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explaining that, "[g]enerally, a defendant moving to suppress evidence seized pursuant to a warrant bears the initial burdens of production and persuasion"
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CIVIL ACTION NO. 5:19-CR-19 (MTT)
2020-03-05
UNITED STATES of America, v. Christina WENTWORTH (9); Amanda Michelle Tyquiengco (11), Defendants.
Robert D. McCullers, United States Attorney Office, Macon, GA, for United States of America. Catherine M. Williams, Federal Defenders of MD GA, Macon, GA, John P. Fox, Lisenby & Associates, Charles E. Cox, Jr, Doye E. Green, Jr, Ashley L. Deadwyler, Charles Tyrone Brant,, Kenneth Ronald Smith, Macon, GA, David Quilliams, Watkinsville, GA, Markus F. Boenig, Athens, GA, Tabitha Payne, Bell/Payne, LLC, Whigham, GA, for Defendants.
Robert D. McCullers, United States Attorney Office, Macon, GA, for United States of America.
Catherine M. Williams, Federal Defenders of MD GA, Macon, GA, John P. Fox, Lisenby & Associates, Charles E. Cox, Jr, Doye E. Green, Jr, Ashley L. Deadwyler, Charles Tyrone Brant,, Kenneth Ronald Smith, Macon, GA, David Quilliams, Watkinsville, GA, Markus F. Boenig, Athens, GA, Tabitha Payne, Bell/Payne, LLC, Whigham, GA, for Defendants.
ORDER
MARC T. TREADWELL, UNITED STATES DISTRICT COURT Defendants Christina Wentworth and Amanda Michelle Tyquiengco move to suppress evidence obtained through five wiretaps and the extension of one of the wiretaps. Docs. 259; 261. They argue generally that the affidavits in support of the applications for the wiretaps fail to establish necessity and probable cause; that the affidavit in support of the extension for one of the wiretaps fails to show what was obtained from the previous wiretap and why it failed to yield the expected results; that the calls were not properly minimized; and the recordings were not properly sealed. Id. For the reasons that follow, Wentworth's and Tyquiengco's motions (Docs. 259; 261) are DENIED .
I. BACKGROUND
Wentworth and Tyquiengco, along with fourteen additional codefendants, are charged with conspiracy to possess with intent to distribute heroin. Doc. 255. The evidence against Wentworth, Tyquiengco, and the others is based, in part, on information obtained through wiretap orders on five cell phones.
Wentworth's and Tyquiengco's codefendants face various other charges as shown in the eleven-count indictment. Doc. 255.
On November 6, 2018, the Court entered an Order authorizing the interception and recording of calls and texts occurring on cell phone number (478) 733-0118 ("TT#1"). Doc. 308-3. This cell phone was subscribed to, and used by, an individual who was targeted in the investigation. Id. Probable cause for the issuance of this wiretap order was based on an extensive investigation that included information from confidential informants, controlled purchases, consensually recorded phone calls, surveillance, data produced by a court-authorized pen register and tap and trace device, and a search of another target's seized phone and Facebook account following his arrest. Doc. 308-1 at 12-41. "Interceptions began on November 8, 201[8], and continued through December 7, 201[8]." Doc. 278 at 3.
On November 21, 2018, the Court entered an Order authorizing the interception and recording of calls and texts occurring on cell phone number (478) 342-9330 ("TT#2"). Doc. 308-8. The subscriber of this cell phone was unknown, but it was known that Reginald Summerford used this phone. Id. Probable cause for the issuance of this wiretap order was based on an extensive investigation that included information from confidential informants, controlled purchases, consensually recorded phone calls, surveillance, data produced by a court-authorized pen register and tap and trace device, and interception of phone calls with TT#2 from the wiretap on TT#1. Doc. 308-6. "Interceptions began on November 21, 2018 and continued through December 20, 2018." Doc. 278 at 3. On December 21, 2018, the Court entered an order extending the wiretap on TT#2. Doc. 308-13. Probable cause for the extension was based on the investigation detailed in the original affidavit in support of the wiretap for TT#2 and calls over TT#2. Doc. 308-11. "[I]interception began on December 21, 2018 and continued through January 19, 2019" under the extension order. Doc. 278 at 3.
