United States v. Webster

• Decision Date: 26 June 1979
• Docket Number: K-79-059.,Crim. No. Y-79-060
• Citation: 473 F. Supp. 586
• Parties: UNITED STATES of America v. Walter R. WEBSTER et al. UNITED STATES of America v. Arnetta Delly ENNELS et al.
• Court: U.S. District Court — District of Maryland

473 F. Supp. 586

UNITED STATES of America v. Walter R. WEBSTER et al.

UNITED STATES of America v. Arnetta Delly ENNELS et al.

Crim. Nos. Y-79-060, K-79-059.

United States District Court, D. Maryland.

June 26, 1979.

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Glenn L. Cook, and D. Christopher Ohley, Asst. U. S. Attys., Baltimore, Md., for United States.

Harold I. Glaser, Baltimore, Md., for defendants Walter R. Webster and Norma Thompson.

Michael Marr, Baltimore, Md., for defendant Richard Adams.

Howard L. Cardin, Baltimore, Md., for defendants Boysie Ash and Norman Henson.

Harry B. Allen, Oxon Hill, Md., for defendant Richard Wilkes.

Leslie L. Gladstone, Baltimore, Md., for defendant Melvin Stanford.

Stanley H. Miller, Baltimore, Md., for defendant John V. Christian.

Josh Treem, Baltimore, Md., for defendant Jane Doe.

Benjamin Lipsitz, Baltimore, Md., for defendant Herbert Leon Johnson.

William Murphy, Baltimore, Md., for defendant Norman George Johnson.

Dean P. Gunby, Baltimore, Md., for defendant Julius Odell Martin.

Robin John Pecora, Baltimore, Md., for defendant Duran Montgomery.

James M. Kramon, Baltimore, Md., for defendant Dennis Elroy Smith.

Peter Ward, Baltimore, Md., for defendant Sharon Taylor.

Mark Lee Phillips, Baltimore, Md., for defendant Victoria Wills.

Kenneth L. Thompson, Baltimore, Md., and George L. Russell, Jr., Baltimore, Md., for defendants Arnetta Delly Ennels, Barbara Moaney, and Nathaniel Knox.

John A. Hayes, Baltimore, Md., for defendant Danny Ragland.

David B. Mitchell, Baltimore, Md., for defendant Venus Briscoe.

Joseph Kiel, Towson, Md., for defendant Jesse Robinson.

JOSEPH H. YOUNG, District Judge.

These two narcotics conspiracy cases were consolidated for the purpose of ruling on defendants' open motions to suppress certain conversations intercepted by court-ordered wiretaps. The defendants in Y-79-060 have either filed or adopted motions seeking to suppress all evidence obtained either directly or indirectly from electronic surveillance of certain telephone numbers on the grounds that the state-ordered wiretap failed to satisfy the requirements of Md.Cts. & Judic.Proc.Code Ann. §§ 10-401 et seq. and the federal wire interception statute, 18 U.S.C. §§ 2510-2520 (Title III, Omnibus Crime Control and Safe Streets Act of 1968). Defendants Ennels and Knox in K-79-059 along with other defendants in that case have also filed a motion to suppress the evidence obtained from the wire-taps.

The supporting memoranda accompanying the motions challenge the legality of the wiretaps on essentially three grounds: (1) that the affidavit upon which Judge Robert L. Karwacki, Criminal Court of Baltimore City, authorized the surveillance failed to demonstrate the requisite probable cause; (2) that the two affiants, Detective Charles Smoot of the Baltimore City Police Department, and Trooper Michael Callanan of the Maryland State Police, did not demonstrate in other than a conclusory fashion that other investigative techniques had been tried and had been unsuccessful or could not reasonably be expected to be successful; and (3) that there was no probable cause to believe that the alleged crime was being committed by use of a telephone. Defendant Ennels further argues that suppression is warranted due to the unconstitutionality of the state and federal wiretap statutes. Additional challenges are presented based on alleged improper or inadequate "minimization." Having urged these deficiencies with respect to Judge Karwacki's initial wiretap authorization of May 10, 1978, the defendants conclude that the two subsequent wiretaps authorized, the extension on June 9, 1978 and a new wiretap on June 21, 1978, are likewise tainted since they derive from the inadequate probable cause finding in the May wiretap. Accordingly, defendants move the suppression of all fruits of the three interceptions.

