U.S. v. Hanhardt
| Citation | 157 F.Supp.2d 978 |
| Decision Date | 23 August 2001 |
| Docket Number | No. 00 CR 0853.,00 CR 0853. |
| Parties | UNITED STATES of America v. William A. HANHARDT; Joseph N. Basinski; Paul J. Schiro, Sam Destefano, Guy Altobello and William R. Brown, Defendants. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
Thomas P. Sullivan, Jenner & Block, Chicago, IL, for William A. Hanhardt.
Andrew Theodore Staes, Jeffrey Neal Cole, John T. Theis, Law Office of John T. Theis, Chicago, IL, for Joseph N. Basinski.
Paul Augustus Wagner, Attorney at Law, Chicago, IL, for Paul J. Schiro.
James John Cutrone, James J. Cutrone, Attorney at Law, Santo John Volpe, Attorney at Law, Chicago, IL, for Sam Destefano.
Raymond D. Pijon, Attorney at Law, Chicago, IL, for Guy Altobello.
Before the court are Defendants' motions to suppress evidence obtained from intercepts authorized under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq ("Title III"). For the following reasons, the motions are denied.
This marks the sixth time the court has written an opinion in this case.1 The case arises from an alleged organized crime conspiracy to commit jewelry thefts across the nation. As part of the Government's investigation, on January 2, 1996, it submitted a Title III application to Chief Judge Aspen for authorization to intercept wire and oral communications on the home telephone number of Defendant William Hanhardt.
The Government's original application was accompanied by an affidavit from F.B.I. Special Agent McNamara, and supporting exhibits.2 Agent McNamara's January 2, 1996 affidavit was organized into the following sections: (1) general background information on Agent McNamara, the investigation, and persons targeted in the investigation (see McNamara Affidavit of Jan. 2, 1996, pp. 1-7); (2) information from five named informants and seven confidential informants that provided both historical background and current facts (see id. at pp. 7-37); (3) analysis of telephone calls billed to a calling card identified by one of the confidential informants as being used to facilitate jewelry thefts (id. at pp. 37-62); (4) telephone records of the targeted phone number (id. at pp. 62-65); (5) telephone records of the phone number assigned to the Arizona home of Defendant Joseph Basinski (id. at pp. 65-66); (6) analysis of calls made to Hanhardt's pager (id. at pp. 67-68); (7) pen register information from the targeted phone number (id. at pp. 68-70); (8) subpoenaed records from a telephone at a federal correctional institution to the targeted phone number (id. at pp. 71-72); (9) information from the F.B.I.'s so-called "strawman" investigation (id. at pp. 72-73); (10) information from the F.B.I.'s so-called "Pendorf" investigation (id. at pp. 73-74); (11) information concerning alternative investigative techniques (id. at pp. 74-78); (12) statements of intent to minimize interception of innocent calls (id. at pp. 78-79); and (13) the request for the authorization (id. at pg. 80).
Chief Judge Aspen granted the Government's application. Thereafter, the Government submitted periodic reports of intercepts from the targeted phone number. Based on information learned from the intercepts, the Government sought eleven extensions of the authorization on the targeted phone number, and sought intercept authorizations on several additional telephones and a skypager. Defendants now move, collectively and individually, to suppress evidence obtained from the Title III intercepts, whether the evidence was the direct result of the intercepts, or was derivative of the intercepts.
Title III outlines the procedure for the Government to intercept oral, wire and electronic communications. In addition to other materials, Title III requires intercept applicants to submit a statement of facts justifying the applicant's belief that the order should be issued, and a statement that other investigative techniques have been tried and failed, or why other techniques reasonably appear unlikely to succeed, or that other techniques are too dangerous. See 18 U.S.C. §§ 2518(1)(b) & (c). The intercept authorization may issue upon a determination that the applicant's factual statements demonstrate probable cause to believe that a particular person has committed, is committing, or is about to commit an offense,3 that there is probable cause to believe that particular communications concerning the offense will be obtained through interception, and that normal investigative techniques have been tried, or reasonably appear unlikely to succeed, or are too dangerous. See 18 U.S.C. § 2518(3). Defendants' motions assert that Agent McNamara's original affidavit does not support a finding of probable cause, and that the Government failed to demonstrate that the Title III intercepts were necessary.4 The court discusses each of these points and the relevant law in greater detail below.
As a preliminary matter, the Government argues that Defendants do not adequately address their standing to suppress the Title III intercepts. Title III allows "aggrieved persons" to move to suppress the contents of any intercepted wire or oral communication, and evidence derived therefrom. 18 U.S.C. § 2518(10). An aggrieved person is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11); see also Alderman v. United States, 394 U.S. 165, 171-80, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (); United States v. Dorfman, 690 F.2d 1217, 1226-29 (7th Cir. 1982) (same). The Government argues that Defendants cannot assert a general motion to suppress all of the intercepts without demonstrating how each Defendant is an aggrieved person, and that Defendants have the burden of identifying themselves as aggrieved persons to particular intercepts. Without discounting this general principle, the court declines to address the issue, because, as discussed in detail below, Defendants fail to persuade the court to suppress the intercepts, regardless of individual Defendants' standing on particular intercepts.
Defendants' first argument is that Chief Judge Aspen's issuance of the Title III authorization was erroneous because the materials submitted in support of the authorization do not support a finding of probable cause. The court rejects the argument, as the materials submitted to Chief Judge Aspen provided an ample basis on which to find probable cause.
The parties agree that the court should review Chief Judge Aspen's issuance of the Title III intercept authorization under the standards announced in Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and its progeny. Gates is deferential to probable cause determinations, and holds that an initial finding of probable cause should stand if there was a substantial basis for the finding, whether it be to authorize a Title III intercept or a search or arrest warrant. See id. (); see also United States v. Fairchild, 189 F.3d 769, 775 (8th Cir.1999) ().
Since Gates, the Supreme Court has addressed the issue of standard of review of probable cause to support warrantless searches. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1659-63, 134 L.Ed.2d 911 (1996). In Ornelas, the Supreme Court discussed a distinction between a situation where a warrant has issued, and one in which a warrant has not issued. Id. at 1663. The Court noted that retaining a deferential review of probable cause in warrant situations furthers the Fourth Amendment's preference for warrants. Id. The Court then went on to say:
We therefore hold that as a general matter determinations of ... probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.
The Seventh Circuit has applied Ornelas' de novo review of probable cause with deference to factual findings to appellate review of a magistrate's issuance of a warrant. See United States v. Quintanilla, 218 F.3d 674, 677 (7th Cir.2000). The Seventh Circuit described the standard of review as follows:
[W]e review questions of law de novo and questions of fact for clear error.... We have held that because the resolution of a motion to suppress is necessarily fact-specific, we give special deference to the district court that heard the testimony and observed the witnesses at the suppression hearing.... Furthermore, a magistrate's determination of probable cause is to be given considerable weight and should be overruled only when the supporting affidavit, read as whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.... Furthermore, we must keep in mind that doubtful cases should be resolved in favor of upholding the warrant....
Id. (internal quotations, citations, and brackets omitted); see also United States v. Cunningham, 113 F.3d 289, 291 (1st Cir.1997) (...
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