Opinion
No. CR00-2032
September 28, 2001
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendant Vinneator Bruce's March 15, 2001, motion to suppress wiretap evidence (docket number 126) and defendant Dentonious "Neal" Washington's March 15, 2001, motion to suppress wiretap evidence (docket number 127). Defendant Durrell Jackson orally joined in the motions. The court held an evidentiary hearing on these motions on April 10, 2001, at which the defendants were present and represented by counsel of record. It is recommended that the motions to suppress be denied.
The motions to suppress present three issues relating to wiretaps secured in this case pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. First, the defendants contend that the government failed to show the requisite necessity for permission to use electronic surveillance under the Act. Second, the defendants contend that agents monitoring the telephone calls should not have listened to a call intercepted between defendant Neal Washington, defendant Vinneator Bruce, and an unknown male on July 9, 2000, at 2:59 p.m. Defendants Bruce and Washington contend that the police knew or should have known that their previously intercepted calls had developed a pattern of innocence. Therefore, they contend that the police should have minimized this call immediately. Finally, defendants Washington and Bruce contend that the interception and subsequent offer into evidence of this call violates the marital privilege.
The government contends that it has sufficiently established the necessity for the wiretap application both in the application and at the evidentiary hearing. It further contends that the July 9, 2000, call between defendants Bruce, Washington, and the unknown male was sufficiently different from previous telephone calls so that it need not have been minimized. Finally, the government contends that the call is not protected by the marital privilege because there is no common-law marriage between Bruce and Washington and because of the crime/fraud exception to that privilege.
FINDINGS OF FACT — NECESSITY
On June 14, 2000, Special Agent Scott Gray of the Federal Bureau of Investigation, together with Assistant United States Attorney Stephanie Rose, appeared before the Honorable Michael J. Melloy, United States District Court Judge, with an application to intercept wire communications occurring on a cellular telephone and a stationary telephone subscribed to by defendant Washington (Gov. Ex. 1). Paragraphs 33 through 50 found on pages 27 through 37 of the affidavit detail the government's belief that it had met the necessity requirement of Title III. Specifically, Agent Gray identified physical surveillance, trash collections, grand jury subpoenas, confidential informants, undercover agents, interviews, search warrants, and pen registers as investigative techniques that had been used with varying degrees of success. As Agent Gray testified in the hearing, physical surveillance was difficult in this case due to a particularly tight-knit community within which the defendants operated. Search warrants have limitations including the fact that they alert the targets to the presence of law enforcement. Police had some success with making controlled buys from these defendants but defendant Jackson in particular had shown that he was sensitive to the possibility that an informant could be wearing a "wire" or cooperating with law enforcement. In fact, the defendants' concern in this regard lead to a procedure whereby defendant Jackson let the confidential informant out of a vehicle in order that the delivery of crack cocaine could be made by defendant Phillips. The agents who worked this case over a number of years had considerable difficulty developing an informant who was able to penetrate the upper levels of this conspiracy.
Pen registers were used but they simply identified a particular telephone call that was made and did not provide any information about the substance of the communications. Trash collections were difficult in part because an informant told the police that defendant Jackson was aware that the federal government was collecting his trash. The grand jury was used to secure testimony from a number of persons, many of whom were already incarcerated. The police received historical information from but, again, this technique was limited in that it had the potential to alert the targets of the government's investigation. FBI administrative subpoenas were used to obtain information such as telephone subscriber information and hotel records. This information was, of course, helpful but suffered from a lack of substantive content.
Interception of communications began on June 15, 2000, and lasted for 30 days. Even with the wiretap, police were not able to identify all of the members of the conspiracy. The police never did identify the source of the cocaine for the group, a major objective of the wiretap. Some stash houses were located but not all of them and the police still were unable to determine identity and roles of the various members of the conspiracy.