On December 18, 2018, the Court entered an Order authorizing the interception and recording of calls and texts occurring on cell phone numbers (478) 297-9927 ("TT#3") and (478) 258-6651 ("TT#4"). Doc. 308-20. It was known that a target of the investigation used this cell phone. Doc. 308-18. TT#4 listed Reginald Summerford as the subscriber and it was known that he used this cell phone. Id. Probable cause for the issuance of this wiretap order was based on an extensive investigation that included information from confidential informants, controlled purchases, consensually recorded phone calls, surveillance, data produced by a court-authorized pen register and tap and trace device, and interception of phone calls with TT#3 and TT#4 from the wiretaps on TT#1 and TT#2. Id. Interceptions on both TT#3 and TT#4 "began on December 18, 2018 and continued through January 16, 2019." Doc. 278 at 4.
On February 4, 2019, the Court entered an Order authorizing the interception and recording of calls and texts occurring on cell phone number (470) 839-1115 ("TT#5"). Doc. 302-4. TT#5 was subscribed to "Xtra Ent." at an address associated with Michael Duffy, and it was known that Duffy used this cell phone. Doc. 302-3. Probable cause for the issuance of this wiretap order was based on an extensive investigation that included information from confidential informants, controlled purchases, consensually recorded phone calls, surveillance, data produced by a court-authorized pen register and tap and trace device, and interception of phone calls with TT#5 from the wiretaps on TT#1 through TT#4. Id. Interceptions on TT#5 "began on February 4, 2019 and continued through February 22, 2019." Doc. 278 at 4.
Wentworth and Tyquiengco now move to suppress the evidence obtained pursuant to the wiretaps on TT#1 through TT#5. Docs. 259; 261; 308. They argue generally that the applications for the wiretaps fail to satisfy the necessity requirement of § 2518(1)(c); that the application for an extension on TT#2 fails to show what was obtained from the previous wiretap of TT#2 and why the previous wiretap failed to produce the expected results; that the affidavits in support of the applications for the wiretaps fail to establish probable cause; that the calls were not properly minimized as required by § 2518(5), and the recordings were not sealed in accordance with § 2518(8)(a). Docs. 259 at 1-9; 261 at 1-5; 308.
Wentworth and Tyquiengco originally requested evidentiary hearings to address the motions to suppress. Docs. 259 at 9; 261 at 5; 308 at 4. They withdrew the requests and agreed with the Government that the Court should rule on their motions to suppress based upon the parties' submissions. Docs. 312; 313.
Neither Wentworth nor Tyquiengco expressly move for a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To be entitled to a Franks hearing, a defendant must make a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Franks v. Delaware , 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Neither Wentworth nor Tyquiengco makes such a showing.
II. MOTION TO SUPPRESS STANDARD OF REVIEW
Generally, a defendant moving to suppress evidence seized pursuant to a warrant bears the initial burdens of production and persuasion. United States v. de la Fuente , 548 F.2d 528, 533 (5th Cir. 1977) (citations omitted). "In passing on the validity of the warrant, consideration may be given only to information brought to the attention of the [issuing judge]." United States v. Lockett , 674 F.2d 843, 845 (11th Cir. 1982) (citations omitted). "Here, all of the evidence furnished to the [judge] is included in the affidavit[s]." Id. Thus, the Court looks within the four corners of the affidavits to determine whether the requisite probable cause and necessity for the wiretaps existed.
In Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1, 1981.
The minimization challenge implicates a different standard of review. In "some well-defined situations the ultimate burden of persuasion may shift to the government upon an initial showing of certain facts by the defendant." de la Fuente , 548 F.2d at 533. For example, if a defendant alleges evidence was seized in a warrantless search, the Government must justify the search, and typically an evidentiary hearing is necessary. Id. Although the Court has found no Eleventh Circuit decision addressing the appropriate standard of review for a minimization challenge, by analogy it is apparent that, as in a challenge to a warrantless search, the Government bears the ultimate burden of establishing minimization. While the affidavits acknowledge the need for minimization, Docs. 302-3 at 78-83; 308-1 at 56-63; 308-6 at 57-63; 308-11 at 64-70; 308-18 at 66-70, the affidavits obviously cannot discuss what the Government actually did to minimize the yet-to-be intercepted calls and texts. Clearly, evidence outside the four corners of the affidavits is needed to do that. Only the Government would have evidence of minimization, and the Government has the burden to produce it.
