U.S. v. BANNERMAN

2005 | Cited 0 times | D. Massachusetts | August 25, 2005

MEMORANDUM AND ORDER

The defendants Douglas Bannerman1 and Frank Giglio haveseparately moved to suppress evidence produced by wiretap ordersentered by judges of this Court. The motions have one issue incommon, the contention that the affidavits submitted in supportof the wiretap orders failed to demonstrate that in light ofshortcomings to other investigative procedures wiretaps werenecessary. In addition, the defendant Giglio contends that theaffidavits supporting the wiretaps naming him as an intercepteewere not supported by probable cause as required by Title III.

I.

In enacting the wiretapping provisions of Title III, Congressdemonstrated a "fundamental policy . . . strictly to limit theemployment of those techniques of acquiring information." Gelbard v. United States, 408 U.S. 41, 47 (1972).This policy reflected the dual purposes of "(1) protecting theprivacy of wire and oral communications, and (2) delineating on auniform basis the circumstances and conditions under which theinterception of wire and oral communications may be authorized."Id. at 48 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., 66(1968), reprinted in 1968 U.S.C.C.A.N. 2122, 2153)). Thus, inenacting the legislation, Congress "evidenced the clear intent tomake doubly sure that the statutory authority be used withrestraint and only where the circumstances warrant thesurreptitious interception of wire and oral communications."United States v. Giordano, 416 U.S. 505, 515 (1974). To ensurethat wiretaps were not "routinely employed as the initial step incriminal investigation," id., Title III contained what has cometo be known as the "necessity requirement," pursuant to whichwiretap applications were required to provide "a full andcomplete statement as to whether or not other investigativeprocedures have been tried and failed or why they reasonablyappear to be unlikely to succeed if tried or to be toodangerous." 18 U.S.C. § 2518(1)(c).

The First Circuit has interpreted the necessity requirement "tomean that the statement should demonstrate that the governmenthas made a `reasonable, good faith effort to run the gamut ofnormal investigative procedures before resorting to means sointrusive as electronic'" surveillance. United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003) (quotingUnited States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir.1987)). Under that interpretation, "the district court mustsatisfy itself that the government has used normal techniques butit has encountered difficulties in penetrating a criminalenterprise or in gathering evidence — to the point where (giventhe statutory preference for less intrusive techniques)wiretapping becomes reasonable." United States v. Abou-Saada,785 F.2d 1, 11 (1st Cir. 1986) (citations omitted), cert.denied, 477 U.S. 908 (1986). In this connection, it is notrequired that the wiretap application provide "proof positivethat, without electronic assistance, a promising investigation isup a blind alley," United States v. David, 940 F.2d 722, 729(1st Cir. 1991), cert. denied, 502 U.S. 989 (1991), or that"other methods have been entirely unsuccessful."Villarman-Oviedo, 325 F.3d at 9. The "government need notdemonstrate that it exhausted all investigative procedures" tosatisfy the necessity requirement. United States v. Santana,342 F.3d 60, 65 (1st Cir. 2003); see also United States v.Lopez, 300 F.3d 46, 52 (1st Cir. 2002) ("the necessityrequirement is not tantamount to an exhaustion requirement").Rather, an application is sufficient if it shows "reasonableefforts to succeed without such assistance have been tried andfailed, and that electronic surveillance seems a suitable nextstep in a plausible progression." David, 940 F.2d at 729. When considering a motion to suppress evidence gathered via awiretap based upon allegations having to do with the sufficiencyof the application and underlying affidavit, the task for thereviewing court is to "examine? the face of the affidavit and`decide? if the facts set forth in the application wereminimally adequate to support the determination that was made.'"Villarman-Oviedo, 325 F.3d at 9 (quoting United States v.Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989)). As a result, "thesufficiency of the affidavit is to be upheld where the appellatecourt determines that the issuing court could have reasonablyconcluded that normal investigatory procedures reasonablyappeared to be unlikely to succeed," Lopez, 300 F.3d at 53(internal quotation marks and citation omitted), a standard ofreview equally applicable in the present context. Ashley,876 F.2d at 1074.