CONCLUSIONS OF LAW — NECESSITY
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 controls the procedure for intercepting wire, oral and electronic communications. See 18 U.S.C. § 2518. Section 2518(1)(c), referred to as the "necessity" requirement, requires an application for a wiretap to include "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 be to dangerous . . . ." See also United States v. Thompson, 210 F.3d 855, 858 (8th Cir. 2000), cert. denied ___ U.S. ___, 2001 WL 77083 (Apr. 23, 2001); United States v. O'Connell, 841 F.2d 1408, 1414 (8th Cir. 1987). Section 2518(3)(c), requires that upon application the judge may authorize an interception of wire communications if the judge determines 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."
The necessity requirement is intended to insure that "these procedures [wiretapping] were not routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515 (1974); see also, United States v. Shaw, 94 F.3d 438, 441 (8th Cir. 1996). The necessity "requirement seeks to insure that wiretaps are not routinely employed as the initial step in an investigation; it does not, however, require that law enforcement officers exhaust all possible techniques before applying for a wiretap." Thompson, 210 F.3d at 858-59 (citations and quotations omitted). Furthermore, "[e]ven if conventional techniques have been somewhat successful . . ., a wiretap may still be authorized."United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994). This is especially true when officers are investigating a suspected conspiracy and normal investigative procedures fail to "develop enough evidence to successfully prosecute the suspects whom they had identified." Id.; see also United States v. Macklin, 902 F.2d 1320, 1326-27 (8th Cir. 1990).
Even if there was some defect in the issuance of the wiretap order theLeon good faith exception to the exclusionary rule applies. See United States v. Moore, 41 F.3d 370 (8th Cir. 1994). In Moore, the Eighth Circuit held, "Because the law enforcement officials acted reasonably and complied with the core of the statutory requirements of federal wiretap law in applying for and executing the wiretap orders, Leon requires that suppression be denied."
In this case, Special Agent Gray provided a sufficient showing of necessity both in the warrant and through his testimony. If for any reason a court were to find it to be an insufficient showing of necessity, the evidence seized pursuant to the warrant would be saved from suppression by the good faith exception of Leon as Special Agent Gray had an objectively reasonable basis for concluding that he had met the necessity requirement.
FINDINGS OF FACT — MINIMIZATION
Law enforcement officers monitoring the calls pursuant to the warrant were aware of the minimization requirement in Title III. See ¶¶ 51 and 52 Government's Exhibit 1. An elaborate set of minimization instructions was given to each monitoring agent (Defendant's Exhibit 3).
There were twelve telephone calls between defendant Bruce and defendant Washington between June 15 and the call at issue on July 9, 2000. These calls were about their children, food, and other innocuous subjects. Discussions of a sexual nature involving Washington were minimized within 30 seconds. Just prior to the telephone call at issue in the motion to suppress, there was a short telephone call between defendant Bruce and defendant Washington that was minimized because of the personal nature of the call. It related to a child's birthday party.
The call at issue has been transcribed as Government's Exhibit 7A. It began at 2:59 p.m. and ended at 3:03 p.m. on July 9, 2000. It has been described as being found on tape number 31 as call number 24. Defendant Washington answers the telephone and an unknown male has called him. Almost immediately the unknown male states, "What up, I'm here man." Washington responds, "I know, put Squeaky [Vinneator Bruce] on the phone." While defendant Washington waits for defendant Bruce to get on the telephone, he has a brief conversation with someone who is physically present at his location. Washington states, "I got it, I was figuring I was gonna give you a quarter, that cool? But it is, I mean, man."
It was not until the telephone call was 30 seconds old that defendant Bruce got on the telephone. Washington immediately asks her to do a favor and asks if she is on the cordless telephone. Defendant Bruce started talking about the birthday party for the kids but, within 15 seconds, defendant Washington is fairly abrupt with her and makes it clear that he is not interested in a birthday conversation but rather wants her to go downstairs. He tells her to go "all the way down, you do know what I'm talking about?" When she gets to the basement he directs her to go to the sink and simply states "cowboys." The next thing that Washington says is "You see . . . the one that's unready . . . you followin' me?" Defendant Bruce states "The extra crispy or the original?"
