U.S. v. Martinez

• Citation: 588 F.2d 1227
• Decision Date: 10 October 1978
• Docket Number: No. 76-3584,76-3584
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Evelio MARTINEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1227

588 F.2d 1227

UNITED STATES of America, Plaintiff-Appellee, v. Evelio MARTINEZ, Defendant-Appellant.

No. 76-3584.

United States Court of Appeals Ninth Circuit.

Oct. 10, 1978.

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

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 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.

I. ISSUES

A. 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?

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

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

II. DISCUSSION

A. 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 also to be interpreted "in a practical and commonsense fashion." S.Rep. No. 1097, 90th Cong., 2d Sess. 1968, U.S.Code Cong. & Admin.News, 2112, 2190. Wiretaps need not therefore be used only as a last resort. United States v. Abascal, supra; United States v. Smith, 519 F.2d 516 (9th Cir. 1975); United States v. Kerrigan, 514 F.2d 35 (9th Cir.), Cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). See United States v. Vento, 533 F.2d 838 (3d Cir. 1976).

The necessity must be readily apparent from the affidavit. Bald conclusory statements without factual support are not enough. Likewise, simple allegations that the crime being investigated is inherently difficult to solve will not, by themselves, suffice. United States v. Abascal, supra; United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975); United States v. Kerrigan, supra. Rather, the affidavit, when read in its entirety, must show either that "in the particular investigation normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time (, or w)here such techniques have not been so employed . . . under the particular circumstances of the case the employment of such techniques 'reasonably appear (sic) unlikely to succeed if tried or to be too dangerous.' "

United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977). See United States v. Kim, 577 F.2d 473 (9th Cir. 1978); United States v. Feldman, 535 F.2d 1175 (9th Cir.), Cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Kerrigan, supra.

The affidavit used in this case to support the application for wiretaps is 38 pages long. It describes in some detail the observations of undercover agents over a six-month period. It lists names of persons involved in gambling activities, and dates and locations of those activities. It lists phone numbers used to conduct the gambling business. It is clear from the affidavit that the investigation prior to the application for the wiretaps was highly productive. On the other hand, the affidavit points out the deficiencies of the investigation up to that time. In spite of the infiltration, undercover agents were unable to discover the names of suspected participants outside the Los Angeles area. They were also unaware of the full scope of the gambling operation, even though their investigation up to that time had revealed it extended beyond the Los Angeles area. Outside surveillance had also failed to turn up the desired information. The affidavit points out that numbers operators rarely keep permanent records, and that the leader of this particular ring had instructed his operators not to link the names of participants with the wagering records. It concludes that a normal search warrant would probably be ineffective in gathering further information on the scope of the operation and the identity of other participants. The affidavit also alleges that a grant of immunity to one of the major participants would be undesirable and counterproductive because only the leader, a man named Ortega, knew of the full extent of the operation and in view of the nature of his involvement, it would be improper to give him immunity in exchange for his testimony.

Read as a whole, the affidavit is neither superficial nor conclusory. It contains a full and complete statement as to why certain investigative techniques, though successful, had also failed in some respects. It draws on experience in this and other cases to argue that other investigative techniques (i. e., normal search warrants and grants of immunity) would not succeed. It reveals that the investigators did not attempt to employ wiretaps routinely or as the first step in their investigation. Thus the affidavit here complies fully with the plain meaning of 18 U.S.C. § 2518(1)(c) and with Spagnuolo, which states the proper interpretation of that provision in this court.

Necessity exists if probable cause is established in the affidavit according to the principles discussed above. It must be shown to exist at the time application for the warrant is made, and it is entirely irrelevant that hindsight shows the purposes of the wiretap were not achieved. See United States v. Harvey, 540 F.2d 1345 (8th Cir. 1976); United States v. Rahn, 511 F.2d 290 (10th Cir.), Cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (...