Opinion
Cause No. IP99-0140-CR-09-B/F
August 29, 2000
ENTRY DENYING DEFENDANT BRYANT WELLS' MOTION TO SUPPRESS WIRETAP EVIDENCE
Defendants are charged with conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base ("crack"). Defendant Bryant Wells has moved to suppress electronic surveillance evidence in the case, claiming that there was no probable cause to issue the original order authorizing electronic surveillance, that the District Judge who issued the order lacked sufficient facts from which to conclude that normal investigative techniques had failed or were likely to fail or be too dangerous, that the subsequent extensions of the order and applications for other orders authorizing electronic surveillance and wiretaps constitute fruit of the poisonous tree of the initial application and order, and that the subsequent extensions and applications merely "regurgitate" the language of the original application regarding normal investigative procedures without an independent basis for the statutorily required findings. In addition, Wells contends that some of the applications were improperly authorized.
Tables summarizing the challenged orders by Judge John D. Tinder of the United States District Court of the Southern District of Indiana may be found on the first two pages of Wells' suppression motion and at pages 2-3 of the government's response to Wells' motion. The first challenged order, authorizing interception of Wells' electronic digital pager communications (number 317 541-6088), was signed February 12, 1999, and extended eight times. Orders signed on August 6, 1999, authorized interception of Wells' cellular phone (number 317 446-6516) and the land line of Tomichlar Cooper (317 547-3753); surveillance of the land line was extended twice. On August 27, 1999, Judge Tinder authorized surveillance of another cell phone belonging to Wells (number 317 319-3170), an order which was extended once. Finally, Wells challenges a September 10, 1999 order authorizing interception of a second digital pager (number 317 380-8852) subscribed to by Wells.
Legal Standard
A defendant who moves to suppress evidence under the Fourth Amendment bears the burden of establishing that he had a legitimate expectation of privacy in the place or object searched and that the search was illegal. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 132 (1978); see also United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985) (observing that defendant bears burden of proving illegality of search pursuant to warrant).
Wells bases his suppression motion upon the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), which regulates the interception of wire, oral, and electronic communications. See 18 U.S.C. § 2510 et. seq. Among other requirements, an application made to a judge of competent jurisdiction for an order authorizing such interception must 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 to be too dangerous." § 2518(1)(c). Congress envisioned normal investigative procedures to include, "for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants." United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976) (quoting S. Rep. No. 90-1097, at 79, reprinted in 1968 U.S.C.C.A.N. 2112, 2190); United States v. Zambrana, 841 F.2d 1320, 1329 n. 8 (7th Cir. 1988).
The Electronic Communications Privacy Act (ECPA) amended Title III in 1986 to add electronic to the kinds of communications (wire and oral) covered by Title III. The use of a "clone pager" is considered to be an interception of "electronic communications" as defined by the statute. See 18 U.S.C. § 2510 (1), (12); Brown v. Waddel, 50 F.3d 285, 289 (4th Cir. 1995) (noting Title III applies to digital display, but not tone, pagers); United States v. Suarez, 906 F.2d 977, 980 (4th Cir. 1990) (same).
The Court of Appeals for the Tenth Circuit has added pen registers and trap and trace devices to the list of `normal investigative techniques' that law enforcement must exhaust before applying for a wiretap order because "[pen registers and trap and trace devices] possess a logical relationship and close affinity to wiretaps and yet are less intrusive." United States v. Castillo — Garcia, 117 F.3d 1179, 1187-88 (10th Cir. 1997).
The Supreme Court described Congress' intent in limiting the use of electronic surveillance to situations in which normal investigative techniques are inadequate as designed to prevent wiretaps from being "routinely employed as the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515 (1974) (noting that § 2518 was enacted "to make doubly sure that statutory authority [would] be used with restraint and only where circumstances warrant the surreptitious interception of wire and oral communications"); see Zambrana, supra, 841 F.2d at 1329. Seventh Circuit opinions have noted that the common reference to this requirement as the "exhaustion" requirement is a misnomer, because the statute does not require that interception be the "last resort" in an investigation. See United States v. Thompson, 944 F.2d 1331, 1340 (7th Cir. 1991); Anderson, supra, 542 F.2d at 431. The government's burden of proving the `necessity' for electronic surveillance "is not great." Anderson, 542 F.2d at 431 (citations omitted); United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995); United States v. Farmer, 924 F.2d 647, 652 (7th Cir. 1991) (citation omitted); Zambrana, supra, 841 F.2d at 1329.
