U.S. v. Hodge

• Decision Date: 03 September 1976
• Docket Number: Nos. 75-2484,75-2485,s. 75-2484
• Citation: 539 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie HODGE and Nathaniel Robertson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 898

539 F.2d 898

UNITED STATES of America, Plaintiff-Appellee, v. Eddie HODGE and Nathaniel Robertson, Defendants-Appellants.

Nos. 75-2484, 75-2485.

United States Court of Appeals, Sixth Circuit.

Argued April 6, 1976.

Decided July 23, 1976.

Rehearing and Rehearing En Banc Denied Sept. 3, 1976.

Milton R. Henry, Henry, Smith, Sabbath & Dillard, P. C., Detroit, Mich., for defendants-appellants.

Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, F. William Soisson, Detroit, Mich., for plaintiff-appellee.

Before CELEBREZZE, MILLER ^* and LIVELY, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellants were convicted by a jury in the District Court for the Southern District of Michigan of conspiring to distribute heroin in violation of 21 U.S.C. § 846 (1970) and of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1970). They were sentenced to serve eight years in the custody of the Attorney General with a five year special parole term under 18 U.S.C. § 4208(a)(2) (1970).

Appellants jointly raise two issues in challenging their convictions, and Appellant Hodge raises a third in contesting his conviction. Appellants first argue that evidence seized at a residence at 18990 Rosemont in Detroit should be suppressed because sufficient information to support the issuance of the search warrant was not presented to the magistrate. Appellants also argue that the District Court erred in denying their motion to suppress recorded telephone conversations between John Mondaine, a Government informant, and Appellant Hodge. Appellants claim that admission of the conversations into evidence violated the Fourth and Fifth Amendments of the United States Constitution, the search and seizure provision of the Michigan Constitution and federal wiretap statutes, 47 U.S.C. § 605 (1970), and 18 U.S.C. § 2511 (1970). Additionally, Appellant Hodge contends that his conviction must be overturned because the District Court failed to give his requested entrapment instruction.

A review of the record indicates that John Mondaine volunteered to become an informant for the Drug Enforcement Agency (DEA) following his arrest for possession of heroin. Mondaine advised DEA agents that he could arrange for the sale of a large quantity of heroin by Hodge, to whom he was related by marriage. On December 7, 1973, Mondaine placed two telephone calls to Hodge in Detroit which were recorded by Special Agent Ryan in the Kansas City office of the DEA. During the second conversation, Mondaine indicated that he was interested in purchasing a pound of heroin. He discussed with Hodge the method of measuring the drug and the quality and price of the heroin. Mondaine indicated to Hodge that he would be in Detroit on the evening of December 13th and was assured that he would be able to purchase the heroin and leave by 12:00 p. m. the following afternoon.

On December 12th, Mondaine again called Hodge relative to the purchase of the pound of heroin. The conversation was similarly recorded in the DEA office in Kansas City by Special Agent Ryan. Mondaine indicated that he had an airplane reservation and could get out of Kansas City the following day. He threatened, however, to cancel the transaction if it was going to be delayed. Hodge assured Mondaine that he would not have to wait around because his man had a "system". ¹ They agreed that the transaction would occur at approximately 4:00 a. m., on December 14th.

At 5:30 p. m. on December 13th, Hodge arrived at Detroit Metropolitan Airport to meet Mondaine. They went to an airport locker where Hodge was shown a "flash roll" ² of $19,500 that had been provided by the DEA. Leaving the money in the locker, both men exited the airport.

After numerous stops that evening, Mondaine and Hodge arrived at Stafford's Restaurant in Detroit at 10:40 p. m. According to Mondaine, Hodge indicated that he was leaving the restaurant to obtain a sample of heroin which Mondaine had requested. ³ DEA agents observed Hodge drive directly from the restaurant to 18990 Rosemont, the residence of Appellant Robertson. Hodge was observed to enter the residence, remain briefly, and then depart at 11:15 p. m. Agents maintained a surveillance of Hodge as he drove directly back to Stafford's. Mondaine testified that upon Hodge's return, they went to Hodge's car where Mondaine was handed a "sample" ⁴ which he smelled and purportedly knew to be heroin. Hodge then drove Mondaine to his wife's residence on Richton Avenue. Mondaine testified that Hodge called him there later that night and inquired about the sample. Mondaine reported that he advised Hodge that the heroin was "nice" ⁵ and was then told that the transaction would occur at 5:30 a. m.

Early the following morning, Hodge picked Mondaine up at the Richton residence. Mondaine testified that he was handed a ball of heroin in Hodge's car. He reportedly insisted that the heroin be measured and was driven to an unknown location by Hodge. Mondaine claimed that he was introduced to Robertson who measured the heroin, found it to be short and reduced the price. Mondaine testified that he and Hodge then left for the airport. Upon their arrival at the airport, Mondaine reported that he left the ball of heroin in Hodge's car and went inside. He gave a pre-arranged signal to DEA agents who converged upon the car, seized the heroin and arrested Hodge.

Following Hodge's arrest, Mondaine was debriefed by DEA agents. From this information and the reports received through surveillance by DEA agents, authorities obtained a search warrant for Robertson's Rosemont residence. Seized during the execution of the warrant were various items of evidence which were admitted during the trial, including three plastic bags having water residue and traces of heroin, a photograph of Appellants, various checks and a quantity of money.

In a memorandum opinion, the District Court denied Appellant's motion for suppression of evidence seized from the Rosemont residence, holding that the affidavit upon which the warrant was issued was sufficient. The affidavit was made and submitted to a United States Magistrate on December 14, 1973, by Melvin Smith, Special Agent for the DEA, who stated that he had reason to believe that approximately one pound of heroin was being stored at 18990 Rosemont. The grounds for this belief were set forth in detail in the affidavit. ⁶

Although the question of the sufficiency of facts to support the issuance of the warrant was submitted by Appellants in their joint brief, ⁷ only Robertson has standing to raise the issue. Fourth Amendment rights are personal rights which may not be vicariously asserted. Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In order to qualify as a person aggrieved by an unlawful search and seizure, one must have been a victim of the search one against whom the search was directed as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search directed at another. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1969). Co-conspirators and codefendants have been accorded no special standing. Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). There is no standing to contest a search and seizure where, as here, the defendant, Hodge, was neither: (a) on the premises at the time of the contested search and seizure; nor (b) alleged a proprietary or possessory interest in the premises; nor (c) was charged with an offense that includes, as an essential element, possession of the seized evidence at the time of the contested search and seizure. Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1972).

While a warrant may issue only upon a finding of probable cause, the Supreme Court has long held that probable cause means less than evidence which would justify condemnation ⁸ and that a finding of probable cause may rest upon evidence which is not legally competent in a criminal trial. ⁹ As the Court noted in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949):

In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

In accordance with this view, the Court has determined that affidavits for search warrants must be tested by both magistrates and courts in a commonsense and realistic manner. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964). In explaining the rationale for this determination, the Court in Ventresca, supra at 109, 85 S.Ct. at 746, declared:

(affidavits) are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity which once existed under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informant's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. . . . However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.

We agree with the District Court's determination that there was probable cause to believe that drugs were stored on the Rosemont premises. The magistrate, upon a commonsense reading of the affidavit, could reasonably...