Opinion
Cause No. IP 04-28-CR-1 H/F, IP 04-28-CR-3 H/F, IP 04-28-CR-5 H/F, IP 04-28-CR-6 H/F.
September 1, 2004
ENTRY ON MOTIONS TO SUPPRESS
Defendants Prentice Greer, Allen Westmoreland, Corey D. Howard, and Anthony Thomas have moved this court to suppress evidence acquired from electronic surveillance conducted under 18 U.S.C. § 2518. For reasons explained below, defendants' motions are denied. Defendants have not even made a threshold showing that a hearing is needed in this case.
I. Probable Cause
The defendants assert first, without explanation, that there was no probable cause to issue orders authorizing the surveillance. At issue are several orders authorizing interception of electronic communications pursuant to 18 U.S.C. § 2518. Judge Tinder issued the first order on November 18, 2003 authorizing interception of communications to and from Target Phones 1 and 2. On November 26, 2003, Judge Tinder issued a second order that authorized interceptions of communications to and from Target Phone 3. On December 23, 2003, Judge Tinder issued a third order that authorized continued interceptions of communications to and from Target Phone 1 and new interception of communications to and from Target Phones 4 and 5.
The original application for the November 18, 2003 order recounted the results of a wiretap authorized by the United States District Court for the Southern District of New York. The affiant reported that the surveillance under that order had shown that a person tentatively identified as defendant Prentice Greer had used Target Phone 1 to arrange a purchase of 13 kilograms of cocaine from Angel Lopez, the principal target of the New York surveillance, and that Greer had also sought to get a shipment of heroin from Lopez. The affiant also reported that the New York surveillance had shown that a person tentatively identified as defendant Allen Westmoreland had used Target Phone 2 to arrange sizable cocaine and heroin purchases from Lopez. The affidavit provides a detailed account of the intercepted phone calls relevant to these transactions, including detailed discussions of the buyers' complaints about being "shorted" on quantity, including the complaints from the buyers' own downstream customers in Indiana. The affidavit also reported on the results of pen registers indicating frequent contacts between the targets and other persons known or suspected to be drug dealers. The affidavit contained ample, specific information from which Judge Tinder could readily conclude that these two cellular phones were probably being used by Greer and Westmoreland to engage in illegal drug trafficking, and that electronic surveillance was likely to generate incriminating evidence against them.
Defendants Howard, Greer, and Westmoreland have also challenged the December 23, 2003 order extending the electronic surveillance on several phones and authorizing such surveillance on two new phones. The affidavit in support of the order incorporated the November 18, 2003 affidavit. It also provided details about seizure of a van containing 13 kilograms of cocaine on November 20th, as well as the results of electronic surveillance and other investigative techniques in the intervening month. The December 23rd affidavit and the earlier documents it incorporated also provided ample grounds for Judge Tinder to find that all of the target phones were probably being used by the targets to engage in illegal drug trafficking and that electronic surveillance was likely to generate incriminating evidence against those targets.
"Evidentiary hearings on motions to suppress are not granted as a matter of course but are held only when the defendant alleges sufficient facts which if proven would justify relief." United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998), citing United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993) ("A trial court is required to grant a suppression hearing only when a defendant presents facts justifying relief."); see also United Statesv. Rollins, 862 F.2d 1282, 1291 (7th Cir. 1988). As the Coleman court explained: "Evidentiary hearings are warranted only when the allegations and moving papers are sufficiently definite, specific and non-conjectural and detailed enough to enable the court to conclude that a substantial claim is presented and that there are disputed issues of material fact which will affect the outcome of the motion." 149 F.3d at 677. The burden is on the parties requesting the hearing to show that there are disputed issues of material fact that require an evidentiary hearing. Rollins, 862 F.2d at 1291. In this case, defendants have offered no specifics showing such issues. There is no need for a hearing based upon a sentence or two of boilerplate claims.
II. Minimization
Defendants Greer, Westmoreland, and Howard also assert that the government did not properly "minimize" intercepted phone conversations as required by 18 U.S.C. § 2518(5). In support of this assertion, they provide nothing — no evidence, no argument, no support. In response, the government has come forward with information showing its protocols and training for minimization. Defendants have long had access to the results of the surveillance. If there were a failure to comply with the minimization requirement, defendants should have been able to identify it. They have not done so. There is no need for a hearing on this theory.
III. Other Investigative Methods
All the defendants have moved to suppress on the theory that the government failed to show that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," as required under 18 U.S.C. § 2518(1)(c). This argument has been developed by defendant Thomas with at least some argument, though without evidence beyond the face of the application and without citation to applicable law.
