State v. Perry

• Court: Delaware Superior Court
• Writing for the Court: POPPITI
• Citation: State v. Perry, 599 A.2d 759 (Del. Super. 1990)
• Decision Date: 19 March 1990
• Parties: STATE of Delaware, v. Gregory PERRY, et al. . Submitted:

Page 759

599 A.2d 759

STATE of Delaware, v. Gregory PERRY, et al.

Superior Court of Delaware New Castle County.

Submitted: March 19, 1990.

Decided: May 3, 1990.

Charles E. Butler, Deputy Atty. Gen., Dept. of Justice, Wilmington, for State.

Joseph A. Hurley, Wilmington, for defendants Christine Babbett, David Bloom, Michael Bloom, William Bradley, Linda Hurley, and Gregory Perry.

Eugene J. Maurer, Jr., Wilmington, for defendant David Perry.

Christopher J. Battaglia, Biggs & Battaglia, Wilmington, for defendants Carmine Casper, Stephan Green, and Beth Strauss.

OPINION

POPPITI, Judge.

This matter is presently before the Court on defendants' motions to suppress wiretap evidence. In its response to the motions, the State maintained that the defendants' have failed to make the requisite showing to entitle them to an evidentiary hearing on the suppression issues. I agreed with the State and on the record February 5, 1990, decided that the suppression issues could be decided as a matter of law without a hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1977); United States v. Cantu, 625 F.Supp. 656 (N.D.Fla.1985), aff'd, 791 F.2d 940 (11th Cir.1986). To properly decide these issues as a matter of law, I permitted the defendants to supplement the record. Thus the record before me consists of all the wiretap applications with affidavits and accompanying orders, the complete wiretap logs, affidavits and appendices filed by the defendants, and full briefing.

I. FACTUAL BACKGROUND

On January 8, 1989, my colleague, Judge Vincent A. Bifferato of this court issued an order pursuant to 11 Del.C. § 1336 authorizing the wire intercept of the telephones of Joseph Fragomele and Gregory Perry by the Wilmington Police Department [hereinafter referred to as the "Perry intercept"]. The application for the intercept states the affiants' beliefs inter alia that an illegal drug trafficking conspiracy existed whereby large quantities of cocaine were being imported to Wilmington and then distributed amongst a certain network of people and into certain nightclubs in the west-side of Wilmington. Judge Bifferato has by designation of the President Judge of the Superior Court been designated to receive applications for and to enter orders authorizing interceptions pursuant to 11 Del.C. § 1336(a)(8). Based on information contained in the application, Judge Bifferato determined that there was probable cause to believe that Joseph Fragomele, Gregory Perry and other unknown persons were engaged in a continuing criminal activity, namely dealing in narcotic drugs; that evidence of such offenses could be obtained through a wire intercept of Greg Perry's phone; that normal investigative procedures have been tried and failed or appeared likely to fail; and that the telephones were being used for the commission of certain enumerated offenses. The initial interception was not to exceed thirty (30) days and thus would terminate on February 7, 1989.

On January 30, 1989, the Wilmington Police Department, based on information received through the Perry intercept, applied to Judge Bifferato for an order authorizing the wire interception of Stephen B. Ademski's telephone line [hereinafter referred to as the "Ademski intercept"]. The application for this intercept stated the affiants' beliefs that Greg Perry had bought cocaine in Pennsylvania on January 17, 1989, and that Ademski was Perry's partner in the distribution of the cocaine. Based on the information in the application, Judge Bifferato determined that there was probable cause to believe the asserted facts. He therefore signed an order authorizing such an intercept to begin on January 30, 1989 and to terminate on March 1, 1989.

Finally, on February 7, 1989, the Wilmington Police Department applied for and received an order signed by Judge Bifferato, authorizing a thirty (30) day extension of the Perry intercept. The application for this extension stated the same needs for telephonic surveillance as presented in the two previous applications, and also expressed on information and belief that Greg Perry and Ademski were "partners in a cocaine distribution scheme" and that in the near future they were going to buy another large quantity of cocaine from defendant Arire Shemish, a Pennsylvania supplier. Pursuant to information gained during the extension regarding an expected buy in Pennsylvania the Wilmington Police arrested defendant Perry as he traveled back from Pennsylvania on February 21, 1989.