Defendants acknowledge that under the law of this Circuit, our review of Judge Tinder's findings regarding necessity should be limited. Def.'s Mot. to Supp. at 14. See Thompson, supra, 944 F.2d at 1340 (leaving judgment as to need for wiretap "largely to principled discretion of the district court"). As long as "a factual predicate" for the finding that normal investigative procedures were unlikely to succeed exists in the affidavit, we should affirm the issuing judge's finding. Zambrana, 841 F.2d at 1330 (quoting Anderson, 542 F.2d at 431, and reiterating that the "requirement that the government exhaust `normal investigative procedures' be reviewed in a `practical and commonsense fashion'"); Plescia, supra, 48 F.3d at 1463.
Applications for the interception of wire or oral communications must be authorized by an appropriate higher-level official with the Attorney General's office, including Deputy Assistant Attorney Generals. § 2516(1). Applications for the interception of electronic communications may be authorized by "any attorney for the government" as defined in the Federal Rules of Criminal Procedure. See § 2516(3); Fed.R.Crim.P. 54(c).
A judge may enter an ex parte order authorizing the interception of wire, oral, or electronic communications if he determines on the basis of facts submitted by the applicant that
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.18 U.S.C. § 2518 (3)(a)-(d); see also United States v. Matthews, 213 F.3d 966, 969 (7th Cir. 2000) (summarizing findings a court must make before issuing an order authorizing electronic surveillance).
The parties agree that the probable cause requirement underlying electronic surveillance orders is the same as that provided by the Fourth Amendment to obtain regular search warrants. See Def.'s Mot. To Supp. at 5; Gov't's Resp. at 4-5; see United States v. Jackson, 65 F.3d 631, 635 (7th Cir. 1995), rev'd on other grounds by United States v. Ruby Lamb, 74 F.3d 751 (7th Cir. 1996) and Donald Lamb v. United States, 116 S.Ct. 1038 (1996). Therefore, we should uphold Judge Tinder's decision to issue the orders if, given the totality of the circumstances, there was a "substantial basis" for finding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-239 (1983); United States v. Pless, 982 F.2d 1118, 1124 (7th Cir. 1992); Zambrana, supra, 841 F.2d at 1332. We will follow recent Seventh Circuit decisions that have applied a de novo standard of review to probable cause determinations by issuing judges. See United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998) (reviewing probable cause determination de novo), cited in United States v. Roth, 201 F.3d 888, 891 (7th Cir. 2000) (same); United States v. Spry, 190 F.3d 829, 835 (7th Cir. 1999).
McKinney and Spry's reliance upon Ornelas v. United States, 517 U.S. 690 (1996), for the proposition that a probable cause finding supporting the issuance of a search warrant should be reviewed de novo is puzzling because Ornelas, which held that determinations of probable cause to uphold warrantless searches should be reviewed de novo, based its holding in part upon the distinction between warrantless searches and searches pursuant to warrants: "police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches." 517 U.S. at 698. Accordingly, it would seem that the standard of review of an issuing judge's determination that probable cause existed to support a warrant should be more deferential than de novo review. Under this deferential standard of review, "even doubtful cases are to be resolved in favor of upholding the warrant." Pless, 982 F.2d at 1124; United States v. McNeal, 82 F. Supp. 945, 951 (S.D.Ind. 2000) (Tinder, J.). As will be seen below, we find that Judge Tinder's determination withstands de novo review; any review of his decision under a more deferential standard would yield the same result.
