Opinion
Cause No. IP 04-106-CR-1 H/F, IP 04-106-CR-2 H/F.
December 16, 2004
ENTRY ON MOTIONS TO SUPPRESS AND MOTION TO MODIFY PRETRIAL ORDER FREEZING CASH
Police officers arrested defendant Eddie Thomas on March 27, 2004, in Indianapolis, Indiana, for dealing in cocaine. During a videotaped interrogation, Thomas admitted to dealing in cocaine and provided or confirmed many specific details. He also agreed to place monitored phone calls to Ray Kelly in San Francisco, who had previously supplied him with cocaine. In one of those monitored calls, Thomas and Kelly agreed that Kelly would ship two kilograms of cocaine to Thomas.
Thomas eventually had second thoughts about his initial cooperation in the case. A federal grand jury then indicted Thomas and Kelly for conspiracy to distribute and to possess with intent to distribute more than 500 grams of cocaine. Both defendants have moved to suppress evidence that law enforcement obtained from Thomas after his arrest. Both defendants contend that the arrest of Thomas was unlawful, that Thomas was subjected to improper pre- Miranda interrogation before he gave the Mirandized videotaped statement, that Thomas did not voluntarily consent to participate in the phone calls and to allow police officers to monitor those calls, and that evidence seized in searches of Thomas's residence and hotel suite should be suppressed. Defendant Kelly also seeks to vacate or modify the court's pretrial order pursuant to 21 U.S.C. § 853(e)(1)(A) freezing approximately $132,000 in cash found in his home and a storage unit.
The court held an evidentiary hearing on December 3, 2004, and now states its findings of fact and conclusions of law for purposes of Rule 12(d) of the Federal Rules of Criminal Procedure. As explained in detail below, the court finds: (1) that the police had probable cause to arrest Thomas; (2) that the police could arrest him in a public place without a warrant; (3) that the police officers' limited conversations with Thomas before he received Miranda warnings did not undermine the validity or the effectiveness of the warning or his waiver of his Miranda rights; (4) that Thomas gave valid consent to tape-record his telephone calls to Kelly; (5) that the search warrant for Thomas's hotel suite was valid, and the validity of the search warrant for his home is moot; and (6) that Kelly has not shown reason to modify the court's preliminary order under 21 U.S.C. § 853(e)(1)(A) freezing the cash.
I. Probable Cause to Arrest Thomas
The first question is whether the police had probable cause to arrest Thomas on March 27, 2004, for cocaine dealing. The answer is yes.
From January through March 2004, officers of the Hamilton County Drug Task Force were investigating cocaine trafficking in the northern part of the Indianapolis metropolitan area. On January 15, 2004, officers had arranged for a person identified as "CI 482" to make a controlled buy of cocaine from a person identified as "CI 487." CI 487 took cash from CI 482, and said he/she had to pick up the cocaine from his/her source. Under surveillance by police, CI 487 then drove a short distance and met briefly with Eddie Thomas in his gray Chevrolet Tahoe in a liquor store parking lot. CI 487 then returned and delivered 12.7 grams of cocaine to CI 482.
On February 4, 2004, officers arrested CI 487. CI 487 admitted to the controlled buy on January 15, 2004, and he/she told the police that Thomas was in fact the source. CI 487 told police that Thomas had sold cocaine to him/her several times within the past two months. Another person, identified as "CI 490," also told the police that Thomas had sold cocaine to him/her several times in the past two months. CI 490 told police that Thomas had told CI 490 of the arrest of CI 487 and said that "he would have CI 487 killed if she/he talks." Gov. Ex. 1, ¶ 12 (March 20, 2004, probable cause affidavit for search warrant). Thomas also told CI 490 that if CI 490 wanted any cocaine, Bob Paskiewicz (a friend with whom Thomas shared an apartment) should be contacted, since Thomas intended to lie low for a while. On February 5, 2004, CI 487 carried out a controlled buy of cocaine from Paskiewicz.
