State v. Olea, s. 1

• Decision Date: 18 October 1983
• Docket Number: CA-CR,Nos. 1,s. 1
• Citation: 139 Ariz. 280,678 P.2d 465
• Parties: STATE of Arizona, Appellee, v. John OLEA, John Gonzales, John Robles, and Joe Urias, Appellants. 5911, 1 5915, 1 5916 and 1 5930.
• Court: Arizona Court of Appeals

Page 465

678 P.2d 465

139 Ariz. 280

STATE of Arizona, Appellee, v. John OLEA, John Gonzales, John Robles, and Joe Urias, Appellants.

Nos. 1 CA-CR 5911, 1 CA-CR 5915, 1 CA-CR 5916 and 1 CA-CR 5930.

Court of Appeals of Arizona Division 1, Department C.

Oct. 18, 1983.

Reconsideration Denied Dec. 21, 1983.

Review Denied March 6, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Michael D. Jones, Asst. Atty. Gen., Phoenix, for appellee

Thomas A. Thinnes, P.A. by Thomas A. Thinnes, Douglas La Sota, Phoenix, for appellants.

OPINION

BROOKS, Judge.

Appellants appeal from the judgments and sentences imposed following a submission of their cases to the trial court on stipulated evidence. Appellants were convicted on the following counts: Appellant Gonzales was found guilty of the crime of conspiracy (count 1), 13 counts of offering to furnish a narcotic drug (counts 36-37, 39-42, 44-47, 49-51), two counts of furnishing a narcotic drug (counts 38 and 43), two counts of furnishing a narcotic drug of a value greater than $250 (counts 48 and 52); appellant Olea was found guilty of the crime of conspiracy (count 1), seven counts of offering to furnish a narcotic drug (counts 54-57, 59-61), furnishing a narcotic drug (count 53), and two counts of furnishing a narcotic drug of a value greater than $250 (counts 58 and 62); appellant Robles was found guilty of the crime of conspiracy (count 1), 13 counts of offering to furnish a narcotic drug (counts 2-3, 5-8, 10-13, 15-17), furnishing a narcotic drug (count 4), offering to transport a narcotic drug (count 9), furnishing a narcotic drug of a value greater than $250 (count 14), and transporting a narcotic drug of a value greater than $250 (count 18); appellant Urias was found guilty of the crime of conspiracy (count 1), 13 counts of offering to furnish a narcotic drug (counts 19-20, 22-25, 27-30, 32-34), two counts of furnishing a narcotic drug (counts 21 and 26), and two counts of furnishing a narcotic drug of a value greater than $250 (counts 31 and 35).

These appeals were consolidated on appellants' motions because they raised common issues of fact and law. Appellants, among others, were charged by indictment for acts committed from May through August, 1978. It was alleged that they and their co-defendants conspired during the summer of 1978 to commit the offenses of possessing, transporting, importing, selling, furnishing, and offering to transport and furnish heroin. Appellants were also charged with substantive counts alleged to be a part of the conspiracy.

As a consequence of a police investigation which included the use of undercover police officers, "controlled-buys" of heroin by those officers, informants and surveillances, narcotics officers of the Phoenix Police Department sought a wiretap, pursuant to the statute then in effect, A.R.S. § 13-1057, in order to discover the extent of illegal narcotics dealing by one Ronald Brandt. (This application was denominated CWT-55.) Later, as a result of this tap and other investigation, the officers sought a tap for Brandt's supplier, Richard Estrada. (This application was denominated CWT-56.) Thereafter, through a series of further surveillances, wire intercepts and applications for further wiretap authorizations, pursuant to A.R.S. § 13-1057, the "chain" involved in this suspected narcotics operation was uncovered.

The tap on Estrada lead directly to appellant Robles. Investigation of Robles lead to appellant Gonzales and ultimately lead to appellant Urias. All appellants raise a number of issues directed at the constitutionality of former A.R.S. § 13-1057, now § 13-3010, under both the fourth amendment and supremacy clauses of the United States Constitution. They also argue that the wiretaps in this case failed to comply with congressional and state statutory requirements thus requiring suppression of all evidence obtained as a result of the taps. In addition, the following issues are raised by the parties, as indicated:

1. Whether there was sufficient evidence to support the conviction of appellants on all substantive counts.

2. Whether former A.R.S. § 13-1641 (precluding "double punishment") bars conviction of appellants for both the substantive offenses and the crime of conspiracy.