As a recent opinion has affirmed, "[a] search warrant affidavit establishes probable cause when it `sets forth facts sufficient to induce a reasonably prudent person to believe that a search thereof will uncover evidence of a crime.'" United States v. Roth, 201 F.3d 888, 892 (7th Cir. 2000) (quoting United States v. McNeese, 901 F.2d 585, 592 (7th Cir. 1990), citations omitted). Though the Supreme Court has refused to define probable cause, it has said that it "requires only a probability or a substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. at 243-44 n. 13; Roth, 201 F.3d at 893. In Roth, Judge Bauer reiterated that the evidence needed to support a search warrant is less than that needed to sustain a conviction-the fact that a defendant can "point out additional things which could have been done but were not does not in any way detract from what was done." 201 F.3d at 892. The analysis requires a commonsense determination and we should not focus on "isolated aspects" but rather should consider all of the facts that were presented to the issuing judge. United States v. McNeal, 82 F. Supp. 945, 951 (S.D.Ind. 2000) (Tinder, J.).
Once a judge makes the findings required by the statute, Title III requires that each order authorizing surveillance specify the following:
(a) the identity of the person, if known, whose communications are to be intercepted;
(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.18 U.S.C. § 2518 (4)(a)-(e).
An application to extend an order authorizing surveillance must contain "a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results." § 2518(1)(f). See United States v. Williams, 737 F.2d 594, 601 (7th Cir. 1984).
A court cannot grant a request for extension unless it has received a proper application as described by subsection (1) of section 2518 and has made the findings required by subsection (3). See 18 U.S.C. § 2518 (5).
Title III provides for civil and criminal penalties against those who intercept communications in violation of its terms. In addition, section 2518 (10)(a) provides that "any aggrieved person," that is, one who was a party to conversations intercepted during surveillance or against whom surveillance has been directed, 18 U.S.C. § 2510 (11), may in any proceeding move to suppress the contents of any wire or oral communication intercepted pursuant to [Title III], or evidence derived therefrom, on the grounds that — (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518 (10)(a).
Discussion
We note that the government's failure to object to the standing of Wells' co-defendants who were not named in the subject orders or parties to intercepted communications to join in Wells' suppression motion is immaterial in light of our decision to deny the motion. We address each of Wells' arguments below.
1. February 12, 1999 Application: Probable Cause
Wells argues that the government's first application to intercept electronic communications on February 12, 1999, did not establish probable cause to believe that he (Wells) was committing the crimes specified therein or that interception of his wire communications would produce evidence of those crimes. See U.S. Const. Amend. IV; 18 U.S.C. § 2518 (3)(a), (c). Assuming Wells had a reasonable expectation of privacy in transmissions sent to his digital display pager, we review the interception of those transmissions to determine if the government violated Wells' Fourth Amendment right to be free from unreasonable searches.
Wells has not established that Title III entitles him to seek suppression of evidence derived from the government's interception of his electronic communications. He bases his motion upon 18 U.S.C. § 2515, which provides that "[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of this chapter" and upon § 2518 (10)(a), which enumerates the grounds upon which an "aggrieved person . . .may move to suppress the contents of any wire or oral communication intercepted pursuant to [Title III]." However, neither of these sections applies to electronic, as opposed to wire and oral, communications.
When Congress amended Title III in 1986 to include electronic communications under the types of communications protected by the statute, it added section 2518 (10)(c): "the remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications." See United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (citing § 2518 (10)(c) and holding that Electronic Communications Privacy Act (ECPA), which amended Title III to include electronic communications, "does not provide an independent statutory remedy of suppression for interceptions of electronic communications"); Michael S. Leib, E-Mail and the Wiretap Laws: Why Congress Should Add Electronic Communication to Title III's Statutory Exclusionary Rule and Expressly Reject a "Good Faith" Exception, 34 Harv. J. on Legis. 393 (1997) (hereinafter E-Mail and the Wiretap Laws); see also United States v. Reyes, 922 F. Supp. 818, 837 (S.D.N.Y. 1996) (citing § 2515 and noting remedy for violation of Title II of ECPA, regarding stored electronic communications, lies in a civil action against person or entity violating statute). But see United States v. David, 940 F.2d 722, 727-29) (1st Cir. 1991) (analyzing whether applications for clone pager interceptions violated § 2518 without discussing availability of statutory suppression remedy); United States v. Benjamin, 72 F. Supp.2d 161, 184-190 (W.D.N.Y. 1999) (same); United States v. Smith, 978 F.2d 171, 175 (5th Cir. 1992) (observing without explanation that Title III's exclusionary rule, 18 U.S.C. § 2515, applies to wire, oral, and electronic communications).
