United States v. Edmonds

• Decision Date: 05 February 2020
• Docket Number: CRIMINAL ACTION NO. 2:18-cr-00225-01
• Citation: 438 F.Supp.3d 689
• Parties: UNITED STATES of America, Plaintiff, v. Aurelius EDMONDS, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

438 F.Supp.3d 689

UNITED STATES of America, Plaintiff,

v.Aurelius EDMONDS, Defendant.

CRIMINAL ACTION NO. 2:18-cr-00225-01

United States District Court, S.D. West Virginia, Charleston Division.

Signed February 5, 2020

Joshua C. Hanks, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

The Court has reviewed the Defendant's Motion to Suppress and Exclude the Contents of the Fruits of Pole Camera Surveillance in this Case, Cell Site Surveillance, Cell Phone Searches, and State and Federal Title III Wiretaps (Document 636), filed by Defendant Aurelius Edmonds. The Defendant seeks to suppress "the contents of any electronic surveillance, and any and all fruits of all pole camera surveillance in this case, all cell site surveillance, all cell phone searches, all pen register and trap and trace [PRTT], all latitude and longitude data (geolocation information), and all state and federal Title III wiretaps in this matter." (Mot. 636 at 1.) He further seeks to suppress the fruits of all searches on the residences at 1008 18th Street and 2126 Liberty Street and his cell phones, as well as the residences and mobile devices of any other co-defendant.

He argues that the Title III applications were insufficient on their face and were based on illegally acquired information, and that the PRTT geolocation and cell site searches were authorized under the same inadequate affidavits. He contends that some evidence in the case was gathered through state Title III wiretap applications, unsupported by affidavits, and that unlawfully acquired evidence contributed to the basis of the federal wiretap applications. He further challenges the qualifications of the agents involved in reviewing and monitoring the intercepts.

He argues that much of the evidence in this case, including evidence used to support the Title III application, was derived from the warrantless use of pole cameras placed at the residences of Mr. Rhodes, Mr. McGuirk, Mr. Hughes, Mr. Hopkins, and Mr. Edmonds. (citing U.S. v. Moore-Bush , 381 F.Supp.3d 139 (2019)) (D. Ma.) (finding pole cameras require a warrant if being used as an investigative tool rather than general guard against crime). In addition, Mr. Edmonds contends that the wiretap was improper because it was not necessary, and normal surveillance and investigation techniques could have exposed the (alleged) crime. He argues that the wiretap collected information beyond the scope of the application. In addition, he contends that the wiretap applications for August 13, 2018 and September 10, 2018 failed to properly recite the previous court-ordered interceptions, and thus the evidence gathered should be suppressed.

Finally, he contends that his warrantless arrest was without probable cause, and any evidence derived therefrom should be suppressed.

Mr. Edmonds requests that the Court hold a hearing, suppress the evidence described in the motion, and dismiss the charges against him.

The Court has also reviewed the United States Response to Motion to Suppress and Exclude the Contents of the Fruits of Pole Camera Surveillance in This Case, Cell Site Surveillance, Cell Phone Searches, and State and Federal Title III Wiretaps (Document 668), together with the attached exhibits and separately filed sealed exhibits. The United States urges the Court to disregard the Defendant's arguments regarding an alleged state court wiretap order, a warrantless search of Mr. Edmonds' residence on 18th Street in Parkersburg, and a purportedly warrantless search of a residence on Liberty Street in Parkersburg. It contends that there was no state wiretap order and all wiretap evidence in this case was collected pursuant to federal court orders, that the 18th Street residence was not searched, and that the Liberty Street residence was searched pursuant to a valid warrant.

The United States further contends that each warrant was supported by probable cause and contained all required information, as to both wiretap applications and affidavits and warrants for searches of residences and electronic devices. In addition, the United States argues that the pen register trap and trace devices were authorized under the wiretap orders. It argues that Fourth Circuit precedent permits use of pole cameras without a warrant under the open-fields doctrine. It notes that the Defendant failed to set forth specific deficiencies in the wiretap affidavits. The United States contends that the wiretap applications adequately set forth evidence supporting the Court's finding of necessity, properly recited previous wiretap orders in the case, and that the interception remained within the authorized scope.

