State v. Toucet, P1/2019-6258AG

CourtSuperior Court of Rhode Island
Writing for the CourtKRAUSE, J.
Docket NumberP1/2019-6258AG,P1/2019-6258BG,P1/2019-6258CG,P1/2019-6258FG,P1/2019-6258GG,P1/2019-6258LG,P1/2019-6258QG,P1/2019-6258ZG,P1/2020-1884AG
Decision Date12 September 2022



Nos. P1/2019-6258AG, P1/2019-6258BG, P1/2019-6258CG, P1/2019-6258FG, P1/2019-6258GG, P1/2019-6258LG, P1/2019-6258QG, P1/2019-6258ZG, P1/2020-1884AG

Superior Court of Rhode Island, Providence

September 12, 2022

For Plaintiff: Joseph J. McBurney, Esq. James R. Baum, Esq.

For Defendants: Jeffrey B. Pine, Esq.; Judith Crowell, Esq.; Christopher J. Biafore, Esq.; David A. Cooper; Craig V. Montecalvo, Esq.; John F. Cicilline, Esq.; James T. McCormick, Esq.; Carl J. Ricci, Esq.



Janssye Toucet strives to persuade this Court that the Presiding Justice overvalued the affidavits which the state submitted in support of a wiretap on his cell phone. He says that the Presiding Justice impermissibly relied on conclusory and factually barren statements to find probable cause linking him to criminal activity. He therefore claims that any information acquired from the wiretap was unlawfully intercepted and should be suppressed.

The Court disagrees.[1]


The Relevant Statutory Wiretap Provisions

The portions of the Rhode Island wiretap statutes relevant to Toucet's suppression motion include the following provisions:

§ 12-5.1-2. Application for orders
(a) The attorney general…may apply ex parte to the presiding justice … for an order authorizing the interception of any wire, electronic, or oral communications Each application ex parte for an order must be in writing subscribed and sworn to by the applicant
(b) The application must contain: ***
(2) A full and complete [sworn] statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including:
(i) Details as to the particular designated offense that has been, is being, or is about to be committed;
(iv) The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(3) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) Allegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the fact alleged, it must be so stated. If the facts establishing reasonable cause are derived in whole or in part from the statements of persons other than the applicant, the sources of the information and belief must be either disclosed or described, and the application must contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by the informant. The application must also state, so far as possible, the basis of the informant's knowledge or belief. If the applicant's information and belief is derived from tangible evidence or recorded oral evidence, a copy or detailed description of the evidence should be annexed to or included in the application. Affidavits of persons other than the applicant must be submitted in conjunction with the application if they tend to support any fact or conclusion alleged in the application. Accompanying affidavits may be based either on personal knowledge of the affiant, or information and belief with the source of the information and reason for the belief specified.
§ 12-5.1-4. Issuance of orders
(a) Upon the application as provided in § 12-5.1-2 the presiding justice of the superior court…may enter an ex parte order… authorizing the interception of wire, electronic, or oral communications if [he or she] determines on the basis of the facts submitted by the applicant that:
(1) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular designated offense;
(2) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried, or to be too dangerous[.]

The Rhode Island wiretap statutes are patterned after the federal legislation (18 U.S.C. §§ 2510-2520). State v. Maloof, 114 R.I. 380, 381, 333 A.2d 676, 677 (1975) ("carbon copy"), but the requisite compliance with the respective enactments differs. Federal courts generally allow the government a modicum of flexibility, permitting "substantial compliance" with the intercept laws. Although our state Supreme Court has not adopted a rigid approach and has said that statutory observance need not be "formal" or "hypertechnical," State v. Campbell, 528 A.2d 321, 324 (R.I. 1987), the Court does expect stricter conformity than its federal counterpart. State v. McGuire, 273 A.3d 146, 154 (R.I. 2022). As held herein, the state has adhered to McGuire's admonitions.