3. Whether the sentence imposed on appellant Urias was excessive.

STANDING

At the outset, we must dispose of appellants' claim that they all have standing to challenge all of the wiretaps authorized in this case because each tap was relied on, in part, to obtain further authorizations. Specifically, we find that none of these appellants have standing to attack the wire intercept authorized in CWT-55 (Brandt), and that only appellant Robles has standing to object to the wire intercept authorized pursuant to the original order in CWT-56 (Estrada).

Where defendants challenge evidence intercepted pursuant to a wiretap order on the grounds that the order was tainted by illegally seized evidence gathered pursuant to an earlier, unconstitutional or invalid order, they will fail where they were not parties to the intercepted calls and the intercepts did not occur on their premises. United States v. Civella, 648 F.2d 1167, 1172 (8th Cir.1981), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1982) (quoting Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969)); United States v. Jabara, 618 F.2d 1319, 1326 (9th Cir.1980), cert. denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980); cf., United States v. Payner, 447 U.S. 727, 733-734, 100 S.Ct. 2439, 2445-2446, 65 L.Ed.2d 468, 475-476 (1980).

It is clear, on this record, that none of the appellants were intercepted on the Brandt tap, nor were any of them intercepted on the Estrada tap with the exception of appellant Robles. We will hereafter consider the sufficiency of the application and execution of the order authorizing the wiretap on Estrada along with the other challenges raised by appellants to the affidavits and orders to which they may properly object.

WHETHER THE WIRETAP APPLICATIONS AND EXECUTION OF THOSE WIRETAPS FAILED TO SATISFY STATUTORY REQUIREMENTS THUS REQUIRING SUPPRESSION

A. Minimization

Appellants argue that the evidence seized in these wiretaps must be excluded because the police officers failed to minimize their interceptions of non-pertinent calls as required by former A.R.S. § 13-1057(D)(6) (now § 13-3010(D)(6)). That section requires, as does the federal equivalent, that each order authorizing a wiretap shall specify that it be "conducted in such a way as to minimize interception of communications not otherwise subject to interception." The order complied with this requirement. Appellants, however, argue that the officers who executed the order failed to comply with the minimization requirement. They point to the following allegations as demonstrating a failure to minimize: there was no attempt to minimize conversations overheard that were in Spanish; personal calls between Gonzales and his wife were intercepted; 346 non-drug related calls were not minimized on the Gonzales tap; no written guidelines for terminating a call were implemented, and; each officer made his own determination as to the proper time to terminate.

The trial judge conducted an evidentiary hearing on this issue, found that sufficient minimization had occurred, and denied appellants' motion to suppress. In Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), the Supreme Court articulated the appropriate standard to be applied in determining whether monitoring agents complied with the minimization requirements of Title III. The Court required an objective assessment of the reasonableness of the monitoring agents' actions in light of all of the facts and circumstances confronting them at the time. Three factors have been considered by many courts in determining the objective reasonableness of the minimization attempt. They are:

1. The nature and scope of the criminal investigation;

2. The government's reasonable expectations of the character of conversations; and

3. The extent of judicial supervision over the surveillance.

United States v. Feldman, 606 F.2d 673, 678 (6th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1648, 64 L.Ed.2d 236 (1979). See also United States v. Abascal, 564 F.2d 821, 827 (9th Cir.1977) (the standard of minimization is reasonableness), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978). In Abascal, the court considered the following factors in determining the reasonableness of the minimization attempt in that case:

1. The duration of the wiretap;

2. The officers were investigating a large scale drug ring in which the existence but not the identity of co-conspirators was known;

3. Once a pattern of innocent calls was developed, those monitoring did not further record;

4. Conversing conspirators frequently discussed matters utilizing various types of "jargon" and code words.

We find that the evidence presented to the trial judge in this case clearly supported his conclusion that sufficient minimization had occurred. At the hearing, it was disclosed that the officers had terminated one tap after five days although the authorization was for a much longer period of time because the officers had determined that the objectives of that tap had been reached. ¹ The orders authorizing the taps required reports to be filed with the judge every other day except weekends and at one time he visited the wire intercept room to observe the procedure being utilized. In addition, the court reviewed the total number of calls on the various taps and found that a high number had been terminated which tended to demonstrate attention to minimization requirements. For example, on the Gonzales tap there was a total of 2,657 calls intercepted of which 2,264 were terminated. The 346 "class 3", or non-pertinent calls, objected to by this appellant were considered by...