State v. Owens

574 S.W.2d 436, 1978 Mo. App. LEXIS 2718
CourtMissouri Court of Appeals
DecidedOctober 3, 1978
DocketNo. 39545
StatusPublished

This text of 574 S.W.2d 436 (State v. Owens) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Owens, 574 S.W.2d 436, 1978 Mo. App. LEXIS 2718 (Mo. Ct. App. 1978).

Opinion

DOWD, Presiding Judge.

This case concerns the admissibility of evidence obtained as a result of a wiretap which was issued pursuant to 18 U.S.C. § 2510, et seq. ,

The petition which sought the authorization to wiretap the telephone of the appellant, Norman Owens, was predicated on a detailed network of facts. In the course of an investigation into the interstate movement and sale of stolen goods, the FBI had received judicial permission to tap the telephones of two suspected felons. These two taps yielded the interception of conversations which implicated the appellant. As the content of these conversations concerned trafficking in stolen goods, the FBI sought and received permission from the District Court of Eastern Missouri to tap appellant’s telephone.

While monitoring the appellant’s telephone conversations, the FBI overheard the [437]*437development of a scheme to burglarize a home in Ladue. The FBI relayed this information to the Ladue Police, who established a stake out at the targeted residence.

Two officers of the Ladue Police force observed the appellant and another man approach and break into the house. The appellant and his associate were apprehended and arrested following their exit from the residence. The appellant was subsequently charged with second degree burglary and possession of burglary tools.

Prior to trial, appellant moved to dismiss the indictment and to suppress the evidence, contending that the tap which precipitated the dragnet and led to his arrest was obtained in violation of 18 U.S.C. §§ 2515-2519. The trial court overruled both motions.

The appellant was convicted of both counts by a court sitting without a jury. He was sentenced to six years in prison on each count, the sentences to be served concurrently.

Owens’ appeal is predicated on the contention that the trial court erred in overruling his motions to dismiss and to suppress evidence. In support of his position, the appellant relies on the following points: 1) The application for the interception of wire communications was deficient because neither probable cause nor the likelihood of success through other investigative procedures was demonstrated. The appellant contends that this alleged deficiency renders the application insufficient and requires the suppression of the information furnished by the wiretap. 2) The State allegedly did not comply with the requirements of 18 U.S.C. § 2517(5), namely, obtaining judicial approval before utilizing the fruits of the wiretap.

Our consideration of the issue of the sufficiency of the wiretap application will begin with an inquiry into the existence of probable cause.

The application concerned herein contained an outline of the circumstances which precipitated the FBI to apply for a wiretap on the appellant’s telephone.

The scenario began when confidential informants, who had proven themselves to be reliable in the past, were approached, and asked to sell “warm” goods. The FBI, suspecting that stolen goods were being sold interstate, obtained authorization to tap the telephones of the parties who contacted the informants. The conversations between the two parties under wire surveillance contained references to the appellant. Overheard were arrangements for the appellant to transport the “stuff”, amid references to the need to move the “stuff” quickly for fear of FBI interference.

The contents of the conversations were corroborated by physical surveillance of the appellant. After one of the parties whose telephone was tapped called the appellant and discussed meeting and transporting “stuff”, the appellant was observed leaving his home and returning later with two boxes.

The application for authorization for a wiretap on the appellant’s telephone contained synopses of these conversations, and the results of the physical surveillance. In addition, the application • incorporated by reference the affidavits of special agents which supported the petition for the two original wiretaps.

Appellant contends that the assertions contained in the supporting affidavits were speculative, and not formidable enough to constitute probable cause to believe that the intercepted communications would reveal trafficking in stolen property of a value of $5,000 or more. It is not necessary however, that the affidavit contain information which proves the appellant’s involvement beyond a reasonable doubt. Haina v. State, 30 Md.App. 295, 352 A.2d 874, 880 (1976) cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

The governing statute provides that an application for authorization of a wiretap must contain:

“A full and complete statement of the facts and circumstances relied upon by the appellant, to justify his belief that an order should be issued, including (i) de[438]*438tails as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and the location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted.” (18 U.S.C. § 2518(l)(b)).

This statute has been interpreted as employing the same standard of probable cause as is required for the issuance of a search warrant. United States v. Falcone, 505 F.2d 478, 481 (3rd Cir. 1974) cert, denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). Accordingly, the application must be viewed in a commonsense way to determine if enough facts exist to establish probable cause to grant the wiretap request. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Considering the facts known to the FBI at the time of the preparation of the application, there existed reasonable grounds to believe the appellant was involved in criminal activity of the type specified in the affidavits. Accordingly, we rule the first point against the appellant.

The second point raised by the appellant in connection with the sufficiency of the wiretap application concerns the alleged failure of the FBI to demonstrate that other investigative techniques had been attempted and failed, or were unlikely to succeed if attempted.

The statute requires that the applicant make “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c).

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Related

United States v. Ventresca
380 U.S. 102 (Supreme Court, 1965)
United States v. Giordano
416 U.S. 505 (Supreme Court, 1974)
United States v. Charles W. Smith
519 F.2d 516 (Ninth Circuit, 1975)
United States v. Sidney A. Brodson
528 F.2d 214 (Seventh Circuit, 1976)
United States v. Brodson
393 F. Supp. 621 (E.D. Wisconsin, 1975)
Haina and Strawbridge v. State
352 A.2d 874 (Court of Special Appeals of Maryland, 1976)
United States v. Johnson
539 F.2d 181 (D.C. Circuit, 1976)
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533 F.2d 838 (Third Circuit, 1976)
Mastrian v. Cudd
420 U.S. 945 (Supreme Court, 1975)
Reamer v. Beall
420 U.S. 955 (Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
574 S.W.2d 436, 1978 Mo. App. LEXIS 2718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-owens-moctapp-1978.