On February 9, 2004, Thomas shipped a package from UPS in Fishers, Indiana, addressed to defendant Ray Kelly's wife at their home in San Francisco. Thomas used the alias "Tony Wilson" but signed "E. Thomas" to the receipt. The package appeared to be a "care" package, such as for a student away from home. Unlike most care packages, it also included $57,080 in U.S. currency. The package was intercepted pursuant to a search warrant. The cash shipment did not reach Kelly.
On March 1, 2004, CI 490 carried out a controlled buy of cocaine from Paskiewicz. That same day, Paskiewicz referred to Thomas having left three "eight balls" of cocaine for Paskiewicz on his driveway and to Thomas having accidentally thrown away 20 "eight balls" of cocaine from his car.
On March 18, 2004, CI 490 contacted Paskiewicz to arrange a cocaine transaction. Paskiewicz said he did not have cocaine but expected to get some soon from Thomas. During a controlled buy that same day, Paskiewicz told CI 490 that he had known Thomas for ten years, that they had attended Indiana University together, and that Paskiewicz had begun buying cocaine from Thomas approximately ten years ago. Paskiewicz said that after Thomas had been shot in December 2003, Paskiewicz began selling cocaine for Thomas, and that Paskiewicz made about $3,000 every two weeks for his efforts. Paskiewicz also said that Thomas had a source in San Francisco.
On March 20, 2004, police arrested Paskiewicz with 4.5 ounces of cocaine. He identified Thomas as his source, and he said that he had seen Thomas with approximately seven to nine kilograms of cocaine over the past four to five months. Police officers searched Paskiewicz's apartment, where Thomas also kept personal items. They found a box for a Glock handgun in the closet of the room where Thomas kept his items.
Probable cause is a "practical, nontechnical conception." Maryland v. Pringle, 540 U.S. 366, ___, 124 S. Ct. 795, 799 (2003), quoting Illinois v. Gates, 462 U.S. 213, 231 (1983). Based on the information from CI 482, CI 487, CI 490, and Paskiewicz, the controlled buys, the surveillance, the interception of the cash shipment, and the mutual corroboration among all these sources of information, the police officers who arrested Thomas on March 27, 2004, had ample probable cause to believe that Thomas had been engaged in selling substantial quantities of cocaine. The officers had probable cause to arrest him that day.
II. Warrant Not Required
The second question is whether the officers could lawfully arrest Thomas without an arrest warrant. The answer is yes.
It would have been feasible to obtain an arrest warrant. The officers obviously had ample time to obtain an arrest warrant. They had Thomas under surveillance for several days before the arrest, and the information they had as early as March 20, 2004 was more than sufficient to show probable cause. Nevertheless, the Fourth Amendment did not require an arrest warrant for an arrest in a public place for a felony when the arrest was supported by probable cause.
The circumstances of the arrest were these. From January to March 2004, Thomas and his wife were having marital difficulties. Thomas left home on occasion and stayed with Paskiewicz at his apartment or rented hotel rooms or hotel suites for several days at a time. On March 20, 2004, Thomas checked into a suite at a Residence Inn on the northwest side of Indianapolis. During the week of March 21st, police officers monitored UPS packages looking for suspicious packages from San Francisco, especially to addresses associated with Thomas. None arrived. On Saturday, March 27th, the task force officers decided to wait no longer and to arrest Thomas that day. A team of police officers took up positions around the Residence Inn. The police had received information from several sources that Thomas often carried a firearm and that he had threatened others involved in the cocaine distribution. As noted, they had also found an empty box for a gun in Thomas's room at Paskiewicz's apartment.
Thomas was arrested late in the morning as he was walking from the hotel laundry room back toward his suite. The arrest involved the use of some force to put Thomas on the ground when he did not instantly comply with orders to lie on the ground. He was not armed at the time, and he was not carrying any cocaine.