Probable Cause Needed to Support a Wiretap Order

Toucet first contends that the wiretap order is flawed because it fails to comply with §§ 12-5.1-4(a)(1) and (2). Those provisions preclude the Presiding Justice from approving the wiretap application unless she first "determines on the basis of the facts submitted by the applicant that . . . [t]here is probable cause" to believe that Toucet "is committing, has committed, or is about to commit" the controlled substance and conspiracy charges alleged in the application. Toucet claims that Detective Corporal Derek G. Melfi's ("Melfi") sworn narrative is inadequate to support such a probable cause finding.


'"With the possible exception of 'due process,' there is probably no two-word term in American law that has produced as much confusing commentary as 'probable cause,' largely because it has such a roving context."' State v. Flores, 996 A.2d 156, 161 (R.I. 2010) (quoting Holmes v. State, 796 A.2d 90, 98 (Md. 2002)). That said, certain rules have emerged which courts follow to work their way through the probable-cause circuitry.

First is the advisement that the standard of proof must correspond to what must be proved, which "means less than evidence which would justify . . . conviction." Brinegar v. United States, 338 U.S. 160, 175-76 (1949). Thus, the quantum of proof to establish probable cause "is significantly different from the degree needed to establish guilt," requiring "only the probability, and not a prima facie showing, of criminal activity." State v. Pratt, 641 A.2d 732, 736 (R.I. 1994) (internal quotation omitted); State v. Spaziano, 685 A.2d 1068, 1069 (R.I. 1996) ("Probability of criminal activity is the benchmark."). Applying the "totality-of-the-circumstances test," the court makes a "practical, commonsense decision whether, given all the circumstances set forth in the affidavit" there is a fair probability that there exists evidence of criminal activity. Pratt, 641 A.2d at 736.

When deciding if there is probable cause to support a wiretap, courts employ the same analysis used to ascertain if probable cause exists to justify a search or an arrest. Campbell, 528 A.2d at 326 ("[T]he standard set by the United States Supreme Court for reviewing an affidavit in support of a search warrant in Illinois v. Gates, 462 U.S. 213 [] (1983), applies in electronic surveillance situations as well."); Flores, 996 A.2d at 161 ("It is generally assumed by the Supreme Court and the lower courts that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search.").


It is said that the existence of probable cause must be found within the "four corners" of the affidavit, State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975), which includes the totality of the circumstances within that framemark. Gates, 462 U.S. at 238; State v. King, 693 A.2d 658, 661 (R.I. 1997); Pratt, 641 A.2d at 736. Accordingly, examination of the affidavit is "not subject to rigorous and hypertechnical scrutiny," because the court may draw reasonable inferences from it and interpret it "in a realistic fashion that is consistent with common sense[.]" State v. Byrne, 972 A.2d 633, 638 (R.I. 2009). "In Verrecchia, 880 A.2d at 94, we declared in the clearest of terms that 'the approach to the probable cause question should be pragmatic and flexible.'" Id. at 639. See Gates, 462 U.S. at 235-39 (directing courts to apply a practical approach for determining whether an affidavit supplies sufficient probable cause). Consistent with this pragmatic and flexible approach, the judge may consider hearsay information received through an informant, particularly where, as here, that information is corroborated by other facts and circumstances. State v. Hudgen, 272 A.3d 1069, 1082 (R.I. 2022).

In Flores, our Supreme Court renewed Justice Rehnquist's observation that "probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts -not readily, or even usefully, reduced to a neat set of legal rules." Flores, 996 A.2d at 161 (quoting Gates, 462 U.S. at 230, 232). A reviewing court's duty is "simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Pratt, 641 A.2d at 736-37 (internal quotation omitted).

And, since '"[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant,"' State v. Verrecchia, 880 A.2d 89, 99 (R.I. 2005) (quoting Franks v. Delaware, 438 U.S. 154, 171-72 (1978), that presumption is also accorded to court-ordered wiretaps. E.g., United States v. Portillo-Uranga, 28 F.4th 168, 174 (10th Cir. 2022) ("Once a


wiretap has been authorized, it is presumed proper and the defendant bears the burden...

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