U.S. v. Houltin

• Citation: 525 F.2d 943
• Decision Date: 12 January 1976
• Docket Number: No. 74--4144,74--4144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin W. HOULTIN, Robert Burke, Duane Morrison, Michael Francis, Kenneth B. Phillips and Kenneth J. Croucher, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 943

525 F.2d 943

UNITED STATES of America, Plaintiff-Appellee, v. Martin W. HOULTIN, Robert Burke, Duane Morrison, Michael Francis, Kenneth B. Phillips and Kenneth J Croucher, Defendants-Appellants.

No. 74--4144.

United States Court of Appeals Fifth Circuit.

Jan. 12, 1976.

Lee A. Chagra, El Paso, Tex., for Houltin, Burke, Morrison and francis.

Malcolm McGregor, El Paso, Tex., for Croucher.

William M. Ravkind, Dallas, Tex. (Court appointed), for Phillips.

William S. Sessions, U.S. Atty., Jeremiah Handy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, WISDOM and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge:

This case presents two serious questions. (1) Were the arrests of alleged importers of marijuana procured through the exploitation of illegal wiretaps? (2) Were the convictions for both conspiracy to import and conspiracy to possess the drug, despite the existence of only one conspiratorial agreement, in violation of the defendants' protections against double jeopardy?

For several years before their arrests, the defendants-appellants, Martin W. Houltin, Robert Burke, Duane Morrison, Michael Francis, Kenneth B. Phillips, and Kenneth J. Croucher, had been under extensive investigation for narcotics smuggling activities. Agents of the State of New Mexico applied to a state court for authorization to intercept telephone communications from Houltin, Morrison, and Burke. The court granted the request and, later, a request for an extension of the authorization. Two of the intercepted telephone calls allegedly indicated that the conspirators had arranged to meet at the Columbus, New Mexico airport at a given time. The dogged surveillance of the agents led them to Mexico, where Houltin, Morrison, and Burke picked up 2260 pounds of marijuana and returned to New Mexico. There, all the defendants were arrested and the marijuana seized.

After their arrests, the defendants entered pleas of nolo contendere to various state charges, and each was assessed an 18-month probated sentence and fined $1,000 by a New Mexico state court. Five months later they were indicted by a federal grand jury for alleged violations growing out of the same acts that were the subject of the state charges. The district judge found that the state wiretaps were illegal and granted the defendants' motion to suppress the evidence obtained from those wiretaps. ¹ In his pretrial order, the trial judge stated that in his opinion the wiretaps did not contribute to the apprehension of the defendants or to the seizure of the marijuana they were transporting, but he left this question to be decided by the jury. He denied, however, the motion to suppress the marijuana. The jury, after being instructed to find beyond a reasonable doubt that the arrests would have occurred even without the wiretaps, found each defendant guilty of two conspiracy counts. The trial judge sentenced each to consecutive five-year terms of imprisonment on each count and imposed varying fines on he defendants.

I.

All the defendants contend that their arrests and the seizure of the marijuana were fruits of the illegal wiretaps which fatally infected their convictions. The two wiretaps that the district court found illegal--a finding that the government does not now challenge--were of a telephone conversation between Houltin and his wife and another between Mrs. Houltin and Phillips's wife. First, we must determine who has standing to challenge the legality of the wiretaps. Second, we must determine whether the arrests and the imported marijuana were obtained through exploitation of the illegal wiretaps.

A. Standing

The government argues that only Houltin has standing to make the challenge. This argument overlooks the second telephone conversation, the one between Mrs. Houltin and Mrs. Phillips. This call was also an integral part of the investigation leading to the arrests. In Alderman v. United States, 1969, 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176, 188, the Supreme Court held that 'any petitioner would be entitled to the suppression of government evidence originating in electronic surveillance . . . if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations'. (Emphasis supplied). Since Mrs. Phillips, a participant in the second wiretapped conversation, was speaking from defendant Phillips's home, Alderman grants him standing to challenge the legality of that wiretap and the admission of evidence to which it led the government.