The Fourth Amendment did not prohibit the officers from arresting Thomas in a public place so long as they had probable cause to believe he had committed a felony. United States v. Watson, 423 U.S. 411, 423-24 (1976) (with probable cause, postal inspectors could make arrest for felony in public place without an arrest warrant); accord, Devenpeck v. Alford, 543 U.S. ___, 125 S. Ct. ___ (Dec. 13, 2004) ("[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed."); Maryland v. Pringle, 540 U.S. at ___, 124 S. Ct. at 799; United States v. Sawyer, 224 F.3d 675, 678 (7th Cir. 2000). Cf. Payton v. New York, 445 U.S. 573 (1980) (probable cause for arrest could not, without more, authorize police to enter private home to effect arrest). The Supreme Court pointed out in Watson that "Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate." 423 U.S. at 423; accord, Whiteley v. Warden, 401 U.S. 560, 566 (1971) (rejecting suggestion that review of arresting officer's judgment about probable cause should be less stringent than review of judgment by magistrate who issues arrest warrant). Nevertheless, in light of the long history of warrantless felony arrests based on probable cause, the Watson Court declined to "transform this judicial preference [for warrants] into a constitutional rule." 423 U.S. at 423. The arrest of Thomas on March 27th did not violate the Fourth Amendment.
III. The Interrogation of Thomas
The third question is whether the government intends to offer evidence that would violate Thomas's rights under Miranda v. Arizona, 384 U.S. 436 (1966). The answer is no.
Shortly before noon on March 27th, Thomas received Miranda warnings and waived his Miranda rights orally and in writing. He was interviewed on videotape for roughly 90 minutes. In that interrogation, Thomas admitted trafficking in cocaine, and he provided extensive details about his dealings. For example, he said that "Ray" in San Francisco had been supplying him with kilogram quantities of cocaine for several months, and he provided Ray's cellular telephone number.
Thomas contends that he was also interrogated shortly after his arrest, before he had received Miranda warnings. The government has not indicated any interest in using any pre- Miranda statements by Thomas as evidence in its case-in-chief. Thomas argues, however, that the post- Miranda interrogation completed an unconstitutional " Miranda two-step," sometimes called "question-first," in which police officers deliberately interrogate a suspect without Miranda warnings until they obtain a confession, and then give Miranda warnings and continue the interrogation until the earlier confession is repeated. The Supreme Court held the admission of statements obtained by this technique unconstitutional in Missouri v. Seibert, 540 U.S. ___, 124 S. Ct. 2601 (2004).
In Seibert, a police officer interrogated a suspect in a murder case. The officer had been instructed not to give Miranda warnings to the suspect. He interrogated the suspect until she confessed that she and others had intended that the victim die in the fire they had planned to set. After a coffee and cigarette break, the same officer turned on a tape recorder, gave the suspect her Miranda warnings, obtained a waiver, and resumed questioning. During the post- Miranda questioning, when the suspect tried to minimize the scheme and its intended consequences, the officer confronted her with her earlier pre-warning statements admitting the plan to have the victim die in the fire. 124 S. Ct. at 2606. In Seibert, the police officer had made a conscious decision not to give Miranda warnings, according to the "question-first" interrogation technique he had been taught. At trial, the court suppressed evidence of pre-warning statements but allowed evidence of the post-warning statements. The Supreme Court ultimately held that the post-warning statements were not admissible, and the conviction for murder was reversed.
Writing for a plurality of four justices, Justice Souter found that the "question-first" technique had undermined the effectiveness of the Miranda warnings. The plurality based this conclusion on a number of factors. The pre- Miranda interrogation had been systematic and detailed. It had covered essentially the same ground that was covered after the warnings were given. The two interrogations were conducted by the same officer in the same setting, separated by only a 20 minute break. Also, during the post-warning interrogation, the officer often referred back to the earlier confession and used those earlier statements to coax the suspect to repeat her earlier incriminating answers. Under these circumstances, "a reasonable person in the suspect's shoes would not have understood [the Miranda warnings] to convey a message that she retained a choice about continuing to talk." 124 S. Ct. at 2612-13.
Justice Kennedy concurred in the judgment. He embraced a test that focused on the officer's deliberate decision to interrogate without giving Miranda warnings: "When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps." Id. at 2615.
