U.S. v. Rice

• Decision Date: 02 March 2007
• Docket Number: No. 06-52445.,06-52445.
• Citation: 478 F.3d 704
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Reginald Shantez RICE, Jose-Alberto Jimenez-Huerta, German Jose Jimenez-Huerta, Marshall Thomas Evans, Jr., Derrick Allen Smith, Demetrius Crenshaw, James Crenshaw, Terry Middleton, Yolanda Raymel Walker, Damon L. Sheppard, Montez Marcellus Moore, Terrell Gray, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

478 F.3d 704

UNITED STATES of America, Plaintiff-Appellant, v. Reginald Shantez RICE, Jose-Alberto Jimenez-Huerta, German Jose Jimenez-Huerta, Marshall Thomas Evans, Jr., Derrick Allen Smith, Demetrius Crenshaw, James Crenshaw, Terry Middleton, Yolanda Raymel Walker, Damon L. Sheppard, Montez Marcellus Moore, Terrell Gray, Defendants-Appellees.

No. 06-52445.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2006.

Decided and Filed: March 2, 2007.

ARGUED: Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Michael R. Mazzoli, Cox & Mazzoli, Louisville, Kentucky, for Appellees. ON BRIEF: Terry M. Cushing, Monica Wheatley, Amy M. Sullivan, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. Scott C. Cox, Mark D. Chandler, Cox & Mazzoli, Louisville, Kentucky, R. Kenyon Meyer, Dinsmore & Shohl, Louisville, Kentucky, Jamie L. Haworth, Western Kentucky Federal Community Defender, Inc., Louisville, Kentucky, Frank A. Mascagni III, Louisville, Kentucky, Keith E. Kamenish, Louisville, Kentucky, Kevin C. Burke, Burke Law Office, Louisville, Kentucky, Alex Dathorne, Scott James Barton, Louisville, Kentucky, L. Stanley Chauvin III, Louisville, Kentucky, Steven R. Romines, Romines, Weis & Young, Louisville, Kentucky, Richard L. Receveur, Louisville, Kentucky, Rob Eggert, Louisville, Kentucky, E. Brian Davis, Law Office of E. Brian Davis, Louisville, Kentucky, for Appellees.

Before MOORE and CLAY, Circuit Judges; BELL, Chief District Judge.^*

MOORE, J. delivered the opinion of the court, in which CLAY, J., joined. BELL, Chief D.J. (pp. 716-18), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant United States of America ("the government") brings this interlocutory appeal challenging an order to suppress the fruits of a wiretap used in the government's case against the Defendants-Appellees,¹ and an order denying the government's motion for reconsideration. Because the district court did not err in suppressing the fruits of the wiretap, and because there is no good-faith exception for warrants obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act, codified as 18 U.S.C. § § 2510 et seq. ("Title III"), we AFFIRM the district court's orders.

I. BACKGROUND

The facts giving rise to this case started when another wiretap on the phone of Shawn Bullitt ("Bullitt") recorded a discussion with Reginald Shantez Rice ("Rice") where the two spoke of the imminent arrival of "a hundred." Joint Appendix ("J.A.") at 572-74 (Wenther Test. at 315-17). Federal Bureau of Investigation ("FBI") Special Agent Scott Wenther ("Wenther") thought this was a reference to a large quantity of cocaine. Id. Within ten days of hearing this conversation, the government sought permission to use the wiretap which is the subject of this appeal ("the Rice wiretap"). J.A. at 575 (Wenther Test. at 318). The Rice wiretap warrant was issued; as a result, the government ultimately collected evidence leading to the defendants' indictments.

A. The Wenther Affidavit

The wiretap application was based on the Wenther Affidavit. J.A. at 632. The Wenther Affidavit contained a section entitled, "Alternative Investigative Procedures." J.A. at 649 (Wenther Aff. at 18). It summarized these procedures as follows:

All normal avenues of investigation have been carefully evaluated for use or have been attempted with minimal results. The traditional investigative techniques utilized thus far have included the use of confidential sources (against known members of the Shawn B[ullitt] organization), obtaining toll records for other phone lines and for the target telephone, and physical surveillance. Also closely considered, but not deemed likely to succeed for reasons set forth below, include the use of undercover agents, use of a Federal Grand Jury, the serving of search warrants, interviews of subjects or associates, and the use of "trash pulls."

J.A. at 649-50 (Wenther Aff. at 18-19). Each type of alternative investigative procedure is set forth below.

