U.S. v. Fregoso, s. 94-2959

Decision Date27 July 1995
Docket NumberNos. 94-2959,94-3039 and 94-3041,94-3035,s. 94-2959
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Adonna R. FREGOSO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David A. FREGOSO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gregoria SORIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fred H. BROWN, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Judy K. Hoffman, Omaha, NE, argued, for appellant in 94-2959.

C. Gregg Larson, St. Joseph, MO, argued, for appellant in 94-3035.

Martin J. Kusher, Omaha, NE, argued, for appellant in 94-3039.

James M. Davis, Omaha, NE, argued, for appellant in 94-3041.

William W. Mickle, Asst. U.S. Atty., argued for appellee.

Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WILL, * Senior District Judge.

HANSEN, Circuit Judge.

Adonna R. Fregoso, David A. Fregoso, Gregoria Soria, and Fred H. Brown appeal from the final judgments entered by the district court 1 after they were found guilty on two drug counts. They make various challenges to their convictions, and Brown challenges his sentence. We affirm.

I.

In early 1992, narcotics officers of the Omaha, Nebraska, Police Department acquired information which gave them cause to believe that Dixie Buck was distributing drugs from her residence. Officers obtained authority from the Douglas County, Nebraska, district court to install pen registers for 60 days on the telephone lines of Buck and Peter Lopez, whom they also believed to be distributing cocaine. The state court also authorized the telephone company to supply subscriber information and caller identification service for the phones to which the pen registers were attached. Subsequently, officers also requested and received state court authorization to intercept conversations over Buck's and Lopez's home telephones.

Based upon information acquired from the pen registers, wiretaps, and other investigative methods, officers obtained search warrants for the residences of Buck, the Fregosos, Soria, and Brown. As the officers commenced execution of the search warrant at the Fregosos' residence, they observed David Fregoso, who was standing outside the residence, drop a towel and plastic baggie from his hand. The contents of the plastic baggie were later determined to be over one-half of an ounce of cocaine. Additionally, pursuant to the search, three one-eighth-ounce quantities of cocaine in plastic baggies were seized from Soria's residence.

An indictment later charged eleven defendants, including the Fregosos, Soria, and Brown, with conspiracy to distribute and possess with intent to distribute cocaine (Count I) and with possession of cocaine in furtherance of the conspiracy (Count II, a Pinkerton v. United States, 328 U.S. 640, 648-49, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946), theory of criminal liability), based upon the quantity of cocaine David Fregoso dropped on the day the search warrants were executed. After the district court denied various pretrial motions filed by the defendants, the case proceeded to trial against four defendants, i.e., the Fregosos, Soria, and Brown. The jury convicted all four defendants on both counts of the indictment. The district court sentenced each defendant to a term of imprisonment at the bottom of that defendant's identified Guidelines range, with the sentences for the two counts to run concurrently. 2 The defendants appeal.

II.
A.

The Fregosos contend that the district court erred by denying their motion to suppress evidence obtained in connection with the state court order authorizing the use of pen registers. 3 In addition to authorizing the use of pen registers, the state court order also authorized the use of "caller identification service" 4 on the same telephone and permitted the phone company to supply subscriber information for the telephone numbers obtained from the pen register and the caller identification service. The Fregosos claim that authorizing the use of caller identification service and permitting the phone company to provide subscriber information violated federal and Nebraska law and argue that evidence obtained through these means must be suppressed. 5 The magistrate judge 6 determined that these practices did not violate state or federal law and the district court adopted this conclusion. "We review the district court's disposition of the motion to suppress under a clearly erroneous standard." United States v. Olderbak, 961 F.2d 756, 760 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992).