Justice Breyer joined the plurality opinion and agreed with Justice Kennedy's approach, as well, believing that both will function essentially as a rule excluding the fruits of the deliberate "question-first" tactic, while allowing a good faith exception that could apply, for example, if the police believed in good faith that the person being questioned was not in custody. 124 S. Ct. at 2613-14 (Breyer, J., concurring).
In light of the plurality and concurring opinions in Seibert, Thomas's challenge to the admissibility of his post- Miranda confession depends on whether the officers' encounters with Thomas before and after the Miranda warnings reflect a "question-first" technique which undermined the effectiveness of the Miranda warnings, deliberately or otherwise. This determination depends on the threshold questions of (1) whether any of Brady's pre- Miranda communications with Thomas involved interrogation, and (2) whether Thomas made incriminating statements before he received the warnings. In this case, the testimony relevant to these questions was in conflict. Based on a review of all the evidence, including the videotape of the statement at the police station (Gov. Ex. 4), the court finds by a preponderance of the evidence as follows.
A. No Interrogation Before Warnings
The police team led by Detective Brady arrested Thomas shortly before 11:00 a.m. on March 27, 2004. No officers other than Brady questioned Thomas at the arrest scene at the Residence Inn. At approximately 11:30 or 11:40 a.m., Brady drove to the Carmel police station with Thomas as a passenger, in handcuffs. A few minutes before noon at the police station, Brady and Detective Locke took Thomas into an interrogation room, made arrangements for videotaping, and began questioning Thomas. Before the questioning began, Brady gave Thomas the full set of Miranda warnings orally and in writing. Thomas agreed both orally and in writing to go forward with questioning without a lawyer.
There were some significant communications before the Mirandized interrogation, but the evidence does not show there was earlier interrogation. While he was alone with Thomas on the way to the police station, Detective Brady told Thomas a great deal. He told Thomas that he was facing charges of dealing cocaine as both Class A and Class B felonies. Brady also told Thomas enough information from the investigation at that point to make clear to Thomas that the police already had a strong case against him. Brady said, for example, that the police had been watching Thomas for some time, that they had bags of cocaine with his fingerprints on them, and that the police knew about his source in San Francisco. Significantly, Brady also told Thomas to "shut up" and that they would talk more later. Brady also told Thomas that he was getting "ready to make the most important decision of his life," and that he would have the opportunity to "help himself."
In Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), the Supreme Court explained that "the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." The "functional equivalent" of express questioning is shown by "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Accord, Killebrew v. Endicott, 992 F.2d 660, 663 (7th Cir. 1993).
The evidence here does not show that Brady's pre- Miranda statements to Thomas involved express questioning. When Thomas testified at the suppression hearing, he did not claim that Brady had been questioning him in the car on the way to the police station, as distinct from giving him information that would help him decide to cooperate. The court credits Brady's testimony to the effect that he adopted the approach of having Thomas listen to what he had to say, and to think carefully, so that Thomas would be persuaded to make a knowing and voluntary decision to cooperate once they reached the police station. Nor were Brady's statements the functional equivalent of express questioning. As noted, Brady told Thomas to "shut up" and said they would talk later. A reasonable objective observer would expect such an admonition from a police officer to discourage an incriminating response, not to elicit one. Thus, under the standard in Innis, 446 U.S. at 300-01, Brady's pre- Miranda communications were not interrogation.
Brady's express instruction to Thomas to be quiet and other facts distinguish this case from Killebrew v. Endicott, where the Seventh Circuit found that an officer "interrogated" a prisoner without benefit of Miranda warnings by telling him that he would inform the prosecutor and judge of any cooperation. 992 F.2d at 663. Applying the Innis standard, the court found that, given the implied benefits of cooperation and other circumstances, "an objective observer would not be surprised to hear Mr. Killebrew respond with an incriminating statement." Id. Thomas also was expecting benefits from his cooperation. In contrast to the circumstances of this case, however, the conversation in Killebrew took place ten hours after the arrest and only after the suspect had been removed from his cell to "a special room used for interviewing" and with no evidence that the suspect was, as here, expressly discouraged from talking during the pre- Miranda period. Id. Also unlike this case, evidence showed that the suspect in Killebrew actually made incriminating pre- Miranda confessions in response to the statement implying that cooperation would be rewarded. As explained below, the evidence here does not show that Thomas made any incriminating statements before he received the Miranda warnings.
