U.S. v. Smith, 93-5631

• Decision Date: 05 August 1994
• Docket Number: No. 93-5631,93-5631
• Citation: 31 F.3d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Dale SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1294

31 F.3d 1294

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Dale SMITH, Defendant-Appellant.

No. 93-5631.

United States Court of Appeals Fourth Circuit.

Argued March 11, 1994.

Decided Aug. 5, 1994.

ARGUED: Steven Morris Askin, Askin, Burke & Schultz, Martinsburg, WV, for appellant. Thomas Oliver Mucklow, Asst. U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Wheeling, WV, for appellee.

Before MURNAGHAN and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MURNAGHAN and Judge HAMILTON joined.

OPINION

PHILLIPS, Senior Circuit Judge:

In 1991, Curtis Dale Smith and two other individuals were indicted in the Northern District of West Virginia on multiple charges arising out of their alleged participation in a conspiracy to distribute cocaine. At their joint trial, the jury found Smith guilty on 18 different counts, and the district court sentenced him to 211 months in prison and a fine of $20,000. He now appeals, challenging his convictions and sentence on a number of different grounds. We affirm.

I.

Smith argues first that the district court erred in denying his motion to suppress evidence of certain incriminating telephone conversations that state law enforcement officers intercepted through court-authorized electronic surveillance of his home telephone. Smith contends that these conversations were intercepted in violation of state and federal law, and that the district court should therefore have suppressed them under 18 U.S.C. Sec. 2518(10)(a), which makes evidence of telephone communications intercepted by wiretap inadmissible in federal court if those communications were "unlawfully intercepted."

The federal wiretap statute makes it unlawful to intercept telephone communications by wiretap, except as specifically provided for in the statute. 18 U.S.C. Sec. 2511 (1970 & Supp.1994). The statute specifically provides that state law enforcement officers may use wiretaps to obtain evidence of drug-trafficking activities when authorized to do so by an order issued by an appropriate state court judge, provided that order is issued "in conformity with section 2518 of this chapter and with the applicable State statute." Id. Sec. 2516(2) (1970 & Supp.1994). Section 2518(3)(c) permits a judge to issue a wiretap order only after making a specific finding 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." Section 2518(1)(c) requires a wiretap application to contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." The applicable state wiretap statute, the West Virginia Wiretapping and Electronic Surveillance Act, contains substantially similar provisions. See W.Va.Code Sec. 62-1D-11(c)(3) (Michie 1992) (permitting judge to issue wiretap order only after making specific finding that "[n]ormal investigative procedures have been tried and have failed and reasonably appear to be unlikely to succeed if attempted again, or that to do so would be unreasonably dangerous and likely to result in death or injury or the destruction of property"); id. Sec. 62-1D-11(a)(3) (requiring application for wiretap order to contain "[a] full and complete statement showing that other investigative procedures have been tried and failed and why such procedures reasonably appear to be unlikely to succeed if again attempted or that to do so would be unreasonably dangerous and likely to result in death or injury or the destruction of property").

The wiretap in question here was placed on Smith's telephone pursuant to an order of authorization issued by an appropriate state court judge. The order contained an express finding of fact, based on the facts recited in the government's application and its supporting affidavit, that "normal investigative procedures have been tried and failed or reasonably appear unlikely to succeed if tried or to be too dangerous." Smith nonetheless contends that the order was invalid under the federal and state wiretap statutes, because the government's application did not contain sufficient facts to satisfy 18 U.S.C. Sec. 2518(1)(c) and W.Va.Code Sec. 62-1D-11(a)(3) or to support the issuing court's finding under 18 U.S.C. Sec. 2518(3)(c) and W.Va.Code Sec. 62-1D11(c)(3). We disagree.

A.

