United States v. Little
| Decision Date | 14 February 2012 |
| Docket Number | CRIMINAL ACTION NO. 11-189-01 |
| Parties | UNITED STATES OF AMERICA v. ALBERT LITTLE |
| Court | U.S. District Court — Western District of Louisiana |
Before the Court is a motion to suppress wire and electronic communications, filed by the Defendant, Albert Little ("Little"). See Record Document 201. Little, along with ten co-defendants, was charged with various drug trafficking offenses in violation of Title 21 of the United States Code. He has moved to suppress the contents of the wiretap expected to be used against him at trial, contending that the wiretap application and accompanying affidavit: (1) lacked probable cause and (2) failed to satisfy the requirement of legal necessity.1 Because the Court concludes that the wiretap was, in fact, supported by probable cause and sufficiently satisfied the necessity requirement, Little's motion is DENIED.
On July 29, 2011, a fourteen count indictment was returned by a federal grand jury against Little and his co-defendants. Little was charged in count one with conspiracy toposses with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Five charged him with possession with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts Seven and Eleven charged Little with use of a communication facility in facilitating the commission of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 843(b).
The indictment was the result of an ongoing investigation, headed by the Drug Enforcement Administration ("DEA") and Louisiana State Police, which began in August of 2010. The investigation focused on a Winn Parish narcotics trafficking organization, with which Little's co-defendant, Lauralyn Thompson ("Thompson"), was involved. Investigators were able to develop two confidential sources who were familiar with Thompson's drug operation. Two undercover agents made controlled drug purchases from Thompson, evidence of which was contained in recorded conversations and cell phone text messages between the respective agents and Thompson.
Based upon information received from the confidential sources, along with undercover agents, surveillance, controlled drug purchases, and pen registers, an application for a wiretap was lodged in the Western District of Louisiana. The application sought authorization for the interception of the wire and electronic communications of phone number (318)450-9915, believed to be utilized by Thompson. The application was supported by the affidavit of Trooper Hank Haynes, who is a member of the DEA Task Force. The application was granted in an order signed by Judge S. Maurice Hicks, Jr. Trooper Haynes' affidavit named Little as a "target interceptee," and indeed, communications between Little and Thompson were intercepted. Little now moves to suppress the wiretap and all evidence obtained therefrom, arguing that the affidavit neglected to establish probable cause and failed to satisfy the "necessity" requirement, as set forth in Title 18, United States Code, Section 2518(1)(c).2 The Government has filed an opposition to Little's motion to suppress.
At the outset, the Court notes that a judge's decision to issue a wiretap order based on his determination that probable cause exists is entitled to great deference. See United States v. Edwards, 124 F.Supp.2d 387, 398 (M.D.La. Aug. 22, 2000) (citing United States v. Phillips, 727 F.2d 392, 395 (5th Cir. 1984)); see also United States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995) (). When the judge authorizing a wiretap "uses common sense and bases [his] finding on the entire picture presented to [him]," review of that decision is limited. United States v. Gonzales, 866 F.2d 781, 786 (5th Cir. 1989). Indeed, the judge's "determination is conclusive in the absence of arbitrariness." Id. (quoting United States v. Weinrich, 586 F.2d 481, 487 (5th Cir. 1978)). As such, in the instant case, this Court's task is toundertake an independent review of the sufficiency of the affidavit to ensure that Judge Hicks had a substantial basis for concluding that probable cause existed. Id.
An application for a court-authorized wiretap must demonstrate probable cause "that an individual is committing, has committed, or is about to commit a particular offense" and "that particular communications concerning that offense will be obtained through such interception." 18 U.S.C. § 2518(3)(a)-(b). "Probable cause does not require proof beyond a reasonable doubt, but only a showing of the probability of criminal activity." United States v. Froman, 355 F.3d 882, 889 (5th Cir. 2004)(quoting United States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993)). As the Supreme Court instructed in Illinois v. Gates, "probable cause is a fluid concept- turning on the assessment of probabilities in particular factual contexts- not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329 (1983). "Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Id. at 235, 103 S.Ct. at 2330.
In the instant case, Little contends that the wiretap affidavit lacked probable cause. Little's motion to suppress lacks clear articulation on this point. However, as the Court understands it, Little believes there is insufficient probable cause specifically tying him to Thompson's drug conspiracy. In presenting this argument, Little concentrates on how few references are made to him in Trooper Haynes' affidavit. Noting that he was not mentioned during the March 3, 2011, March 11, 2011, or March 13, 2011 controlledpurchases, Little points to the fact that it was not until pages 19-21 of the affidavit that he is first substantively mentioned (in reference to a March 24, 2011 drug purchase). Little also criticizes the statement that "Agents have learned through CS information that Thompson and Winn Parish sheriff, Albert 'Bodie' Little, are romantically involved." Record Document 201, p. 7. Little argues that there is no particularized information included to support this assertion, nor is there any way to assess the accuracy of the statement that he and Thompson were romantically involved. However, the Court notes that the above-quoted passage was not without support. Rather, the following statements, made by Thompson to an undercover officer, provided adequate contextual support: Record Document 201, Exhibit 2, p. 21.
Thus, the notion that Little and Thompson were romantically involved not only came from a confidential source, it also came from Thompson herself. Thompson was neither a confidential source nor a cooperating witness, but rather was a primary target of this drug investigation. The statements of one co-conspirator regarding her romantic involvement with another co-conspirator need not be corroborated by law enforcement before applying for a wiretap.
Furthermore, despite Little's insistence that probable cause was lacking due to the insufficient number of references to him in Trooper Haynes' affidavit, the Court finds to the contrary. In this case, the affidavit was designed to secure a wiretap on Thompson'sphone, not Little's. Thus, the affidavit was crafted to establish probable cause for the interception of communications on Thompson's phone. Title 18, United States Code, Section 2518 requires, among other things, that a wiretap application identify "the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1)(b)(iv) (emphasis added). A judge can authorize a wiretap when "there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense" and there is probable cause for belief that the target phone is being used, or is about to be used, in connection with the commission of the crime or is commonly used by the person. Id. at 2518(3)(a), (d) (emphasis added). There is no requirement for probable cause to be demonstrated as to every individual who is named as a target interceptee. See United States v. Lutcher, 2004 WL 1274457 (E.D.La. June 4, 2004)( "the statute only requires that the government demonstrate that probable cause exists with respect to 'an individual' and it does not expressly require such a showing with respect to each person named in the application"); see also United States v. Nunez, 877 F.2d 1470 (10th Cir. 1989); United States v. Figueroa, 757 F.2d 466 (2d Cir. 1985); United States v. Domme, 753 F.2d 950 (11th Cir. 1985); United States v. Martin, 599 F.2d 880 (9th Cir. 1979) (overruled on other grounds); United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973); United States v. Pappas, 298 F.Supp.2d 250 (D.Conn. 2004); United States v. Trippe, 171 F.Supp.2d 230 (S.D.N.Y. 2001); United States v. Marcy, 777 F.Supp. 1400 (N.D.Ill. 1999); United States v. Ambrosio, 898 F.Supp. 177 (S.D.N.Y. 1995). Instead, the judge's determination is whetheran individual is committing or is about to commit a qualifying offense. Probable cause in this case was demonstrated as to Thompson and the use of Thompson's phone to commit criminal offenses. Probable cause need not be demonstrated as to Little, and this Court will not analyze the affidavit to determine if this unnecessary showing was made.
Little also challenges the affidavit, contending there is no indication that: (1) he relayed to Thompson the results of...
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