United States v. Wilford

• Decision Date: 27 November 2013
• Docket Number: Criminal No. ELH–11–0258.
• Citation: 961 F.Supp.2d 740
• Parties: UNITED STATES of America, v. Richard Anthony WILFORD.
• Court: U.S. District Court — District of Maryland

961 F.Supp.2d 740

UNITED STATES of America,

v.Richard Anthony WILFORD.

Criminal No. ELH–11–0258.

United States District Court, D. Maryland.

June 7, 2013.

Memorandum On Reconsideration in Part Nov. 27, 2013.

John Walter Sippel, Jr., Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for United States of America.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

In April 2011, law enforcement agents in Maryland seized cocaine that had an estimated street value of more than $13 million dollars.That seizure, as well as other evidence obtained during a joint State and federal investigation, led to a federal indictment of six members of a drug-trafficking organization operating in the Baltimore area (the “Organization” or “Hayes DTO”)(ECF 1).¹In particular, on May 5, 2011, defendantRichard Anthony Wilford, along with co-defendantsLawrence Lee Hayes, Jr., Bryan Eammon Williams, George Lamar Plunkett, Mark Anthony Hawkins, and Robert Nyakana, were charged in federal court with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846.²

According to the Government, Hayes was “the leader” of the Hayes DTO.Government's Opposition to Wilford's Motion to Suppress(ECF 165), at 2.Wilford was allegedly “a source of supply for the Hayes DTO, providing the organization with kilogram quantities of cocaine.”Id.Williams was also “a source of supply for the Hayes DTO,” while Plunkett and Hawkins served as “lieutenants.”Id.Nyakana was “a transporter of narcotics from California to the Baltimore, Maryland area.”Id.

Now pending is Wilford's “Supplemental and Consolidated Motion to Suppress Tangible and Derivative Evidence”(“Motion to Suppress”)(ECF 160), challenging evidence derived from the surveillance conducted by law enforcement officers by means of Global Positioning System (“GPS”) tracking devices and court-authorized “pinging” of cellular phones.SeeECF 160.³Relying on the Supreme Court's recent decision in United States v. Jones,–––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911(2012), Wilford maintains that the warrantless use of GPS tracking technology violated his Fourth Amendment rights.Additionally, Wilford asserts that, despite court authorization obtained under Maryland's pen register and trap and trace statute, Md. Code(2006 Repl. Vol., 2012 Supp.), Cts. & Jud. Proc. (“C.J.”)§ 10–4B–01 et seq., the pinging of his cellular phone was not authorized by the statute, and was conducted in violation of Maryland law and the Fourth Amendment.Thus, according to Wilford, evidence derived from the use of GPS and pinging must be suppressed under the Fourth Amendment's exclusionary rule.

Wilford also requested a hearing, pursuant to Franks v. Delaware,438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978), to challenge the veracity of an application dated November 18, 2010, submitted to a Maryland State judge for an order authorizing pinging of Wilford's cell phone ⁴; an application for a search and seizure warrant, dated May 10, 2011, submitted to a Maryland State judge, and used to recover physical evidence from multiple locations associated with Wilford and the Hayes DTO ⁵; and an application for a wiretap order, dated April 1, 2011, as to Wilford's cell phone, which was not provided.According to Wilford, these applications contained deliberately false and misleading statements, and thus evidence derived from them should be suppressed.

In addition, Wilford filed a “Motion for Disclosure of Relevant Evidence and Request for Immediate Hearing”(“Disclosure Motion”)(ECF 165).In the Disclosure Motion, Wilford seeks, inter alia, internal memoranda circulated by “various law enforcement agencies” pertaining to GPS tracking, in light of the decision in August 2010 in United States v. Maynard,615 F.3d 544(D.C.Cir.2010).According to Wilford, this information is pertinent to his Motion to Suppress.⁶

The Government opposes Wilford's Motion to Suppress(“Opposition” or “Opp.,” ECF 165).⁷With respect to GPS tracking, the Government relies, inter alia, on the good faith exception to the exclusionary rule, claiming that its use of the GPS devices took place prior to the Supreme Court's decision in Jones and, at the relevant time, it was in compliance with what was then settled law.Further, the Government disputes Wilford's argument that cell phone pinging violates Maryland law and the Fourth Amendment, and maintains that, in any event, the pinging orders comported with the Fourth Amendment's warrant requirement.The Government vehemently opposed Wilford's request for a Franks hearing, insisting that any allegedly false or misleading statements were the result of negligence, rather than recklessness or a deliberate intent to mislead.As to the Disclosure Motion, the Government responds that Wilford is not entitled to the production of internal law enforcement memoranda under Fed.R. Crim.P. 16.It also argues that such material is not relevant to the issues raised by the Motion to Suppress.SeeGovernment's Response to Defendant's Motion for Disclosure of Relevant Evidence (“Disclosure Opp.,”ECF 173).

