U.S. v. Glover
| Decision Date | 22 October 2008 |
| Docket Number | Criminal Action No. 07-153(TFH). |
| Citation | 583 F.Supp.2d 21 |
| Parties | UNITED STATES of America, v. Lonnell G. GLOVER, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Anthony F. Scarpelli, John K. Han, William John O'Malley, Jr., U.S. Attorney's Office, Washington, DC, for Plaintiff.
Pending before the Court are (1) Defendant Lonnell Glover's Motion To Suppress Evidence Obtained From Interception Of Wire Communications And Seizure Of Electronic Communications [Docket No. 232] and (2) Defendant Lonnell Glover's Motion To Suppress Evidence Obtained From Interceptions Of Communications In And Within The Vicinity Of A 1998 Chevrolet Pickup Truck, District Of Columbia Registration BZ0597 [Docket No. 293]. The Court will deny both motions for the reasons that follow.
On November 8, 2007, Lonnell Glover and fifteen co-defendants were indicted by a federal grand jury pursuant to a superceding indictment that charges them with one count of conspiring to distribute and possess with the intent to distribute mixtures and substances containing one kilogram or more of phencyclidine ("PCP") and heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iv), 841(b)(1)(A)(I), and 846.1 In addition, ten individuals were named as unindicted co-conspirators, one of whom, Anthony Suggs, was the focus of the original criminal investigation into the distribution of PCP in the Washington, D.C., area. Glover became ensnared in the criminal investigation after the interception of communications from Suggs's mobile phone revealed that Glover likely was supplying PCP to Suggs.
The bulk of the evidence law enforcement agents obtained while investigating the case against Glover and his co-defendants consisted of electronic surveillance conducted in accordance with a number of court orders Judge Rosemary Collyer issued. The court orders authorized the government to intercept communications from several mobile phones, including Glover's personal mobile phone (the "mobile phone wiretap")2 and a mobile phone the government secretly installed in his pickup truck (the "truck bug").3 According to the government, the court-authorized electronic surveillance resulted in the interception of 21,183 communications. Govt's Resp. to Defs.' Several Mots. to Suppress the Results of Court Ordered Electronic Surveillance ( ) 4. Glover now moves to suppress the contents of communications intercepted from his mobile phone and the truck bug, as well as any evidence derived from the intercepted communications, based primarily on asserted flaws in the affidavits the government submitted to support its applications for court orders permitting electronic surveillance.
The legal standards that govern an application for a court order authorizing the interception of wire, oral, or electronic communications are defined by statute:
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the district court to approve an application for the interception of certain wire, oral, or electronic communications. 18 U.S.C. § 2518. The wiretap statute requires that an application for a wiretap shall be in writing, under oath, and shall contain certain information including "a full and complete statement of the facts and circumstances relied upon by the applicant[] to justify his belief that an order should be issued." Id. § 2518(1). On the basis of the facts submitted by the applicant, the district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that "particular communications concerning that offense will be obtained" through an interception; (3) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried"; and (4) probable cause exists to believe that the communication facility sought to be wiretapped "[is] being used, or [is] about to be used, in connection with the commission of [the] offense." Id. § 2518(3)(a-d); see United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," 18 U.S.C. § 2518(3)(c), is referred to as the "necessity requirement," and it is the "keystone of congressional regulation of electronic eavesdropping." United States v. Williams, 580 F.2d 578, 587-588 (D.C.Cir.1978).
The wiretapping statute also requires that "[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. . . ." 18 U.S.C. § 2518(5). This is referred to as the "minimization requirement." Although "[t]he statute does not forbid the interception of all nonrelevant conversations," the government must make reasonable efforts to "minimize" the interception of such conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The statute also provides that an order authorizing an interception cannot extend "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days." 18 U.S.C. § 2518(5).
The wiretap statute provides that "no part of the contents of [intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of this chapter." Id. § 2515. The "aggrieved person" may move to suppress the introduction of wiretap evidence or its fruits if "the communication was unlawfully intercepted," the "order of authorization or approval under which it was intercepted is insufficient on its face," or if "the interception was not made in conformity with the order of authorization or approval." Id. § 2518(10)(a)(i-iii); see Donovan, 429 U.S. at 433-34, 97 S.Ct. 658, 50 L.Ed.2d 652.
United States v. Carter, 449 F.3d 1287, 1292-93 (D.C.Cir.2006).
Glover contends that the court orders authorizing the mobile phone wiretap and truck bug were issued in error because the government's applications for the orders failed to meet the statutory requirements. With regard to the application for the mobile phone wiretap, Glover argues that Special Agent Ryan Pardee's supporting affidavit4 was defective because it (1) failed to establish probable cause, (2) contained misleading statements, and (3) failed to demonstrate the necessity for electronic surveillance. Glover also challenges the interception of communications from his mobile phone on the ground that the government failed to comply with the statute's minimization requirement.5 Glover's Phone Suppression Mot. 4-18.
As far as the truck bug is concerned, Glover complains that the truck bug application failed to meet the statutory requirements because Special Agent Pardee's affidavit did not "establish the necessity to take the extreme measure of placing a listening device within the private space of the interior of Glover's truck." Def. Lonnell Glover's Mot. to Suppress Evid. Obtained from Interception of Communications In and Within the Vicinity of a 1998 Chevrolet Pickup Truck, District of Columbia Registration BZ0597 3-8 ("Glover's Truck Bug Suppression Mot."). Glover further insists that the court's order permitting the truck bug "was too far sweeping" and did not adequately limit law enforcement agents' authority to seize and enter the truck. Id. at 6.
To determine whether probable cause exists for a wiretap courts apply the same legal standards used to determine whether probable cause exists for a search warrant. See, e.g., United States v. Diaz, 176 F.3d 52, 110 (2d Cir.1999). Accordingly, a federal judge evaluating a wiretap application to determine whether it demonstrates probable cause must "simply . . . make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that ... evidence of a crime" will be obtained by the interception of wire, oral, or electronic communications. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "While each fact standing alone may be insufficient, the combination of all the facts can establish probable cause ... and certain conduct that may appear `innocent to a lay person may have entirely different significance to an experienced [law enforcement] officer.'" United States v. Gilliam, 167 F.3d 628, 633 (D.C.Cir.1999) (quoting United States v. Catlett, 97 F.3d 565, 573-74 (D.C.Cir.1996)). It is the duty of a reviewing court "to ensure that the [judge issuing the wiretap order] had a substantial basis for . . . conclud[ing] that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (internal quotation marks omitted).
Glover asserts that Special Agent Pardee's affidavit, which was submitted in support of the mobile phone wiretap application, fails to demonstrate probable cause because there is no mention of Glover's name in paragraphs 18, 19, 21, 22, 23, 25 and 34. Glover's Phone Suppression Mot. 5-6. According to Glover, the absence of his name from these paragraphs indicates that Special Agent Pardee "relie[d] on the activities of others ... to attempt to bootstrap [a] probable cause determination for Glover." Id. at 6. As an initial matter, Glover is incorrect that his...
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