State v. Manes

• Decision Date: 14 March 1991
• Docket Number: No. 11706,11706
• Citation: 812 P.2d 1309,112 N.M. 161,1991 NMCA 25
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Thomas MANES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1309

812 P.2d 1309

112 N.M. 161

STATE of New Mexico, Plaintiff-Appellee, v.Thomas MANES, Defendant-Appellant.

No. 11706.

Court of Appeals of New Mexico.

March 14, 1991.

Certiorari Denied May 29, 1991.

[112 N.M. 163] Tom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

W. Gilbert Bryan, Higginbotham, Oas & Bryan, Roswell, William A. L'Esperance, Albuquerque, for defendant-appellant.

OPINION

ALARID, Chief Judge.

Defendant appeals his conviction for possession with intent to distribute methamphetamine.He raises the following issues on appeal: (1)the trial court erred in denying defendant's motion to suppress evidence obtained in alleged violation of a wiretap order and New Mexico's wiretap statute: (2) the police lacked probable cause to search and arrest defendant; and (3) pre-indictment delay deprived defendant of his right to a speedy trial.Another issue listed in the docketing statement but not briefed is abandoned.SeeState v. Fish, 102 N.M. 775, 701 P.2d 374(Ct.App.1985).We affirm.

As a preliminary matter, the state urges us to dismiss defendant's appeal for failure to designate the necessary exhibits for this appeal.SeeSCRA 1986, 12-212(A);State v. Duncan, 95 N.M. 215, 619 P.2d 1259(Ct.App.1980).We decline to dismiss defendant's appeal for a technical violation when the state ensured the proper exhibits were before this court.SeeR. 12-212(A);see alsoState v. Garcia, 92 N.M. 730, 594 P.2d 1186(Ct.App.1978)(court has authority to request record on its own).Furthermore, appellate rules are to be construed liberally so that " 'causes on appeal may be determined on the merits where it can be done without impeding or confusing administration or perpetrating injustice.' "Olguin v. State, 90 N.M. 303, 305, 563 P.2d 97, 99(1977)(citingJaritas Live Stock Co. v. Spriggs, 42 N.M. 14, 16, 74 P.2d 722, 722(1937)).Dismissal is too extreme in this case.SeeLinam v. State, 90 N.M. 302, 563 P.2d 96(1977).

FACTS

Suspecting defendant of trafficking in controlled substances, the Hobbs Police Department applied to the district court for an order authorizing a wiretap of defendant's home telephone.Pursuant to NMSA 1978, Sections 30-12-1 through -11 (Repl.Pamp.1984), the district court issued an order authorizing the wiretap.The order provided, in accordance with the statute, that "any and all telephonic communications establishing, tending to establish or concerned with the crimes of distribution of controlled substances and conspiracy, may be intercepted, monitored, and recorded by use of such wiretap."The order required that the wiretap "be conducted ... in such a way as to minimize the interception of communications not authorized to be intercepted, monitored, and recorded pursuant to this Order."The order also required the police to submit a weekly report to the district court judge detailing, among other things, "efforts at minimization or unauthorized interceptions (including, if practicable, the names or telephone numbers determined not to be involved in the crimes or conspiracy herein)."

Police officers monitoring the wiretap were required to read minimization laws and the court order.While conducting the wiretap, the police minimized the interception of unauthorized communications by first listening and recording the call for thirty seconds to one minute, or as long as it took to determine that the call was not incriminating in nature.They testified that this determination could not be made before the call began because it was not known who would answer the telephone.If the officer determined that the call was not incriminating, he would stop listening and recording, i.e., "minimize," for one to two minutes.If the conversation had not terminated, the officer would then listen to it for another thirty seconds to one minute to determine if the conversation had shifted.If it had not, he would minimize again.The officer would continue this process until the call was completed.The police used this minimization procedure with every incoming and outgoing call for the entire period that the wiretap was in place.

Testimony of police officers showed that it was unlikely that phone calls from defendant's wife, children, or mother(who lived at another residence) would be incriminating, but that the officers could not be certain that a call from a specific individual would be innocent or not beneficial to the case.¹Consequently, the police made no determination that any one person or phone number would be consistently innocent, and no effort was made to provide the district court with a list of innocent callers.However, the police provided the court with a weekly report delineating the wiretap operation.Each report included a copy of the monitoring logs, which detailed the calls and minimization.On May 2, 1987, the officers intercepted an incriminating conversation that led to defendant's arrest and conviction.

