U.S. v. Kelley

• Decision Date: 09 January 2009
• Docket Number: No. 1:08-CR-51.,1:08-CR-51.
• Citation: 596 F.Supp.2d 1132
• Parties: UNITED STATES of America v. Michael KELLEY.
• Court: U.S. District Court — Eastern District of Tennessee

596 F.Supp.2d 1132

UNITED STATES of America v. Michael KELLEY.

No. 1:08-CR-51.

United States District Court, E.D. Tennessee, at Chattanooga.

January 9, 2009.

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COPYRIGHT MATERIAL OMITTED

Scott A. Winne, U.S. Attorney's Office, Chattanooga, TN, for United States of America.

Charles P. Dupree, Law Office of Charles P. Dupree, Chattanooga, TN, for Michael Kelley.

MEMORANDUM AND ORDER

LEON JORDAN, District Judge.

This criminal case is before the court on the defendant's objections to the magistrate judge's report and recommendation that the defendant's motion to suppress the evidence obtained as a result of the wiretaps on the defendant's telephones be denied [doc. 221]. The government has filed an "omnibus" response to all the defendants' objections [doc. 233], and the court has been supplied with a copy of the affidavits in support of the wiretaps [exh. to doc. 108]. For the reasons stated below, the defendant's objections will be overruled.

Under 28 U.S.C. § 636(b), a de novo review by the district court of a magistrate judge's report and recommendation is both statutorily and constitutionally required. See United States v. Shami, 754 F.2d 670, 672 (6th Cir.1985). However, it is necessary only to review "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); see also United States v. Campbell, 261 F.3d 628, 631-32 (6th Cir.2001). In this case, the defendant's objections consist only of a citation to "the same grounds raised in his motion, and the supplemental findings." He also asks this court to conduct a Franks hearing. In his motion to suppress the wiretap evidence [doc. 127], the defendant joined and incorporated the motion, brief, and exhibits of his co-defendant Gerald Cunningham [doc. 108].

The court has reviewed de novo the defendant's pleadings, including Cunningham's motion, brief, and exhibits (the wiretap affidavits), and the magistrate judge's report and recommendation, and will adopt the report and recommendation in its entirety. First, the court agrees with the magistrate judge that the wiretap affidavits and applications satisfy the "necessity" requirement of Title III. The affidavits set out the techniques that had been used and others that had not been tried and explained why they were not adequate to further the investigation of the scope and members of the drug conspiracy. Keeping in mind that there is no requirement that the "government ... prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted," the affidavits were adequate to establish the necessity of using a wiretap on the defendant's telephones. See United States v. Alfano, 838 F.2d 158, 163 (6th Cir.1988).

Second, the affidavits provided sufficient probable cause for a finding that the defendant was a member of the drug conspiracy under investigation and a wiretap of his phones was necessary. The defendant was clearly connected to other conspirators as evidenced by conversations captured as a result of other wiretaps, especially conversations with co-conspirator Demarcus Akins. These conversations showed that the defendant was involved in the conspiracy and that the wiretaps were necessary to further the investigation of the scope of the conspiracy.

Finally, as to the defendant's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), this court agrees with the magistrate judge that the defendant has not made a sufficient showing to justify such a hearing. He has not cited to any misrepresentations or omissions of fact in the affidavits that were material to a finding of necessity and probable cause. In the absence of such a showing, there is no need for a Franks hearing. Id. at 155-56, 98 S.Ct. 2674.

As set out by the magistrate judge, the court finds that the affidavits and applications for the wiretaps met the necessity and probable cause requirements, and the wiretaps were properly authorized. Having reviewed de novo the pleadings, the affidavits, and the report and recommendation, the court can find no error in the magistrate judge's findings of fact and conclusions of law, and the report and recommendation is ADOPTED in its entirety. It is hereby ORDERED that the defendant's objections to the report and recommendation are OVERRULED, and the defendant's motion to suppress evidence obtained as a result of the wiretaps [doc. 127] is DENIED.

REPORT AND RECOMMENDATION

Oct. 24, 2008

SUSAN K. LEE, United States Magistrate Judge.

