United States v. Terrell

• Decision Date: 18 July 2016
• Docket Number: No. CR15-3051-MWB,CR15-3051-MWB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JEREMY D. TERRELL, Defendant.
• Court: U.S. District Court — Northern District of Iowa

UNITED STATES OF AMERICA, Plaintiff, v. JEREMY D. TERRELL, Defendant.

No. CR15-3051-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

July 18, 2016

MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION CONCERNING DEFENDANT'S MOTION TO SUPPRESS

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND ............................................................. 2

A. Procedural Background ............................................................................... 2

B. Factual Background ..................................................................................... 5

II. LEGAL ANALYSIS ............................................................................................... 12

A. Standard Of Review .................................................................................... 12

B. Objections To Report And Recommendation ............................................ 17

1. Necessity for preauthorization ........................................................ 17

2. Requirement that affidavit be signed and sworn ........................... 19

3. Probable cause ................................................................................. 20

4. Necessity requirement ..................................................................... 24

5. Notice requirement .......................................................................... 25

6. Applicability of Leon good faith doctrine ....................................... 26

III. CONCLUSION ...................................................................................................... 27

I. INTRODUCTION AND BACKGROUND

A. Procedural Background

This case is before me on United States Magistrate Judge C.J. Williams's Report and Recommendation concerning defendant Jeremy D. Terrell's Motion to Suppress (docket no. 44). In his Report and Recommendation, Judge Williams recommends denying Terrell's Motion to Suppress. Terrell has filed timely objections to Judge Williams's Report and Recommendation. I, therefore, undertake the necessary review of Judge Williams's Report and Recommendation.

On December 15, 2015, an Indictment was returned against Terrell, charging him with conspiracy to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count 1), possessing with intent to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count 2), and possessing with intent to distribute cocaine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Count 3).

Terrell subsequently filed a Motion to Suppress in which he seeks to suppress "any and all . . . evidence, tangible and testimonial, which was derived, directly or indirectly," from wiretaps. Defendant's Br. at 35. Terrell contends that the evidence must be suppressed for the following reasons: (1) the police's failure to comply with the Attorney General's pre-authorization requirements; (2) the police's lack of probable cause to intercept Terrell's telephone calls on June 2, 2015; (3) the police's failure to demonstrate that the interception of Terrell's telephone calls was necessary; (4) the police's failing to comply with the minimization requirements in the wiretap orders; and (5) the prosecution's failure to comply with the post-intercept notification requirements which prejudicedTerrell. Terrell also argues that the Leon Good Faith Doctrine was inapplicable and, as a result, all evidence obtained as a result of the wiretaps must be suppressed.

The prosecution filed a timely resistance to Terrell's motion. Terrell's motion was referred to Judge Williams, pursuant to 28 U.S.C. § 636(b). Judge Williams conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Terrell's motion be denied. In his Report and Recommendation, Judge Williams initially concluded that the Douglas County Attorney was not required to obtain pre-authorization from the Nebraska Attorney General before applying for the wiretap orders in this case. Judge Williams further determined that the wiretap application submitted to the Nebraska Attorney General was not required to be signed and sworn. Accordingly, Judge Williams found that the Douglas County Attorney complied with the statutory requirement for submitting the application and affidavit to the Nebraska Attorney General for a nonbinding recommendation. Along those same lines, Judge Williams concluded that the Douglas County Attorney did not have to obtain pre-authorization from the Nebraska Attorney General for each wiretap extension. Thus, Judge Williams found that the Douglas County Attorney fully complied with the statutory requirements for obtaining the wiretaps and extensions.

Judge Williams then turned to the issue of probable cause to intercept Terrell's telephone calls at the time of the first wiretap. Judge Williams concluded that, because the first wiretap was conducted on the telephones of other members of the gang, not on Terrell's telephones, it was only necessary that the affidavit provide probable cause to believe those members of the gang were using their telephones to communicate about criminal activity and it was not necessary that the affidavit additionally establish probable cause for each of the targets, including Terrell. Subsequently, when, agents sought a wiretap on Terrell's telephones, the supporting affidavit established probable cause to believe Terrell would use his telephones to discuss criminal activity. Judge Williams next took up Terrell's claim that evidence obtained from the wiretaps must be suppressedbecause the wiretaps were unnecessary. Judge Williams found that the supporting affidavits provided an adequate factual basis to inform the state court judge why other investigative techniques were not sufficient or likely to succeed in achieving the goals of the investigation. Next, Judge Williams considered Terrell's claim that law enforcement officers did not comply with the minimization requirements contained in the wiretap orders. Judge Williams found that the prosecution had met its burden of showing that the law enforcement agents reasonably minimized the calls as required by the court's orders. Judge Williams next rejected Terrell's argument that the prosecution failed to timely notify Terrell that his communications were being intercepted. Judge Williams found that the prosecution provided Terrell with sufficient, actual notice of the wiretap within the required 90 day period. Moreover, Judge Williams further determined that, even if the prosecution had failed to timely notify Terrell, such failure was a technical violation which does not require suppression, because Terrell had failed to show that the prosecution acted in bad faith and that he was prejudiced by the delay in notification. Finally, Judge Williams found that the Leon Good Faith Doctrine applied to both of Terrell's probable cause and necessity arguments because the showing of probable cause and necessity were not so facially deficient that law enforcement officers unreasonably relied on the state court judge's conclusions. Therefore, Judge Williams recommended denying Terrell's Motion to Suppress.

Terrell has filed objections to Judge Williams's Report and Recommendation. The prosecution filed a timely response to Terrell's objections. I, therefore, undertake the necessary review of Judge Williams's recommended disposition of Terrell's Motion to Suppress.

B. Factual Background

In his Report and Recommendation, Judge Williams made the following factual findings:

A. The Evidence of Criminal Activity

On February 6, 2014, the Omaha Police Department (OPD) responded to a call of shots fired. Officers stopped a car defendant was driving in which Calvin Clayton was a passenger. Officers searched the vehicle after smelling marijuana, and seized a loaded 9mm handgun under the driver's seat, and seven grams of marijuana. On July 8, 2014, local law enforcement officers stopped a car in Sarpy County, Nebraska. The car was rented in defendant's name, and he was a passenger. Another male was driving, and there was another male passenger. After smelling marijuana, officers searched the car and recovered $21,591 in cash.

On July 21, 2014, defendant flew from Montego Bay, Jamaica, to Chicago, Illinois, where agents with the Department of Homeland Security screened him and discovered he was carrying $2,100 cash. Agents searched his cell phone as well, which disclosed photos of him handling bags of marijuana and text messages indicating he was selling marijuana in Omaha.

In the fall of 2014, a joint Federal Bureau of Investigation (FBI) and the OPD initiated an investigation into a series of fourteen armed bank robberies which took place in the Omaha area between June and November 2014. The investigation revealed that Blood gang members, calling themselves the NIKE gang, were allegedly involved in the robberies. Defendant was identified as an alleged member of the gang. During the investigation, law enforcement agents discovered that defendant had rented twenty-two vehicles from Enterprise Car Rental (Enterprise) since June 2014. In June and August 2015, law enforcement officers obtained orderspermitting them to intercept telephone communications by members of this group, including defendant's telephones.

As a result of the wiretaps, law enforcement officers came to believe defendant was living in Fort Dodge, Iowa. On August 14, 2015, armed with information from the wiretap, officers with the Fort Dodge Police Department (FDPD) stopped defendant's car when he tried to elude

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