Initially, we reject the Fregosos' argument to the extent that they contend that these investigative means violated Nebraska law. We have consistently held that evidence obtained without violating the Constitution or federal law is admissible in a federal criminal trial even if the evidence is obtained in violation of state law. See Olderbak, 961 F.2d at 760; United States v. Neville, 516 F.2d 1302, 1309 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 251 (1975). In Olderbak, we held that the results of the pen register were admissible under federal law and accordingly declined to decide whether it violated state law. Id. The Fregosos' attempts to distinguish this caselaw are unpersuasive. 7

Further, the use of these means was not a violation of federal law. We believe that the caller identification service is a "trap and trace device" as that term is defined in 18 U.S.C. Sec. 3127(4). A trap and trace device is "a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." 18 U.S.C. Sec. 3127(4). As the magistrate judge observed, the caller identification service at issue in this case is a device which "decode[s] the electronic impulses the telephone is receiving and display[s] them as a telephone number at the same time that the telephone is receiving the ringing impulses." (R. at 213-14.) We believe that the caller identification service in this case clearly falls within the definition of a trap and trace device under Sec. 3127(4).

The judicial role in approving use of trap and trace devices is ministerial in nature because, upon a proper application being made under 18 U.S.C. Sec. 3122, "the court shall enter an ex parte order authorizing the installation" of such a device. 18 U.S.C. Sec. 3123(a) (emphasis added); see also United States v. Hallmark, 911 F.2d 399, 402 (10th Cir.1990) (outlining limited judicial role in approving pen registers and trap and trace devices); In re Order Authorizing Installation of Pen Reg., 846 F.Supp. 1555, 1558-59 (M.D.Fla.1994) (court's role with respect to trap and trace devices limited to confirming: (1) identity of applicant and investigating law enforcement agency, and (2) certification from applicant that information sought relevant to ongoing investigation). Furthermore, the statutory scheme (which is the same for trap and trace devices as for pen registers) does not mandate exclusion of evidence for violations of the statutory requirements. See United States v. Thompson, 936 F.2d 1249, 1249-50 (11th Cir.1991) (information obtained from a pen register need not be suppressed despite noncompliance with statutory requirements because governing statutes 18 U.S.C. Secs. 3121-3127, do not require exclusion for violations), cert. denied, 502 U.S. 1075, 112 S.Ct. 975, 117 L.Ed.2d 139 (1992).

The Fregosos do not point to any evidence that the proper procedures were not followed under 18 U.S.C. Secs. 3121-3127 for obtaining a trap and trace device (the caller identification service). Rather, they contend that the authorization for caller identification service is the equivalent of a wiretap, for which more stringent requirements are imposed under 18 U.S.C. Secs. 2510-2522 (Title III). We disagree. Title III makes it clear that devices which satisfy the statutory definition of pen registers or trap and trace devices set forth in 18 U.S.C. Sec. 3127 are exempted from its requirements. See 18 U.S.C. Sec. 2511(2)(h) ("[i]t shall not be unlawful under [Title III]--(i) to use a pen register or a trap and trace device" as those terms are defined in 18 U.S.C. Sec. 3127); Brown v. Waddell, 50 F.3d 285, 290 (4th Cir.1995) (trap and trace devices exempted from requirements of 18 U.S.C. Secs. 2510-2521). Having concluded that the caller identification service falls within the definition of a trap and trace device, the Fregosos' argument that the caller identification service was a wiretap subject to the requirements of Title III must fail.

We likewise reject the Fregosos' contention that because the applicable state and federal statutes do not by their specific terms authorize law enforcement officers to obtain caller identification service, evidence obtained by this device must be suppressed. As noted above, the caller identification service was a lawful trap and trace device. In any event, we are not persuaded to hold that every device used in a criminal investigation which is not specifically authorized by statute is prohibited and accordingly evidence obtained through its use must be suppressed.

With respect to the subscriber information, this information does not satisfy the definition of a pen register, trap and trace device, or a wiretap under the above statutes. The information was not obtained by a device attached to a telephone or through the use of any electronic, wire, or mechanical device and was not a type of oral communication. We agree with the magistrate judge's assessment that because this information is listed in phone books and city directories, and at a bare minimum revealed to the phone company to obtain telephone service,...

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