U.S. v. Edwards, No. CR. 98-165-B-M2.

Decision Date22 August 2000
Docket NumberNo. CR. 98-165-B-M2.
Citation124 F.Supp.2d 387
PartiesUNITED STATES of America v. Edwin EDWARDS, et al.
CourtU.S. District Court — Middle District of Louisiana

James B. Letten, Peter G. Strasser, Department of Justice, U.S. Attorney's Office, New Orleans, Michael William Magner, U.S. Attorney's Office, Thomas L. Watson, Department of Justice, U.S. Attorney's Office, Eddie J. Jordan, Jr., U.S. Attorney's Office, Stephen A. Higginson, U.S. Attorney's Office, New Orleans, for Plaintiff.

Rebecca L. Hudsmith, Federal Public Defenders Office, Lafayette, LA, William H. Jeffers, Jr., James R. Heavner, Jr., Miller, Cassidy, Larroca & Lewin, LLP, Washington, DC, James Michael Small, Law Offices of J. Michael Small, Alexandria, LA, Patrick Fanning, New Orleans, LA, Mary Olive Pierson, Cooper & Pierson, Baton Rouge, LA, Camille F. Gravel, JR., Alexandria, LA, Hillar C. Moore, III, Baton Rouge, LA, Kenneth Craig Smith, Jr., Smith & John, Shreveport, LA, Richard G. Crane, Nashville, TN, Michael S. Fawer, Covington, LA, Daniel I. Small, Butters, Brazilian & Small, LLP, Lewis O. Unglesby, Lewis O. Unglesby, Baton Rouge, LA, James M. Cole, Bryan M. Cole, Bryan Cave LLP, Washington, DC, Karl J. Koch, McGlynn, Glisson & Koch, Baton Rouge, LA, for Defendants.

Edwin Edwards, Baton, Rouge, LA, Pro se.

Stephen Edwards, Baton, Rouge, LA, Pro se.

RULING ON MOTIONS TO SUPPRESS

POLOZOLA, Chief Judge.

This matter is before the Court on various pre-trial, trial and post trial motions filed by the defendants which seek to suppress the results of wire, oral, video and electronic surveillance. Edwin Edwards, Stephen Edwards and Cecil Brown also have filed motions to suppress evidence obtained as a result of searches conducted pursuant to a search of their homes, offices and/or safe deposit boxes. The defendants also sought in pre-trial motions an evidentiary hearing under Franks v. Delaware.1 The defendants renewed their Franks motion and motions to suppress in motions filed during the course of the trial.2 For reasons which follow, these motions are denied.

Introduction

Prior to the trial, the defendants filed the following motions to suppress: (1) motion of all defendants to suppress the fruits of wire, oral and electronic surveillance;3 (2) Stephen Edwards' motion to suppress evidence derived from a tape recorded conversation between Richard Shetler and Stephen Edwards;4 (3) Cecil Brown's motion to suppress fruits of search warrants relative to Brown's office and residence;5 (4) Stephen Edwards' motion to suppress fruits of search warrants relative to his office, residence, and safe deposit box number 5069;6 and (5) Edwin Edwards' motion to suppress fruits of search warrants relative to his office, residence, and safe deposit box number 2378.7 On November 17, 1999, the Court held oral argument on these motions. Thereafter, the Court denied each of the pre-trial suppression motions. The Court also denied defendants' request for a Franks hearing. During the course of the trial, the defendants filed a renewed motion for a Franks hearing and to suppress evidence. The Court denied each of these motions and now assigns reasons in support of its decisions.

