United States v. Turner

• Decision Date: 18 March 2015
• Docket Number: 13–2574.,Nos. 13–2566,13–2572,s. 13–2566
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Donald R. TURNER, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee v. Antonio Turner, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Corey E. Turner, Sr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

781 F.3d 374

UNITED STATES of America, Plaintiff–Appellee

v.Donald R. TURNER, Jr., Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Antonio Turner, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Corey E. Turner, Sr., Defendant–Appellant.

Nos. 13–2566

13–2572

13–2574.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 11, 2014.

Filed March 18, 2015.

Rehearing and Rehearing En Banc Denied in 13–2572 May 11, 2015.

Rehearing and Rehearing En Banc Denied in 13–2574 May 29, 2015.

Rehearing and Rehearing En Banc Denied in 13-2566 July 7, 2015.

Preston Humphrey, Jr., argued, Saint Louis, MO, for Defendant–Appellant Donald R. Turner, Jr.

Michael J. Fagras, argued, St. Peters, MO, for Defendant–Appellant Antonio Turner.

Peter M. Cohen, argued, St. Louis, MO, for Defendant–Appellant Corey Turner, Sr.

Nathan Judish, USDOJ, Washington, DC and Timothy J. Willis, Special AUSA, argued, Cape Girardeau, MO (Joseph M. Landolt, AUSA, Saint Louis, MO, on the brief), for Plaintiff–Appellee.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

Opinion

KELLY, Circuit Judge.

Corey E. Turner, Sr., Donald R. Turner, Jr., and Antonio Turner appeal their convictions and sentences on drug-related charges. After reviewing all issues raised on appeal, we affirm.¹

I. Background

In the spring of 2010, the Drug Enforcement Administration and the police department in Sikeston, Missouri, began an investigation into a local drug-distribution conspiracy. During the course of the investigation, law enforcement came to believe that Joe Lenzie Turner, along with several of his friends and family members, were involved in a conspiracy to distribute both powder and crack cocaine in and around the Sikeston area. Some of the other individuals allegedly involved in the conspiracy included Corey Turner, Sr.,² Donald Turner, Jr., Antonio Turner, Dwayne Woods, and Jerriereneika Dorsey. On August 18, 2011, the above-listed individuals and eleven others were charged in a 21–count indictment in the Eastern District of Missouri. All seventeen were charged with conspiracy to distribute cocaine; the remaining charges were substantive drug charges against some of the defendants. Most of the defendants pleaded guilty, with some entering into cooperation agreements with the government. Corey Turner, Donald Turner, and Antonio Turner went to trial on a seven-count superseding indictment. During trial, Joe Lenzie Turner and Jerriereneika Dorsey both testified as cooperating witnesses for the government. The jury found all three defendants guilty of conspiracy to possess with intent to distribute five kilograms or more of cocaine and additionally found them guilty on all substantive drug charges. On appeal, the defendants contest the denial of their motions to suppress, several evidentiary rulings at trial, the sufficiency of the evidence, and their sentences.

II. Discussion

A. Motions to Suppress

During the investigation of the conspiracy, the government obtained multiple Title III wiretap orders³ for some defendants' phones, as well as separate warrants for Precise Location Information⁴ (PLI) for phones used by Joe Lenzie Turner and Dwayne Woods. One of the wiretap orders purportedly authorized the seizure of PLI from Corey Turner's phone as well. Corey Turner and Donald Turner filed motions to suppress the evidence obtained as a result of these orders and warrants. The magistrate judge⁵ recommended denying all of the motions, and the district court⁶ adopted the recommendation after addressing the defendants' objections.

“When reviewing a district court's denial of a suppression motion, we review the court's factual findings for clear error and its legal conclusions de novo.” United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir.2010). A district court's decision denying a motion to suppress will be affirmed “unless it is unsupported by substantial evidence on the record; reflects an erroneous view of applicable law; or after a thorough review of the record, we have a definite and firm conviction that a mistake has been made.” Id.

