United States v. Savoy, Criminal Case No. 10–310 (RCL).

• Decision Date: 03 August 2012
• Docket Number: Criminal Case No. 10–310 (RCL).
• Citation: 883 F.Supp.2d 101
• Parties: UNITED STATES of America v. Robert Dion SAVOY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

883 F.Supp.2d 101

UNITED STATES of America

v.Robert Dion SAVOY, et al., Defendants.

Criminal Case No. 10–310 (RCL).

United States District Court,

District of Columbia.

Aug. 3, 2012.

Opher Shweiki, Arvind K. Lal, U.S. Attorney's Office, Washington, DC, for United States of America.

John Anthony Briley, Jr., Law Office of John A. Briley, Jr., Jonathan Seth Zucker, Jon W. Norris, Christopher Michael Davis, Davis & Davis, Joanne D. Slaight, Law Office of Joanne D. Slaight, Gene Randolph Johnson, Gene R. Johnson and Associates, Washington, DC, Allen Howard Orenberg, The Orenberg Law Firm, PC, North Bethesda, MD, for Defendants.

MEMORANDUM AND ORDER

ROYCE C. LAMBERTH, Chief Judge.

Before the Court are Motions to suppress evidence obtained from the government's interceptions of wire communications made by defendants Eric Scurry [59], Terrence Hudson [77], Robert Savoy [90], Jerome Johnson [105], and James Brown [108]. Upon consideration of the Motions to suppress, the government's opposition [109], Brown's pro se filings [123–1, 156–1], Savoy's pro se filings [158, 178, 183, 184], the government's response to Brown and Savoy's pro se filings [182], the entire record in this case, and the applicable law, the Court will DENY defendants' Motions. The Court will explain its reasoning in the analysis that follows.

I. BACKGROUND

In 2009, prompted by renewed violence in the 4200 block of Fourth Street, S.E., Washington, D.C., the Federal Bureau of Investigation's Safe Streets Task Force began investigating the cocaine and crack dealers in that area. Agents and detectives introduced a confidential informant into the area, who made a series of controlled purchases of crack cocaine from Eric Scurry from November 2009 to March 2010. Among the investigative techniques employed by the task force officers was the use of wiretaps and electronic surveillance. Judge Kennedy approved the agents' applications to intercept the following cellular telephone wire communications: (1) Eric Scurry, telephone number 202–230–7790, from April 2, 2010 to May 1, 2010; (2) Eric Scurry, telephone number 202–230–7790, from May 2, 2010 to May 31, 2010; (3) Terrence Hudson, telephone numbers 301–367–6175 and 571–501–3531, from June 14, 2010 to July 13, 2010; (4) Robert Savoy, telephone numbers 202–609–4333 and 301–379–4379, from July 23, 2010 to August 21, 2010; and (5) Jerome Johnson, telephone number 240–246–4443, from September 13, 2010 to October 12, 2010.

The government first received authorization to intercept Scurry's communications. According to the government, the intercepted communications from Scurry's cellular telephone established that he and Nathan Robinson were distributors of cocaine base in the 4200 block of Fourth Street, S.E. in Washington, D.C. On the basis of those communications, the government received authorization to intercept the communications of one of Scurry's suppliers, Hudson. According to the government, the interception of Hudson's communications established that he was also a distributor of cocaine base. This provided the necessary evidentiary foundation to receive authorization to intercept the communications of one of Hudson's primary suppliers, Savoy. The government says that the interception of Savoy's communications established that he purchased kilograms of cocaine and then redistributed both powder cocaine and cocaine base to others, including Brown. Savoy's intercepted communications also established that Savoy collaborated with Brown to purchase significant amounts of cocaine and that Brown cooked that powder cocaine into crack cocaine, according to the government. On the basis of evidence collected from Savoy's intercepted communications, the government received authorization to intercept the communications of one of Savoy's primary suppliers, Johnson. According to the government, Johnson's intercepted communications and Savoy's intercepted communications established that Johnson supplied Savoy with kilograms of cocaine.