Section 2518(8)(a) requires that "immediately upon expiration of the order" authorizing the wiretap, all recordings of phone calls or texts "be made available to the judge ... and sealed under his direction." The primary purpose of § 2518(8)(a) "is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance." United States v. Ojeda-Rios , 495 U.S. 257, 263, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990). For each wiretap and extension, the Government submitted an application to seal recordings of intercepted calls. Docs. 308-4; 308-9; 308-14; 308-16; 308-21; 308-23; 308-26. The Court entered Orders sealing the digital storage media containing the intercepted communications. Docs. 308-5; 308-10; 308-15; 308-17; 308-22; 308-24; 308-27. These documents provide proof that the recordings were sealed as required by § 2518(8)(a). A party challenging the affidavits or Orders must come forward with more than "conclusory allegations based upon mere suspicions" to be entitled to suppression. de la Fuente , 548 F.2d at 534.
III. PROBABLE CAUSE AND NECESSITY
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST . amend. IV. Any order authorizing wire interception must be supported by a Government affidavit swearing to (1) probable cause, defined as "a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued," 18 U.S.C. § 2518(1)(b) ; and (2) the necessity for such order, shown with "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(1)(c). See United States v. Van Horn , 789 F.2d 1492, 1496 (11th Cir. 1986).
In order to authorize a wiretap, the issuing court must find that the "totality of the circumstances indicate that there is probable cause that the sought-for evidence will be obtained." United States v. Nixon , 918 F.2d 895, 900 (11th Cir. 1990) (quotation marks and citation omitted); see also Illinois v. Gates , 462 U.S. 213, 214, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place."). A reviewing court may only consider information that the issuing court had available and must give "great deference" to the original finding. Lockett , 674 F.2d at 845 ; see also Gates , 462 U.S. at 214, 103 S.Ct. 2317 ("And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.").
Regarding necessity, "[s]ection 2518 does not foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted ...; however, it does require the Government to show why alternative measures are inadequate for this particular investigation." United States v. Perez , 661 F.3d 568, 581 (11th Cir. 2011) (quotation marks and citations omitted); United States v. De La Cruz Suarez , 601 F.3d 1202, 1214 (11th Cir. 2010) (stating that the Government's affidavit must "inform the issuing judge of the difficulties involved in the use of conventional techniques"). "The affidavit need not ... show a comprehensive exhaustion of all possible techniques, but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves." Van Horn , 789 F.2d at 1496 (citations omitted).
Wentworth and Tyquiengco argue generally that the affidavits submitted in support of each of the wiretap applications fail to establish probable cause because they fail to show "1) that an individual is committing a crime; 2) that communications about that crime will be intercepted; and 3) that the phone line to be tapped is being used to communicate about the crime." Doc 259 at 7 (citing 18 U.S.C. § 2518(1)(b) ). They provide no additional detail or argument. "A motion to suppress must in every critical respect be sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.... A court need not act upon general or conclusory assertions...." United States v. Cooper , 203 F.3d 1279, 1284 (11th Cir. 2000) (quotation marks and citation omitted). On this basis alone, Wentworth's and Tyquiengco's arguments fail.
Additionally, the Court finds that Federal Bureau of Investigation Special Agent Amanda Risner's statements in each of the affidavits demonstrate probable cause. See Lockett , 674 F.2d at 845 (holding that a district court assessing a warrant may consider only the information considered by the issuing court). The affidavits show that a drug trafficking enterprise was ongoing. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. The existence of a conspiracy to engage in the distribution of drugs was established by confidential informants' controlled purchases, recorded calls, physical surveillance, and other investigative techniques. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. Each affidavit identifies the individuals who were known to be participating in the conspiracy. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. Each affidavit specifies the individual who was known to use the phone line at issue and what individuals were expected to be intercepted on the phone line. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. As specified in the affidavits, intercepted or consensually recorded calls, text messages sent to confidential informants, and pen register records all showed that communications regarding the distribution of drugs would be intercepted on the phone lines at issue and that the phone lines were being used to communicate about drug distribution. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. Given this, there is a "substantial basis for ... conclud[ing] that probable cause existed" for the issuance of each interception Order authorizing interceptions on TT#1 through TT#5. Nixon , 918 F.2d at 900 (quotation marks and citation omitted). Wentworth's and Tyquiengco's conclusory statements otherwise in no way undermine this finding.
