Professional Documents
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United States v. Deborah Delaplane, Paul Mosher and Michael O'Brien, 778 F.2d 570, 10th Cir. (1985)
United States v. Deborah Delaplane, Paul Mosher and Michael O'Brien, 778 F.2d 570, 10th Cir. (1985)
2d 570
19 Fed. R. Evid. Serv. 1347
Bruce F. Black (Robert N. Miller, U.S. Atty., with him on brief), Asst.
U.S. Atty., Denver, Colo., for plaintiff/appellee.
Joseph Saint-Veltri, Denver, Colo., for defendant/appellant Delaplane.
Steven Janiszewski (Rod W. Snow, with him on briefs), of Dixon &
Snow, P.C., Denver, Colo., for defendants/appellants Michael O'Brien and
Paul Mosher.
Before BARRETT and SEYMOUR, Circuit Judges, and GREENE,*
District Judge.
BARRETT, Circuit Judge.
Evidence presented during the motion hearings tended to establish that from
November, 1981, through March, 1983, Corporal Neal A.J. Kingdon, of the
National Crime Intelligence Section of The Royal Canadian Mounted Police,
Red Deer, Alberta, Canada, was engaged in an ongoing investigation into the
suspected drug activities of O'Brien, a resident of Red Deer. During the course
of the investigation, Cpl. Kingdon contacted Special Agent James R. Poland,
U.S. Customs Service, Blaine, Washington, on January 21, 1983, and requested
routine intelligence information about prosecutorial guidelines for Florida
cocaine cases.
Delaplane, O'Brien, and Mosher were all arrested on March 25, 1983, at
Denver's Stapleton Airport shortly after Delaplane's incoming flight had
arrived. Delaplane was searched at the time of her arrest and officers seized one
package of cocaine from her pocket and a second package of cocaine taped to
her leg.
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On April 17, 1984, after a mistrial due to the absence of a juror, Mosher entered
a Rule 11(b) conditional plea. O'Brien entered his Rule 11(b) conditional guilty
plea the following day.
11
On appeal O'Brien and Mosher contend: (1) the evidence derived from the
Canadian wiretap was inadmissible and should have been suppressed; (2) the
court erred in ruling that it would allow the Government to establish their
identification through the use of hearsay statements; and (3) the court erred in
its ruling on the voice exemplars. Delaplane contends: (1) the evidence
obtained from the Canadian wiretap was inadmissible; (2) the evidence seized
from her at the time of her arrest was inadmissible; and (3) the court erred in
imposing on her, in addition to a sentence of confinement, a special parole term
of three years.
I.
12
The appellants contend that the evidence derived from the Canadian wiretaps
was inadmissible and that the district court erred in denying their motions to
suppress the contents of the wiretaps authorized by the Canadian court.
Appellants contend that the wiretaps did not comply with the laws of Canada
and the evidence derived therefrom would thus, have been inadmissible in
Canada; further, that had the wiretaps occurred in the United States the
The standard most consistently set forth in reviewing the applicability of the
exclusionary rule to evidence seized by foreign police, and that which we now
adopt, is set forth in United States v. Hensel, 699 F.2d 18 (1st Cir.1983), cert.
denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983) wherein the
court held:
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We first consider whether the "exclusionary rule" does not apply to this search
because it was conducted by Canadians. As the government points out, the
"exclusionary rule" does not require the suppression of evidence seized by
foreign police agents, for the actions of an American court are unlikely to
influence the conduct of foreign police. See United States v. Rose, 570 F.2d
1358, 1361-62 (9th Cir.1978); United States v. Morrow, 537 F.2d 120, 139 (5th
Cir.1976), cert. denied sub nom. Martin v. United States, 430 U.S. 956, 97
S.Ct. 1602, 51 L.Ed.2d 806 (1977). This principle does not dispose of the case,
however, for there are two well-established exceptions to this rule: (1) where
foreign police conduct "shock[s] the judicial conscience," id. at 139 and (2)
where American agents "participated in the foreign search, or ... [the foreign
officers acted] as agents for their American counterparts...."
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In determining that the evidence derived from the Canadian wiretaps was
admissible in the case at bar, the district court found, inter alia:
17
Interesting enough, examination of the issues raised here begins with the
Government's concession that if the Canadian order and the subsequent events
were to be judged by the standards of 28 U.S.C. Sec. 2510, et seq., they would
fail the test. Yet, given the nature of the Canadian statutes regarding wiretap,
this is not startling. Indeed, Sec. 178.1 to 178.23 of the Canadian Criminal
Code (relating to invasions of privacy) can easily be characterized as less
stringent in terms of its requirements than its American counterpart. With that
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I must therefore conclude there was no joint endeavor between American and
Canadian agencies in obtaining the Canadian interception order or the actual
interception of conversations involving Defendant O'Brien. As this was a
wholly foreign investigation, there is no reason why it should be judged by
American standards. U.S. v. Orman, 417 F.Supp. 1126 (D.Colo.1976); U.S. v.
Stonehill, 405 F.2d 738 (9th Cir.1969). Compare, U.S. v. Phillips, 479 F.Supp.
423 (M.D.Fla.1979).
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R., Vol. I at 102-105. The record supports these findings of the district court.
The conduct of the Canadian officers does not "shock the judicial conscience"
nor did the participation of the American officers give rise to a joint venture.
United States v. Hensel, supra. We hold that the district court did not err in
finding that the evidence derived from the Canadian wiretaps was admissible.
II.
