U.S. v. Lambert
| Decision Date | 16 August 1985 |
| Docket Number | 84-5661,Nos. 84-5660,s. 84-5660 |
| Citation | 771 F.2d 83 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Purdy LAMBERT (84-5660); Philip M. Block (84-5661), Defendants- Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James A. Shuffett (argued), Lexington, Ky., Michael D. Baker, Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant in No. 84-5660.
Louis DeFalaise, U.S. Atty., Lexington, Ky., Robert Trevey, Jane Graham (argued), for plaintiff-appellee.
Albert T. Quick, David Friedman, American Civil Liberties Union of Ky., Louisville, Ky., for amicus curiae in No. 84-5660.
Donald D. Waggener (argued), Lexington, Ky., (Court appointed), for defendant-appellant in No. 84-5661.
Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.
Defendants-Appellants James Lambert and Phillip Block entered conditional pleas of guilty in the District Court, pursuant to Federal Rules of Criminal Procedure, Rule 11(a)(2), to single counts of their respective indictments charging conspiracy and distribution of controlled substances in violation of 21 U.S.C. Sec. 846. In their conditional pleas, the defendants reserved the right to appeal from the District Court's denial of their pretrial motions to suppress evidence obtained by the government through electronic wiretapping, the execution of a search warrant and the actions of an FBI informant. Each defendant was sentenced to five years imprisonment. Defendant Block, in his appeal, also challenged the court's ruling that he lacked standing to object to the admission of this evidence. For the reasons hereinafter stated, we conclude that the District Court acted properly in admitting the challenged evidence and correctly decided the other issues raised. We affirm the convictions.
Defendants have objected to the introduction of evidence seized by the government's informant, Diana Hall, as well as the evidence obtained from the FBI's use of electronic surveillance of defendant Lambert's home and its later physical search of his home and vacation cabin. Our discussion of the facts of this case will, therefore, be limited to these particular matters.
In December 1982, defendant Lambert hired Diana Hall to be his housekeeper. Hall claims that Lambert and his friends openly used illegal drugs in the house. Beginning in May 1982, Hall approached the Federal Bureau of Investigation (FBI) and provided information about Lambert's drug activities. Hall concedes that the FBI paid her some expense money but she insists that her decision to go to the FBI was not motivated by money. Rather, she claims that she acted because of her concerns about the negative effects of drug use, particularly on young people, and her worry about Lambert's health. Over the course of the following year, Hall contacted the FBI approximately 25 times concerning Lambert's activities.
During several of her meetings with the FBI, Hall brought items which she had taken from the Lambert home. These items included test tubes, pills and other drug paraphernalia, as well as check stubs and phone bills which Hall thought might be related to Lambert's drug transactions. She insisted that these items had been discarded or abandoned by Lambert and that she had picked them up while performing her housekeeping duties.
Hall emphasized that the FBI never asked her to retrieve any items from Lambert's house or even suggested that this would be helpful to them. Agent Bill Welsh confirmed this during his testimony before the court. In fact, Hall and Welsh both testified that, after she had expressed a desire to search Lambert's closed safe and his garage, the FBI agents specifically told her not to do so.
In November 1982, defendant Block visited Lambert at his home and stayed for a few days in a basement bedroom. During that time, several other persons visited the home and a meeting took place in the basement. Hall, who was working upstairs, smelled chemical odors coming from the basement. She believed that the odors were caused by cocaine being cut or purified. The next day, as she was cleaning the basement, Hall went into a closet and discovered a small football-sized object. Next to it was a thermos. The thermos contained a white powder. Suspecting cocaine, Hall brought a sample from the thermos to the FBI. She emphasized that the FBI had not asked her to search for drugs or to bring this item to its office. The FBI analyzed the powder in its crime lab and determined that it was indeed cocaine.