As for necessity, Wentworth and Tyquiengco argue that the affidavits provide insufficient statements regarding past investigative techniques and fail to fully and completely specify why or how future investigative techniques would fail. Docs. 259 at 4; 261 at 3. They argue that Risner's affidavits provide insufficient, conclusory statements regarding the necessity for the wiretaps. Docs. 259 at 5; 261 at 3. Wentworth and Tyquiengco state that the methods already employed by law enforcement, such as controlled buys, surveillance, and confidential sources of information, were sufficient and rendered the wiretaps unnecessary. Doc. 259 at 5. Alternatively, they fault law enforcement for failing to use alternative techniques, such as "trash pulls, undercover operations, and tracking devices." Id.
Contrary to Wentworth's and Tyquiengco's arguments, Risner provides detailed information regarding the necessity for wiretaps on TT#1 through TT#5. She states that wiretaps were necessary to discover the full scope of the conspiracy; to identify key personnel involved in the conspiracy; to discover the identities of the drug suppliers; to discover the identities of the main customers; to discover the stash locations where the heroin was stored prior to disposition; and to discover the management and disposition of the proceeds generated by the drug trafficking. Docs. 302-3; 308-1; 308-6; 308-11; 308-18.
Risner explains that many investigative techniques had already been employed by law enforcement, including confidential sources; controlled purchases; physical surveillance; Facebook search warrants; interviews; pen registers; trap and trace devices; and toll and subscriber analyses. She explained why these methods were insufficient given the goals of the investigation. She stated that confidential sources, while valuable, generally have access to only limited information and are unable to obtain information necessary to reveal the inner workings of the drug trafficking activities. Confidential informants are often not allowed access to the drug organization's leadership. While controlled purchases are helpful, they do not fully identify the narcotic network and do not often help law enforcement identify the source of the narcotics or the locations at which the narcotics may be stored. Physical surveillance, even when successful, often leaves law enforcement with insufficient evidence to prove drug activity. Plus, the subjects of the investigation are cautious and aware of law enforcement surveillance. Thus, the investigation may be compromised by physical surveillance. Facebook search warrants were issued on various target subjects' Facebook accounts. These search warrants provided information about the target subjects' customers but did not provide information about the targets' suppliers. Also, the information obtained through the Facebook search warrants is delayed, and law enforcement are, therefore, often unable to make timely use of the information. While pen registers, toll information, and tap and trace devices provide frequency and identifying information regarding calls made from a particular phone, they do not establish the identities of all persons called or establish the content of the conversations. Docs. 302-3; 308-1; 308-6; 308-11; 308-18.
While Wentworth and Tyquiengco fault the Government for failing to use alternative techniques, such as "trash pulls, undercover operations, and tracking devices," Doc. 259 at 5, Risner fully explained why these techniques were not employed. Trash searches were not feasible because some of the known conspirators resided in high-crime apartment complexes, in which the residents routinely watched for law enforcement. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. Due to the residents' scrutiny, covertly obtaining the trash would likely alert the conspirators to the investigation. Others lived in secluded, wooded areas where neighbors would note unknown vehicles. Attempts to obtain trash from these secluded areas would likely result in being observed by neighbors who would alert the conspirator to the investigation's existence. Also, it was unlikely that trash searches would help identify the participants in, and scope of, the drug conspiracy. Undercover agents were not utilized because it is unlikely they would be able to access the upper-level drug dealers or suppliers. Thus, they would not further the objective of the investigation, such as identifying suppliers and other associates within the drug organization. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. While vehicle mobile tracking devices might confirm meetings occurred between identified co-conspirators, they would not, alone, help establish the identities of unknown participants, help determine the substance of conversations during the meetings, or help determine the nature of the transactions that occurred during the meetings. Docs. 302-3; 308-1; 308-6; 308-11; 308-18.
Given the detailed information in Risner's affidavits, Wentworth and Tyquiencgo cannot prevail on their argument that the techniques already employed were sufficient to achieve the goals of the investigation without the wiretaps or on their argument that other investigative techniques should have been employed prior to seeking the wiretap orders for TT#1 through TT#5. Risner acknowledged the methods already employed yielded some valuable evidence. But she also stated that, although partially successful, these investigative methods would be inadequate to achieve the goals of this particular investigation. See Perez , 661 F.3d at 581 (citation omitted) ("The partial success of alternative investigative measures ... does not necessarily render electronic surveillance unnecessary."). As for not employing other investigative methods, the Government does not need to show a "comprehensive exhaustion of all possible investigative techniques." De La Cruz Suarez , 601 F.3d at 1214 ; see also United States v. Alonso , 740 F.2d 862, 868 (11th Cir. 1984). Rather, as the Government did here, it need only state with specificity why other investigative methods not yet used would fail and thus were not attempted. United States v. Giordano , 416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) ; United States v. Dennis , 786 F.2d 1029, 1035 (11th Cir. 1986) ; United States v. Hyde , 574 F.2d 856, 867 (5th Cir. 1978) (stating that "courts will not invalidate a wiretap order simply because defense lawyers are able to suggest post factum some investigative technique that might have been used and was not"). Risner adequately explained why the investigative methods not undertaken were not likely to succeed. Van Horn , 789 F.2d at 1496.