31
O'Brien and Mosher contend that the district court erred in ruling that it would
permit the Government to identify them through the use of hearsay statements
attributable to support personnel. This argument, which is made without
citation to the record, challenges the district court's ruling that it would allow
the introduction of a wiretapped telephone conversation between an
unidentified male and an unidentified female in which the female exclaimed
"Michael's back." The court ruled that the section of the tape would be admitted
under Rule 803, Fed.R.Evid. 18 U.S.C. as evidence of the identity of one of the
appellants, over the objection of O'Brien that the statement was inadmissible
hearsay.
32
We hold the district court did not err in admitting the statement pursuant to Rule
803, under which statements are not excludable as hearsay even though the
declarant is unavailable as a witness if the statement is "describing or
explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter."
III.
33
O'Brien and Mosher contend that the district court erred in ruling that it would
allow voice exemplars of them to be played to the jury and to provide the jury
with transcripts of said exemplars. The voice exemplars were made in two
ways, one with the defendants reading Time Magazine and one with the
defendants reading the transcript from the original wiretap tapes. On the
morning of O'Brien's and Mosher's trial date, the following colloquy occurred
between the district court and trial counsel:
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THE COURT: All right, he's going to use the original tapes plus the exemplars,
is that correct?
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MR. BLACK: That's correct, Your Honor. The exemplars were made, in two
ways, one reading the Time Magazine article and one reading the transcript.
36
I would propose to play both of those for each defendant, and play them in
comparison to the composite tape.
37
MR. SNOW: Of course--I think I'm speaking for both parties--we, of course,
object to the fact they had to give oral testimony, which violated their Fifth and
Sixth Amendment rights. Second, and more importantly, our position is to read
the actual transcript itself is, additionally, inflammatory to the jury, highly
prejudicial, and, at best, the Court should relegate this to the reading of the
extraneous material, pursuant to the two cases cited by Mr. Black, and I believe
it is Williams that stated innocuous material, like in that case, Time Magazine,
that it should not be highly prejudicial. The only case left is the Brown case
that he could rely on in this court, and we submit to the Court that's not the law
in the Tenth Circuit.
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THE COURT: All right, I'm going to allow the government to proceed with the
exemplars. I don't think his exemplars are a waiver of the Fifth and Sixth
Amendments. I will, however, when the transcripts are produced, I will give
the jury a cautionary instruction that the evidence in the case is the original
tape or tapes, and their contents, and that the transcripts are submitted simply as
a guideline to assist them in understanding the evidence, and if there is any
discrepancy with what they hear in the tapes and what they see on the tapes,
they are to be guided by the tapes.
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MR. SNOW: With that, again, we object to the transcripts, because the tapes
are there, but assuming they are going to the Court and to the jury and only for
their reading during the playing, and not as an exhibit--
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The voice exemplars opposed by O'Brien and Mosher were not being offered
for the testimonial or communicative evidence of what was said, but rather, and
only for comparative purposes. The law in this area was well summarized in
United States v. James, 496 F.Supp. 284 (W.D.Okl.1977). The court there
stated:
46
Freeman, 195 Kan. 561, 408 P.2d 612 (1965) cert. den. 384 U.S. 1025, 86 S.Ct.
1981, 16 L.Ed.2d 1030; United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35
L.Ed.2d 67 (1972); United States v. Raymond, 337 F.Supp. 641
(D.C.Cir.1972); United States v. Askins, 351 F.Supp. 408 (D.Md.1972). Nor do
required voice exemplars violate the prohibition against unreasonable search
and seizure. In re Dini, 322 F.Supp. 393 (N.D.Ill.1971). Claims that a person's
right to equal protection of the laws has been violated by requiring a person to
speak in a line up for voice identification have been rejected. Gilbert v. United
States, 366 F.2d 923 (9th Cir.1966), cert. den. 388 U.S. 922, 87 S.Ct. 2123, 18
L.Ed.2d 1370; Stiltner v. Rhay, 371 F.2d 420, (9th Cir.1967), cert. den. 387
U.S. 922, 87 S.Ct. 2038, 18 L.Ed.2d 977.
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We hold that the district court did not err in ordering the compelled production
of voice exemplars from O'Brien and Mosher and in approving the
Government's proposed voice identification procedure. The district court
properly related to counsel that it would give the jury a cautionary instruction
that the evidence in the case was the original tapes, and that the jurors were to
be guided by them.
IV.
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Before arriving, Woods was also aware that the "female" she was to contact
was probably carrying narcotics. Defendant argues not only was there no
probable cause for her arrest, but also because of Agent Woods awareness, the
warrantless search of her person was unreasonable as the arresting agents could
neither justify it upon the possibility she was armed nor upon any other
exigency.
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First, from my initial recitals, I believe the evidence disclosed the officers had
sufficient probable cause to arrest all three defendants.
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Second, as to Defendant Delaplane, the fact that she had probably gone through
a metal detector in San Francisco does not make unreasonable a "pat down"
search at a subsequent time. I believe the search of her person was a reasonable
incident to her arrest. Michigan v. DeFillipo, 443 U.S. 31, 99 S.Ct. 2627, 61
L.Ed.2d 343 (1979), U.S. v. Hansen, 652 F.2d 1374 (10th Cir.1981).
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443 U.S. at 35, 99 S.Ct. at 2630. See also Lavicky v. Burnett, 758 F.2d 468,
474 (10th Cir.1985). We there observed that a valid search incident to arrest
requires that the arrest and search be substantially contemporaneous.
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Applying these standards, we hold that the district court did not err in denying
Delaplane's motion to suppress the evidence derived from the search of her
person.
V.
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AFFIRMED.
The Honorable J. Thomas Greene, United States District Judge for the District
of Utah, sitting by designation