U.S. v. Wright, 00-40024-02-SAC.
| Decision Date | 26 June 2001 |
| Docket Number | No. 00-40024-10-SAC.,No. 00-40024-06-SAC.,No. 00-40024-03-SAC.,No. 00-40024-02-SAC.,00-40024-02-SAC.,00-40024-03-SAC.,00-40024-06-SAC.,00-40024-10-SAC. |
| Parties | UNITED STATES of America, Plaintiff, v. Johnny Shane WRIGHT, et al., Defendants. |
| Court | Kansas Supreme Court |
Tricia A. Barr, Overland Park, KS, pro se.
Thomas J. Bath, Jr., Overland Park, KS, pro se.
Amy J. Bipes, Topeka, KS, pro se.
Paula B. Boyd, Joplin, MO, pro se.
Melissa Dawn Bunce, Galena, KS, pro se.
Terrence J. Campbell, Lawrence, KS, pro se.
Thomas D. Carver, Springfield, MO, pro se.
James G. Chappas, Jr., Topeka, KS, pro se.
Janet Marie Cline, Quapaw, OK, pro se.
Timothy Jay Cline, Quapaw, OK, pro se.
Edward M. Collazo, Topeka, KS, pro se.
Chris N. Cowger, Topeka, KS, pro se.
Clarise J. Flowers, Galena, KS, pro se.
Lori L. George, Galena, KS, pro se.
E. Jay Greeno, Wichita, KS, pro se.
Thomas D. Haney, Topeka, KS, pro se.
Jeannine D. Herron, Topeka, KS, pro se.
Rhonda L. Hibbard, Baxter Springs, KS, pro se.
Donald R. Hoffman, Topeka, KS, pro se.
Charles William Hopkins, Galena, KS, pro se.
Michael W. Hopkins, Galena, KS, pro se.
Barbara K. Huff, Lawrence, KS, pro se.
Michael M. Jackson, Topeka, KS, pro se.
Joseph D. Johnson, Topeka, KS, pro se.
Richard E. Jones, Topeka, KS, pro se.
Kurt P. Kerns, Wichita, KS, pro se.
Stephen W. Kessler, Topeka, KS, pro se.
Eric Kjorlie, Topeka, KS, pro se.
Ginger Lyn Kraft, Baxter Springs, pro se.
J. Richard Lake, Holton, KS, pro se.
Clinton W. Lee, Topeka, KS, pro se.
Thomas G. Lemon, Topeka, KS, pro se.
Anthony W. Mattivi, Topeka, KS, pro se.
Jimmy D. Mauldin, Webb City, MO, pro se.
Dwight L. Miller, Topeka, KS, pro se.
Linda Rochelle Mitchell, Silver Lake, KS, pro se.
Daniel E. Monnat, Wichita, KS, pro se.
William Martin Mulkey, Seneca, MO, pro se.
Shane Allen Newman, Camdenton, MO, pro se.
Dan W. Pennock, Galena, KS, pro se.
JoAnn Pennock, Galena, KS, pro se.
Lonnie Joe Pitman, Galena, KS, pro se.
David S. Rauzi, Overland Park, KS, pro se.
Steven Keith Rawlins, Riverton, KS, pro se.
Mark J. Sachse, Kansas City, KS, pro se.
Mark T. Schoenhofer, Wichita, KS, pro se.
Candi Jane Sisk, Pittsburgh, KS, pro se.
Gary Duane Wininger, Galena, KS, pro se.
Mark Lee Wittenmyer, Galena, KS, pro se.
Mickey Scott Wittenmyer, Baxter Springs, KS, pro se.
Vellea Ann Wittenmyer, Baxter Springs, KS, pro se.
Matthew B. Works, Topeka, KS, pro se.
The case comes before the court on the defendant Rhonda Hibbard's Motion to Suppress Wiretap Interceptions (Dk. 551); the defendant Michael Hopkins' Motion to Suppress Wiretap Evidence (Dk. 583); and the defendant Timothy Cline's Motion to Suppress Evidence Derived from Interception of Wire Communications (Dk. 618). The defendants Melissa Bunce, Janet Cline, John Cervine, Ginger Breuil, and Johnny Shane Wright have filed respective motions to join these motions to suppress. (Dks. 643, 698, 708, 716 and 719). The court grants these motions to join on the conditions expressed in the court's Criminal Procedural Guidelines § I, ¶ F. The government filed a consolidated response to these motions to suppress wiretap evidence (Dk.748), to which the defendant Timothy Cline filed a reply memorandum (Dk. 776), and to which the government filed a surreply memorandum.