B. No Confession Before Warnings
Soon after his arrest, and before the Miranda warnings, Thomas asked whether he was going to jail. Brady responded with some discussion of standard bonds for drug arrests. He told Thomas that if he provided information, the officers would try to see that his bond was no more than ten or fifteen thousand dollars, rather than the $75,000 standard bond for a Class A felony in Hamilton County. Brady did not make any more specific promises to Thomas about how he could benefit by cooperating. Thomas responded to Brady's statements with some information: He told Brady that he had made a similar decision to cooperate before, in some dealings with Indianapolis or Marion County agencies who were investigating drug trafficking.
Before the videotape began running, it is clear that Thomas had decided to talk and had told the police he would talk to them. The videotape of the Miranda warnings and waiver shows that the process went without delay and without prolonged thought by Thomas at that point. The court infers that he had already made up his mind, and the officers were ready to begin the interrogation. The videotape does not reflect any examples of the questioner confronting Thomas with any earlier pre- Miranda incriminating statements, such as those the Supreme Court found so troubling in Missouri v. Seibert.
Indeed, the only evidence in this case that Thomas made incriminating statements before being Mirandized is the testimony of Thomas himself. Where the testimony of Thomas conflicts with that of Brady and other officers, the court's findings of fact are generally consistent with Brady's and the other officers' testimony. The officers' testimony was consistent and credible, and there was no indication of a coordinated or concocted story. Even more decisive in terms of credibility, though, was the fact that on several key contested points, Thomas's testimony was inconsistent with the objective evidence, including the videotaped interview.
For example, Thomas testified in court that he gave Brady "Ray's" name at the Residence Inn or in the car on the drive to the police station. Brady denied this. He testified that Thomas first gave him Ray's name in the recorded interview. Before arresting Thomas, Brady had already learned from Paskiewicz and the intercepted UPS shipment of cash that Thomas had a source in San Francisco. In the videotaped statement, Brady's first reference to the source was only to "the gentleman in San Francisco." Thomas then gave Brady the name "Ray." He did so without giving any indication that he was repeating information he had provided earlier.
Second, Thomas testified that Brady had shown him in the car the UPS receipt from the February 9th shipment of cash that had been seized, which had the "Tony Wilson" alias but the "E. Thomas" signature. Thomas also testified in court that Brady did not show him the receipt during the videotaped interview. In fact, however, the tape shows that Brady did confront Thomas with that document during the taped interview. There is no indication in the tape — from tone of voice, timing, or any explicit reference — that Thomas had seen the document recently. During the taped interview, Brady approached the document as something he was pulling out to show Thomas for effect, to surprise and discourage him. It seemed to have the intended effect, by showing Thomas just how much Brady had already learned from his prior investigation.
Third, Thomas testified that he phoned his wife from the police car in the morning, while he was still at the Residence Inn before the interrogation. According to him, his wife was still hysterical as a result of the execution of a search warrant at their home. That testimony is inconsistent with his wife's testimony that he first called her from the police car when he was riding with Brady to the Thomas home after the interrogation, in the early afternoon. In addition, when his wife was mentioned in the videotaped interrogation, there was no indication from Thomas or the officers that there had been any earlier contact with his wife that day, let alone that the residence had been searched by that time. Such a comment or indication would have been natural if the contact had in fact already occurred.
Fourth, Thomas also testified about having been robbed and shot in the leg in December 2003. The robbers took cash and cocaine from him. He testified in court that the cocaine stolen in the robbery had not been supplied by Ray. In the videotaped statement, however, he said that most of the cocaine he had lost in the robbery in fact had been supplied by "Ray" in their first transaction, which he said had occurred earlier the same day.