DISCUSSION

I.MINIMIZATION REQUIREMENT

Defendant moved to suppress all evidence seized pursuant to wiretap as being in violation of the wiretap statutes and depriving defendant of his fourth amendment right to be free from unreasonable search and seizures under the Constitutions of both the United States and New Mexico.The trial court found the wiretap was authorized and performed in accordance with the law.

Defendant argues that the police failed to properly minimize the interception of unauthorized communications, those involving defendant's wife, mother, and children.Since defendant does not challenge the validity of the court order authorizing the wiretapping of his home phone, we assume the order was valid.

On appeal, the district court's decision not to suppress will be affirmed if supported by substantial evidence.State v. Boeglin, 100 N.M. 127, 666 P.2d 1274(Ct.App.1983).The appropriate standard of review on appeal is whether the law was correctly applied to the facts, viewing those facts in the manner most favorable to the prevailing party.All reasonable inferences in support of the trial court's decision will be indulged, and all inferences or evidence to the contrary will be disregarded.Id.;seeState v. Munoz, 111 N.M. 118, 802 P.2d 23(Ct.App.1990).See alsoUnited States v. Garcia, 785 F.2d 214, 224(8th Cir.), cert. denied,475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342(1986);United States v. Van Horn, 789 F.2d 1492, 1502(11th Cir.), cert. denied, 479 U.S. 854, 107 S.Ct. 190, 93 L.Ed.2d 123(1986).Defendant has the burden of proving the wiretapping was unlawfully used.United States v. Garcia, 785 F.2d at 222.

The issue of whether minimization was proper is a matter of first impression in New Mexico.Because New Mexico's wiretap statute is substantially similar to Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2518(5)(1990), we examine federal minimization cases in reaching our decision.SeeValles v. State, 90 N.M. 347, 563 P.2d 610(Ct.App.1977)(interpretations of similar federal statute, while not binding, are persuasive).

In the context of wiretap orders, "minimization" is a shorthand expression representing the government's obligation to "[confine] intrusions as narrowly as possible so as not to trench impermissibly upon the personal lives and privacy of wiretap targets and those who, often innocently, come into contact with such suspects."United States v. Hoffman, 832 F.2d 1299, 1307(1st Cir.1987);see alsoUnited States v. Dorfman, 542 F.Supp. 345, 390(N.D.Ill.), aff'd, 690 F.2d 1217(7th Cir.1982).Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168(1978), the touchstone on minimization, held that an objective test of the reasonableness of the government's actions under the facts and circumstances will determine whether the police properly minimized.See also United States v. Hoffman; United States v. Dorfman.

Section 30-12-6 does not forbid interception of all nonrelevant conversations, but, like the federal statute, mandates the government to conduct the surveillance so as to minimize the interception of such conversations.SeeUnited States v. Dorfman, 542 F.Supp. at 390.Factors to be considered in determining whether the government acted reasonably in a given case may include, but are not limited to, the complexity of the criminal operation, whether the callers are using ambiguous or coded language, whether the applicable telephone is public or residential, the length of time of the wiretap and of the telephone calls, and the extent of judicial supervision.See, e.g., United States v. Garcia; United States v. Hoffman; United States v. Dorfman.

To prevail, defendants must show "a pattern of interception of innocent conversations which developed over the period of the wiretap"; it is insufficient if they merely identify particular calls which they contend should not have been intercepted.United States v. Dorfman, 542 F.Supp. at 391;see alsoUnited States v. Costello, 610 F.Supp. 1450, 1477(N.D.Ill.1985)(absent pattern of non-minimization of intercepted, nonpertinent, innocent conversations during wiretap activity, government's failure to minimize interception of apparently innocent, nonpertinent conversations could not serve as a basis for suppressing intercepted criminal conversation), aff'd sub nom.United States v. Olson, 830 F.2d 195(7th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 708, 98 L.Ed.2d 658(1988).

Interception of all calls may be reasonable during the early stages of surveillance as the government usually has greater flexibility in monitoring, but may be unreasonable during the later stages of surveillance should the agents develop a category of innocent calls.Scott v. United States, 436 U.S. at 141-42, 98 S.Ct. at 1725;United States v. Chavez, 533 F.2d 491(9th Cir.), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837(1976);United States v. Dorfman, 542 F.Supp. at...