I held a motions hearing on January 25, 2013, and March 8, 2013, at which the parties presented evidence and argument.The parties also filed supplemental briefs as to the scope of Maryland's pen register and trap and trace statute, C.J. § 10–4B–01 et seq., and the issues raised under Franks v. Delaware.SeeMemorandum to Counsel, Jan. 28, 2013(ECF 175);Defendant's Response to Issues Raised by the Court(“Wilford Supp. Memo,” ECF 180); Government's Supplemental Briefing (“Gov't Supp. Memo,” ECF 181).For the reasons that follow, I will grant, in part, and deny, in part, Wilford's Disclosure Motion.And, I will deny Wilford's Motion to Suppress, without prejudice to his right to renew his argument as to the inapplicability of the good faith defense, pending possible Government disclosures, as discussed infra.

I.Factual Background⁸

In August 2010, the Drug Enforcement Administration (“DEA”), the Baltimore City Police Department(“BPD”), the Baltimore County Police Department, the Maryland Transportation Authority Police, and the Internal Revenue Service (“IRS”) began a joint investigation of the Hayes DTO, based on information obtained from two confidential sources (“CS1” and “CS2”).Opp.at 4–5.Law enforcement agents learned that Hayes and the Hayes DTO were involved in the distribution of cocaine in the Baltimore metropolitan area.Seeid.The investigation was run as a “DEA Task Force” matter.

DEA Agent Mark Lester served as the lead investigator of the DEA Task Force.DEA Agent Todd Edwards and BPD Officer Glenn Hester were his co-case agents.DEA Agent Mara Hewitt was also involved.An Assistant State's Attorney for Baltimore City, La Rai Everett, was the lead State prosecutor with respect to the investigation.During the investigation, all applications for warrants, pinging orders, and wiretaps were submitted to Maryland State court judges.Id. at 4.In 2011, a decision was made to prosecute certain members of the Hayes DTO in federal court.Seeid.

A.Location Technology

1.GPS Tracking Devices

During the investigation, four “slap on” GPS tracking devices, which did not require permanent installation, were placed on twelve different vehicles, as set forth below, Opp.at 2–3⁹:

• A Nissan registered to and utilized by Hayes;

• A Range Rover registered to Deneen Bolden and utilized by Hayes;

• A Honda Crosstour registered to and utilized by Wilford;

• A Jeep registered to BLOW IT OFF POWER WASHING and utilized by Hawkins;

• An Acura 2 registered to Donna Lee Oneal and utilized by Hayes and Antoine Lamont Goodson;

• A Honda Crosstour registered to and utilized by Hayes;

• A Jeep Liberty registered to Arki Lamar Reid–Labrousse and utilized by Plunkett;

• A Volvo sport utility vehicle registered to Arki Lamar Reid–Labrousse and utilized by Plunkett;

• An Acura 4S registered to and utilized by Hayes;

• A Honda registered to and utilized by Plunkett;

• An Oldsmobile minivan registered to BLOW IT OFF POWER WASHING and utilized by Hawkins and Wilford;

• A Honda Crosstour registered to Robin Michelle Douglas and utilized by Hayes.

Agent Lester testified at the hearing on January 25, 2013, as to the GPS devices used during the investigation.The GPS devices, which were battery powered, communicated location information through a wireless connection.The agent explained generally that the GPS device is triggered by the movement of the vehicle.A DEA agent could obtain the real-time location of the GPS while a vehicle is moving, and location data could also be accessed at a later time through a DEA computer application.An icon representing the vehicle could be displayed through a computer mapping program, along with the approximate street address of its location.However, the GPS devices could not identify the driver of the car.Thus, GPS devices served as aids to obtain visual surveillance, but did not substitute for such surveillance.

According to Agent Lester, a GPS device was placed on Wilford's Honda Crosstour between November 17, 2010, and December 8, 2010, and between December 12, 2010 and April 16, 2011.Between January 18, 2011 and May 19, 2011, a GPS device was also placed on the Oldsmobile minivan registered to BLOW IT OFF POWER WASHING.The Government claims, and Agent Lester confirmed: “All of the GPS devices were placed on vehicles while they were parked on public streets, driveways accessible from the street, or public parking lots.”Opp.at 4.However, as discussed more fully, infra, no search warrants were obtained for the use of GPS tracking devices.

GPS data was not transmitted every day.According to the testimony of a defense witness, Joshua Brown, of GLS Litigation Services,¹⁰ the GPS data indicated that the location of Wilford's Crosstour was transmitted 4,022 times, on 78 days, and the...