These are all examples that undermine the credibility of Thomas as to any contested details and as to any factual assertions that might tend to support "question-first" Miranda claim based on Seibert. The court finds that Thomas did not make any incriminating statements before the Miranda warnings.
Thomas testified that he was arrested at approximately 10:00 a.m., which would have allowed much more time for the police to conduct a pre- Miranda interrogation. Brady and other officers placed the time of arrest as close to 11:00 a.m. In light of these credibility problems for Thomas, the court credits the officers' testimony about the time of arrest. The times printed on the hotel records, Gov. Ex. 3, are not sufficiently linked to the time of the arrest for the court to discount the officers' testimony on the timing issue.
C. No Basis for Suppression
Applying the standards of the Seibert plurality, see 124 S. Ct. at 2612-13, the evidence here does not support suppression of the post- Miranda confession. As noted, the court finds that there was no interrogation at all before the Miranda warnings. There certainly was no systematic or detailed questioning then, though Thomas volunteered a little non-incriminating information in response to information the police gave him in the hope of persuading him to cooperate. There also was little overlap in content between the pre- Miranda conversation (not interrogation) and the post- Miranda confession. The settings of the pre- and post- Miranda encounters were distinctly different. There also was no indication that the police were using pre- Miranda answers (as distinct from the results of their earlier investigation) to guide the post- Miranda interrogation or to confront Thomas with earlier inconsistent statements. Under these circumstances, "a reasonable person in the suspect's shoes" would have understood the Miranda warnings "to convey a message that [he] retained a choice about whether to talk." 124 S. Ct. at 2613.
In analyzing the videotaped confession, it is vital to keep in mind the distinction between the results of earlier investigation and the results of any supposed pre- Miranda interrogation. Detective Brady already had a strong case against Thomas at the time of arrest, and he often made a point of letting Thomas know that to encourage him to cooperate. At other times in the videotaped interrogation, Brady made a point of asking Thomas for information that Brady already had, without indicating that he already knew the answers. Questions on such known matters can help the questioner evaluate the subject's honesty.
When the Supreme Court does not muster a majority for a particular opinion, the rule is that the holding of the Court is the narrowest ground relied upon by members voting with the majority. See Marks v. United States, 430 U.S. 188, 193 (1977). To apply Justice Kennedy's standard from Seibert, the evidence does not show that the police engaged in any "extended interview" before giving Miranda warnings. See 124 S. Ct. at 2615. The evidence also does not show that Thomas gave post- Miranda statements that were related in substance to any prewarning responses to interrogation. Finally, as noted, the court credits Brady's testimony to the effect that he adopted the approach of having Thomas listen and think carefully in order to persuade Thomas to make a thoughtful and voluntary decision to cooperate once they reached the police station. The evidence does not show deliberate conduct calculated to undermine the effectiveness of the Miranda warnings. Accordingly, suppression also would not be appropriate under Justice Kennedy's approach.
IV. Telephone Calls to Kelly
The fourth question is whether the government may use evidence from recorded telephone calls between Thomas and Kelly. The answer is yes.
While Thomas was in the Hamilton County Jail, he met with Detective Brady several times to place recorded phone calls to his source in San Francisco. Thomas made to Kelly or received from Kelly three calls on March 29th and two calls on March 30th. During the calls on the 29th, Thomas and Kelly agreed that Kelly would ship Thomas two kilograms of cocaine on March 29th to an address they had not used before. During the March 30th calls, Thomas confirmed for Kelly that the shipment had in fact arrived.