See § 2511(1), (4).
Section 2518 (10)(c)'s seeming restriction of the subject of Title III suppression motions to oral and wire communications is somewhat confusing in light of section 2518(8)(a), a provision that includes electronic as well as wire and oral communications in its requirement that interceptions of such communications be sealed and which courts have held creates its own suppression remedy. See United States v. Suarez, 906 F.2d 977, 982 (4th Cir. 1990); United States v. Ojeda Rios, 495 U.S. 257, 260 (1990). Under § 2518(8)(a), a seal or an explanation for its absence "shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication . . . under subsection (3) of section 2517." Section 2517 authorizes disclosure and use of intercepted wire, oral, or electronic communications in limited situations. Faced with an apparent ambiguity in the statute, it is appropriate to turn to the legislative history to elicit Congress' intent. Lexington Ins. Co. v. Rugg Knopp, Inc., 165 F.3d 1087, 1091 (7th Cir. 1999). The Senate Report regarding § 2518 (10)(c) makes it clear that the statute is not intended to provide an exclusionary remedy for electronic communications:
Section 2517(3) provides: "Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States . . ."
Subsection 101(e) of the Electronic Communications Privacy Act amends subsection 2518 (10) of title 18 to add a paragraph (c) which provides that with respect to the interception of electronic communications, the remedies and sanctions described in this chapter are the only judicial remedies and sanctions available for nonconstitutional violations of this chapter involving such communications. In the event that there is a violation of law of a constitutional magnitude, the court involved in a subsequent trial will apply the existing Constitutional law with respect to the exclusionary rule. The purpose of this provision is to underscore that, as a result of discussions with the Justice Department, the Electronic Communications Privacy Act does not apply the statutory exclusionary rule contained in title III of the Omnibus Crime Control and Safe Streets Act of 1968 to the interception of electronic communications. S. Rep. No. 99-541, at 23 (1986); reprinted in 1986 U.S.C.C.A.N. 3555, 3577.
See also Leib, E-Mail and the Wiretap Laws, 34 Harv. J. on Legis. at 409-411 (exploring reasons why Congress gave electronic communication less protection than wire and oral communication). Suarez acknowledged that Title III's general exclusionary rule (at §§ 2515 and 2518 (10)(a)) was not amended to include electronic communications, but held that, "notwithstanding the legislative history," Congress intended to extend § 2518(8)(a)'s exclusionary remedy to electronic communications. 906 F.2d at 982 n. 11. Given the clear intent of Congress as expressed in the legislative history of the ECPA, the addition of § 2518 (10)(c), and the fact that §§ 2515 and 2518(10)(a) were not amended to add electronic communications, it seems evident that (whether due to the relative ease with which electronic communications could be intercepted, the lesser degree of invasiveness involved in intercepting electronic communications, or pressure from the Justice Department) Congress decided that suppression would not be available as a remedy for Title III violations in the interception of electronic communications.
Even if Title III provided for a suppression remedy pertaining to Judge Tinder's February 12, 1999 Order, the probable cause analysis under Title III is identical to that of the Fourth Amendment.
We will assume that Wells established a reasonable expectation of privacy in his electronic communications.
After reviewing Agent Baker's February 12, 1999 affidavit in support of the application of the same date, we conclude that there was probable cause to believe that Wells was involved in a drug distribution ring, that information from his digital pager would provide evidence of his crimes, and that he was using the pager in the course of selling drugs.
Wells' attempts to pick apart various facts underlying the warrant must fail. He admits that there are some facts to support what he calls the government's "bald conclusions" regarding probable cause, and does not challenge the truthfulness or completeness of Agent Baker's assertions. Baker's affidavit reveals that between January 8 and 22, 1999, the government's confidential informant (CI) made three controlled buys of crack from Wells. In addition, Wells sold crack to the CI and an undercover officer (UC). Baker recounted hearsay information from the CI, who said Wells was a member of a group called the Euclid Street Boys (ESB), that he (the CI) had seen Wells exchange drugs for guns, and that he had been in Wells' home and knew Wells' gang stored cocaine and guns there. Government surveillance of Wells' residence revealed "heavy traffic" when Wells' vehicle was present, which in the investigators' experience indicated the potential presence of drug trade. Baker reported that his interviews with the Indianapolis Police Department (IPD) Gang Task Force revealed IPD's suspicions of the Euclid Street Boys' involvement in narcotics distribution in Indianapolis and of the group's affiliation with the Vice Lords, a violent gang based in Chicago.
