Federal Wiretap Criminal Defense-Suppression of the Evidence
As a Maryland Federal Criminal Attorney/Lawyer and former Assistant United State's Attorney for more than a decade, I have handled more than my share of Federal Wiretap Cases involving allegations of large scale distribution of narcotics. As a federal prosecutor, I prosecuted many of these cases and since leaving the United State's Attorney's Office, I have defended many more. These cases are among the most complicated criminal cases in the system. To defend these cases properly it is necessary to file carefully thought out motions along with meticulously researched and written legal memorandum. It takes years of experience to handle these high stakes cases properly. Here is an example of a brief that was filed and resulted in the suppression of all evidence in a Federal Wiretap Case here in Baltimore.:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA :
DARNELL DOE : Criminal No.:
MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE
Pursuant to Federal Rule of Criminal Procedure 12, the Defendant, Darnell Doe, moves this Court to suppress the electronic surveillance evidence obtained from the interception of oral communications over cellular telephone number 443-802-xxxx (A-Line), cellular number 678-263-xxxx (B-Line) and all subsequent lines, including but not limited to, cellular telephone number 443-722-xxxx(M-Line) and 443-983-xxxxx (F-Line).
A Memorandum of Points and Authorities accompanies this Motion.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA :
DARNELL DOE : Criminal No.:
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF
MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE
The legality of this order is challenged because the Affidavits in Support of the Application for Order Authorizing the Interception of Wire Communications (hereinafter “the Affidavit”) failed to establish that normal investigative procedures had failed or appeared unlikely to succeed if tried, in violation of 18 U.S.C. 2518(1)(c). This statutory violation is a violation of the Fourth Amendment to the United States Constitution and also constituted a lack of good faith on the part of law enforcement personnel engaged in this investigation. Electronic surveillance enables law enforcement officers to monitor and record private conversations. Due to the very clear threat to privacy rights that would obviously flow from unrestricted surveillance, Congress has mandated that certain procedures be followed before electronic surveillance commences. When the Government fails to follow the mandated procedures, courts should not hesitate to suppress the electronic surveillance evidence.
II. LEGAL PRINCIPLES
Judge Doe has provided an appropriate preface for any discussion of a criminal prosecution which relies on the use of electronic surveillance:
[F]Doe threats to liberty exist which are greater than that posed by the use of
eavesdropping devices. Consequently, in determining whether a particular
interception order comports with Title III’s ‘accomodation between [the]
competing goals of crime control and [the] protection of the right to privacy,
it is necessary to consider that in enacting Title III, the protection of privacy
was an overriding congressional concern.
United States v. Lyons, 507 F.Supp. 551, 553-554 (D.Md. 1981) (citations omitted), aff’d, 695 F.2d 8202 (4th Cir. 1982)(per curiam). The Title III mentioned in the aforequoted passage refers to that portion of the Omnibus Crime Control and Safe Streets Act of 1968 which regulates the use of electronic eavesdropping and surveillance. Title III, codified at 18 U.S.C. 2510-20, broadly prohibits the use of such surveillance, but provides in 18 U.S.C. 2515 rigid conditions under which the interception of wire and oral communications may be authorized and implemented. See 18 U.S.C. 2516-19. Mr. Doe contends that these rigid conditions were not adhered to in his case. Consequently, the privacy rights of Mr. Doe, protected by the Act and referred to in United States v. Lyons, supra, were unconstitutionally violated requiring suppression of all electronic evidence.
The Affidavits Failed to Set Forth Facts Showing That Normal Investigative Procedures Had Failed or Appeared Unlikely to Succeed if Tried.
On May 24, 2006, Judge John M. Doe, Circuit Court for Baltimore
City signed an Order authorizing the interception of wire communications over cellular telephone number 443-802-4684 (A-Line) subscribed to Larry Doe. Subsequently, orders were signed authorizing the interception of wire communications on Lines B through O. On June 28, 2006, the Honorable John Doe of the Circuit Court of Baltimore City signed an order to authorize the interception of 443-983-7981 (F-Line), a cell phone utilized by Mr. Doe. Additional lines the affiants allege are associated with Mr. Doe are 443-722-5338 (M-Line) and 410-372-7937 (N-Line). The Affidavit in support of A-Line is attached as Exhibit 1. The Affidavit in support of B-Line is attached as Exhibit 2. The Affidavit in support of F-Line is attached as Exhibit 3. The Affidavit in support of M-Line is attached as Exhibit 4.
