State v. Coleman, s. 79-69
| Decision Date | 17 September 1980 |
| Docket Number | 79-70,Nos. 79-69,s. 79-69 |
| Citation | 189 Mont. 492,37 St.Rep. 1664,616 P.2d 1090 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. William John COLEMAN, Defendant and Appellant. STATE of Montana, Plaintiff and Respondent, v. Thomas G. CASE, Defendant and Appellant. |
| Court | Montana Supreme Court |
R. Allen Beck, argued, Billings, for defendants and appellants.
Mike Greely, Atty. Gen., Helena, Allen B. Chronister, Asst. Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., Billings, James D. Walen, Deputy County Atty., argued, Billings, for plaintiff and respondent.
These cases, consolidated on appeal, arise out of judgments of conviction against the defendants entered in the District Court, Thirteenth Judicial District, Yellowstone County.
Three of the issues raised in each appeal are the same. For that reason, we consolidated the matters for oral argument. Principally the defendants contend that electronic surveillance of each of the defendants was illegal because the supporting affidavits upon which warrants for electronic surveillance were issued were inadequate in that (1) no compelling state interest was shown, and (2) the Aguilar-Spinelli standards were not met. Moreover, it is also argued by each defendant that the warrants did not specifically describe the place to be searched. We find against the defendants on these contentions and the remaining issues each defendant raised. We will discuss each case separately avoiding repetition where possible.
William John Coleman, No. 79-69.
William John Coleman appeals from his conviction on September 14, 1979, of felony sale of dangerous drugs and felony possession with intent to sell dangerous drugs.
On January 12, 1979, Stanley Underwood, a parolee, was subjected to a parole search by officers of the Billings police department. As a result, Underwood faced parole revocation because of possession of illegal drugs, but he was promised release if he would assist the police in the investigation of William Coleman.
On January 14, 1979, Underwood met defendant Coleman while wearing a body transmitter which had been provided by the Yellowstone County Criminal Investigation Division. A receiver and tape deck were used to record the transmissions of the conversations between Underwood and Coleman.
Coleman's arrest occurred directly as a result of the electronic surveillance, during which the officers overheard the purchase by Underwood from Coleman of a half-pound and a quarter ounce of methamphetamines. At the time of the arrest, Coleman was informed by Detective Wickhorst that they had "it all on tape". Coleman consented to a search of his home which occurred later that evening, after Detective Wickhorst obtained a search warrant from Justice of the Peace Pedro Hernandez. The search of the home turned up additional drugs and some drug handlers' paraphernalia such as weighing devices.
Each of the defendants recognizes that the legality of interception of telephone calls or the recording of conversations was settled in State v. Hanley (1980), Mont., 608 P.2d 104, 37 St.Rep. 427. There we said that police officers may intercept, transmit or record private conversations if one of the parties to the conversation consents, even an informer, as long as the will of the consenting party has not been subjected to overbearing pressure from the authorities. We pointed out the language from United States v. White (1970), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, that since an informer who conceals his police connections may write down for official use his conversations with a suspect and testify concerning them without a warrant issued beforehand, the simultaneous recording of the same conversation by electronic means made by the informer or by others from transmissions received from the informer is likewise admissible. County attorneys in this state follow the practice, which we approved, of obtaining a court order before electronic interception of criminal suspects is undertaken, as a result of our decision in State v. Brackman (1978), Mont., 582 P.2d 1216, 35 St.Rep. 1103.
Coleman's major argument is that the application made to the District Court for permission to use electronic surveillance on him was inadequate because it does not meet the Aguilar-Spinelli standard, and because there is no compelling state interest requiring the issuance of the order.
The Aguilar-Spinelli test is derived from Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The test is that the application for order or warrant must demonstrate that the informant obtained his information in a reliable manner and that the application establishes that the informant is reliable or that the informant's information has been corroborated by information obtained independently of the informant's allegations.