Part of Judge Tinder's probable cause determination included a practical assessment of the credibility and reliability of confidential informants under the totality of the circumstances. See Zambrana, 841 F.2d at 1332. Wells' assertion that the CI's statements are uncorroborated is in error: visual surveillance of Wells' residence revealed suspicious traffic patterns when Wells appeared to be present that suggested to experienced law enforcement personnel that the house might be a base for selling drugs. A judge issuing a warrant may take the experiences of trained law enforcement officers into account when the officers' affidavits in support of a warrant explain the significance of certain types of information. McNeal, supra, 82 F. Supp. at 951. Furthermore, Baker corroborated some information regarding the Euclid Street Boys with the IPD Gang Task Force. Baker's statement that drug dealers often use digital pagers may be a generalization but when viewed in context of the entire application it adds to the commonsense aspects underlying the determination. Most importantly, the CI introduced a UC to Wells, who sold crack to both the CI and the UC after they paged Wells to the number listed in the application. This sale provided concrete support for the CI's assertions. In short, there are more than enough facts to enable us to conclude there was a substantial basis for believing that probable cause existed to issue the authorization order.
2. All Surveillance Orders: Factual Findings
Wells challenges the sufficiency of the findings contained in all of the orders authorizing surveillance, claiming there are no factual findings to support the conclusions therein. While it is true that the orders do not appear to contain factual findings, the government has correctly noted that "nothing in the plain language of the statute requires orders to contain findings of fact." Gov't's Resp. at 12 (emphasis added). Title III describes in detail what information must be specified in orders authorizing interception of wire, oral, or electronic communications, see § 2518(4)(a)-(e) (quoted above), but we cannot conceive of a way to read the statute to include factual findings among this information.
Wells provides no support for his assertion that the logic of United States v. Castillo-Garcia, a Tenth Circuit case criticizing the dearth of facts in an affidavit supporting a wiretap application, pertains to orders as well as to applications. See United States v. Castillo-Garcia, 117 F.3d 1179, 1188, 1194-95 (10th Cir. 1997). Moreover, Wells' position ignores the principal that a warrant is not a judicial opinion. See United States v. Torres, 751 F.2d 875, 886 (7th Cir. 1985). Contrary to Wells' allegations, the lack of factual findings in Judge Tinder's orders does not render review of his conclusions "impossible"; as with regular search warrants, reviewing courts have access to the application and affidavits that should contain the facts underlying his findings. The proper approach on review is to examine the sufficiency of those documents. We agree with the government that all of Judge Tinder's orders contained the information required by § 2518(4) and conclude that his orders are facially sufficient. Even if the orders authorizing surveillance of Wells' digital display pagers somehow violated Title III in this respect, as stated above, the statute does not authorize suppression of evidence derived from the illegal interception of electronic communications.
3. February 12, 1999 Application: Normal Investigative Procedures
Wells' argument that there are not enough facts in the original Application or the supporting Affidavit to uphold the conclusions stated in the application or the findings in Judge Tinder's orders, i.e., that normal investigative techniques had failed or were reasonably likely to fail or be dangerous, rests upon the faulty assumption that suppression of illegally obtained electronic communications evidence is available as a remedy under Title III. As we have discussed, even if the government had not made a sufficient showing that interception of electronic communications was necessary, Wells' recourse is limited to seeking civil and criminal penalties against violators of the statute.
4. Subsequent Applications and Extensions: Normal Investigative Procedures
Wells claims that for all subsequent applications, their extensions, and extensions of the original order, the government did not independently satisfy Title III's requirement regarding normal investigative techniques and that the applications underlying the remaining orders merely "regurgitate" portions of the original application (which he believes did not adequately demonstrate the need for electronic surveillance.) We have stated repeatedly that suppression is not available for any orders authorizing interception of electronic communications, to wit, signals of digital display pagers.