This leaves open the question whether the other four defendants, who were not participants in the intercepted conversations and who did not own the property on which the intercepted calls were placed, have standing to challenge the legality of the wiretaps.

In a recent case this Court studied the Fourth Amendment law of standing, from the enactment of the amendment to present times. We stated the relevant test as follows:

(D)efendants must demonstrate a 'legitimate interest' or some kind in the premises searched or the objects seized. . . . (T)he decisive factor in determining whether a search or seizure is 'reasonable' for Fourth Amendment purposes is whether the complaining party's reasonable expectations of privacy have been unreasonably disturbed.

United States v. Hunt, 5 Cir. 1974, 505 F.2d 931, 939--40, cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466.

Burke, Morrison, francis, and Croucher had no reasonable expectation of privacy in the wiretapped conversation their coconspirator Houltin had with his wife and that which Mrs. Houltin had with Mrs. Phillips. Indeed, in the recent case of United States v. Scasino, 5 Cir. 1975, 513 F.2d 47, 50, we indicated that such a privacy interest may only be asserted by 'one who participated in the intercepted conversation or on whose premises he conversation occurred'. ² And in Alderman, 394 U.S. at 171--72, 89 S.Ct. at 965, 22 L.Ed.2d at 185--86, the Supreme Court stated in unambiguous terms:

The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing. ³

We hold, therefore, that only Houltin and Phillips have standing to challenge the legality of the two wiretaps at issue.

B. Exclusion of the Tainted Evidence

The 'prime purpose' of the Fourth Amendment exclusionary rule 'is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable search and seizures'. United States v. Calandra, 1974, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, 571. The essence of that rule is not merely 'that . . . evidence so acquired shall not be used before the Court but that it shall not be used at all'. ⁴ Silverthorne Lumber Company v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 321. The determination whether information gained by the police in an illegal search was used to obtain other evidence against the accused is not based upon whether the subsequent evidence would not have come to light but for the illegal actions of the police, but rather upon 'whether, granting establishment of the primary illegality, the evidence to which (the) objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint'. Wong Sun v. United States, 1963, 371 U.S. 471, 487--88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455, quoting Maguire, Evidence of Guilt 221 (1959).

Evidence should be excluded only where the benefit accruing to society from the additional deterrent against unlawful police practices equals or exceeds the detriment to society caused by the release of criminals. Hence, two exceptions to the exclusionary rule of Silverthorne have developed. See Comment, Fruit of the Poisonous Tree--A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1138 (1967). We set out these two exceptions in United States v. Castellana, 1974, 488 F.2d 65, 67, rev'd on other grounds, 500 F.2d 325 (en banc): 'First, the connection between the lawless conduct of the police and the discovery of the challenged evidence may 'become so attenuated as to dissipate the taint.' Nardone v. United States, 1939, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312. . . . The second means for 'purging the taint' is discovering the same evidence from an 'independent source.' (Silverthorne, 251 U.S. at 392, 40 S.Ct. 182)'.

It was established in Nardone, 308 U.S. at 341, 60 S.Ct. at 267, 84 L.Ed. at 311, that the accused has the burden of proving both that the wiretap was unlawfully employed and that a substantial portion of the evidence against him was fruit of that poisonous tree. The prosecution is then given an opportunity to prove that the subsequently obtained evidence falls within one of the recognized exceptions to the exclusionary rule of Silverthorne.

In order to determine which party, if either, has carried its burden, it will be necessary to construct a detailed account of the events leading to the arrests. In December 1971, Operation Sky Night began. This was a joint federalstate investigation sponsored by the Drug Enforcement Administration (D.E.A.) and aimed at the suspected conspiracy of the defendants (among others) to import marijuana into New Mexico by aircraft. By September 1973, the government admitted that its investigative procedures had failed and applied to the state court in New Mexico for authorization to tap the telephones of Houltin, Morrison, and Burke. The application was granted, and the telephones were tapped between...