Based on the evidence generated during this investigation, a grand jury issued two indictments on November 29, 2010. The first was against Robert Savoy and Terrence Hudson, charging them both with one count of Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or More of Cocaine and 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846, and charging each with one count of Using, Carrying and Possessing a Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c). The second indictment was against Nathan Robinson, charging him with Possession with Intent to Distribute 28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841. On December 15, 2010, the grand jury issued a superseding indictment, combining the two cases, adding Jerome Johnson, Eric Scurry, and Keena Scurry as defendants in the lead narcotics conspiracy count, and increasing the charged narcotics conspiracy amount with respect to cocaine base from 28 grams or more to 280 grams or more. In September 2011, the grand jury issued a second superseding indictment adding James Brown as a defendant to the lead narcotics conspiracy count.

In their motions, Scurry, Hudson, and Savoy argue that the affidavits in support of the government's application for interception of communications on each of their respective telephones did not establish probable cause and did not satisfy the necessity requirements of 18 U.S.C. § 2518(3)(c). Scurry also challenges the affidavits on the basis that they do not meet the “minimization” requirements under Title III. Additionally, Hudson argues that the interception of his communications was not properly authorized. Finally, Savoy and Brown claim that the interception of Savoy's calls was not properly authorized, and argue that the government effectively secured a series of “roving wiretaps” on the cellular phones from which calls were intercepted but did so without receiving the high-level authorization required for such wiretaps by 18 U.S.C. § 2518(11).

II. LEGAL STANDARDSA. Interception of Wire Communications

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., permits a district court to approve an application for the interception of certain wire, oral, or electronic communications. An order for the interception of wire or oral communications may be issued upon a finding that:

(1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that particular communications concerning that offense will be obtained through an interception; (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried; and (4) probable cause exists to believe that the communication facility sought to be wiretapped is being used, or is about to be used, in connection with the commission of the offenses.

United States v. Becton, 601 F.3d 588, 595 (D.C.Cir.2010) (internal quotations omitted), citing United States v. Carter, 449 F.3d 1287, 1292 (D.C.Cir.2006); see also18 U.S.C. § 2518(3).

B. Standing

An “aggrieved person”—any person “who was a party to any intercepted wire ... communication or [any] person against whom the interception was directed,” 18 U.S.C. § 2510(11)—may move to suppress the contents of the wire communication. Id. § 2518(1)(a). In order for a defendant to have standing to seek suppression of electronic surveillance evidence, the surveillance must be “violative of his own Fourth Amendment right to be free of unreasonable searches and seizures.” Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). “[T]he prohibition against assertion of another's rights normally would preclude an aggrieved person from suppressing a conversation in which he did not participate.” United States v. Scott, 504 F.2d 194, 197 n. 5 (D.C.Cir.1974), aff'd,436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Under this standard, each defendant has standing to challenge the interceptions of the communications from his own telephone as well as conversations in which he was a participant that were intercepted during the wiretap of another defendant's telephone. However, a defendantdoes not have standing to challenge a wiretap in which he was not intercepted or a conversation in which he did not participate.

C. Probable Cause

18 U.S.C. § 2518(1)(b)(i) requires an application to intercept wire, oral, or electronic communications to include “a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including details as to the particular offense that has been, is being, or is about to be committed.”

D. Necessity

In addition to a statement as to probable cause, 18 U.S.C. § 2518(1)(c) provides that each application for an order authorizing a wiretap must 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.” Similarly, prior to granting an order authorizing a wiretap, an issuing judge must find, among other things, 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). These prerequisites to a wiretap are commonly known as the “necessity” requirement.

The purpose of the necessity requirement is to ensure that “wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime,” and to inform the issuing judge of the difficulties inherent in the use of traditional techniques. United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). “This purpose can be achieved ... only by giving close scrutiny to applications...