I. FACTS

During the first half of 1978, the Baltimore District Office of the Drug Enforcement Administration ("DEA") together with the Baltimore City Police Department's Narcotic Division began investigating a large-scale narcotics organization in the Baltimore area. As the investigation developed, agents determined that much of the illegal narcotics trafficking was undertaken by the organization at 3608 Springdale Avenue in Baltimore, Maryland; at 909 North Calhoun Street in Baltimore, Maryland; and at 1629 East Madison Street in Baltimore, Maryland. They also discovered that the organization conducted some of its narcotics activities through the use of the telephones located on those and other premises. Informants supplied additional information revealing precise telephone numbers at each of those locations. The C&P Telephone Company corroborated that information through subscriber records in its files.

As a result of the information obtained from informants and through surveillances conducted by the agents and others, on May 10, 1978, the Baltimore State's Attorney applied under Maryland's Courts and Judicial Proceedings Article for an Order authorizing interception of wire telephone communications to and from telephones located at 2704 West Baltimore Street and 3608 Springdale Avenue. Those telephones were alleged to have been subscribed to by James M. Delly and Barbara Green, and to have been assigned numbers (301) 233-4933 and (301) 547-5042, respectively. The State's Attorney's application was supported by a lengthy and detailed affidavit, provided by Baltimore City Police Detective Charles Smoot and by Maryland State Trooper Michael Callanan. The affidavit recited information received by the affiants from informants; it described the results of surveillances conducted by the affiants and other law enforcement personnel; and it provided an analysis of long distance telephone toll records obtained from the C&P Telephone Company for the two previously described telephone facilities. Based on this information, Judge Robert L. Karwacki of the Supreme Bench of Baltimore City entered an Order on May 10, 1978 granting the State's Attorney's application, describing in great detail the circumstances and conditions under which the ex parte Order was granted.

On June 9, 1978, as the first Order entered by Judge Karwacki was about to expire by its own terms, the State's Attorney applied to extend the authorization to intercept further telephone communications. The extension application again was supported by a detailed affidavit provided by Detective Smoot and Trooper Callanan. Their affidavit summarized the information supporting the original application and described the new information obtained from the initial electronic surveillance. Judge Karwacki then signed an Order extending the previous authorization on the basis of the new application.

As a consequence of the interception of telephone communications between Barbara Moaney Green and Walter R. Webster, Norma Thompson and others, relating to possible violations of controlled substances laws, the State's Attorney applied for an authorization on June 21, 1978 to intercept communications to and from the telephone subscribed to by Norma Thompson, located at 1629 East Madison Street, and assigned telephone number (301) 276-0941. A lengthy affidavit in support of the application was again provided by Detective Smoot and DEA Agent William Miller. Based upon the affidavit and application, Judge Karwacki entered an appropriate Order granting the new authorization.

In July, 1978, the State's Attorney obtained search warrants on three separate occasions. Those warrants were issued upon the order of Maryland District Judge Edward Borgerding, and were executed by agents of the U.S. Drug Enforcement Administration and officers of the Baltimore City Police Department.

II. CONSTITUTIONALITY

Defendant Ennels' challenge to the constitutionality of the state and federal wiretap statutes is entirely without merit, as this matter has been conclusively determined by both federal and state courts. See, e. g., United States v. Bobo, 477 F.2d 974, 981 (4th Cir. 1973), cert. denied, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975); United States v. Curreri, 388 F.Supp. 607 (D.Md.1974); United States v. Falcone, 364 F.Supp. 877 (D.N.J.1973), aff'd, 500 F.2d 1401 (3rd Cir. 1974); State v. Siegel, 266 Md. 256, 271, 292 A.2d 86, 94 (1977). See generally Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland's New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183, 191, 221 (1979) (federal law served as "guiding light" for Maryland provisions).

III. PROBABLE CAUSE AND THE WIRETAP AUTHORIZATION

The federal wire interception statute requires that a wiretap application show probable cause in three different contexts. First, an individual must be shown to have committed or be about to commit one of several enumerated offenses (18 U.S.C. § 2516, which includes dealing in narcotics (18 U.S.C. § 2516(1)(e))). Second, there must be probable cause to believe that particular communications concerning that offense will be obtained by the wiretap. Third, there must be a belief that the premises where the interception will be made are being used in connection with the charged offense. 18 U.S.C. § 2518(3)(a), (b), and (d).¹ United States v. Armocida, 515 F.2d 29, 35 (3d Cir.), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975). Having reviewed the affidavits submitted to Judge Karwacki in support of the three wiretaps and after applying the statutory standard of "probability" as distinct from a "prima facie showing," Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), the Court concludes that the statutory probable cause requirements have been satisfied.

The affidavits submitted by Detective Smoot and Trooper Callanan must also satisfy the standards of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under Spinelli, the affidavits must detail the "`underlying circumstances' necessary to enable the magistrate...