The defendants have moved to suppress all conversations intercepted through the telephone line of Gregory Perry between January 9, 1989 and February 21, 1989. I will first sketch the general procedural guidelines that govern motions to suppress in the wiretap context, and then decide the defendants substantive challenges to the evidence raised in their motions to suppress.

II. PROCEDURAL BACKGROUND

Title 11 of the Delaware Code Section 1336 is the Delaware wiretap statute. Delaware's statute is patterned after the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq. ["Title III"]. The two statutes are "in all material respects virtually identical." United States v. Swan, 545 F.Supp. 799, 804 (D.Del.1982). Given the congruence between the two statutes, in the absence of Delaware case law, I will use federal case law interpreting the similar language to decide the issues raised in these motions.

Both 11 Del.C. § 1336 and Title III provide for the suppression of wiretap evidence on certain grounds; 11 Del.C. § 1336(t) provides that any "aggrieved person" may move to suppress the contents of wiretap evidence on the grounds that:

"(1) [t]he communication was unlawfully intercepted;

(2) The order of authorization is insufficient on its face;

(3) The interception was not made in conformity with the order of authorization."

See also 18 U.S.C.A. § 2518(10)(a).

There are therefore three separate categories into which any given challenge to the intercept might fall. ¹ First, a defendant may contest governmental conduct that occurred prior to the order authorizing the wiretap, 11 Del.C. § 1336(t)(1). These challenges include those relating to probable cause. The second category, 11 Del.C. § 1336(t)(2), involves the facial sufficiency and technical validity of the court's order authorizing the wiretap. The third and final category, 11 Del.C. § 1336(t)(3), involves governmental conduct occurring after the court issues the intercept and during the operation of the intercept order.

The defendants in this case have raised a panoply of issues relating to the categories outlined above. Since the defendants' arguments do not fit neatly into these categories, I have digested and narrowed the many arguments into five parts, with subparts. I am satisfied that the questions to be answered are as follows:

1. Is the Delaware wiretap statute unconstitutional because it allows an order to be issued if there "is or was" probable cause?

2. Did the affiants' statements for the necessity of the wiretap meet the requirements of 11 Del.C. § 1336?

3. Does the order particularly describe the communications sought, and thus, meet the specificity requirement of a search warrant?

4. (a) Is the Delaware wiretap statute invalid because it does not require minimization?

(b) Were conversations properly minimized in this case?

5. Is the order in this case invalid because it did not include a termination upon attainment of objective provision?

I will now consider each of these questions seriatim.

III. DISCUSSION

1) Is the Delaware wiretap statute unconstitutional because it allows an order to be issued if there "is or was" probable cause?

I am satisfied that the answer is no.

The defendants assert that the Delaware wiretap statute, 11 Del.C. § 1336, is unconstitutional in that it permits an electronic surveillance warrant to issue if there "was" probable cause. See 11 Del.C. § 1336(i).

Title 11, Section 1336(i) provides that a judge may enter an order authorizing the interception of wire communications "if the Court determines on the basis of the facts submitted by the applicant that there is or was probable cause" to believe that the interceptee "is ... or was " engaged in a continuing criminal activity or "is committing ... has or had " committed a certain offense, that particular communications concerning such offense may be obtained through a wire intercept, that normal investigative procedures have been tried or would fail, and that the facilities from which communications "are to be intercepted, are or have been used " in the connection with the commission of the offense (emphasis added).

The defendants assert that this section permits a wiretap order to issue upon "stale" probable cause since the section permits an order to issue upon a finding that there "was" probable cause, in violation of the Delaware Constitution and United States Constitution. In pertinent part the Delaware Constitution at article I § 6 provides that a search warrant shall not issue "unless there be probable cause" (emphasis added). ² The Supreme Court of Delaware in Wicks v. State, Del.Supr., 552 A.2d 462, 464 (1988) held that probable cause must exist at the time the warrant is sought and not merely at some time in the past. It is well settled in Delaware that the concept of "staleness" relates to information that has become stale "due to an impermissible delay in securing a warrant." Blount v. State, Del.Supr., 511 A.2d 1030, 1033 (1986) quoting Jensen v. State, Del.Supr., 482 A.2d 105, 112 (1984).

Applying the foregoing to the provisions of the Delaware wiretap statute, I am satisfied that Section 1336(i) does not permit the issuance of a wire intercept order upon a showing that probable cause existed at some time in the past as the defendants suggest. When reading the statutory section as a whole, as I must do, ³ the section merely allows...