1. PLI Warrants

The first suppression issue on appeal involves the three warrants authorizing the government to obtain prospective PLI from Joe Lenzie Turner's and Dwayne Woods's phones. Corey Turner moved to suppress the evidence seized pursuant to these warrants, and the district court denied the motion on the merits. Both in the district court and on appeal, the government asserts there is no need to address the merits of Corey Turner's motion because he lacks standing to challenge the seizure of the evidence.⁷

“To contest the validity of a search, a person must have a reasonable expectation of privacy in the place searched.” United States v. Randolph, 628 F.3d 1022, 1026 (8th Cir.2011). “Fourth Amendment rights are personal and may not be vicariously asserted.” Id. (quotation omitted). With regard to the content of cell phones, “an accused must first establish that he personally has a legitimate expectation of privacy in the object that was searched.” United States v. Stringer, 739 F.3d 391, 396 (8th Cir.2014).

Corey Turner has failed to establish that he has standing to challenge the issuance of the warrants for PLI for phones belonging to Joe Lenzie Turner and Dwayne Woods. Corey Turner does not assert that he owned, possessed, or used either of these cell phones; nor does he describe any other legitimate expectation of privacy in these phones or in the PLI obtained from them.⁸ Without any argument to support the conclusion that he had a legitimate expectation of privacy in these phones or their location, Corey Turner has failed to meet his burden to establish standing to challenge the seizure of this evidence. See Stringer, 739 F.3d at 396.

2. Wiretap Orders and Necessity

Donald Turner unsuccessfully moved to suppress all evidence seized as a result of the Title III wiretap orders issued during the investigation. On appeal, he asserts the district court erred in concluding the government had shown the requisite necessity to justify the issuance of the orders.

The Wiretap Act requires that any application for a wiretap include “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....” 18 U.S.C. § 2518(1)(c). “If law enforcement officers are able to establish that conventional investigatory techniques have not been successful in exposing the full extent of the conspiracy and the identity of each coconspirator, the necessity requirement is satisfied.” United States v. West, 589 F.3d 936, 939 (8th Cir.2009) (quotation omitted). When reviewing a lower court's finding that the necessity requirement has been satisfied to support authorization for a wiretap order, this Court reviews for clear error. Id.

In this case, the affidavits in support of the application for each Title III wiretap order set forth the investigative techniques law enforcement had used, as of that point, to gather evidence of the purported conspiracy: interviews with confidential sources, use of confidential informants to conduct controlled buys of drugs from suspected conspirators, monitored and/or recorded telephone calls initiated by cooperating individuals, physical surveillance, limited use of pole cameras and GPS devices, pen registers, trap and trace devices, and some collected financial information.

The affidavits also described techniques unlikely to be successful or too dangerous to undertake under the circumstances. The affiant explained that the use of undercover agents would not likely “further the objectives of the investigation” and might place an undercover agent in danger, because those involved in the conspiracy were either part of the Turner family or close friends, making it difficult to infiltrate the organization. The affiant also discussed the fact that those involved in the conspiracy were closely monitoring their surroundings and were possibly using surveillance cameras of their own, so physical surveillance, trash searches, and the use of additional pole cameras by law enforcement would not provide access to the desired information. GPS devices had been used to track suspects' cars, but some suspects had taken to driving rental or borrowed vehicles to purchase drugs to avoid being tracked. The affiant also explained that, while traditional investigative techniques had uncovered a great deal of information about the criminal activities of the targets, the familial nature of the enterprise and the counter-surveillance techniques used by participants in the conspiracy prevented law enforcement from determining who was supplying the drugs, where the drugs were being stored, or what the full structure of the organization looked like.

Donald Turner counters that one of the confidential informants—CI # 1—was a member of the family. As a family member, Donald Turner argues, CI # 1 was in a position to obtain inside information to assist the police investigation, rendering a wiretap or other electronic surveillance unnecessary. The government responds, and the district court agreed, that although CI # 1 was able to learn some information about the family drug business, he was unable to get information about the source of the drugs, where the leaders of the business hid drugs after transporting them from the source, or how the distribution of drugs and assets was done by higher-level members of the criminal enterprise. Additionally, CI # 1 was set to return to custody, rendering him unable to assist the government by conducting controlled buys or providing inside information for much longer.

Wiretaps should not be “routinely employed as the initial step in an investigation.” United States v. Macklin, 902 F.2d 1320, 1326 (8th Cir.1990). But § 2518(1)(c) “does not require that law enforcement officers exhaust all possible techniques before applying for a wiretap.” Id. Even if CI...