Several things are important about this telephone call that distinguish it from previous innocuous calls between Neal Washington and Vinneator Bruce. First, an unknown male placed the call. Second, within 15 seconds, there was reference by Washington to giving someone a "quarter." In their training and experience, the police could recognize this as a comment regarding a quarter of an ounce of cocaine. Defendant Bruce does not even get on the telephone call until it is 30 seconds old. Within 20 seconds thereafter, it is clear that defendant Washington does not want to make small talk about a birthday party. The next references of any significance are to "cowboys," "unready," "extra crispy," and the "original." Again, the police, with their training and experience, could believe the reference to "cowboys" to refer to cocaine with "extra crispy" being a reference to crack, and the "original" and "unready" being references to powdered cocaine. This call did not have to be minimized.
CONCLUSIONS OF LAW — MINIMIZATION
The minimization requirements in 18 U.S.C. § 2518(5) requires interception to be "conducted in such a way as to minimize the interception of communications not otherwise subject to interception. . . ." 18 U.S.C. § 2518(5). The minimization standard is one of reasonableness which is to be ascertained on a case by case basis. United States v. Daly, 535 F.2d 434, 441 (8th Cir. 1976). Section 2518(5) does not establish a per se rule regarding minimization. Each case must be decided on its particular facts. United States v. O'Connell, 841 F.2d 1408, 1417 (8th Cir. 1988). Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case. Scott v. United States, 436 U.S. 128, 139 (1978). In Scott, the Supreme Court found that is was not unreasonable for the listeners to listen to a variety of calls under ninety (90) seconds long because, "even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed." Id.
"[A] party challenging the validity of a federal wiretap order must show a substantial, not just technical, deviation from the requirements of the statute." United States v. Fairchild, 189 F.3d 769, 774 (8th Cir. 1999). Courts use an objective, reasonableness standard to determine if the government has complied with the requirements of section 2518(5).United States v. Williams, 109 F.3d 502, 507 (8th Cir. 1997); see also Scott, 436 U.S. at 137. "In considering whether the government's conduct was reasonable, a reviewing court must consider a variety of factors, including the scope of the enterprise, the agent's reasonable expectation of the content of a call, the extent of judicial supervision, length and origin of a call, and use of coded or ambiguous language." United States v. Macklin, 902 F.2d 1320, 1328 (8th Cir. 1990); United States v. Fregoso, 60 F.3d 1314, 1322 (8th Cir. 1995). Stated a different way, "relevant considerations include the number of target individuals, the ambiguity of the of the intercepted conversations, the complexity of the acts under investigation, and the extent of the issuing judge's involvement in the surveillance." United States v. Gruber, 994 F. Supp. 1026, 1047-48 (N.D.Iowa 1998). Additionally, when the investigation is focusing on what is thought to be a wide spread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise. Id. And it is possible that many more of the conversations will be permissibly intercepted because they will involve one or more of the co-conspirators. Id.
"Although the governing statute . . . places no limitations on the time of day that interception of phone calls may take place, one court has held that `once a pattern of innocent calls develops, of course, those monitoring have a duty to terminate their recording of such calls.'"Fregoso, 60 F.3d at 1322 (quoting United States v. Abascal, 564 F.2d 821, 827 (9th Cir. 1977) (alteration omitted). However, "although listening should cease during parts of a discernible pattern of innocent conversations, interception of innocent conversations need not be totally eliminated, and spot-checking of innocent conversations is permissible."United States v. Losing, 539 F.2d 1174, 1180 (8th Cir. 1976). Courts are generally more tolerant of extensive surveillance when the investigation is of large-scale narcotics conspiracies. Fregoso, 60 F.3d at 1322;United States v. Macklin, 902 F.2d at 1328. "Because even innocent conversations often times turn to criminal matters, spot-checking of such conversations is permissible especially in a case . . . involving a broad scope of criminal activity and a sophisticated criminal element." Daly, 535 F.2d at 441-42 (8th Cir. 1976).
