Hudson v. State

• Citation: 368 So.2d 899
• Decision Date: 27 February 1979
• Docket Number: No. 77-1375,77-1375
• Parties: Marlene HUDSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 899

368 So.2d 899

Marlene HUDSON, Appellant, v. The STATE of Florida, Appellee.

No. 77-1375.

District Court of Appeal of Florida, Third District.

Feb. 27, 1979.

Rehearing Denied April 9, 1979.

Moran & Gold and George D. Gold, Miami, for appellant.

Jim Smith, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before HAVERFIELD, C. J., and HENDRY and HUBBART, JJ.

HAVERFIELD, Chief Judge.

Defendant, Marlene Hudson, challenges her conviction for (1) possession of a controlled substance, (2) possession or delivery of a controlled substance implement, and (3) manufacture or possession with intent to sell, manufacture or deliver cannabis based upon a plea of nolo contendere tendered subsequent to the denial of her motion to suppress evidence obtained through a court-ordered wiretap.

Hudson contends that the trial court should have suppressed the tape recordings and transcripts obtained through the court-ordered wiretap pursuant to Section 934.09, Florida Statutes (1975) on the grounds of (1) lack of probable cause and staleness, (2) omissions and misrepresentations in the affidavit of application, (3) failure to demonstrate that other investigative techniques had failed or would be unlikely to succeed (4) nonrecognition of an authorized object under Section 934.09(5), Florida Statutes (1975), (5) lack of proper description of the communications to be intercepted, and (6) deficiencies in the intercept order. In discussing each of these grounds, the pervasive principle of law is that the ruling of the trial court on a motion to suppress comes to the appellate court clothed with the presumption of correctness and the appellate court will interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustain the trial court's ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).

We turn now to the first ground that the affidavit submitted in support of the application was insufficient as a matter of law to give rise to probable cause. Before a wiretap order can be issued, Section 934.09(3), Florida Statutes requires that the judge based upon the facts submitted by the applicant must find the existence of probable cause to believe that (1) an individual is committing, has committed or is about to commit an offense enumerated in Section 934.07, Florida Statutes (1975); ¹ (2) particular communications concerning that offense will be obtained through such a wiretap; and (3) the facilities from which the communications are to be intercepted are being used or are 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. Rodriguez v. State, 297 So.2d 15, 17 (Fla.1974).

Probable cause in the context of the requirements of Section 934.09(3), Florida Statutes (1975) has been defined by the Supreme Court in Rodriguez v. State, supra, as reasonable grounds for the belief that the party whose communications are to be intercepted is committing or is about to commit one of the offenses enumerated in Section 934.07, Florida Statutes (1975); that particular communications concerning that offense will be obtained through such interception; and that the facilities or place involved is being used or about to be used in connection with the offense. We believe that the contents of the instant affidavit sufficiently demonstrated probable cause to believe that Hudson was involved in a protracted and continuous conspiracy of dealing in narcotics. The affidavit sets out the reliability of four confidential informants, each of whom had advised the affiant, Officer Stone, that over the past several years they had telephoned Hudson numerous times and had arranged to make purchases of narcotics at her residence. Some of this information was verified by independent police investigation. A January 23, 1976 conversation concerning an expected arrival of a kilo of cocaine between confidential informant # 1 and Hudson at her residence was recorded through the use of a "body bug" worn by the informant. In addition, records of telephone calls ² made from Hudson's three telephones demonstrated that calls had been placed to telephone numbers listed to persons known by law enforcement agencies as traffickers in illegal drugs. Also, investigation by the affiant failed to reveal that Hudson had any lawful visible means of support or income to maintain her affluent lifestyle.

In support of her argument of lack of probable cause, Hudson further contends that the affidavit was stale in that from the conversation with confidential informant # 1 on January 23, 1976 until April 14 (the date of the application for a wiretap order), there were no allegations that she was using or about to use her phones to commit a crime.

A fundamental principle of search and seizure law is that the information given to the magistrate in the application for a wiretap order must be timely; the proof must be of facts so closely related to the time of the issuance of the authorization order as to justify a finding of probable cause at the time. See Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). With regard to this issue of timeliness, Hudson cites to the following holding approved by the Supreme Court in Rodriguez v. State, 297 So.2d 15, 18 (Fla.1974):

" 'Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in courts of this country that if the observation of the alleged offense is not further remote than 30 days from the making of the affidavit and issuance of the warrant, a finding that there exists probable cause will not be disturbed. The contrary appears where the elapsed time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued.' " Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959).

However, the court in Rodriguez, supra, hastened to point out that this 30-day period was not hard and fast, but simply a "rule of thumb". Furthermore, the staleness issue must be examined more liberally when a continuing pattern of criminal activity is alleged as gleaned from the following holding in Bastida v. Henderson, 487 F.2d 860 (5th Cir. 1973):

". . . In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime. The Circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance, . . . Id. at 864."

Hence, fairly long periods of time have been allowed to elapse between information and application for a wiretap authorization in cases where the evidence clearly shows a longstanding, ongoing pattern of criminal activity, and a mechanical count of days is of little assistance in the determination of staleness which must be decided on the peculiar facts of each case. United States v. Hyde, 574 F.2d 856 (5th Cir. 1978). The affidavit in the case at bar alleged a protracted conspiracy over the past several years. Although the allegations evidenced criminal activity only up until January 23, 1976, it was permissible for the magistrate to infer that if criminal activities and conversations had been occurring over Hudson's telephone lines for the past several years, they had not mysteriously stopped within the ensuing weeks. Cf. United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978), Supra. We, therefore, will not disturb the finding of probable cause.

Concerning Hudson's second ground that the affidavit contained misrepresentations and omissions, the controlling law is that affidavits are invalid if the error (1) was committed with an intent to deceive the magistrate (whether or not the error was material to the showing or probable cause); or (2) made nonintentionally, but the erroneous statement is material to the establishment of probable cause. United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), cert. denied 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975).

We first find that the affidavit did not contain the alleged misrepresentations as evidenced by the testimony presented at the hearing on the motion to suppress. Secondly, measuring the affidavit against the above standard, any inaccuracies contained therein were not of such magnitude as to render the wiretap order invalid. See Stipp v. State, 355 So.2d 1217, 1219 (Fla. 4th DCA 1978).

Hudson's third ground for her motion to suppress is that the application was deficient in providing a full and complete statement about other investigative techniques as required by Section 934.09(1)(c), Florida Statutes (1975). ³

This requirement is intended to ensure that wiretap authorization procedures were not to be routinely employed as the initial step in criminal investigation; however, it is not necessary to show a comprehensive exhaustion of all possible techniques. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The court in United States v. Hyde, 574 F.2d 856 (5th Cir. 1978) succinctly stated with regard to this statutory requirement:

"In short, courts will not invalidate a wiretap order simply because defense lawyers are able to suggest post factum some investigative technique that might have been used and was not. It is enough if the affidavit explains the prospective or retrospective failure of several investigative techniques that reasonably suggest themselves." Id. at 867.

Contrary to defendant's contention we find the affidavit sufficient in this respect. The affidavit asserted that between February 16 and April 11, 1976, 25 surveillances were conducted at Hudson's residence and at least one police officer was seen and suspected by a person known to be an associate of Hudson's. At the suppression...