Therefore, we consider Wells' necessity argument as it applies to the following numbers: 1) Wells' cell phone number 317 446-6516, interception authorized August 6, 1999; 2) land line number 317 547-3753 subscribed to by Tomichlar Cooper at Wells' Campbell street address, authorized August 6, 1999 and extended on August 27 and September 24, 1999; and 3) another of Wells' cell phones, number 317 319-3170, authorized August 27, 1999 and extended on September 24, 1999.
Most of Wells' specific objections to the government's assertions underlying its claim that wiretapping was necessary are directed to the original February 12, 1999 application to intercept electronic communications, but we will assume his objections to that application also apply to the applications at issue, as one of his arguments is that these applications merely restate the faulty conclusions of the first application. We examine the three applications dated August 6, August 27, and September 24, 1999, to determine whether the affidavits in support of these applications contain facts sufficient to justify Judge Tinder's conclusions that the government made a proper showing of the need for wiretaps. To satisfy the necessity requirement with respect to each category of normal investigative techniques, the applications and supporting affidavits must demonstrate why those methods have not worked for the investigators or why they have not been tried.
The three affidavits at issue (the first two by Special Agent Baker of the United States Drug Enforcement Administration (DEA) and the third by Task Force Officer Swarm of the IPD/DEA) recount in detail the progress of the ongoing investigation. Each lists normal investigative procedures used by the government: infiltration by undercover officers, review of telephone records, including pen register results, review of general background and police records of suspected traffickers, grand jury and general questioning, with or without grants of immunity, use of informants, physical surveillance, and regular search warrants. See 8/6 Aff. at 41; 8/27 Aff. at 39-40; 9/24 Aff. at 48.
Special Agent Baker's affidavits state that he had been assigned with the DEA's Indianapolis office for the last five years (see 8/6 Aff. at 1-2); Task Force Officer Swarm stated that he was a Detective Sergeant of the IPD assigned as a Task Force Officer with the DEA for the past twenty months. 9/24 Aff. at 2. Swarm had been with the IPD since 1982 and had been assigned as a narcotics investigator for ten years, participating in over 1000 narcotic investigations. Id.
Citations are to page numbers of the affidavits.
Infiltration by Undercover Officers. The August 6, 1999 affidavit establishes that many of the ESB members were closely related (siblings, uncles and nephews, etc.) and that the ESB was known to be a close-knit organization, suspicious of outsiders. See, e.g., 8/6 Aff. at 8, 46-47. Wells demonstrated suspicion of an undercover officer even though he had been introduced to him by someone he knew and had sold drugs to on many occasions (the first CI). Id. at 29. The ESB's guarded behavior is also evident in its counter-surveillance activities (discussed below). It is reasonable to conclude that Wells and his associates would not permit an outsider to penetrate the inner workings of their organization, and that such an assignment could be extremely dangerous to the UC because many of the members have violent histories and some (including Wells) were reported to carry firearms. See 8/6 Aff. at 17-19, 22-23, 43.
The government also cited the expense of conducting undercover buys of drugs in light of the large quantities of drugs being investigated as a reason that undercover work was not likely to help achieve the goal of uncovering the full extent of the drug distribution ring. 8/6 Aff. at 42. In addition, even if the ESB were easier to infiltrate, undercover work depends on the presence of a CI to successfully introduce the UC to the group. In this case, the CIs did not have knowledge of the upper levels of the ESB or the inner workings of the group. Id. at 42-45.
Questioning of Witnesses and Suspects. The affidavits show that the investigators attempted to interview witnesses such as Wells' mother, other residents at the Campbell Street address, and drug couriers with no substantive results. See 8/6 Aff. at 20-22. In the experience of the affiants, when suspects are questioned they are likely to deny involvement in gang activity and, if offered immunity, to testify untruthfully. The government also worried that, because the investigators lacked enough information to identify the importance of the respective players in the organization, granting immunity to obtain testimony could result in inadvertent immunization of people who would later turn out to be culpable in the organization. 8/6 Aff. at 44.
