Tookes v. State, 61495
| Decision Date | 15 July 1981 |
| Docket Number | No. 61495,61495 |
| Citation | 283 S.E.2d 642,159 Ga.App. 423 |
| Parties | TOOKES et al. v. The STATE. |
| Court | Georgia Court of Appeals |
J. Melvin England, Atlanta, for appellants.
Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert III, Joseph J. Drolet, Asst. Dist. Attys., for appellee.
Douglas Tookes brings this appeal from his conviction of conspiracy and attempt to violate the Georgia Controlled Substances Act, Code Ann. § 79A-812. Appellant was sentenced to 20 years because of his participation in a scheme to sell heroin and cocaine by appointment to people who would call by telephone to arrange a drug purchase.
1. Pursuant to the investigation a wiretap warrant and extension were issued on two telephones located in a house at 261 Elm Street, N.W., Atlanta, Georgia. Appellant argues that the information furnished as a basis for obtaining the warrant was not sufficient to establish probable cause and, therefore, the trial court erred in failing to suppress the recordings of conversations intercepted by use of the wiretaps. Probable cause is required for the invasion of a citizen's privacy by authority of a wiretap warrant. Code Ann. § 26-3004. "This standard of probable cause is the same as the standard for a regular search warrant." United States v. Fury, 554 F.2d 522, 530 (2 Cir. 1977), cert. den. 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095.
The affidavit of an Atlanta police officer which was contained in the application for the warrant indicated that information had been received from a confidential informant regarding the drug operation. Appellant urges that the affidavit contained merely the conclusions of the informant concerning the illegal activity and did not specifically indicate how the informant had reached those conclusions and, therefore, was invalid as a basis to establish probable cause under the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
The reliability of the informant was established by the police officer's sworn statement that he had known the informant for 13 years and that the officer and other members of the narcotics squad had received and acted upon information provided by the informant in the past which had proved reliable in making arrests for drug violations. Also sufficient basis for the informant's knowledge in the present case was indicated by the fact that the informant worked closely with the police in making a controlled purchase of narcotics. Compare State v. Gamage, 340 A.2d 1, 16 (Me.1975). The informant had told the officers that a drug trafficking operation was being run out of a house located at 261 Elm Street in Atlanta. The operators whom he named would not deal directly with drug buyers but would sell through "runners" who would place a telephone call to a particular number on the telephone at the house to set up a drug deal. The runner would then go to the house, pick up the drugs and deliver them to the customers who had to park out of sight of the house in order to be served. The informant, working with police detectives, contacted a runner. On each of three occasions the runner placed a telephone call and then walked to the Elm Street address and returned with heroin. This information was quite detailed and any risk of falsehood of the informant's story was sufficiently diminished by the police corroboration which in the present case was sufficient to establish probable cause. Accord, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Therefore, an extended evaluation of the underlying circumstances supporting informant's conclusions as to illegal activity was unnecessary because the subsequent corroboration lended credence to the informant's information. Further, the dates upon which the informant and officers had made the purchases were entered in the affidavit showing that the information was current and not stale. Morrow v. State, 147 Ga.App. 395, 249 S.E.2d 110 (1978).
2. The appellant contends the trial court erred in denying his motion to suppress wiretap evidence because of the failure of the monitoring officers to minimize interception and recordation of private conversations as required in accordance with the provisions of the warrant. As this court noted in Morrow v. State, 147 Ga.App. 395, 407, 249 S.E.2d 110, supra, " 'The proper approach for evaluating compliance with the minimization requirement ... is objectively to assess the agent's or officer's actions in light of the facts and circumstances confronting him at the time without regard to his underlying intent or motive.' " In the instant case eight officers monitored both telephones over the forty day period authorized by the warrants. Two of the officers were sergeants in charge of supervising the operation. They instructed the other officers to record only drug-related calls and to minimize their interception of impertinent or personal calls.
Tape recorders were set up for each telephone and a visual meter was activated when a call was received on that particular line. The officers upon seeing the meter register would turn on the recorders and turn up the volume of the monitors in order to listen to the conversation to determine if the call related to the illegal drug operation. If the call was drug-related, the officers would continue to record it. If not, they would turn off the recorder and turn down the volume on the monitor so they could not hear the conversation.
During the execution of the warrant it was determined by the officers that the telephones had a call forwarding capability whereby a call placed to one telephone would be automatically transferred to the other line. The telephones also had a feature that notified the person in the house of other incoming calls. An audible "click" indicated that someone else had dialed the number or had been forwarded to that number from the other line. This system allowed the callers on the line to be put on hold so that other callers could be spoken to without the previous caller having to hang up. The visual meter on the wiretapping equipment did not indicate when this subsequent call would come in on a single line; therefore, after the officers determined the special capabilities of the system, they monitored the telephone calls in order to receive subsequent calls. The officers would turn the volume down on their listening equipment if a call was not drug-related so that the content of the conversation was inaudible but loud enough so that they could hear the tone indicating the receipt of another call. We consider this procedure utilized by the officers acceptable to minimize the calls intercepted and therefore find this enumeration to be without merit.
3. The trial court allowed the playing of excerpts made by the district attorney of the original wiretap recordings. The originals contained approximately 1740 telephone calls on seven reel-to-reel tapes and nine cassette tapes. Appellant contends that these edited copies of the original tapes were not properly authenticated and should have been excluded from evidence.
In the present case the original tapes were shown to have been recorded on reel-to-reel and cassette tape recorders. Testimony indicated that officers were capable of operating the machines and that the tapes were authentic recordings of the intercepted telephone conversations and had not been altered. The chain of custody was satisfactorily explained and it was shown that the recorded testimony was obtained by a wiretap and was not coerced in any fashion. The only element lacking in order to provide a proper foundation allowing presentation of the original recordings to the jury was the identification of the speakers. Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207(3), 88 S.E.2d 167 (1955). However, these original recordings were not played for the jury. Instead, the original tapes were tendered into evidence to support the authenticity of the edited copies. The district attorney under oath testified that he made the edited copies and...
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