Bearing this instruction in mind, I have examined thechallenged affidavits from the perspective of the First Circuit'sinterpretation of the necessity requirement under18 U.S.C. § 2518(1)(c), and I find, as a practical matter, that thedifficulties in penetrating and in gathering evidence regardingthe criminal enterprise described in the affidavits weresufficient to go to the next suitable step, that of electronicsurveillance. While the defendants point to what theycharacterize as a less-than-vigorous investigative undertaking, Ido not view the record here to be one of simply desultory and mechanical tapping on drums before reaching for electronicsurveillance as an investigative instrument. The record more thanadequately supports the determination by the issuing judges thatthe government had met the necessity requirement.

The core affidavit submitted by Special Agent Brian Tomasetta("Tomasetta") of the Drug Enforcement Administration adequatelydemonstrated that "other investigative procedures . . .reasonably appear to be unlikely to succeed if tried."18 U.S.C. § 2518(1)(c). Tomasetta offered credible, fact-specific, anddetailed explanations regarding the unlikelihood of approachesthat had already been utilized in the course of the investigation— i.e., working with cooperating witnesses and confidentialinformants, attempted placement of undercover agents, physicalsurveillance, search warrants, and use of pen registers and trapand trace devices — accomplishing the pending investigatorygoals. Tomasetta described having already "considered andrejected" the use of trash searches and explained the basis forhis conclusion that the technique, even in those limitedlocations in which it was feasible, would not provide "sufficientinformation to satisfy the goals of the investigation." Finally,Tomasetta articulated in clear terms, albeit using somewhatgeneric language the defendants characterize as "boilerplate,"why various other investigative tools (e.g., grand jurysubpoenas and interviews of potential witnesses) would eitherthwart the investigation — for example, by alerting the targets that they were under suspicion — or wereunlikely to bear fruit.

I find that the facts as set forth in the application andsupporting affidavit were more than "minimally adequate" tosupport the decision to permit electronic surveillance.Accordingly, the motions to suppress cannot succeed on the issueof the necessity requirement.

II.

The defendant Giglio presses a claim that because Tomasetta'saffidavit failed to demonstrate either that Giglio was involvedin criminal activity or that he would be interceptedcommunicating about the target offenses, the government did notdemonstrate the requisite probable cause to intercept hiscommunications. Giglio argues that in the absence of probablecause particularized to him, he should not have been named as apotential interceptee of the wiretap, and that all communicationsof his so intercepted, as well as the fruits thereof, must besuppressed.

A. General Principles

I commence the analysis of this argument with several basicprecepts. It is axiomatic that in order to obtain a wiretappursuant to Title III, as when seeking a search warrant, thegovernment must make a showing of probable cause.18 U.S.C. § 2518(3)(a) (authorizing the issuance of an order approving electronic surveillance "if the judge determines on the basis ofthe facts submitted by the applicant that," inter alia,"there is probable cause for belief that an individual iscommitting, has committed, or is about to commit a particularoffense"). "Probable cause exists when the affidavit demonstratesin some trustworthy fashion the likelihood that an offense hasbeen or is being committed." Santana, 342 F.3d at 65 (citingUnited States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999)).The Fourth Amendment requirement that "the place to be searched,and the persons or things to be seized," be specified issatisfied in the wiretap context "by identification of thetelephone line to be tapped and the particular conversations tobe seized." United States v. Donovan, 429 U.S. 413, 427 n. 15(1977). As a consequence, "[i]t is not a constitutionalrequirement that all those likely to be overheard engaging inincriminating conversations be named" in the wiretap application.Id.