All defendants seek to suppress all evidence obtained as a result of wire, oral, video and electronic surveillance. The defendants seek relief under Title III, 18 U.S.C. §§ 2510-2522 and the Fourth Amendment. Defendants contend:

(1) The wire surveillance of Cecil Brown is based on the uncorroborated story of Pat Graham;

(2) The FBI agents did not inform Judge Donald E. Walter of Pat Graham's dishonesty;

(3) The June 26, 1996 affidavit of Agent Freddie Cleveland lacked probable cause;

(4) Agent Cleveland's affidavit failed to demonstrate necessity as required by Title III;

(5) Since there was improper surveillance of Cecil Brown's telephone, all evidence obtained during the entire course of surveillance must be suppressed;

(6) The surveillance of Edwin Edwards' home was improper because there was no basis to conclude that a wiretap at Edwin Edwards' home would produce evidence of crimes;

(7) There was no probable cause for repeated extensions of the wiretap order at Edwin Edwards' home;

(8) There was no probable cause to believe that Edwin Edwards' law office had or would be used to commit the crimes alleged;

(9) The affidavit of Agent Geoffrey Santini failed to establish probable cause to conduct surveillance of Edwin Edwards' law office;

(10) The surveillance of Stephen Edwards' office was conducted without court authorization;

(11) There was no probable cause to believe that the law office of Stephen Edwards had been or would be used to commit the crimes alleged.

In response to these motions, the government contends that each of the surveillance orders issued by Judges Donald E. Walter and John V. Parker were based on probable cause. The government further contends the surveillance orders were properly issued pursuant to Title III, 18 U.S.C. §§ 2510-2522 and there were no violations of the Fourth Amendment. Finally, the government contends the FBI agents did not intentionally or recklessly mislead or present false information or omit material information to the federal judges who issued the Title III orders.

The defendants Edwin Edwards, Stephen Edwards and Cecil Brown have also filed motions to suppress evidence obtained as a result of search warrants. Edwin Edwards seeks to suppress evidence taken from his home, located at 19228 Troon Court, safe deposit box number 2378 at City National Bank and his law office.

Stephen Edwards seeks to suppress a tape recorded conversation between Richard Shetler and Stephen Edwards,8 and any evidence obtained from a search of his residence, safe deposit box number 5069 located at Regions Bank, and the office located at 4621 Jamestown Avenue.

Cecil Brown has also filed a motion to suppress evidence obtained from the search of his residence, Route Box 62, Eunice, Louisiana; Cecil Brown's Building, Brown's Auction Company, Louisiana Consultants, Inc., 1211 East Laurel Street, Eunice, Louisiana; and Kenneth Pitre's law office, 100 Vivian Street, Eunice, Louisiana.

In response to the defendants' motions to suppress the evidence obtained pursuant to these search warrants, the government contends the warrants were based on probable cause and each search was valid and constitutional.

Thus, the Court must determine whether the Title III authorizations issued by Judges Walter and Parker were valid. The Court must also determine the validity of the search warrants issued in this case.

After hearing the arguments and evidence presented in connection with the pre-trial motions to suppress, the Court denied each of the motions. The Court also found that the defendants were not entitled to an evidentiary hearing under Franks.

During the trial, the defendants filed another request for a Franks hearing and renewed their motion to suppress. The Court again finds that there was and is no need for a Franks hearing. The Court also finds defendants' renewed motion to suppress is without merit and should be denied.

The Court will discuss each of the motions and the various contentions of the parties. Each of the parties' contentions was considered by the Court in deciding the motions whether or not specifically discussed herein.

Probable Cause Standard

In Illinois v. Gates,9 the Supreme Court adopted a "totality of the circumstances" analysis for determining whether probable cause exists for the issuance of a search warrant. The Court noted that the probable cause standard is a "practical, nontechnical conception."10 Indeed, the Gates Court stated:

"In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

* * * * * *

As these comments illustrate, 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.

* * * * * *

As early as Locke v. United States, 11 U.S. 339, 7 Cranch, 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context: "[T]he term `probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion." ... Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision.11

The standard under which a court is to review a magistrate judge's or district judge's initial determination of probable cause was set forth in Gates as follows:

Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants[]" is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."12

Although Illinois v. Gates involved the adequacy of a search warrant, the same "totality of the circumstances" test has been applied to determine whether probable cause existed for the authorization of an order permitting the interception of telephone calls and other conversations pursuant to 18 U.S.C. § 2518(3).13 An application for a court-authorized wiretap "must demonstrate probable cause to believe that the target has committed, is committing, or will commit a crime, as well as `probable cause for belief that particular communications concerning that offense will...

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