In sum, the Government, through Risner's testimony, established that investigative techniques used prior to the applications failed to achieve the goals of the investigation. The Government also established the "prospective failure of several investigative techniques that reasonably suggest[ed] themselves." Id. Thus, the affidavits sufficiently established the necessity for the wiretap orders.
IV. EXTENSION ORDER ON TT#2
In addition to the probable cause and necessity requirements, an extension order may be granted only if the application for the extension reveals the previous applications and orders and contains " ‘a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.’ " Giordano , 416 U.S. at 530, 94 S.Ct. 1820 (quoting 18 U.S.C. § 2518(1)(f) ). Rather ironically, given the conclusory nature of their motions to suppress, Wentworth and Tyquiengco argue that the Government provides only general and conclusory reasons for the extension. Doc. 259 at 5. They argue that the extension order for TT#2 was not properly supported by an affidavit showing "what was obtained from the previous wiretap, and why it failed to produce the expected results." Id. (emphasis added).
Contrary to Wentworth's and Tyquiengco's argument, § 2518(1)(f) is written in the disjunctive—the affidavit in support of the extension order must show what was obtained from the previous interception, or an explanation of the failure to obtain results. 18 U.S.C. § 2518(1)(f) (emphasis added). Risner's December 21, 2018 affidavit in support of the extension of the authorization to intercept TT#2 showed exactly what was obtained from the previous wiretap. Additionally, she stated precisely why an extension was necessary. Specifically, Risner stated that Reginald Summerford was using TT#2 in connection with his drug trafficking organization. Doc. 308-11 at 5-6. Summerford contacted his customers and suppliers daily over TT#2. Id. at 48. Through interceptions on TT#2, Risner learned: a targeted subject played a larger role in the leadership of the drug organization than previously thought; that particular individual, who resided in a trap house in Macon, Georgia, conducted the majority of the drug transactions in Macon, while Summerford operated from his apartment and coordinated with his sources of supply to obtain heroin; Michael Dufffy, who resided in Atlanta, Georgia, was a source of supply for Summerford; Summerford traveled with unknown individuals to Atlanta, Georgia to obtain drugs; and Summerford and an unknown associate named "Old School" worked together to distribute heroin and were attempting to obtain a new source of supply for heroin. Id. at 48-49.
Risner testified that continuation of the interception of TT#2 was necessary to further identify the hierarchical structure of the organization, determine the scope of the organization's criminal activity, and to disrupt drug trafficking carried out by the organization. Id. at 7. Specifically, the goals of the continued interception of TT#2 were to determine the storage location of drugs for Summerford's source of supply; identify "Old School" and other unknown associates; identify some of the couriers utilized by Summerford to travel to Atlanta, Georgia; identify additional sources of supply for Summerford and "Old School;" and identify unknown customers. Id. at 49-50.
These statements comply with § 2518(1)(f) in that they "set[ ] forth the results thus far obtained from the interception." Additionally, Risner's statements fully explained why a continuation of the interception was necessary.
V. MINIMIZATION
Section 2518(5) provides that every wiretap order must have a provision that interception "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception...." This "statute[ ] require[s] that the intrusions of the privacy of those whose communications are intercepted ... be held to a minimum (consistently with the purposes of the wiretap)." Hyde , 574 F.2d at 869. Only if the "minimization requirement is blatantly disregarded" will the information obtained through the wiretap be suppressed. Id. (citation omitted).
Wentworth and Tyquiengco make only a general allegation that the "Government cannot identify sufficient minimization efforts that took place." Doc. 259 at 7. They argue that "the Government has not shown that sufficient abstracts or summaries of each conversation were made at the time of interception and were included in daily logs." Id. at 8.
The Government states that it has provided all defendants with "copies of the intercepted communications as well as all available ‘line sheets’ or contemporaneous summaries of the interceptions." Doc. 278 at 11. Despite having this information, Wentworth and Tyquiengco fail to point to any protected or otherwise improperly intercepted communication that was not minimized.