As part of its investigation leading to this indictment, the government sought and received permission to intercept wire communications on five separate telephone lines: (1) the residential telephone of Shane and Tracy Wright—Line A; (2) a cellular telephone subscribed to Miste Alartosky—Line B; (3) a cellular telephone subscribed to Johnny Wright—Line C; (4) the business telephone for Biker's Dream—Line D; (5) the residential telephone of Timothy and Janet Cline—Line E. The interception of Line A calls was authorized on November 22, 1999, terminated on December 21, 1999, authorized to resume on December 30, 1999, following the holidays, and extended for a final period ending February 27, 2000. The interception of Line B calls was authorized on November 22, 1999, and terminated on December 21, 1999, with no extensions. The interception of Line C calls was authorized on December 30, 1999, and extended for a final period ending February 27, 2000. The interception of Line D calls was authorized on February 15, 2000, and was extended for the final period ending March 15, 2000. All of these orders authorizing and extending the interception of wire communications were signed by Senior Judge Richard Rogers of the United States District Court for the District of Kansas.
On February 25, 2000, Judge Sven Erik Holmes of the United States District Court for the Northern District of Oklahoma signed an order authorizing the interception of Line E. This order was not extended, and the monitoring ended before the period terminated on March 23, 2000.
In the orders authorizing the interceptions or extending the interceptions, there appears the requirement that the monitoring of wire communications be limited to those communications relevant to the pending investigation in accordance with the minimization requirement found at 18 U.S.C. §§ 2510 et seq. The orders also provide that, "[i]f the conversation is minimized, the monitoring personnel shall spot check to insure that the conversation has not turned to criminal matters." See, e.g. (Dk.275, Ex. B, p. 6). The orders further direct the government applicant to provide the court with progress reports every ten days that show "what progress has been made toward the achievement of the authorized objective and the need for continued interception." See, e.g., id.
The defendants challenge the government's interception of wire communication and all evidence derived from it as being acquired in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. and the Fourth Amendment to the United States Constitution. Considered together, the defendants' arguments reduce to the following issues:
I. Were the wiretap applications properly authorized by a designate representative of the Attorney General of the United States?
II. Were the wiretap applications sufficient to meet the necessity requirement of Title III?
III. Were the tape recordings protected from editing and alterations, made available to the judge immediately upon expiration of interception order, and sealed or stored in accordance with the judge's instructions?
IV. Was the inventory from the residential wiretap on Line E served on the defendant Timothy Cline?
V. Did the officers conduct the surveillance in a manner as to minimize the interception of nonpertinent conversations?
VI. Were the wiretaps on Lines D and E and the wiretap extensions on Line A the fruits of an illegal search and seizure?
The court will address the above issues seriatim.
The Tenth Circuit in United States v. Garcia, 232 F.3d 1309, 1312 (10th Cir. 2000), recently summarized this framework:
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, lays out a strict framework for authorizing electronic eavesdropping by law enforcement officials. See 18 U.S.C. §§ 2510-2522 (1994 & Supp.1996). First, a law enforcement officer must obtain approval from the Attorney General of the United States or her designee to seek the appropriate order from a federal judge. See 18 U.S.C. § 2516(1) (Supp.1999). Second, the officer must submit to the judge a written application for the wiretap. See 18 U.S.C. § 2518(1) (Supp.1999). Third, the judge must issue an ex parte order granting the application and making specific supporting findings. See 18 U.S.C. § 2518(3); United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir.1997).
Before authorizing a wiretap, the judge must find 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). This requirement is known in the case law as the "necessity" requirement. United States v. Garcia, 232 F.3d at 1312. An order authorizing the interception of wire communications must "contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5). This requirement is known in the case law as the "minimization" requirement whereby officers are required to minimize the interception of lawful communications. United States v. Garcia, 232 F.3d at 1312.
The defendant Cline's motion summarily contends the applications were not properly authorized by a specially designated representative of the Attorney General of the United States, 18 U.S.C. § 2516(1). His memorandum in support does not explain or even address this issue. In its response, the government says it inquired of defense counsel about the basis of this issue and learned the challenge went to the lack of signatures on the authorization letters. To its memorandum, the government attaches Order No.1950-95 from the Office of the Attorney General that specially designates those officers that may authorize Title III applications. The government also attaches copies of each authorization letter submitted with the applications and represents that each letter is signed by a specially designated representative. The defendant Cline replies that the letters lack original signatures and are simply rubber stamped by unknown persons. In its surreply, the government contends the burden is with the defendant to show any irregularity and the defendant's unsupported argument does not rebut the presumption of propriety that arises from an authorized officer affixing his or her signature to the letter. Because Title III does not specify the particular manner in which the ...
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