We first reject Smith's assertion that the government's application did not contain sufficient facts to satisfy 18 U.S.C. Sec. 2518(1)(c) and support the issuing court's Sec. 2518(3)(c) finding. Sections 2518(1)(c) and (3)(c) are designed to ensure that the relatively intrusive device of wiretapping is neither "routinely employed as the initial step in criminal investigation," United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974), nor "resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974). As we have said time and again, however, the burden that these provisions impose upon the government to show the inadequacy of normal investigative techniques is not great, and the adequacy of such a showing is "to be tested in a practical and commonsense fashion," United States v. Clerkley, 556 F.2d 709, 714 (4th Cir.1977) (internal quotations omitted), cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978), that does not "hamper unduly the investigative powers of law enforcement agents." United States v. Leavis, 853 F.2d 215, 221-22 (4th Cir.1988); see United States v. Depew, 932 F.2d 324, 327 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 210, 116 L.Ed.2d 169 (1991); United States v. Muldoon, 931 F.2d 282, 285 (4th Cir.1991). While the government cannot discharge its burden with "bare conclusory statements that normal techniques would be unproductive," United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir.1989), or "mere 'boilerplate recitation of the difficulties of gathering usable evidence,' " Leavis, 853 F.2d at 221, it is not required to show that other methods have been "wholly unsuccessful," Ashley, 876 F.2d at 1072, or that it has exhausted "all possible alternatives to wiretapping." Clerkley, 556 F.2d at 715 (emphasis in original). Instead, it need only present "specific factual information," Leavis, 853 F.2d at 222, sufficient to establish that it " 'has encountered difficulties in penetrating [the] criminal enterprise or in gathering evidence--to the point where ... wiretapping becomes reasonable,' " given " 'the statutory preference for less intrusive techniques.' " Ashley, 876 F.2d at 1072 (quoting United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3283, 91 L.Ed.2d 572 (1986)); see Leavis, 853 F.2d at 222 (that the "extraordinary" and highly "intrusive[ ]" technique of wiretapping is "necessary to probe a [criminal enterprise] that might otherwise have proved impossible to penetrate").

Although we have held that the adequacy of the government's Sec. 2518(1)(c) showing is to be tested "in a practical and commonsense fashion," Leavis, 853 F.2d at 221; Clerkley, 556 F.2d at 714, we have yet to decide what standard should be applied in reviewing an issuing court's Sec. 2518(3)(c) finding, either on direct appeal from the wiretap order itself or in a subsequent motion to suppress its fruits. The circuits that have addressed this question agree that the standard should be one that gives considerable deference to the issuing judge's judgment, though they describe that deferential standard in several different ways. ¹ We need not decide which of these various formulations of the standard of review is most appropriate to decide this case, however, for we find that under any of them, the facts submitted in this wiretap application were sufficient not only to discharge the government's Sec. 2518(1)(c) burden, but also to support the issuing court's Sec. 2518(3)(c) finding. ²

The application was supported by the 27-page affidavit of Officer Fred Wagoner, a 10-year veteran of the West Virginia State Police with significant training and experience in undercover investigation of drug-trafficking activities. Smith asserts that this affidavit was utterly "devoid" of any evidence that the police had made any effort to try more traditional investigative procedures before applying for the wiretap, but consisted entirely of "bare conclusory statements" that they believed such procedures would be unproductive. Our review of the affidavit itself, however, convinces us that it was fully adequate both to satisfy Sec. 2518(1)(c) and to support the issuing court's Sec. 2518(3)(c) finding.

The affidavit began by explaining, in considerable detail, the various "traditional" investigative procedures that the police had been using to investigate Smith's drug-distribution operation during the nine months preceding the wiretap application. These included interviewing a number of different cooperative witnesses and confidential informants; tracing telephone calls to and from Smith's telephones; visiting his home several times to interview him; conducting ordinary physical surveillance of his home; and attempting to set up controlled transactions with him through a former supplier of his who was cooperating with the government. The affidavit explained that through these procedures, the police had been able to obtain some evidence against Smith himself, but that they had not been able to determine the identities of his co-conspirators, his current suppliers, or his major customers. The affidavit then explained, again in some detail, why the police believed that continued use of these and other "normal investigative...