Mr. Doe was a party to conversations intercepted under the surveillance orders. Accordingly, he is an “aggrieved person,” as defined in 18 U.S.C. 2510(11), and has standing to move for suppression of evidence derived from electronic surveillance. 18 U.S.C. 2518(10)(a).
Title 18, U.S.C. 2518 (1)(c) provides that each application for a wiretap authorization must include:
a full and complete statement as to whether or not other investigatory
procedures have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous.
This standard is reflected in 18 U.S.C. 2518(3)(c) which states that in issuing an order, the judge shall determine whether:
normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or too dangerous.
These “necessity” requirements are designed to ensure that “wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 425 U.S. 143, 153 n.12 (1974). Inasmuch as “necessity is a keystone of congressional regulations of electronic eavesdropping, courts examine closely challenges for noncompliance and reject applications that misstate or overstate the difficulties involved.” United States v. Lyons, supra, 507 F.Supp. at 555.
The Government carries the burden to demonstrate that traditional investigative techniques would not suffice to expose the crime. United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). The Fourth Circuit has cautioned that the Government cannot satisfy this burden “through a mere boilerplate recitation of the difficulties of gathering useable evidence.” Id.(quoting United States v. Leavis, 853 F.2d 215, 221 (4th Cir. 1988).
Rather, the government must base its need on real facts and must specifically
describe how, in the case at hand, it “has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence” with normal techniques “to
the point. . .where wiretapping becomes reasonable.”
United States v. Doe, 31 F.3d 1294, 1298 (4th Cir. 1994), cert. denied, 115 S.Ct. 1170 (1995).
The Affidavits hardly describe difficulty penetrating a criminal conspiracy or problems acquiring evidence through the use of usual law enforcement techniques. Law enforcement had identified certain: (1) members of the conspiracy; (2) the addresses of the members of the conspiracy; (3) certain sources of the conspiracy and (4) stash houses of the conspiracy. However, the affiants simply failed to properly use normal investigative measures such as physical surveillance to satisfy the goals of the organization. The affiants asserted that electronic surveillance would be expected to reveal:
(i)the nature, extent and methods of operation of the narcotics trafficking activities
of the target subjects and others as yet unknown or unidentified;(ii) the identities of the
target subjects accomplices, aiders and abettors, co-conspirators and participants in their illegal activities, including the sources of supply of the controlled dangerous substances, as well as the distributors and purchasers of such controlled dangerous substances; (iii) the quantities and types of controlled dangerous substances involved in the conspiracy; (iv) the degree of participation and roles of all co-conspirators in this conspiracy; (v) the addresses and telephone numbers of all participants; (vi) all details about the manner of shipment or movement of controlled dangerous substances; (vii) methods of eluding law enforcement detection; (viii) the nature and scope of the drug activity; (ix) the locations of contraband and of items used in furtherance of those activities; (x) the location and source of resources used to finance this illegal activity; (xi) the times, dates, locations of meetings at which persons pick up drugs, exchange money and meet to discuss the progress of the organization; (xii) the existence and location of records of the operation; (xiii) the identification of communication devices or telephone instruments used by the targets; (xiv) other evidence necessary for the successful prosecution of the above described participants and others yet unknown.
(Affidavit p. 9)
In United States v. Lyons, the Court found that the presence of nine factors justified the finding that an interception order was necessary to the success of the investigation. A comparison of those nine factors to those facts presented in the Affidavit in this case demonstrates that normal investigative techniques had resulted in a prosecutable case eliminating any need for electronic surveillance.
