Cox v. State

• Decision Date: 21 November 1979
• Docket Number: No. 58109,58109
• Citation: 263 S.E.2d 238,152 Ga.App. 453
• Parties: COX et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 238

263 S.E.2d 238

152 Ga.App. 453

COX et al. v. The STATE.

No. 58109.

Court of Appeals of Georgia.

Argued July 2, 1979.

Decided Nov. 21, 1979.

Herbert Shafer, Herbert B. Zachry, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

On November 4, 1977, the Superior Court of Fulton County was petitioned for an order authorizing the surveillance of one Robert Gwen Moseley "and other unknown persons" by tapping three telephone numbers. The stated purpose of the tapping was "to secure evidence and information with the view to prosecution of either of said persons who are committing said (gambling) offenses." Probable cause for this petition was supplied by an eleven-page affidavit of R. C. McClendon, an Atlanta police officer, setting forth with great particularity the basis for belief that Moseley was involved in illegal gambling activity. An order authorizing the interception of the conversations of Moseley and "other unknown persons" was entered and surveillance of the three telephone numbers was begun.

As the result of the Moseley tap, the existence of a wide-ranging illegal gambling ring was discovered. Over the next several weeks the original Moseley tap spawned a series of four subsequent wire tap petitions, probable cause for each succeeding tap being based upon evidence secured from the preceding one. This ever-widening web of surveillance eventually resulted in petitions seeking to intercept appellants' conversations. The petition in the first four instances was supported by essentially the same document, the affidavit of Officer McClendon, which materially differed in each instance only with regard to the names of the interceptees and the target telephone numbers. The affidavit recited the issuance of the preceding tap order and stated that it had established that incriminating calls were placed to or received from the numbers for which authority to intercept was presently being sought. While specific authority to intercept appellants' conversations was sought, the sole references in the affidavits linking them to the criminal activity under investigation was that they were "known bookmaking figures" presently under investigation and "associates" of one another and, in the case of appellants Gaddis and Sams, were telephone subscribers to the target numbers.

The fifth and final tap was sought on the basis of Officer McClendon's affidavit that a prior authorized tap on Sams' telephone to intercept appellants' conversations "would be unproductive due to the fact that a telephone company employee, (appellant) Gentle, had possibly notified (Sams) of the surveillance." Further reciting facts to show probable cause to believe Sams was using another number to conduct illegal gambling activity, authorization was sought and obtained to tap that number and to intercept appellants' conversations.

Appellants were subsequently indicted for commercial gambling and pled not guilty. They moved to suppress all evidence obtained from the five taps. After a lengthy hearing this motion was denied. The evidence obtained by the taps was admitted and appellants were found guilty of commercial gambling. Appellants appeal, enumerating as error the denial of their motion to suppress.

1. In 1968 the Congress enacted the Omnibus Crime Control and Safe Streets Act, a portion of which dealt with the interception and disclosure of wire or oral communications. 18 USC §§ 2510, et seq. The Act set down procedures whereby federal authorities could secure an authorization for wire taps. It further provided for concurrent state regulation of wire taps subject, at the minimum, to the requirements of the federal legislation. "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications . . . " 18 USC § 2516(2). (Emphasis supplied.) Georgia has enacted such a statute and the wire taps at issue in the instant case were made pursuant to this Georgia statute. Code Ann. § 26-3004. Which law, state or federal, controls? "(D)espite the fact that the interceptions were made pursuant to a state court authorization, at the very least the other requirements of Title III (of the Omnibus Crime Act) . . . must be satisfied. But whether the proceedings be federal or state, interpretation of a state wiretap statute can never be controlling where it might impose requirements less stringent than the controlling standard of Title III. If a state should set forth procedures more exacting than those of the federal statute, however, the validity of the interceptions and the orders of authorization by which they were made would have to comply with that test as well. (Cits.)" United States v. Marion, 535 F.2d 697, 702 (2d Cir. 1976). See also, Bilbo v. State, 142 Ga.App. 716, 236 S.E.2d 847 (1977) (reversed on other grounds, 240 Ga. 601, 242 S.E.2d 21). Thus, "(w)iretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable." Orkin v. State, 236 Ga. 176, 179, 223 S.E.2d 61, 67 (1976). (Emphasis supplied.) What this means is that in analysis of a state-authorized wire tap, one must begin with the applicable federal standards which set the minimum requirements for such surveillance. If these minimum requirements are not met, analysis need proceed no further and the wire tap must be held to be unlawful. Cf. Cross v. State, 225 Ga. 760, 763(2), 171 S.E.2d 507 (1969). If, however, the federal standards are met, analysis must proceed under the applicable state law to determine if the state standards, which may be more stringent, are met. In other words, for evidence obtained through state-authorized wire taps to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws. On the other hand, such evidence must be excluded if it was obtained in a manner inconsistent with the mandate of either the federal or the state law. Cf. Cross v. State, supra.

Appellants argue that the authorizations to tap here at issue are fatally defective under the federal statute because they were not issued on probable cause. "Each application for an order authorizing or approving the interception of a tap or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information: "a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted . . . Upon such application the judge may enter an ex parte order, . . ., if the judge determines on the basis of facts submitted by the application that (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated . . .; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; . . . (d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person." 18 USC § 2518(1) (b), (3)(a), (b) and (d).

Without reiterating appellants' arguments as to each tap, suffice it to say that the basis for those arguments is that Officer McClendon's affidavits were, in each instance and in some respect, not a "full and complete statement of the facts and circumstances relied upon" under 18 USC § 2518(1)(b) and that, therefore, the issuing magistrate could not have determined "on the basis of the facts submitted" by those affidavits that probable cause existed for the order to issue under 18 USC § 2518(3).

We have carefully studied the affidavits and find them deficient in at least one respect. They refer to appellants in conclusory terms as "associates" and "known" bookmakers without any further evidence to support the conclusion that they were involved in criminal activities. We do not believe that on the basis of these affidavits alone, the issuing magistrates could have determined "probable cause for belief that (appellants are) committing, (have) committed, or (are) about to commit a particular offense." 18 USC § 2518(3)(a). Compare United States v. Scott, 331 F.Supp. 233 (D.D.C.1971) (vacated on other grounds 504 F.2d 194). The basis for this "conclusion" appears to be evidence obtained from the preceding taps. However, the subsequent affidavits did not set forth such evidence with any specificity. Compare United States v. Poeta, 455 F.2d 117 (2d Cir. 1972) (cert. denied 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337); United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) (cert. denied 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84).

Nevertheless, the...