Finally, the United States argues that Mr. Edmonds' warrantless arrest was supported by probable cause, and notes that a criminal complaint and warrant were issued the day after his arrest. It again notes that the Defendant failed to identify specific deficiencies.

In addition, the Court has reviewed the Defendant's Reply to the Government's Response to the Defendant's Motion to Suppress (Document 704) and attached exhibits.¹ The Defendant contends that, contrary to the United States' representation, state electronic intercepts were used to investigate Michael Rhodes in February 2018, and the information derived from those intercepts contributed to the federal wiretap application. He contends that the state electronic interception warrant was deficient, and tainted information from that warrant began the chain of events leading to each federal wiretap application, tainting those wiretaps. He further argues that "one or more people handling the interception were not qualified." (Reply 704 at 3.)

Mr. Edmonds further contends that the facts asserted in the August 13, 2018 wiretap application and affidavit were insufficient to support a probable cause finding because there was no direct evidence of criminal activity, the alleged drug activity discussed in intercepted calls was "only a theory," meeting and communications with others under investigation did not provide direct evidence of crimes, and surveillance of a vehicle does not confirm whether and when Mr. Edmonds was in the vehicle. (Reply 704 at 3-5.) He also presents additional argument regarding alternative investigative methods that he believes would have been successful without the need for a wiretap.

A. Physical Searches and Arrest

The Defendant's bare, conclusory allegations that the searches of residences,² cell phones, and searches derivative of his arrest were not supported by probable cause do not contain sufficient detail to warrant a hearing. The motion does not permit either the United States or the Court to meaningfully address the motion or prepare for a hearing, as it does not identify any specific deficiency or area of potential factual dispute. To the extent the motion argues that the arrest was not supported by probable cause on the same grounds that it contends that the wiretaps were not supported by probable cause, the Court incorporates its findings and reasoning addressing the wiretaps. Accordingly, the motion to suppress as to those searches will be denied.

B. Pole Cameras

Law enforcement used pole cameras to surveil the area outside residences used by certain defendants and individuals investigated in this matter. Evidence from the warrantless pole cameras, in turn, was used to help establish probable cause for wiretap applications. Mr. Edmonds relies on a recent district court decision from Massachusetts to argue that the use of pole cameras requires a warrant. He does not cite precedent from within the Fourth Circuit.

The Court does not find the analysis in United States v. Moore-Bush to be persuasive. 381 F. Supp. 3d 139 (D. Mass. 2019), as amended (June 4, 2019). Long-standing Supreme Court precedent establishes "a two-part inquiry" into whether the Fourth Amendment provides protection against a challenged search: "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo , 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (citing Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) ). In Ciraolo , the Supreme Court held that there was no reasonable expectation of privacy in the airspace above a residence, where officers used an airplane to discover marijuana plants in the fenced backyard of a home. Id. at 213-14, 106 S.Ct. 1809. Moore-Bush relies on a Supreme Court decision holding that a warrant was required to obtain cell phone location records that tracked an individual's movements over an extended period. Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2219, 201 L.Ed.2d 507 (2018) (finding an invasion of "Carpenter's reasonable expectation of privacy in the whole of his physical movements"). However, the Supreme Court in Carpenter expressly stated that its opinion did not "call into question conventional surveillance techniques and tools, such as security cameras." Id. at 2220.

Mr. Edmonds does not contend that the pole cameras utilized in this case were able to record or observe any area not visible to the public. The only specific evidence gathered by pole camera footage that Mr. Edmonds identifies and challenges is footage of vehicles coming and going from the residences—something that can be observed by any neighbor, passer-by, or officer physically surveilling the area. United States v. Adams , No. 3:08-CR-77, 2011 WL 13161193, at *5 (N.D.W. Va. Feb. 23, 2011) (finding no warrant requirement for use of a pole camera that recorded the view of a public waiting room that could be seen from the parking lot). The Court declines to adopt the Defendant's proposed blanket rule that a warrant is required for use of a pole camera placed in a public location with a view available to the public. Because the Defendant has...