United States v. Hyde

574 F.2d 856, 3 Fed. R. Serv. 771
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 9, 1978
DocketNos. 77-5482, 77-5489
StatusPublished
Cited by150 cases

This text of 574 F.2d 856 (United States v. Hyde) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hyde, 574 F.2d 856, 3 Fed. R. Serv. 771 (5th Cir. 1978).

Opinion

COWEN, Senior Judge:

Louis Lee Hyde, Joseph Middlebrooks, Jr., Patricia Middlebrooks, and Pedro Arenas appeal from convictions on drug charges in the United States District Court for the Northern District of Florida. The defendants were indicted for conspiracy to possess, with intent to distribute, marijuana and cocaine, and for possession of, with intent to distribute, marijuana and cocaine, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, and 18 U.S.C. § 2. A jury found them guilty on all counts. Several issues are raised on appeal, including the validity of a wiretap order, a warrantless search and arrest, and denial of due process in the conduct of the trial. We find no error in the proceedings below, and we affirm the convictions.

In 1974, agents of the Florida Department of Criminal Law Enforcement (FDCLE) began to investigate drug traffic [861]*861in the area of Panama City, Florida. They soon learned of a widespread conspiracy whose members smuggled marijuana and cocaine from Mexico across the border into Texas and distributed it to various cities throughout the South, including Panama City. The defendants in this ease were suspected of participation in the conspiracy. Several attempts were made to gather incriminating evidence against the conspirators, but none resulted in a conviction.

On February 14, 1977, Special Agent Clarence S. Rowell of the FDCLE applied to Justice James C. Adkins of the Supreme Court of Florida for an order authorizing the interception of wire communications under the provisions of Florida Statutes section 934. The telephone line sought to be “tapped” was number (904) 265-5833, registered to Debbie Yarbrough, the stepdaughter of Mr. Hyde. On February 15, 1977, Justice Adkins issued an order authorizing interception of communications pertaining to narcotics traffic on that telephone line for 30 days.

State officers intercepted and recorded many such communications between February 15, 1977, and March 15, 1977. The defendants discussed marijuana and cocaine transactions over the phone. The tape recordings of those conversations were admitted into evidence at the trial; witnesses positively identified the voices of all four defendants.

Information obtained from this wiretap was passed on to law enforcement officers in several parts of the country. In particular, narcotics agents in McAllen, Texas, a border city near Brownsville where it was thought narcotics were entering the country, were kept informed of the activities of the conspirators, and several suspects were kept under surveillance in Texas. Information discovered by the Texas agents concerning the movements of the suspects, their presence in or absence from Texas, and their meetings with each other checked with information obtained through the wiretap.

Towards the end of the 30-day wiretap period, the monitoring agents learned that Mr. Middlebrooks was in Austin, Texas, to consummate a narcotics transaction that was to take place between March 14 and March 16, 1977. Mr. Arenas was to drive Mr. Middlebrooks’ car from Austin to McAl-len, pick up a quantity of marijuana, and return the car to Mr* Middlebrooks.1 The agents knew all the details of the transaction except its exact date and time and the place where the car was to be returned to Mr. Middlebrooks.

Agents in Texas went to Mr. Arenas’ apartment in McAllen, where they observed Mr. Middlebrooks’ car parked outside. Two men left the apartment; one entered Mr. Middlebrooks’ car and one entered Mr. Arenas’ car. Both vehicles left McAllen, heading north towards the border checkpoint. The agents followed. Over citizens’ band radio they heard the defendants say that there were no state police in the area and that the border checkpoint was closed. The agents followed the two cars to Houston, Texas, where the two drivers met Mr. Arenas. Mr. Arenas began driving the Middle-brooks car, while the other two men followed in Mr. Arenas’ own car. Both cars drove to a Ramada Inn in Corpus Christi, Texas, where Mr. Arenas parked Mr. Mid-dlebrooks’ car and entered room 326. The other two men waited in Mr. Arenas’ car.

Mr. Arenas emerged from the apartment shortly thereafter and joined the other two men in his car. As they prepared to leave, they were arrested. Mrs. Middlebrooks, coming out of room 326, saw the arrests and ran back into the motel room. Agents rushed to the room, knocked, and identified themselves. They received no answer and forced the door. The hoise of a commode flushing was heard; Mr. Middlebrooks was immediately apprehended in the bathroom. Mrs. Middlebrooks was arrested in the living room. The agents found and seized cocaine paraphernalia. They also obtained [862]*862the keys to the Middlebrooks’ car and found 217 pounds of marijuana in the trunk. Mr. Hyde and several other members of the conspiracy were arrested shortly thereafter.

I. The Wiretap Order

The issues generated by the wiretap order were argued strenuously by the parties, and deserve the greatest part of our attention in this opinion. The defendants2 have contended that there was no probable cause justifying the issuance of the order; that the information contained in the affidavit supporting the request for an order was stale; that the affidavit contained misrepresentations; and that the affidavit failed to demonstrate that other investigative procedures had failed or would be unlikely to succeed.3

1. Probable Cause. The most serious attack on the wiretap order in this case is that the affidavit submitted in support of the application was insufficient as a matter of law to give rise to probable cause. An order authorizing a wiretap, like an ordinary search warrant, must of course be supported by probable cause found by a magistrate. In examining this order, we are guided by a relatively strict standard of review.

In issuing a search warrant the magistrate must exercise his own judgment as to whether the facts alleged in the affidavit constitute probable cause for issuance of the warrant, he must act on the entire picture disclosed to him, he is entitled to use his common sense, and the courts have gone so far as to say that when this is done his determination is conclusive in the absence of arbitrariness * * *. [Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973).]

Where, as here, much of the information contained in the supporting affidavit comes from confidential informants, the magistrate’s search for probable cause must be guided by and measured against the familiar standards set forth in Aguilar v. State of 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).

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Bluebook (online)
574 F.2d 856, 3 Fed. R. Serv. 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hyde-ca5-1978.