Use of Confidential Informants
Confidential informants failed to cooperate in Lyons. In this case, CI-1 provided extensive information and even made several controlled purchases from the target of the investigation, Larry Doe. CI-1 communicated with the target of the investigation, Doe, from January 2006 to April 2006 regularly utilizing the direct connect feature on the phone that Doe was utilizing at that time. When Doe changed cell numbers, CI-1 provided the affiants with the nDoe number. CI-1 was provided this nDoe cell phone information when he/she met with Doe in Northside Bar. CI-1 advised that Doe dealt directly from that bar.
Despite this information, in the Affidavit for A-Line, the affiants state that this investigative technique has failed because the informant has not identified specific information regarding (1) Doe’ customers, (2) his stash locations, (3) his source or (4) his residence. (Affidavit A- Line p.27). An examination of the Affidavit demonstrates that is not the case. The Affidavit states that CI-1 stated that Doe “utilized the residences of friends” to store drugs. (Affidavit A- Line p.14). The Affidavit identifies Jeffrey RDoe, Julius Doe, Tony Doe, Tony Doe, James Doe, and Alesha Doe as being associates of Doe. Addresses are provided for all of these individuals. The Affidavit also states that CI-1 has “witnessed on multiple occasions drug transactions between Doe and multiple buyers. (Affidavit A- Line p.14). Therefore, it is clear that CI-1 did provide information regarding customers. CI-1 also specifically identified Lonnie as the source of cocaine and that Lonnie ran a bar known as Bre’s. (Affidavit A Line p.15). The affiants were able to identify “Lonnie” as Lionel Doe utilizing State of Maryland records. The affiants were aware of Doe’ home address and survielled that residence. It is evident that this investigative technique, the use of a confidential informant, had been utilized with favorable results. CI-1 clearly was trusted by the target of the investigation, Larry Doe.
In the Affidavit for B Line, the affiants state that while the informant has identified Doe to be a trafficker, CI-1 has been unable to impart specific information about Lionel Doe (Lonnie). However, as previously noted, the affiants had specific information regarding Doe. The affiants were aware that Doe had been arrested during August of 2005 and $26,000 had been recovered from his vehicle. Doe’s business had been identified as Bre’s Bar and Grille on Bel Air Road. Doe’s MVA photograph had been obtained by the police so clearly the affiants had an address for Lionel Doe. (Affidavit B Line p.15).
In the Affidavits for F Line and M Line, the affiants again state that CI-1 was unable to provide information regarding Doe. However, these lines were those allegedly utilized by the Defendant. Therefore, the probable cause should be geared toward the Defendant, not Lionel Doe. There is no statement by the affiants that CI-1 was requested to provide information regarding the Defendant. A reviDoe of the Affidavits also demonstrates that much more information was available to the affiants regarding Doe. Numerous calls were recorded, which the affiants interpreted as narcotics related calls, where the affiants state that Doe was discussing an outside source of supply for obtaining cocaine. (Affidavit F-Line p.19). A reviDoe of the Affidavit for M Line details many intercepted calls which the affiants interpret as narcotics related calls which detail the drug conspiracy. The affiants possessed detailed information and this technique could have been more fully utilized to further the goals of the investigation. Additionally, with regard to Lines B, F, & M, the affiants had the information from CI-1 coupled with the information from the existing wiretaps. The Government must establish separate probable cause in support of each wiretap application. The Government cannot meet this burden.
Use of Undercover Police
Undercover agents failed to meet the supplier of the Lyons conspiracy. The affiants in this case stated that CI-1 was not in the position to introduce an undercover officer. However, CI-1 had stated that Doe dealt directly from Northside Bar. There was no attempt by law enforcement to have an undercover officer attempt to make a purchase from that location. The affiants also state that use of this technique “would not satisfy the aims of this investigation in the way that the interception of narcotics related communications over A line can and will.” (Affidavit A Line p.28). This statement demonstrates that law enforcement does not comprehend that a wiretap can only be obtained if normal investigative techniques and procedures have been tried and have failed or are reasonably appear to be unlikely to succeed if tried or too dangerous. Of course electronic surveillance will likely satisfy the aims of drug investigations more easily, but due to the nature of the intrusion and the overwhelming privacy concerns, courts must examine closely challenges for noncompliance and reject applications that misstate or overstate the difficulties involved.