The authority to intercept under Title III is not limited to"those conversations between a party named in the order andothers," United States v. Kahn, 415 U.S. 143, 157 (1974)(emphasis in original), and the statute does not requiresuppression of "legally intercepted conversations" on thetargeted phone to which the named interceptee "was not himself aparty." Id. at 158. However, "a wiretap application must namean individual if the Government has probable cause to believethat the individual is engaged in the criminal activity under investigation and expects to intercept the individual'sconversations over the target telephone." Id. at 428; seealso 18 U.S.C. § 2518(4)(a) (requiring that each orderauthorizing or approving electronic surveillance specify "theidentity of the person, if known, whose communications are to beintercepted").

B. Application to Giglio

For present purposes, Giglio does not contest that thegovernment had probable cause to believe Bannerman was committingdrug-related offenses and that communications regarding themwould be intercepted over telephone #3. Rather, Giglio's argumentto suppress is as follows: (1) even if the government hadprobable cause as to Bannerman and telephone #3, it did not haveprobable cause with respect to Giglio; (2) without probable causeas to Giglio, the government should not have named him as apotential interceptee in the wiretap application; and (3) becauseof the lack of probable cause regarding Giglio, anycommunications by him that were intercepted via the wiretap, aswell as the fruits of such communications, must be suppressed.After full review of the case law following the hearing onGiglio's motion, I find his argument, even if correct as toproposition (1), founders at proposition (2).

Giglio's suppression argument depends upon the contention thatthe government must establish probable cause for each personnamed in a wiretap application. Several Circuit Courts, albeit not the First Circuit,2 as well as numerous DistrictCourts, including a judge in this District, have considered thiscontention and rejected it in reported decisions. See, e.g.,United States v. Figueroa, 757 F.2d 466, 475 (2d Cir. 1985)(citing United States v. Tortorello, 480 F.2d 764, 775 (2d Cir.1973), for the proposition that "the government need notestablish probable cause as to all participants in aconversation. If probable cause has been shown as to one suchparticipant, the statements of the other participants may beintercepted if pertinent to the investigation."); United Statesv. Domme, Jr., 753 F.2d 950, 954 n. 2 (11th Cir. 1985) ("Awiretap application need not provide probable cause of criminalactivity for each person named in an application. . . . What isrequired is sufficient information so that a judge could findprobable cause to believe that the telephone in question is beingused in an illegal operation.") (internal citations omitted);United States v. Martin, 599 F.2d 880, 884-85 (9th Cir. 1979)(rejecting the proposition that 18 U.S.C. § 2518 "require[s] thatonly those for whom ? probable cause is shown may be named inthe application" for a wiretap), overruled on other grounds byUnited States v. DeBright, 730 F.2d 1255 (9th Cir. 1984) (enbanc); United States v. Lutcher, Criminal Action: 03-338Section "I," 2004 U.S. Dist. LEXIS 10589, at *3-4 (D. La., Jun.4, 2004) (holding that § 2518 does not require a showing of probable "withrespect to each person named in the application"); United Statesv. Pappas, 298 F. Supp. 2d 250, 254 n. 4 (D. Ct. 2004) ("theGovernment is not required to establish probable cause as toevery named Interceptee in a wiretap application"); UnitedStates v. Trippe, 171 F. Supp. 2d 230, 235 (S.D.N.Y. 2001)(holding that "the issuing Judge was not required to find thatthere was probable cause that [the defendant] himself engaged incriminal activity to issue the warrant," and denying defendant'smotion to suppress because the wiretap application "providedsufficient probable cause as to the other individuals named asinterceptees"); United States v. Ambrosio, 898 F. Supp. 177,183-85 (S.D.N.Y. 1995) (holding that "because the government isnot required to show probable cause with respect to eachinterceptee," even if the government did not have probable causeto suspect the defendant of engaging in criminal activity, hismotion to suppress fruits of a wiretap for which he was a namedinterceptee must be denied where a showing had been made that"the conversations sought to be monitored were likely to containevidence of a crime"); United States v. Marcy,777 F. Supp. 1400, 1402 (N.D. Ill. 1991) ("The government need not establishprobable cause with respect to each and every person named in awiretap order."); United States v. Rodriguez,606 F. Supp. 1363, 1370 (D. Mass. 1985) ("Probable cause need not be shown foreach person named in an application so long as it is shown with respect to at least one individual.")