1. Physical Surveillance

The Wenther Affidavit averred that "[p]hysical surveillance of the subjects of this investigation has been conducted and is presently being conducted with only limited success. Physical surveillance has identified locations and vehicles utilized by members of this organization. Physical surveillance has also corroborated information provided by the CS." J.A. at 651 (Wenther Aff. at 20). The affidavit goes on to state:

The risk of conducting long-term physical surveillance in this investigation is two-fold. As previously outlined, this organization utilizes violence and/or the threat of violence as intimidation to further their drug trafficking activities. Members of this criminal organization with known violent histories routinely carry firearms and wear bullet-resistant vests, which poses an unreasonable danger to law enforcement personnel attempting to conduct physical surveillance.

J.A. at 652 (Wenther Aff. at 21).

The district court found that, based on this affidavit, an issuing judge would mistakenly think that agents had conducted physical surveillance on Rice and/or his associates, and that Wenther had information leading him to believe that "Rice and/or his associates had used violence or threats of violence, had violent histories, carried firearms, and wore bullet-proof vests." J.A. at 375 (Oct. 13, 2005 Order at 22). In fact, the later testimony of Wenther at the suppression hearing revealed that agents had not conducted any physical surveillance on Rice and that they had no specific information on whether Rice carried a firearm. J.A. at 544, 559 (Wenther Test. at 287, 302). Further, the district court found that "the bald statement that `[m]embers of this criminal organization . . . routinely carry firearms and wear bullet-resistant vests' does not provide sufficient information to the magistrate about [] Rice to determine whether physical surveillance was too dangerous to be attempted." J.A. at 377 (Oct. 13, 2005 Order at 24).

2. Confidential Source

The Wenther Affidavit states that:

It appears from the information received from the CS [confidential source], as well as my own experience, that Reginald R[ice] is unlikely to discuss the full extent of his organization's activities or membership. The CS utilized in the investigation of the Shawn B[ullitt] organization was unable to meet directly with others associated with B[ullitt], including Reginald R[ice] . . . [The] CS has not been able to purchase controlled substances from Reginald R[ice]. The CS is not closely associated with Reginald R[ice] and is therefore not in a position to attempt the purchase of controlled substances. No other confidential source has been identified in this investigation that would be in a position to attempt the purchase of controlled substances from Reginald R[ice].

[The] CS has stated that he/she has limited ability to introduce unfamiliar individuals to R[ice] or his co-conspirators.

J.A. at 650-51 (Wenther Aff. at 19-20). The district court found that, with respect to the attempt to use a CS, the only information directly pertaining to Rice in the Wenther Affidavit was that the CS who was used in the Bullitt investigation was not in a position to assist with gathering information about Rice, and that the government had not identified a CS that would be in a position to do so. J.A. at 373 (Oct. 13, 2005 Order at 20). However, "[t]here is no indication that the government took any steps to develop such a source, nor is there any information about [] Rice's `organization' specifically that suggests that to do so in this case would be unlikely to succeed or dangerous . . . ." Id. (footnote omitted). The district court found inadequate the generic information included regarding how drug traffickers normally operate. Id.

3. Pen Registers and Telephone Toll Analysis

The Wenther Affidavit stated that, although a pen register and a trap and trace had been used on Rice, this was of limited usefulness. Although it indicated a pattern of telephone use by Rice with others suspected in the illegal-drug trade, the pen register did not identify the individuals actually making and receiving the calls, and did not reveal the contents of the conversations. J.A. at 653 (Wenther Aff. at 22). Therefore, according to the Wenther Affidavit, the information obtained by these methods did not establish the existence of a criminal conspiracy. Id.

The district court found this part of the affidavit mainly focused on "general language about the usefulness of pen registers in general." J.A. at 374 (Oct. 13, 2005 Order at 21). The only information specific to Rice was that "within the limitations of the technology, the pen register has been as useful as it possibly can be— linking Mr. Rice with other individuals with known drug histories." Id.

4. Other Techniques

The Wenther Affidavit also discussed three other investigative techniques which were not attempted, and asserted that these techniques would not work. These techniques were a grand jury investigation, use of search warrants and subject interviews, and trash pulls. J.A. at 654-55 (Wenther Aff. at 23-24).

The district court found that the explanations offered for not attempting these techniques all "suffer[ ] from the same problem; [they] discuss[ ] typical problems with the techniques in typical drug cases, but make[ ] no reference to any facts about [] Rice specifically which would make the techniques ineffective or dangerous." J.A. at 379 (Oct. 13, 2005 Order at 26). Further, in making credibility determinations, the district court found "insufficient credible evidence" that other investigative methods had been considered. J.A. at 443 (Jan. 17, 2006 Order at 4).

B. The District Court's Decision to Suppress

The district court found that the misleading statement pertaining to physical surveillance...