The affiants state that “physical surveillance has so far failed and is unlikely to succeed in the future.” (Affidavit A Line p.31). However, the Affidavit demonstrates that law enforcement surveilled Doe make trips to his residence at 135 Baltimore Avenue in Dundalk. The affiants state that surveillance in Bre’s Bar, managed by Doe, was considered but only recognized people are allowed entry into Bre’s Bar and that Doe deals from a back room at Northside Bar. However, there is no explanation why Lionel Doe who had already been identified as Doe’ source of supply was not surveilled from Bre’s Bar and Grill where he managed. In addition, CI-1 specifically stated that Doe utilized the residences of friends to store drugs.
In the Affidavit for B Line, there is no statement explaining why physical surveillance would not be successful. Instead, the affiants detailed the physical surveillance that had taken place. On June 25 and June 26, 2006, Doe was surveilled to South Carolina. During July 6 to July 10, 2006, Doe traveled to Texas. On July 13, 2006, Doe was surveilled on Waycross Way where Doe was seen operating his Honda Accord. (Affidavit B Line p.40). Thus, it is clear that the affiants were not having difficulty surveilling Doe and this investigative technique had not failed or proven too dangerous.
In the Affidavit for F Line, the affiants state that even if surveillance would reveal more significant activity, the affiants “know from prior investigations” that “surveillance alone rarely succeeds” in gathering evidence to prosecute these types of conspiracies. (Affidavit F Line p.33). This statement demonstrates that the affiants fail to understand the meaning of properly utilizing normal investigative measures to satisfy the goals of the investigation prior to seeking a wiretap. As noted, the Government must establish probable cause in support of each wiretap application. Therefore, even if this Court were to conclude that probable cause was established for the issuance of any earlier wiretaps in this case, that does not justify the issuance of a later wiretap. Here, the affiants’ bald conclusion that physical surveillance alone in the past has not dismantled an organization does not address or meet the legal requirement that the affiant must establish that normal investigative techniques have failed, appear reasonably unlikely to succeed in this case, or too dangerous. Here, the affiants acknowledged that surveillance may reveal more significant activities. Additionally, no normal investigative technique should be expected to dismantle an organization alone, nor is that the standard required by law.
The Affidavits identify Jeffrey RDoe, address of XXXXXXXX Road; Julius Doe, address of XXXXXXXXXXAvenue; Tony Doe, address of XXXXXXXXXXStreet; Tony Doe, address of XXXXXXXXX Avenue; James Doe, address of XXXXXXX Street; and Alesha Doe, address of XXXXXXX Road. (Affidavit A Line p.22-25). Despite the fact that the affiants were aware of these associates of Doe and the addresses, no attempt was made to surveill them or these locations. The affiants even note that on March 19, 2005, Ledio Gillings was arrested leaving XXXXX Place as he was to receive a delivery of 500 grams of cocaine. An execution of a search and seizure warrant revealed Alesha Doe, a known associate of Doe, present inside. (Affidavit A Line p. 25). Further, during the last week of March 2006, Doe was followed from his residence to Bre’s Bar and Grill. After traveling to Bre’s Bar, Doe met with CI-1 at a public retail establishment where he/she purchased drugs from Doe. The police attempted to follow Doe but “other traffic interfered” so they were unable to stay in visual contact. (Affidavit A Line, p.18). In this instance, there were no counter surveillance techniques employed by Doe, the police just failed in their attempt to follow Doe. Losing Doe in traffic on one occasion is certainly not proof that physical surveillance had failed as an investigative technique or was unlikely to succeed or appeared too dangerous. Since the affiants were aware of Doe’ residence, Northside bar, his source of supply’s bar, plus many other addresses, there is no reason that more surveillance could not have been attempted. CI-1 extensively communicated with Doe. There is no reason the police could not have utilized additional meetings with CI-1 to coordinate more surveillance.
The affiants note that telephone records cannot ascertain the identities of the actual parties to the call. (Affidavit A Line p.31). This general statement is contained in all the Affidavits. Again, this technique could have been more effectively utilized in combination with proper physical surveillance and informant information. No one technique can be expected to satisfy the goals of the investigation.