In the course of rejecting the argument that "where aninterceptee is named and no probable cause exists any evidenceobtained should be suppressed," Judge Caffrey reasoned that "[t]orequire identification of persons for whom probable cause exists,yet punish for naming a person for whom it does not exist wouldbe to force passage between Scylla and Charybdis." Rodriguez,606 F. Supp. at 1370; see also Ambrosio, 898 F. Supp. at 184(in denying motion to suppress wiretap evidence on the groundthat the government lacked probable cause to name the defendantas an interceptee, stating that "[i]t would be anomalous topunish the government by suppressing the wiretap evidence fornaming [the defendant] in the affidavit when it couldconstitutionally not have named him and still have interceptedhis calls").3 The approach pressed by Giglio would do nothing to advance thecompeting policy goals Title III was designed to vitiate, namely"protecting individual privacy," while also "authoriz[ing]electronic surveillance as a weapon against the operations oforganized crime," United States v. Kahn, 415 U.S. 143, 151(1974).4 See, e.g., Rodriguez, 606 F. Supp. at 1370(noting that neither of these two objectives would be served by astatutory construction requiring probable cause as to each namedinterceptee); United States v. Milan-Colon, Nos. S2, S391CR.685, 1992 WL 236218, at *16 (S.D.N.Y., Sept. 8, 1992)(reasoning that "[a]ny over-inclusion in naming" potentialinterceptees, "far from establishing cause for suppression,furthers the statutory policy of preventing unreasonableinvasions of privacy by ensuring that such persons will be givennotice of the Title III order and any interception pursuant to18 U.S.C. § 2518(8)(d)").

There is, if anything, a practical benefit to being a namedinterceptee rather than having your communications interceptedwithout first being named in the application. Title III mandatesthat within ninety days of either the denial of an applicationfor a surveillance order or the expiration of an issuedsurveillance order (including any extensions thereof), the courtprovide "persons named in the application" with "an inventorywhich shall include notice of — (1) the fact of the entry of the order or the application; (2) the date of the entry and theperiod of authorized, approved or disapproved interception, orthe denial of the application; and (3) the fact that during theperiod wire, oral, or electronic communications were or were notintercepted." 18 U.S.C. § 2518(d). The statute provides that thisinventory may also be given to "such other parties to interceptedcommunications as the judge may determine in his discretion thatis in the interest of justice" to notify. Id. Following aninterceptee's receipt of this notice, the "judge, upon the filingof a motion, may in his discretion make available to such personor his counsel for inspection such portions of the interceptedcommunications, applications and orders as the judge determinesto be in the interest of justice." Id. Thus, while namedinterceptees are guaranteed notice of the fact of anyinterception order and whether communications were interceptedthereto — thereby enabling them immediately to seek leave toreview the intercepted communications, authorizing order, andsurveillance application — unnamed interceptees may or may not,depending upon the judge's discretion, receive such notice.Accordingly, named interceptees could be said to enjoy a greaterlevel of protection vis-a-vis unnamed ones.

Upon reflection and review, I find the body of case lawdiscussed above to be both persuasive and consistent with theunderlying constitutional and policy concerns. Because thewiretap application demonstrated probable cause with respect to both Bannerman and telephone #3, it satisfied the applicableconstitutional and statutory requirements. Having made asufficient showing in this regard, the government was entitled tointercept pertinent communications on the targeted phone linebetween Bannerman and as yet unidentified third parties, as wellas those with other named interceptees, including Giglio.

III.

For the reasons set forth more fully above, the motions ofdefendants Bannerman and Giglio to suppress wiretap evidence aredenied.

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