Before each of the phone calls, Thomas gave Brady permission to record the calls. Brady did not give Thomas fresh Miranda warnings before the phone calls on March 29th and 30th, but Thomas has not argued or shown that the failure to repeat these warnings, which he certainly understood when he waived his rights on March 27th, rendered his participation involuntary. Because the court has concluded that Thomas was lawfully in custody and that his confession on March 27th did not violate his constitutional rights, defendants' remaining theory for suppressing the telephone calls is that the interception and tape recording violated 18 U.S.C. § 2511(1). That statute is part of Title III of the Omnibus Crime Control Act of 1968. It prohibits most interception of wire, oral, or electronic communications. Title III contains a statutory exclusionary rule, 18 U.S.C. § 2515, which gives Kelly, a participant in the conversations, standing to seek to suppress the evidence.
This is the only suppression issue as to which Kelly has standing. All the other claims assert violations of only Thomas's rights.
The government relies on § 2511(2)(c), which provides it is not unlawful "for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." Defendants contend that Thomas did not give truly voluntary consent to the recording.
Case law on the consent exceptions to Title III shows that Thomas must meet a high standard to repudiate the consent he gave:
Once it is shown that the cooperation has been undertaken, barring some affirmative evidence of will-overbearing coercive threats, we believe, as did the Second Circuit in Bonanno that the participation in monitoring or recording a telephone or other conversation in which the informant is a participant is merely incidental to the previously determined course of cooperation with law enforcement officials.United States v. Horton, 601 F.2d 319, 323 (7th Cir. 1979) (benefits of cooperation did not render involuntary an informant's consent to recording), citing United States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973).
The March 27th interrogation shows that Thomas chose to follow a course of cooperation. Defendants have not established any grounds for treating that permission as anything less than voluntary. Thomas was in custody, of course, but he made a voluntary decision on March 27th to begin cooperating in an effort to help himself. That decision presented him with difficult choices, but the difficulty of the choice does not render his ultimate decision any less voluntary. E.g., United States v. Wake, 948 F.2d 1422, 1427 (5th Cir. 1991) ("raised expectations and hopes for leniency do not amount to coercion" of consent to monitor phone calls); United States v. Antoon, 933 F.2d 200, 205 (3d Cir. 1991) (no indication that informant did anything but knowingly and intentionally choose between two unpleasant alternatives in consenting to monitoring conversations); United States v. Gomez, 947 F.2d 737, 738 (5th Cir. 1991) (government informant gave effective consent to recording of phone call). Thomas himself testified that it was "my choice" to make the calls in an effort to help himself.
Thomas has not identified any specific promise made to him that was not kept. Brady told Thomas that if he cooperated, especially in building a case against his source, Brady would try to see that his bail was reduced to $10,000 so that he could bond out of the jail. The two-kilogram shipment arrived on March 30th. The police had the shipment tested for cocaine. That evening, Thomas bonded out of jail.
Later on, Thomas changed his mind about cooperating, apparently feeling that he needed more specific promises from the police and a less open-ended set of obligations on his part. His regrets and second thoughts do not show, however, that his earlier consent to place and record the phone calls was anything other than voluntary. There is no basis for suppressing the evidence of the phone calls between Thomas and Kelly on March 29th and 30th.
V. Search Warrants
The next question is whether to suppress the results of searches conducted pursuant to search warrants. The police obtained search warrants for both the Thomas residence in Fishers, Indiana, and the suite where Thomas was staying at the Residence Inn. The police executed both search warrants on March 27, 2004. The state court that issued the warrants eventually declared them both null and void because the police never filed written returns on the warrants after executing them, as required by Indiana law.
Thomas contends that the police violated the Fourth Amendment by searching his Fishers residence on March 27th pursuant to an invalid warrant. The search did not turn up any drugs, guns, or other evidence of drug trafficking. The government has indicated that it does not intend to offer any evidence derived from that search, and there is no indication that the search turned up any evidence that would be helpful for the government. Accordingly, this court need not determine whether the search warrant was invalid, whether it was so plainly invalid as to preclude good faith reliance upon it, and whether the police exceeded the scope of the authorized search. Those are issues that could be addressed in a civil forum, perhaps, but they would have no effect on this criminal prosecution.