Grand Jury/ InterviDoes
The affiants state that the only witnesses who could provide evidence are the members of the conspiracy themselves. That is simply not the case. CI-1 stated that he/she has “witnessed on multiple occasions, drug transactions between Doe and multiple buyers.” Those individuals could have been identified and subpoenaed. The affiants also state that subpoenas would alert the targets. That blanket statement could be made in every drug investigation. This is exactly what the Fourth Circuit warned against in United States v. Leavis, 853 F.2d 215, 221 (4th Cir. 1988), when it stated that the Government cannot satisfy its exhaustion burden “through a mere boilerplate recitation of the difficulties of gathering useable evidence.” In a multitude of investigations in this courthouse, the police and the Government routinely and successfully uses grand jury testimony to bring in the suspects or those close to them to elicit testimony without stalling or jeopardizing the investigations. In this case, it is clear that the State of Maryland desired from the beginning to obtain a wiretap and therefore chose not to use this and many other techniques.
In the Affidavits, the affiants make the broad generalization that since the conspiracy has not yet been fully defined, this technique would not “alone” or in league with other information satisfy the goals of the investigation. As previously stated, no one technique could be expected to satisfy the goals of a drug investigation. However, has the affiants fully utilized all the information available to them with the use of proper physical technique, the conspiracy could easily have been further defined and prosecuted.
The Affidavit for A Line states that the trash from 135 Baltimore Avenue was searched twice and that the police only recovered mail addressed to Doe’ suspected girlfriend. However, there is no explanation why the trash was not searched at either Doe’s bar, Bre’s, or Northside bar where Doe vended. In addition, there were addresses noted for Jeffrey RDoe, address of 2717 Kimble Road; Julius Doe, address of 334 Whitridge Avenue; Tony Doe, address of 805 Homestead Street; Tony Doe, address of 517 Chesnut Hill Avenue; James Doe, address of 2555 Francis Street; and Alesha Doe, address of 3822 Kimble Road where Doe may have been storing drugs. No trash runs were attempted at these locations.
The Affidavit for Lines B and Line F state that Doe resides in Georgia so trash runs could not be conducted. This is simply false. The affiants conducted surveillance in Georgia so a trash run could have been conducted with the assistance of Georgia law enforcement. In addition, as previously stated, there were many other addresses mentioned during the investigation. The Affidavit for M Line states that it is the affiants’ belief that no direct evidence would be recovered from the trash at the Defendant’s residence. However, there is absolutely no explanation for this assertion. Again, as Leavis points out, the Government cannot meet its burden through mere boilerplate assertions. This technique was clearly not utilized to its fullest extent. The Government must be required to do more.
Other Reasonable Investigative Techniques Not Used or Mentioned
There are many other investigative techniques routinely used by law enforcement prior to seeking a wiretap that were not even mentioned or used in this investigation. The police never requested that CI-1 ask Doe or others about suppliers. CI-1 was clearly in a position to make such an inquiry. The police never utilized utility checks, vehicle checks, mail covers, bumper beepers, pole cameras, DNR, GPS, etc., techniques that are routinely used in other investigations prior to seeking a wiretap. It is clear that in their eagerness to use electronic surveillance, law enforcement decided to forgo these techniques and instead make blanket statements about the difficulty in infiltrating drug organizations which could be stated in every narcotics case. This kind of investigation is what occurs when the police become compliant because issuing courts routinely authorize wiretaps when requested and reviDoeing courts refuse to intervene. The police now know that little or no effort can be exerted and a wiretap will be authorized. This is demonstrated by the blanket statements made in every application. This must be stopped. This Honorable Court must do its job so that these kind of abuses will end.
The bottom line is that the police put aside very useful techniques because of their desire to use electronic surveillance. A prime example is that law enforcement monitored only one individual in the organization, Doe, despite the fact there was available information on many key players. For example, there was no surveillance on Lionel Doe, the supposed source of the cocaine. It is also telling that law enforcement did not even attempt to utilize so many techniques that are routinely employed prior to the seeking of a wiretap. The Government has failed to carry its burden that they have exhausted the normal means of investigation and needed electronic surveillance.