The order authorizing the wiretaps mandated the minimization of interceptions and required reports at fifteen-day intervals. Docs. 302-3; 308-1; 308-6; 308-11; 308-18. The Government attached as Exhibit A to its response brief a copy of the minimization memo, entitled "Instructions for Wire Interceptions." Doc. 278-1. The Government also states that it "further provided information indicating that communications were, in fact, being minimized." Doc. 278 at 11 (citing Exhibit B attached to the response brief, the Government's First Report to the Court for TT#1). The Government filed as an exhibit several line sheets for TT#1 that illustrated minimization. Doc. 314 at 3 (citing ten-page exhibit attached to Government's Reply to Court Order).
Based on the record and absent any specific minimization challenge by Wentworth or Tyquiengco, the Court is satisfied that the Government made reasonable efforts to minimize the intrusion on TT#1 through TT#5. Their conclusory allegations, without more, certainly do not show the Government "blatantly disregarded" the minimization requirement. Hyde , 574 F.2d at 869.
VI. SEALING
Section 2518(8)(a) requires sealing of all recordings of phone calls or texts. As stated above, the main purpose of sealing "is to ensure the reliability and integrity" of the recordings. Ojeda-Rios , 495 U.S. at 260, 110 S.Ct. 1845. For each wiretap and extension, the Government submitted an application to seal recordings of intercepted calls and texts, Docs. 308-4; 308-9; 308-14; 308-16; 308-21; 308-23; 308-25, and the Court ordered that the "digital storage media" be sealed, Docs. 308-5; 308-10; 308-15; 308-17; 308-22; 308-24; 308-26.
Wentworth and Tyquiengco argue that "[p]roper sealing requires the original recording of the calls be sealed." Doc. 259 at 8. They, however, fail to cite any authority for this proposition. In an apparently related argument, they state the Government "violated the sealing requirements when they provided the documents to a third party, to make any copies of the disks or storage media...." Id. They fail to state what "documents" were provided to what "third party" or cite any authority for the proposition that this violated the sealing requirement. The Court ordered Wentworth and Tyquiengco to file any legal authority supporting their argument that original recordings must be filed. Doc. 310 at 2.
Neither Wentworth nor Tyquiengco responded to the Court's Order. They have, therefore, abandoned this argument. Regardless, the argument is meritless. The Government states that the "digital media which have been sealed were the original and first download of the interceptions captured digitally on electronic servers used in connection with the interception and monitoring of the communications...." Doc. 314 at 2. Thus, "those digital media are the best and most original physical recordings which can be sealed." Id.
The statute does not specify that the "original" recordings be sealed. 28 U.S.C. § 2518(8)(a). Courts that have addressed this issue have held that there is no requirement that the "original" recording be sealed. United States v. McLee , 436 F.3d 751, 764 (7th Cir. 2006) ; United States v. Acosta , 807 F. Supp. 2d 1154, 1237 (N.D. Ga. 2011). The primary reason for sealing is to ensure the integrity of the recordings. There is no evidence or suggestion that the digital media the Court sealed was incomplete, altered, or inaccurate in any way. Thus, the sealing of intercepted communications from TT#1 through TT#5 was proper.
VII. GOOD FAITH EXCEPTION
The good faith exception to the Fourth Amendment exclusionary rule applies to wiretap applications and orders. United States v. Malekzadeh , 855 F.2d 1492, 1497 (11th Cir. 1988) (finding that evidence should not be suppressed because "[t]he record shows that the [wiretap] application was devoid of deliberately false or recklessly false information that would provide a sufficient basis to apply the [exclusionary] rule"). Under the good faith exception, the Court will not suppress evidence obtained pursuant to a warrant unless (1) the issuing judge was knowingly misled by information the affiant knew, or should have known, was false; (2) the issuing judge "wholly abandoned his judicial role;" (3) the application was so lacking indicia of probable cause as to render reliance upon it unreasonable; or (4) the warrant was so facially deficient that reliance upon it was unreasonable. United States v. Leon , 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Wentworth and Tyquiengco present nothing to suggest that the good faith exception would not apply in this case. Thus, even if errors were made in the issuance of the wiretap orders or extension order, which the Court does not find, the good faith exception would apply and no evidence would be excluded.
VIII. CONCLUSION
For the reasons stated herein, Wentworth's and Tyquiengco's motions to suppress (Docs. 259; 261) are DENIED .
SO ORDERED , this 5th day of March, 2020.