Wells believes the government should have arrested him on charges arising from its undercover drug purchases and then threatened him with a long sentence to force his (Wells') cooperation in the investigation of the alleged conspiracy. Wells suggests that the government should arrest and prosecute lower-ranking members of a suspected drug conspiracy to obtain information regarding the higher-ranking members, disagreeing with the idea that potential witnesses might not want to cooperate or that questioning them would tip off the other members of the conspiracy to police suspicion. Wells' arguments assume that individuals would be willing to provide testimony that might incriminate themselves or their relatives. Also, if questioning suspects and witnesses revealed the existence of the investigation, the group might conceal or destroy evidence or, worse, harm the CIs or UCs.
Informants. For many of the same reasons applicable to the use of undercover investigators, the government believed it would be both dangerous and ineffective to attempt to penetrate the core of the ESB using informants. Investigators succeeded in conducting controlled purchases of drugs from Wells through CIs, but it appears that method had stalled because the CIs could not provide access to important information about the entire scope of the organization, including information about storage of drugs and money, how drug money was laundered, how drugs were transported, or the identity of all of the gang members. 8/6 Aff. at 45. Such information would be vital to meeting the goals of the investigation in dismantling the network responsible for bringing drugs into the state and confiscating the drugs and money belonging to the organization, as well as identifying and obtaining evidence against those who transport and distribute drugs and launder the proceeds of drug sales. Id. at 46.
Physical Surveillance. Wells' main argument regarding physical surveillance is that investigators did not conduct enough of it; however, the facts contained in the affidavit show that officers performed surveillance on many occasions. The affidavits establish that the investigators conducted visual surveillance of Wells' Campbell Street residence for brief periods over a course of several months.
They also attempted to observe suspected drug transactions by members of the ESB, but the delivery of expensive amounts of crack is difficult to see because it can be concealed in one's hand 8/6 Aff. at 47. However, due to the ethnic composition and physical layout of Wells' neighborhood, surveillance for more than brief periods was not possible because unfamiliar people or vehicles would instantly arouse suspicion: most of the residents were African-American and the streets were narrow, many with no outlet. Id at 46. If officers were detected, it would thwart the investigation because Wells and other members of his organization would engage in counter-surveillance, would be more cautious in their activities and therefore more difficult to observe, or might conceal or destroy evidence. The facts demonstrate that Wells and his group were suspicious about surveillance (see 8/6 Aff. at 21, 28) and engaged in counter-surveillance of police on at least three known occasions, particularly during controlled drug purchases. 8/6 Aff. at 14, 30, 46-47. Given the violent criminal histories of some of the ESB members, any observer or informant might have been endangered if the investigation were exposed. Id. at 9-16, 47.
Pen Register/Telephone Tolls. Information from pen registers showed what numbers were being dialed by the suspects and identified numbers of people calling the suspects, verifying frequent contact between members of the ESB organization. 8/6 Aff. at 47. However, Agent Baker noted that pen registers could not tell investigators about the nature of the conversations, whether criminal or legitimate, nor could they identify parties to the conversations. Id. at 48. This information would not reveal the drug source or provide evidence of a conspiracy. In addition, telephone tolls were available only monthly and did not register local calls. Id.
Search Warrants. In Agent Baker's experience, regular search warrants were unlikely to turn up all of the drugs or drug sale proceeds because drug distribution rings such as the ESB usually store contraband in different "stash" locations. Moreover, it would be unlikely for all of the members of the 15-20 member organization to be in the one place when a warrant was executed. 8/6 Aff. at 17, 48.
Law enforcement officers had not identified all of the group members, and executing warrants upon known suspects would tip off unidentified co-conspirators, foiling the object of the investigation (to uncover the entire network responsible for bringing drugs into southern Indiana). See Id. at 48.
Wells faults the government's failure to present information regarding the alleged conspiracy, such as the source of the drugs, but his argument supports the government's assertions that it could not obtain this information without intercepting Wells' phone conversations. He decries the lack of documentation regarding the IPD or statements of other officers, but Affidavits are presumed to be valid, and Wells has not challenged Agent Baker's or Officer Swarm's truthfulness or the completeness of their statements. See United States v. Jackson, 103 F.3d 561, 573-4 (7th Cir. 1996) (citing Franks v. Delaware, 438 U.S. 154, 170-171 (1978)). Wells' arguments ignore that the government need not under Title III prove a particular method would not succeed; it need only show that it is reasonably likely to fail.
