Opinion
Criminal Action: 03-338 Section: "I".
June 4, 2004
The defendant, Melvin Lutcher, Sr. ("Lutcher"), has filed a motion to suppress evidence acquired by the government through the interception of wire communications approved and authorized by this Court. The affidavits in support of the government's applications sought authorization for the interception of telephone calls of the lead defendant, Sterling E. Lewis, Jr. ("Lewis"), as well as other named and unnamed interceptees involved in suspected violations of federal law. According to both the initial and subsequent wiretap applications, there was probable cause to believe that a cellular telephone bearing a specific telephone number and electronic serial number ("ESN"), subscribed to by Lewis, was being utilized by Lewis in connection with violation of federal statutes. The Court's authorizations applied not only to the target cellular telephone number listed in the applications, but to any changed telephone number subsequently assigned to the same ESN utilized by the target telephone and to any ESN subsequently assigned to the same telephone number utilized by the target cellular telephone.
Lutcher was named as interceptee in the first wiretap application, but not in a later order authorizing the continued interception of wire communications.
Lutcher first argues that the motion to suppress should be granted because the government failed to obtain the proper authorization for this "roving wiretap." According to Lutcher, authorization for the "roving wiretap" was provided by a Deputy Assistant Attorney General of the United States when it should have been authorized by a high-level Justice Department official as required by 18 U.S.C. § 2518 (11)(b).
Lutcher's argument is rejected for reasons expressed in the factual and legal arguments presented by the United States. Contrary to Lutcher's claim, this was not a "roving wiretap" requiring such authorization. A telephone number and an ESN were specified with particularity and, therefore, there was no need to resort to 18 U.S.C. § 2518 (11) (b), and no need to receive high-level authorization. See United States v. Goodwin, 141 F.3d 394 (2nd Cir. 1997).
Lutcher also argues that the applications lack the requisite "probable cause" required for an order authorizing electronic surveillance pursuant to 18 U.S.C. § 2518. According to Lutcher, a review of the affidavits and applications reveals that there is an absence of evidence indicating that Lutcher committed or was about to commit any of the offenses stated in the applications and affidavits. Lutcher's argument is rejected for two reasons.
First, probable cause is not required as to every named interceptee in a wire application. The statute only requires that the government demonstrate that probable cause exists with respect to "an individual" and it does not expressly require such a showing with respect to each person named in the application. 18 U.S.C. § 2518 (3)(a). It is sufficient that probable cause existed to wiretap the telephone. See United States v. Domme, Jr. 753 F.2d 950 (11th Cir. 1985); United States v. Nunez, 877 F.2d 1470 (10th Cir. 1989); United States v. Martin, 599 F.2d 880 (9th Cir. 1979), overruled on other grounds byUnited States v. DeBright, 730 F.2d 1255 (9th Cir. 1984) (en banc); United States v. Pappas, 298 F. Supp.2d 250 (D. CT 2004); United States v. Ambrosio, 898 F. Supp. 177 (S.D.N.Y. 1995); United States v. Marcy, 777 F. Supp. 1400 (N.D. IL 1999); United States v. Trippe, 171 F. Supp.2d 230 (S.D.N.Y. 2001). Lutcher cannot make a credible argument that probable cause failed to exist with respect to the use of the target telephone by Sterling Lewis, Jr.
Second, probable cause existed as to Lutcher. For reasons stated by the government, Lutcher's argument in this regard is likewise rejected.
Accordingly, the motion to suppress is DENIED. There is no factual or legal basis for Lutcher's motion to suppress.