Thomas has focused almost all of his attention on the search warrant for his home. To the extent he might also contend that the police violated the Fourth Amendment by searching his hotel suite at the Residence Inn on March 27th, such a challenge must fail. The police obtained a search warrant for that suite. The search turned up some useful evidence for the government, including several cellular telephones. The affidavit in support of the warrant application, Government Exhibit 2, is sufficient to show probable cause. Thomas has not shown any other basis for suppressing the evidence found in the execution of that warrant. Accordingly, then, the court denies in their entirety both defendants' motions to suppress evidence.
VI. Motion to Modify Pretrial Order Freezing Cash
Later in the investigation, the government obtained search warrants for Kelly's San Francisco residence and a nearby storage facility that he rented. The searches turned up about $122,880 in cash in a lockbox in the attic at the residence and another $10,000 at the storage facility. The cash was seized. After Kelly was indicted, the government applied for an order freezing that cash pursuant to 21 U.S.C. § 853(e)(1)(A).
Kelly has moved to modify or vacate that order so that he can use some portion of the cash to pay his lawyer. He also has sought to show that the cash is leftover savings from his professional basketball career (principally in Europe).
The principal issues in the parties' briefs were whether the court should hold an evidentiary hearing at all, and if so, the scope of the hearing. See generally United States v. Lugo, 63 F. Supp. 2d 896, 897-98 (N.D. Ill. 1999), and cases cited therein. The court did hold a hearing, which gave Kelly an opportunity to show that he needed access to the cash to employ counsel of his choice and that the government did not have probable cause to believe the cash was subject to forfeiture as proceeds from cocaine sales.
Kelly made only a modest showing to the effect that he needs access to the seized cash to employ the lawyer of his choice. For present purposes, the court assumes that he has made this showing; Kelly has no other substantial assets and has had no recent source of income sufficient to pay market rates for his retained attorney.
On the issue of probable cause, however, and regardless of which party carries the burden of proof and persuasion, the court finds strong reasons to believe the seized currency is the proceeds of cocaine sales. The court discussed above the seizure of the $57,080 cash shipment from Thomas to Kelly in February 2004. Kelly suggests there is no evidence of other successful shipments of cash. In fact, there is ample circumstantial evidence. Thomas said in the videotaped statement that Kelly sent him one or two quarter-kilogram (9 ounce) packages of cocaine in December, each for $5,000. Then, according to Thomas, from January through March, Kelly sent about three packages a month with one or two kilograms each, for a price of $20,000 per kilogram. Thomas also indicated that Kelly made these shipments on credit, "fronting" the cocaine to Thomas, and that Thomas shipped cash back. That arrangement, which was confirmed by the March 29th shipment of two kilograms upon request by Thomas, indicates an established business relationship with at least some degree of trust between seller and buyer. The government has also come forward with evidence that the searches of Kelly's residence and storage facility turned up scales, packaging materials, and the cellular telephone that Thomas used to arrange the two-kilogram shipment that arrived on March 30th. The government also presented evidence, from tax returns and otherwise, indicating that Kelly and his wife were living far beyond their current income from legitimate jobs.
Against this evidence, Kelly offered evidence that he played professional basketball for several years in Europe, and his wife claimed that the seized cash had been Ray Kelly's wedding present to her to establish a business after their marriage. Under this improbable theory, Kelly turned over to his new wife essentially all of his assets and savings from his basketball career. The theory also asks the court to believe that Kelly and his wife decided to keep virtually all of their savings in the form of cash at home. Also, Kelly presented no evidence of his actual earnings as a basketball player, let alone the extent of his savings.
In short, the government has shown ample reasons for believing that the seized currency is the proceeds of cocaine trafficking and is subject to forfeiture. Kelly has no statutory or constitutional right to that currency at this time. See Caplin Drysdale, Chartered v. United States, 491 U.S. 617, 632-34 (1989) (rejecting Fifth and Sixth Amendment challenges to forfeiture of funds sought for employment of counsel of choice). Kelly's motion to vacate or modify the earlier seizure order is therefore denied. To the extent that Mrs. Kelly is also seeking such relief, her request is also denied.
So ordered.