In United States v. Farmer, the Seventh Circuit upheld the sufficiency of government affidavits similar to those challenged in this case:
The government's affidavits — which asserted that electronic surveillance was necessary (1) because the investigation was having trouble fingering other members of the conspiracy without electronic surveillance; (2) because of the difficulty in conducting undercover surveillance in Farmer's ethnic neighborhood; and (3) because of the possible danger to undercover agents and cooperating witnesses — were sufficient, given the government's burden, to establish necessity under Title III. 924 F.2d at 652.
Similarly, in United States v. Plescia, the Seventh Circuit rejected a defendant's argument that electronic surveillance was improper because "investigators had enough evidence without it and/or could have obtained sufficient evidence through ordinary investigative techniques." 48 F.3d at 1463.
The Plescia court held that even if the defendant could have been prosecuted without the wiretap evidence, electronic surveillance allowed the government to "ascertain the extent and structure of the [drug] conspiracy," and provided enough evidence to convict the key players in the drug ring, whereas without the tapes "it would have been far more difficult or impossible to determine the extent of their involvement . . . by merely observing transactions from a distance." Id.
We find that there exists more than "a factual predicate" in Agent Baker's August 6, 1999 affidavit to support Judge Tinder's determination that normal investigative procedures had been tried and failed or were reasonably likely to fail or be too dangerous. In addition to the information included in the August 6 affidavit, Baker's August 27 affidavit contains more facts that show the government's need for a wiretap. In it, Baker repeated his assertions of August 6 and disclosed that one co-defendant, David Long, had been arrested and taken into custody but refused to provide even basic information to officers, supporting Baker's contentions that in cases like these, suspects and witnesses are unlikely to cooperate. 8/27 Aff. at 42. In addition, the August 27th affidavit establishes that during one undercover officer's surveillance of Wells' neighborhood, an unknown male approached the UC on the street and asked if he was a police officer. When the officer replied that he was not, the other man warned him to be careful because the "Feds" were in the neighborhood. 8/27 Aff. at 45. This revelation lends additional support to the conclusion that traditional surveillance methods would be inadequate.
Officer Swarm's September 24, 1999, affidavit incorporates all of the facts contained in the other affidavits and recounts that on September 11, Wells and his group "confronted" the CI, accusing him of being an informant and threatening him with physical harm. 9/24 Aff. at 49. This threat confirmed the government's fears that CI or UC attempts to further infiltrate the organization would be too dangerous. The affidavit relates the continuing hesitancy of David Long to furnish information to the police, highlighting the continued likelihood that witness interviews would not advance the investigation significantly. Id. at 51. Conversations intercepted under the previous wiretap authorization revealed that Wells and his associates suspected they were targets of physical surveillance. Id. at 33-34. Their awareness that they might be under surveillance underscores the government's concerns about the consequences for the investigation and the safety of the personnel involved.
Though the August 27 and September 24 affidavits incorporated information that had been presented in support of previous applications, this does not mean that they should be considered "boilerplate." The facts that made regular search warrants appear unlikely to succeed, the nature of the evidence obtained through pen registers and telephone records, and the fact that the CIs did not know the higher-level members of the conspiracy all remained constant. In addition, these applications reaffirmed the need for wiretap surveillance with the presentation of new information. We find that the August 27 and September 23, 1999, affidavits each contained more than enough support for Judge Tinder's conclusion that the government had met Title III's necessity requirement.
5. Authorization
Wells contends that some of the applications were not properly authorized because the applications do not establish that they were signed by the proper officials at the Justice Department as required by the statute. However, the government submitted affidavits showing that all of the people who signed the authorizations are Deputy Attorney Generals in the Criminal Division, as required by § 2516. We therefore reject this argument.
Conclusion
Because we find that Wells' challenges to the orders authorizing and extending electronic surveillance in this case lack merit, we DENY his Motion to Suppress.
It is so ORDERED this 29 day of August 2000.