United States v. Martinez , 70 F. App'x 214 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50337
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRUZ ALBERTO MARTINEZ, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-01-CR-21-1
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Cruz Alberto Martinez, Jr. appeals his conviction for
possession with intent to distribute marihuana and cocaine in
violation of 21 U.S.C. 21 841(a)(1). Martinez's arrest and
conviction followed an investigation that included the monitoring
of his cellular telephone, as authorized by a wiretap order issued
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
by a United States district judge pursuant to 18 U.S.C. § 2510(7).
Martinez, arguing that the affidavits submitted to obtain that
authorization neither supported a finding of probable cause nor
established that a wiretap was necessary, contends that the
district court erred in denying his motion to suppress the wiretap
and the evidence obtained therefrom.
Although in our review of the denial of a motion to suppress
we generally resolve the question of probable cause de novo as a
matter of law where all the relevant underlying facts are
undisputed, see United States v. Portillo-Aguirre, 311 F.3d 647,
651–652 (5th Cir. 2002), we review the decision to authorize a
wiretap for clear error. United States v. Tomblin, 46 F.3d 1369,
1376 (5th Cir. 1995). Thus, where the judge issuing a wiretap
order “uses common sense and bases her finding on the entire
picture presented to her, our review is limited,” and that judge's
“determination is conclusive in the absence of arbitrariness.”
United States v. Gonzales, 866 F.2d 781, 786 (5th Cir. 1989)
(quoting United States v. Weinrich, 586 F.2d 481, 487 (5th Cir.
1978)).
The affidavits of FBI agents Michael LaPlante and Dennis
Kintigh constitute a substantial basis for the district court’s
probable cause determination, and the court’s decision was not
arbitrary. See United States v. Gonzales, 866 F.2d 781, 786 (5th
Cir. 1989). The Government adequately showed that “normal
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investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(3)(c); see also United States v.
Webster, 734 F.2d 1048, 1055 (5th Cir. 1984).
AFFIRMED.
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