United States v. Spann

• Decision Date: 10 March 2021
• Docket Number: No. 17 CR 611-1,17 CR 611-1
• Parties: UNITED STATES OF AMERICA v. LABAR SPANN
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES OF AMERICA v. LABAR SPANN

No. 17 CR 611-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 10, 2021

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Labar Spann and others are charged in a nine-count racketeering indictment that includes allegations of murder, robbery, witness tampering, extortion, distribution of controlled substances, and more. Some of the evidence against Spann consists of telephone communications that were obtained through judicially-authorized wiretaps. Spann moves to suppress all evidence from those wiretaps, R. 804, and relatedly seeks copies of transcripts from the criminal trial of Officer Xavier Elizondo, R. 806. For the following reasons, Spann's motion to suppress is denied while his motion for transcripts is granted.

Background

In 2012 and 2013, the Cook County State's Attorney's Office ("CCSAO") intercepted wire communications as part of its narcotics investigation into Defendant Spann and the Four Corner Hustlers gang. Five phones were wiretapped—four were allegedly used by Spann while the fifth supposedly belonged to someone else. Before each phone was tapped, the CCSAO was required to submit wiretap applications to the presiding judge of the Criminal Division of the Cook County Circuit Court. Each application included an affidavit that explained why there was probable cause to believe that the targeted phone was being used in connection with criminal activity, and each affidavit was signed by a Chicago Police Department officer. Officer Xavier Elizondo signed the affidavit for Target Phones 1, 2, 3, and 5; Officer Kristi Battalini signed the affidavit for Target Phone 4. The affidavit for Target Phone 1, which was signed by Officer Elizondo, served as a starting point for the affidavits attached to Target Phones 2-5. All affidavits were signed in 2012 and 2013.

Fast forward to May 10, 2018, when a grand jury indicted Elizondo for submitting false search warrant affidavits and stealing drugs and cash from properties he searched. Concerned how the indictment might affect the wiretap affidavits in this case, attorneys for Spann and other defendants raised the issue with the Court and asked that sealed documents filed in Elizondo's criminal case (pending before a different court) be disclosed. See R. 461. The Court directed attorneys for the government to review the sealed documents in Elizondo's criminal proceedings and determine whether Elizondo's wrongful conduct occurred at the same time that he signed the affidavits for Target Phones 1, 2, 3, and 5. The attorneys conducted that review and represented to the Court that the none of the sealed filings in Elizondo's criminal case indicated that he engaged in wrongdoing before 2017. The Court also reviewed the sealed filings and confirmed the government's representations. See R. 461.

After that review, however, additional information came to light concerning the timeline of Elizondo's criminal behavior. More specifically, prosecutors at Elizondo's sentencing offered the testimony of a confidential informant who statedthat Elizondo asked her to lie to a judge about two search warrants in 2012—the same year he signed affidavits for Target Phones 1-3. See R. 882 at 8. The government's sentencing memorandum also said that the informant started working with Elizondo in 2010, suggesting that Elizondo may have been engaged in illegal conduct before, during, and after he signed the affidavits at issue in this motion.¹ R. 804 at 5.

In light of these revelations, Spann now seeks to suppress all evidence obtained through the wiretaps of Target Phones 1-5. Spann advances three arguments. First, Spann claims that he has standing to suppress the evidence derived from the wiretaps. Next, Spann contends that an evidentiary hearing is required under Franks v. Delaware, 438 U.S. 154 (1978), to show that Elizondo made false statements in the affidavits supporting the wiretaps. Third, Spann argues that the affidavits failed to establish that the wiretaps were necessary.²

Before the Court considers each argument in turn, a few additional pieces of background information should be noted. Of relevance here, the wiretaps challenged by Spann were obtained as part of Operation High-Five, a drug trafficking investigation conducted by law enforcement authorities that focused on Spann and the Four Corner Hustlers. Operation High-Five followed two similar investigations: Operation 5K in 2003 and Operation Hog Tied in 2010. Operation 5K investigated the alleged involvement of Spann and the Four Corner Hustlers in more than a dozen murders, while Operation Hog Tied focused on Spann and the gang's alleged trafficking of drugs on the west side of Chicago. Spann was incarcerated during Operation Hog Tied.