The Seventh Circuit has explained that "`the government's burden of establishing its compliance with [§ 2518(1)(c)] is not great,' and that the requirement that the government exhaust `normal investigative procedures' be reviewed in a `practical and common-sense fashion.'" United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995), quoting United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988), quoting in turn United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976); accord, United States v. Ceballos, 302 F.3d 679, 683 (7th Cir. 2002) (affirming denial of motion to suppress electronic surveillance on same theory). The DEA agent's affidavit in this case was not "boilerplate." It provided a detailed and persuasive explanation of the reasons for his view that other techniques had failed or appeared unlikely to succeed or were too dangerous in this particular investigation.
The affidavit noted that confidential sources had been used in the investigation in both New York and Indianapolis. The affidavit also noted the limited usefulness of those sources in identifying the full scope of the drug trafficking conspiracy, as well as the absence of additional confidential sources who might help law enforcement pursue the larger conspiracy. ¶¶ 29-32. The affidavit also reasonably stated that there was essentially no chance that law enforcement would be able to use any undercover investigators to accomplish what could be accomplished by electronic surveillance. ¶ 33.
The affidavit reasonably stated that the use of a grand jury and/or search warrants was unlikely to succeed in cracking the conspiracy. ¶¶ 34-38. A grand jury subpoena would have alerted the targets to the investigation, probably resulting in flight and/or destruction of evidence, and would have been unlikely to foster cooperation from the targets of the investigation. Search warrants appeared unlikely to succeed for several reasons. Law enforcement did not have reliable and current information about the locations of any drugs or other evidence. It was unlikely that many members of the conspiracy would be in the same place with drugs at the same time. Also, execution of the search warrants would disclose the investigation and lead to flight and/or destruction of evidence.
The affidavit also described the use of pen registers and toll records in the investigation up to that point, ¶¶ 24-25, and noted their well-known limitations in terms of producing evidence sufficient to prove guilt beyond a reasonable doubt, ¶ 39. Such records do not identify the persons using the phones and do not provide the content of any communication. The affidavit also described the efforts to conduct physical surveillance on the targets and the difficulty of doing so in the particular neighborhoods. ¶¶ 40-42.
Thomas argues that the affidavit was not sufficient because the government should have used the results of the New York investigation to arrest Greer instead of conducting its electronic surveillance, and should have pressured him to testify against others. At the time, of course, such cooperation was perhaps a possibility, but this would have been a very high risk strategy for the investigation. It was not unreasonable to follow a different path. Thomas also argues that the government should have tried harder to conduct physical surveillance, should have spent more time identifying and working with confidential sources, and should have continued to work with pen registers and toll records. This sort of second-guessing is not sufficient to require suppression of the results of electronic surveillance. One can always argue that more should have been done or that investigators should have been more patient with other methods. Courts have routinely rejected such arguments challenging similar affidavits providing reasonable and specific explanations as to why other investigative techniques appeared too dangerous or unlikely to succeed. E.g., Ceballos, 302 F.3d at 683-84; Zambrana, 841 F.2d at 1330-32.
Of course, with the benefit of hindsight, we also know that after Greer was arrested in this case, he did not provide such instant cooperation, but the government correctly observes that such after-the-fact information does not affect the reasonableness of the earlier judgment.
Thomas also argues that the government should have ended its investigation earlier by arresting and prosecuting Greer, Westmoreland, and other associates (excluding himself), so as to end the conspiracy and stop the flow of drugs. In one rhetorical flourish, Thomas suggests that the government was not interested in those objectives but instead wanted only "a bigger body count." The government could reasonably conclude, however, that it made sense to remove as many members of the conspiracy as possible, perhaps so that others who had not yet been identified or who could not yet be prosecuted would not immediately step in to fill the void in the market and continue the drug flow. The government has the power and discretion to make these judgments about which crimes to investigate and how long to pursue the investigation.
IV. "Misleading" Applications
Finally, Thomas suggests that the application for electronic surveillance was misleading by omissions, though the only specific omission he discusses is the status of "individual #1," a confidential informant. Counsel for Thomas asserts the belief, unsupported by any evidence, that the informant was "still capable of observing what Greer and Westmoreland were doing, even if he/she could not buy drugs from them as alleged in ¶ 30" of the application. Such a suggestion or belief falls far short of the showing needed for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). "To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. at 171. Franks requires a substantial preliminary showing that the affidavit contained false information or omitted information; that the affiant deliberately or recklessly made the misrepresentations or omissions; and that the misrepresentations or omissions were material, so that but for them, the surveillance would not have been authorized. Id. at 171-72. Thomas has not satisfied any of these requirements. See also, e.g., United States v. Skinner, 972 F.2d 171, 177 (7th Cir. 1992). Moreover, law enforcement officials were entitled to pursue the investigation to find others, such as Thomas, even if they already had sufficient evidence to convict Greer and Westmoreland The law does not require the government to end its investigation once it finds sufficient evidence to convict one or two members of a suspected conspiracy.
For the foregoing reasons, the defendants' motions to suppress are hereby denied.
So ordered.