I. Introduction

Defendant Perry Lawrence ("Lawrence") filed a motion to suppress all evidence obtained as a result of the interception of wire and electronic communications ("wiretaps") stemming from a warrant authorizing wiretaps ("wiretap warrant") issued on October 5, 2007, and all subsequent wiretap warrants [Doc. 103]. Defendant Gerald Cunningham ("Cunningham"), Defendant Nanette Shropshire ("Shropshire"), Defendant Guy Stiner ("Stiner"), and Defendant Michael Kelley ("Kelley")¹ moved to suppress all evidence obtained as a result of wiretap warrants issued on Kelley's telephones on or about February 12 and 13, 2008 [Doc. 108, 116, 118 & 127]. In the alternative, Cunningham, Shropshire, Stiner, and Kelley seek a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ("Franks hearing") [id.]. The motions filed by Lawrence, Cunningham, Shropshire, Stiner, and Kelley (collectively the "Defendants"), have been referred for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) [Doc. 200]. The parties have filed memoranda addressing the issues raised in the pending motions [Doc. 104, 108, 117, 118-2,144 & 159], which have been carefully reviewed and fully considered. In summary, I find no constitutional violation with respect to the issues raised in the pending motions to suppress. Thus, for the reasons set forth herein, I RECOMMEND that Defendants' motions to suppress be DENIED.

II. Background

A. The October Wiretap Application

The affiant for the October 5, 2007 application/affidavit is Detective Andy Browne ("Browne") of the Hamilton County Sheriffs Office [Doc. 157-2 at 2]. His affidavit, which is 26 pages in length, sought authorization from the state criminal court under Tenn.Code Ann. § 40-6-304 to intercept the communications of Marcus A. Lewis ("Lewis") and others occurring over telephone number (423) 580-1592, which was assigned to Tina Brown and carried and used by Lewis, concerning a conspiracy to possess, transport, and distribute cocaine in excess of 300 grams in violation of Tenn. Code Ann. § 39-17-417(j) [Doc. 157-2 at 2]. An order authorizing the interception of the relevant wire communications over the target telephone was signed by Judge Barry Steelman of the Criminal Court for the 11th Judicial District of Tennessee on October 5, 2007, the same day Browne signed the affidavit [id. at 27-32].

B. The February Wiretap Applications

Warrants were sought on February 13, 2008, for two different telephone numbers assigned to Kelley [Doc. 117-2 and 117-3]. The affiant for both affidavits is Special Agent Rodd Watters ("Watters") of the Tennessee Bureau of Investigation ("TBI") [id.]. The first affidavit, which is dated February 12, 2008, and is 47 pages in length, sought authorization under Tenn. Code Ann. § 40-6-304 to intercept the communications of Kelley, Demarcus Akins ("Akins"), and others occurring over telephone number (423) 693-3797, which was assigned to Kelley, concerning a conspiracy to possess, transport, and distribute cocaine in excess of 300 grams in violation of Tenn.Code Ann. § 39-17-417(j) [Doc. 117-2 at 4]. Watters signed the affidavit on February 13, 2008 [id. at 50]. The affidavit is accompanied by an authorization signed by William H. Cox, III ("Cox"), the District Attorney General for the 11 th Judicial District, indicating that, pursuant to Tenn.Code Ann. § 40-6-304, he reviewed the application and affidavit signed by Watters and authorized the application [id. at 51]. An order authorizing the interception of the relevant wire communications over telephone (423) 693-3797, was signed by Judge Steelman on February 13, 2008 [id. at 52-57].

The second affidavit, which is also dated February 12, 2008, and is 49 pages in length, likewise sought authorization under Tenn.Code Ann. § 40-6-304 to intercept the communications of Kelley, Akins, and others occurring over telephone number (423) 320-0827, which was assigned to Kelley, concerning a conspiracy to possess, transport, and distribute cocaine in excess of 300 grams in violation of Tenn.Code Ann. § 39-17-417(j) [Doc. 117-3 at 4]. Watters signed the affidavit on February 13, 2008 [id. at 51]. The affidavit is also accompanied by an authorization signed by Cox indicating he reviewed the application and affidavit signed by Watters and authorized it [id. at 52]. An order authorizing the interception of the relevant wire communications over telephone (423) 320-0827 was also signed by Judge Steelman on February 13, 2008 [id. at 52-58].

III. Analysis

A. Applicable Law

As noted, the search warrants authorizing the wiretaps in question were issued by a state criminal court judge pursuant to Tenn.Code Ann. § 40-6-304. No defendant has explicitly argued that because the evidence at issue was obtained by a state authorized wiretap, state law must be applied in determining whether the wiretap evidence is admissible in federal court. Lawrence, however, does cite the Tennessee wiretap statute, but acknowledges that the relevant federal statute, 18 U.S.C. § 2518, is identical to the Tennessee statute [Doc. 104 at 2-3]. Cunningham asserts that the affidavit in support of the wiretap applications for Kelley's telephones does not meet the requirements for the prerequisite of "necessity" under state and federal law [Doc. 108 at 1], but he cites only the...