Marital Privilege
Defendants Bruce and Washington have lived together for six years. They have four children together ranging in age from three to eight. Three of the four last children have Washington as their last name. They do certain things such as family portraits that is indicative of an intent to live as a family. Defendant Bruce testified that they are married. Washington and Bruce do not file joint tax returns and, for the purpose of receiving public assistance, defendant Bruce does not claim to be married on those applications. Ms. Bruce further told the probation office at the time that she was arrested that she was single and had never been married. She did not tell her mother that she was married or her neighbors claiming that it was none of their business. When asked whether defendant Washington told others that they were married, defendant Bruce stated, "I don't know. You'd have to ask Neal."
Common Law Marriages — Marital Privilege
The three elements necessary to find a common law marriage are:
(1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Conklin v. MacMillan Oil Company, 557 N.W.2d 102, 105 (Iowa 1996). All elements of a common law marriage must be shown to exist to prove a valid marriage. In re Estate of Dallman, 228 N.W.2d 187, 190 (Iowa 1975). The burden of proof is with the party asserting the existence of a common-law marriage and each claim of a common law marriage is regarded with suspicion and closely scrutinized. Id. An element essential to the proof of such relationship [common law marriage] is a general and substantial "holding out" or open declaration to the public by both parties. In re Estate of Dallman, 228 N.W.2d at 190. In fact, such "holding out" or open declaration to the public has been said to be the acid test. Id. In other words, there can be no secret common-law marriage. Id. "To hold that a common law marriage is established without public acknowledgment of the marriage status of the contracting parties where there is an unwitnessed oral agreement would open the door to perjury and fraud, deny the parties themselves the protection to which they are entitled, and jeopardize the sanctity of the basic institution of all civilized society, the home." Id. quoting, Schilling v. Parsons, 36 N.E.2d 958, 961 (Ind. 1941).
Another essential element of a common law marriage is the mutual intent to marry. See Estate of Atwood v. Konken, 577 N.W.2d 60, 62 (Iowa 1998) (after wedding ceremony performed by a minister the couple did not get a marriage license and the alleged wife told people the marriage was not intended to be legal in order for her to retain her John Deere surviving spouse's pension benefits).
The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications. United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992). The privilege extends only to words of acts that are intended as a communication to the other spouse. United States v. Smith, 533 F.2d 1077 (8th Cir. 1976). The communication must also occur during a time when the marriage is valid under state law and the couple is not permanently separated. United States v. Jackson, 939 F.2d 625, 627 (8th Cir. 1991). Lastly, the communication must be made in confidence; in other words, it cannot be made in the presence of a third party, and the communicating spouse cannot intend for it to be passed on to others. See United States v. McConnell, 903 F.2d 566, 572 (8th Cir. 1990), cert. denied, 498 U.S. 1106 (1991).
A widely accepted exception to the marital confidential communications privilege "permits witness-spouse testimony about confidential communications involving future or on-going crimes in which the spouses were joint participants at the time of the communications. Evans, 966 F.2d at 401, quoting, 2 Weinstein's Evidence 505-536 (1991). The rationale for the "partners in crime" exception is compelling. We protect confidential marital communications in order to encourage the sharing of confidences between spouses. Id. Where the communications involve the spouses' joint criminal activity, however, the interests of justice outweigh the goal of fostering marital harmony. Id. The exception to the confidential marital communications privilege applies to those communications regarding "patently illegal activity." Id. citing, United States v. Sims, 755 F.2d 1239, 1243 (6th Circuit 1985), cert. denied, 473 U.S. 907 (1985).
Here, the court doubts that a common law marriage exists. The defendants live together, have children, and do family things but deny a marriage when dealing with the government. Defendant Bruce's testimony about who she has told causes doubt about whether the defendants truly hold themselves out as being married. The court need not decide this, however, because the crime/fraud exception to the marital privilege applies here.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, defendant Vinneator Bruce's March 15, 2001, motion to suppress wiretap evidence (docket number 126) and defendant Dentonious "Neal" Washington's March 15, 2001, motion to suppress wiretap evidence (docket number 127) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).