76-3584.

United States Court of Appeals, Ninth Circuit

October 10, 1978

Rehearing and Rehearing En Banc Denied Jan. 3, 1979.

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Susan Guberman (argued), of Cohen & Guberman, Marina del Ray, Cal., for defendant-appellant.

Dennis Schloss, Atty. (argued), of Dept. of Justice, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CARTER and HUFSTEDLER, Circuit Judges, and C. WILLIAM KRAFT, Jr., District Judge. [*]

JAMES M. CARTER, Circuit Judge:

This is an appeal from a conviction in the Central District of California for participating in gambling activities in violation of 18 U.S.C. § 1955. Appellant argues that evidence obtained pursuant to a wiretap should have been excluded from consideration in the bench trial because the affidavit in support of the application for the wiretaps was insufficient. He also argues that affidavits in support of an application for a search warrant to be executed at his residence did not show probable cause to justify issuing the warrant. Finally, he contends that a language barrier between him and the F.B.I. agent who questioned him tainted his consent to questioning and thus violated his Miranda rights. For this reason, he contends, statements he made during questioning should also have been excluded.

The facts show that in January, 1975, the F.B.I. began investigating a large-scale numbers wagering operation in Los Angeles County. Two agents infiltrated the ring, became close associates of certain key figures, and gathered a great deal of information on the identity of many participants and the nature of the operation. Other agents obtained further information by observing a bar which served as the apparent headquarters of the operation, by searching trash receptacles, by logging phone calls made, and the like.

In July, 1975, the investigators requested, and received, permission from assistant Attorney General Scott Crampton 1 to apply for a 20-day wiretap warrant on certain telephones. The application, accompanied by a 38-page affidavit and a detailed history of the investigation to that point, was approved, a warrant was issued, and wiretaps were made on the phones for 15 of the 20 days for which approval was given. The stated purpose of the wiretaps was to gather information on the nature of the gambling activities in other areas, the full scope of the operation within the Los Angeles area, and the identity of other persons involved.

The telephone belonging to appellant was not tapped, but information collected in the taps on other phones incriminated him and was also used to obtain a warrant for the search of his residence. He was present at the time the search warrant was executed, signed a consent form, and was questioned as to his involvement in the gambling operation. The evidence collected during the

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15-day wiretaps, in the course of the F.B.I. search of his residence, and during the custodial interrogation at the time of the search was introduced at appellant's trial and he was convicted. We affirm that conviction.


  1. The wiretap evidence:

    1. Was the affidavit in support of the application for the wiretaps sufficient to establish the necessity of the wiretaps as required by 18 U.S.C. § 2518?

    2. Must either the official who authorizes the wiretap application or the judge who approves the application and issues the warrant make specific findings of fact to support their determination that a wiretap is necessary?

  2. Was there probable cause to warrant a search of appellant's residence?

  3. Were appellant's inculpatory statements, made at the time the search warrant was executed, excludable because of inadequate Miranda warnings?


  4. The Wiretap Evidence

    1. Necessity

      Appellant's major contention is that evidence obtained as a result of the wiretap should have been suppressed because the necessity requirement of 18 U.S.C. § 2518(1)(c) was not met. His argument rests on two factual propositions which, for the purposes of this appeal, may be considered to be undisputed. First, the normal investigative techniques employed by the F.B.I. in its investigation of the gambling operations were highly successful. Second, the wiretaps did not produce the information which the affidavits in support of the wiretap application indicated would result. 2 Thus, he argues, the wiretaps were unnecessary and the evidence that came from them should have been suppressed.

      18 U.S.C. § 2518(1)(c) requires that each application for wire interception include:

      "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous(.)"

      This "necessity" requirement exists to limit the use of wiretaps because of their highly intrusive nature and to "assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153, n.12, 94 S.Ct. 977, 983, n.12, 39 L.Ed.2d 225 (1974). They are not to be used routinely as the first step in criminal investigations. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Kahn, supra; United States v. Abascal, 564 F.2d 821 (9th Cir. 1977), Cert. denied sub. nom. Frakes v. United States, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978). However, this necessity requirement is...

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