Analysis

I. Standing to Challenge Wiretaps

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides "a comprehensive scheme for the regulation of wiretapping and electronic surveillance." Gelbard v. United States, 408 U.S. 41, 46 (1972); 18 U.S.C. §§ 2510-22. It establishes "special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance." United States v. Calandra, 414 U.S. 338, 355 n.11 (1974). For example, to comply with Title III, the government must not only satisfy the requirements of probable cause and particularity, but must also demonstrate a need for electronic surveillance and conduct it in a way that minimizes invasions of privacy. See 18 U.S.C. § 2518.

Title III also includes a suppression mechanism. Indeed, Title III prohibits any "part of the contents of" unlawfully intercepted communications and "evidence derived therefrom" from being used as evidence at trial, hearing, or other legal proceeding. 18 U.S.C. § 2515. Any "aggrieved person" may move to suppress such evidence. 18 U.S.C. § 2518(10)(a). An "aggrieved person" is someone "who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11).

Spann asserts that he is an "aggrieved person" under the statute and thus has standing to suppress the evidence at issue here because he was either a party to the communications or named as a "targeted interceptee" in the wiretap applications for Target Phones 1-5.³ See R. 804 ¶ 5. The government takes a different position, arguing that being named as a "targeted interceptee" in a wiretap application does not confer standing to challenge communications from that wiretap. See R. 882 at 9. According to the government, Spann has standing to challenge only communications to which he was a party. Id.

At first blush, Seventh Circuit case law suggests that the government has the better argument. Under United States v. Thompson, a defendant does not have standing "to seek suppression of evidence gathered from" wiretapped phone calls towhich he was not a party. 944 F.2d 1331, 1339 (7th Cir. 1991). The Seventh Circuit affirmed this principle in United States v. Vargas, 116 F.3d 195, 196 (7th Cir. 1997), when the court held that the defendant had only limited standing to object to wiretaps placed on someone else's phone. The government's brief cites both cases approvingly, see R. 882 at 9, as do many district courts in this circuit. See, e.g., United States v. Smith, 2016 WL 4611382, at *2 (N.D. Ill. Sept. 6, 2016); United States v. Alvarez-Carvajal, 2019 WL 5639156, at *2 (S.D. Ill. Oct. 31, 2019).

But neither Thompson nor Vargas discuss (or even mention) Sections 2510(11) or 2518(10)(a), which set forth the standing requirements under Title III. As stated above, Section 2518(10)(a) provides that "[a]ny aggrieved person," may move to suppress intercepted communications under certain circumstances, while Section 2510(11) defines an "aggrieved person" as someone "who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." (emphasis added). As other courts have noted, it is difficult to conclude that the phrase "against whom the interception was directed" does not include the target of the surveillance, even if that person was not a participant in the captured conversation. See United States v. Scurry, 821 F.3d 1, 7 (D.C. Cir. 2016) ("aggrieved person" includes "a target of the wiretap"); United States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012) (holding that defendant had standing to suppress communications because his "conversations were the target of the surveillance" even if he was not always a participant); United States v. Apple, 915 F.2d 899, 905 (4th Cir. 1990) (noting that a party has standing if the "government's efforts were directedat him"); United States v. Giraudo, 225 F. Supp. 3d 1078, 1083 (N.D. Cal. 2016) (concluding that defendant was an "aggrieved person" even though his voice was not captured on every intercept). Any other interpretation of Section 2510(11) would be in tension with the most natural reading of "against whom the interception was directed," and would suggest that the ordinary meaning of "directed" does not apply in the wiretap context. See Williams v. Taylor, 529 U.S. 362, 404 (2000) (reminding courts to "give effect, if possible, to every clause and word of a statute"). At a minimum, Title III accords standing to people other than those who were parties to unlawfully intercepted communications, otherwise the clause "against whom the interception was directed" would not be doing any work. See Giraudo, 225 F. Supp. 3d at 1082. And as a practical matter, the government's position that only parties to a communication have standing under Title III leads to an odd result in which a person against whom an intercept is to be used has no mechanism to challenge its legality simply because that person was not a participant to the conversation.

There is more the Court could say on this issue. But doing so is unnecessary for purposes of this motion, because even if the Court...