We do not reach the Aguilar-Spinelli test in this case, however, because the tape recording of the drug transaction transmission was never played to the jury or entered into evidence. Underwood testified fully during Coleman's trial regarding the drug transaction between himself and Coleman. The District Court found that the direct testimony of Underwood was sufficient to convict, and refused the admission of the tape into evidence. Since the recorded evidence was not used to convict Coleman, there is no need for us in this case to examine the Aguilar-Spinelli test or whether a compelling state interest required the issuance of the surveillance order. State v. Jackson (1979), Mont., 589 P.2d 1009, 36 St.Rep. 169; State v. Leighty (1978), Mont., 588 P.2d 526, 35 St.Rep. 2017.
In like manner, because the tape was not used in evidence, there is no necessity for us in Coleman's case to examine the issue of specificity with respect to the order for electronic surveillance, that is, that the order did not specify a particular place where the electronic surveillance could be effectuated.
An issue which relates to Coleman's case and not to that of Thomas Case is the surmise of Coleman that the police authorities were tapping his telephone prior to January 12, 1978, and particularly prior to January 14, 1978, when the order permitting electronic surveillance of his conversations with Underwood was granted.
Coleman contends that there was prior illegal electronic surveillance in this case because (1) the state became aware of William Coleman's alleged drug dealing through unlawful telephone monitoring during 1978; (2) that the monitoring led to the arrest of Underwood, the parolee, and the search of his home; and (3) that the illegal monitoring led to the recruitment of Underwood by the Billings Criminal Investigation Division to assist in the arrest of Coleman.
This contention is based on the testimony of Amado Garcia who stated that on January 13, 1979, Detective Wickhorst told Garcia that he was suspected of engaging in illegal activities with William Coleman and others. Garcia asked Wickhorst how that information had been obtained and Wickhorst's response was, "We should hold down our conversations on the phone." Garcia also testified that Wickhorst had stated on January 13, 1979, that the police were aware of Coleman's activities before Christmas 1978. Also Cathy Underwood, the wife of the parolee, testified that on the night of the parole search of her home on January 12, 1979, a member of the Billings CID who returned her to her home told her "not to call on the phones, as they were probably all tapped and not to warn her friends that the phones were all tapped."
Underwood testified that during the parole search of his home, Detective Wickhorst went to the bedroom, disassembled the telephone and removed something from it which he placed in his pocket.
Underwood also testified that while he remained in jail on January 30, he had four telephone calls tapped by the application of a suction cup and an electronic recording device.
With respect to the telephone calls in the police station which were recorded by use of the suction cup electronic device, since Underwood consented to that monitoring, the telephone interception by the police authorities of those conversations was not illegal under State v. Hanley, supra.
This Court cannot be expected to reverse a criminal conviction upon the mere conjecture that the police authorities were using illegal wiretapping of telephone calls to set in motion the chain of circumstances that led to the search of the parolee's home. There is not a scintilla of direct evidence in the record to support such conjecture. An issue built upon such conjecture is simply weightless for purposes of appeal.
Defendant Thomas G. Case was charged by information with felony criminal sale of dangerous drugs and felony criminal possession of dangerous drugs. Upon trial on motion of case, a directed verdict was granted by the court in Case's favor with respect to the charge of criminal possession of dangerous drugs. The charge of criminal sale of dangerous drugs was submitted to the jury which convicted the defendant. Judgment of conviction and sentence were pronounced on June 18, 1979.
The conviction of Case relates to the same undercover agent, Stanley Underwood. Following Underwood's assistance to police authorities in the Coleman matter, he was released from custody. He was again arrested on January 30, 1979, along with his wife. Underwood made a deal that he would cooperate with the police in arresting Thomas Case if the police would agree not to prosecute his wife.
On January 30, 1979, Detective Orval Hendrickson of the Billings CID applied to the District Court for authorization to use an electronic monitoring device on Stanley Underwood. The order was granted by the District Court for a period of ten days beginning January 30, 1979.
In the afternoon of January 30, 1979, Underwood made a telephone call to Case...
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