18 F.3d 541 (8th Cir. 1994), 92-3266, United States v. Lucht
|Docket Nº:||92-3266, 92-3267, 92-3271, 92-3272 and 92-3785.|
|Citation:||18 F.3d 541|
|Party Name:||UNITED STATES of America, Appellee, v. Kenneth D. LUCHT, Appellant. UNITED STATES of America, Appellee, v. Gary D. APKER, Appellant. UNITED STATES of America, Appellee, v. Cheryl M. MORFORD, Appellant. UNITED STATES of America, Appellee, v. Lovella MAUSETH, Appellant. UNITED STATES of America, Appellee, v. Sandra A. VOLKIR, Appellant. UNITED STATES|
|Case Date:||February 28, 1994|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted Sept. 13, 1993.
Rehearing Denied April 20, 1994 in No. 92-3271.
Rehearing and Suggestion for Rehearing En Banc Denied April
25, 1994 in No. 92-2569.
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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
WOLLMAN, Circuit Judge.
These appeals stem from a lengthy investigation of the Omaha Chapter of the Hell's Angels Motorcycle Club and the involvement of that group in a large-scale drug conspiracy. The investigation focused on the activities of defendant Gary Apker, and included first placing a pen register and then a wiretap on Apker's telephone, and subsequently
bugging Apker's home. Based in part on information obtained from the wiretap and bugs, search warrants were obtained and executed at nearly all of the defendants' homes. The investigation ultimately resulted in a multi-count superseding indictment, which alleged a conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. Secs. 846 and 841(a)(1) and various substantive crimes committed in furtherance of the conspiracy. Six defendants entered conditional guilty pleas; five were convicted after trial.
Defendants appeal the district court's denial of motions to suppress evidence obtained from the wiretap, bugs, and searches, as well as a variety of other issues. We reverse the district court's denial of Lamont Kress's motion to suppress evidence from the search of his home. We affirm on all other issues.
I. Wiretap Evidence
Officer John Car of the Omaha Police Department's special operations squad assisted with the technical operation of the pen register. After Deputy Michael Buglewicz of the Douglas County Sheriff's Department notified Car that he soon expected to have court approval for a wiretap, Car conducted "audio tests" with the pen register for brief periods of time on three consecutive days. He converted the pen register into a listening device in order to check sound quality and test the recording equipment that would be used for the wiretapping. Car destroyed the tape-recorded tests upon completion and did not tell anyone about the content of the conversations he had overheard. Car testified that these audio tests were standard operating procedure before every wiretap and that he had conducted them for the last six years--each time with the knowledge that a court had not authorized the tests.
Defendants argue that Car's actions violated the Fourth Amendment and state and federal wiretapping statutes. We agree, as did the district court when it ordered suppression of Car's interceptions. Defendants contend, however, that Car's actions require complete suppression of all evidence obtained from the court-ordered wiretapping. Although we do not condone Car's actions, we do not agree with defendants' asserted remedy. The decision to seek a wiretap order was not prompted by Car's tests, and no information obtained from the tests was presented to the issuing judge. Because the government's later, lawful interceptions under the wiretap order were independent of the earlier, unauthorized interceptions, the evidence obtained under the wiretap order was admissible. See Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2535-36, 101 L.Ed.2d 472 (1988).
Defendants also contend that suppression of the wiretap evidence is required because there was a material omission in the affidavit and application in support of the wiretap--namely, the information that Car had conducted unauthorized audio tests. A defendant may challenge a facially sufficient affidavit on the ground that the police included deliberate or reckless falsehoods, Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), or deliberately or recklessly omitted material information. United States v. Reivich, 793 F.2d 957, 960 (8th Cir.1986). For an omission challenge, the defendant must show "(1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading, ... and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause." Id. at 961 (citations omitted).
Assuming without deciding that facts were recklessly omitted, we conclude that the district court did not err in denying defendants' motion to suppress. The lengthy affidavit and application in support of the wiretap contained information from confidential sources, physical surveillance, and prior investigations of Apker that established probable cause for the belief that Apker and others were engaged in the distribution of and possession with intent to distribute methamphetamine and that particular communications concerning these offenses would be obtained through a wiretap on Apker's telephone. The knowledge of Car's unauthorized testing does not diminish the included facts for probable cause purposes, and thus the affidavit, supplemented with the information concerning
Car's testing, remains sufficient to support a finding of probable cause.
II. Oral Communications Evidence
Defendants next argue that the district court should have suppressed all evidence obtained from the bugging of Apker's home because the government violated the oral interception order. 1 Pursuant to 18 U.S.C. Sec. 2518, the court entered an order which stated that there was probable cause to believe that Apker's residence (excluding bathrooms and bedrooms) was being used by Apker and others in connection with narcotics trafficking and money laundering; authorized the interception of oral communications between the individuals concerning the stated offenses, "which conversations occur in the Apker residence (excluding bathrooms and bedrooms)"; and ordered Special Agents of the Federal Bureau of Investigation to "surreptitiously enter the residence (excluding bathrooms and bedrooms) ... and install, repair, and subsequently remove electronic devices capable of intercepting oral communications of and between [the individuals] to effect this Order." The order also required that "all monitoring or oral communications shall be conducted in such a way as to minimize the interception and disclosure of the communications intercepted to those communications relevant to the pending investigation in accordance with the minimization requirements of Chapter 119 of Title 18 of the United States Code." See 18 U.S.C. Sec. 2518(5).
Defendants concede that government agents did not place bugs in Apker's bedrooms or bathrooms. They argue, however, that the order prohibited seizing conversations occurring in these rooms and that government agents became aware during the course of the intercept that they were intercepting sounds from the basement bathroom. At the suppression hearing, defendants introduced a number of tapes containing conversations accompanied by the sounds of a toilet flushing, a person urinating, and the opening and closing of a safe, which agents discovered under the basement bathroom vanity during a search of Apker's home conducted subsequent to the oral interceptions.
Title 18 U.S.C. Sec. 2515 provides that the contents of any wire or oral communication, and evidence derived therefrom, may not be received in evidence "if the disclosure of that information would be in violation of this chapter." The specific grounds for suppression are set forth in Section 2518(10)(a):
(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. Sec. 2518(10)(a)(i)-(iii).
The district court determined that the violation of the statute did not require suppression, relying on United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); and United States v. Civella, 533 F.2d 1395 (8th Cir.1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1977). These cases addressed whether suppression was required for failure to comply literally with particular statutory procedures set forth in Section 2518. See Chavez, 416 U.S. at 570-71, 575, 94 S.Ct. at 1853-54, 1856 (failure to correctly identify individual authorizing application); Giordano, 416 U.S. at 524-25 & nn. 13-14, 94 S.Ct. at 1831-32...
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