Beginning on January 5, 1983, the U.S. Attorney made several applications to U.S. District Judge Moynahan for permission to wiretap Lambert's house. Each application contained extensive information detailing Lambert's drug related activities. The applications also stated that normal investigative procedures could not be used and that, as a result, the wiretaps were necessary. Each application was for a 30 days period. The applications were approved by Assistant Attorney General of the United States D. Lowell Jensen. Judge Moynahan read the applications and then issued orders authorizing the wiretaps. On January 7, 1983, the U.S. Attorney's Office requested the court to amend its January 5th order so as to permit Diana Hall (identified as "a confidential source" or "CS-1") to install and then remove the listening devices. This amended request was signed by an assistant U.S. Attorney but not by Assistant Attorney General Jensen. After the court approved the request, Diana Hall let several FBI agents into Lambert's house so that they could install the wiretaps. Wiretaps were placed in the basement, living room and bedroom.
The initial wiretap application was, as noted above, for a 30 day period. At the conclusion of the 30 days, the U.S. Attorney's Office applied for a 30 day extension. In the application for extension, the U.S. Attorney presented the court with more information concerning Lambert's suspected involvement with illegal drugs. The U.S. Attorney submitted an affidavit from FBI Agent Welsh which explained the Bureau's reasons for wishing to continue the wiretaps. According to Welsh, the information gathered from the initial wiretaps indicated that Lambert was probably discussing drug activities but the FBI was not completely sure because Lambert and his friends frequently used code words and double talk or simply whispered in low voices when allegedly conversing about drugs. The FBI believed, Welsh stated, that a continuation of the wiretaps would permit it to make a more definite assessment of whether drug-related activities were, in fact, taking place. The U.S. Attorney submitted several transcripts of Lambert's suspicious conversations for the court's inspection. Again, the U.S. Attorney asserted that normal investigative techniques could not be used. The reason for this, it was explained, was because Lambert was a very cautious person who would be fearful of revealing any information to strangers, such as undercover FBI agents. His cautiousness had recently increased, Welsh noted, after he had become aware of an earlier FBI surveillance attempt. The application for extension was authorized by Assistant Attorney General Jensen. After reviewing the application and the supporting documents, the court approved the extension request. Two additional extensions were sought by the U.S. Attorney with Jensen's authorization. The court agreed to both extensions after examining several of the wiretap transcripts. On April 30, 1983, the FBI terminated the wiretaps.
On May 4, 1983, Judge Moynahan ordered that the recordings be sealed and placed in the custody of the FBI's Louisville office. He further directed that the recordings be protected from the possibility of tampering or alteration and that their contents not be disclosed except pursuant to court order. This order was signed and then placed under seal. 1 The recordings themselves were delivered to the FBI's Lexington office, picked up at that office by Agent Joann Moxley and brought by her to the Louisville office. Moxley indicated that she marked each tape and kept an inventory of them. The tapes were stored in cartons and placed in a locked vault. Moxley testified that she maintained a log which showed the name of each person who entered the vault and how long they were inside. According to her log and her own recollection, the tapes remained in the vault and were never checked out by anyone.
Based on the information supplied by Hall, the wiretaps and other information obtained through the FBI's own investigation, the U.S. Attorney applied for a warrant, on April 19, 1983, to search Lambert's house and his vacation cabin. The application requested permission to search these sites for illegal drugs, equipment used to manufacture the drugs and documents relating to the sale and/or distribution of the drugs. An extensive affidavit was submitted in support of the application which detailed the information cited above as well as the FBI's own surveillance showing Lambert's frequent contacts and phone calls with suspected drug dealers. The application was approved by U.S. Magistrate Cook.
The FBI searched both houses on April 21, 1983. A tremendous quantity of materials was confiscated. The FBI conceded that its seizure was perhaps more extensive than the warrant would appear to have authorized but explained that the seemingly unauthorized items were seized because its trained dogs had sniffed these items and indicated that drugs were present. Because of the dogs' reaction, the FBI explained, it confiscated these items in order to examine them in the crime lab to see if, in fact, they contained illegal drugs.
Defendants Lambert and Block were indicted on January 19, 1984. The indictment charged Lambert with: (1) conspiracy to distribute cocaine, methaqualone and marijuana in contravention of 21 U.S.C. Sec. 846; (2) distribution of cocaine in contravention...
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