US v. Bennett

• Decision Date: 25 June 1993
• Docket Number: Civ. A. No. 93 CR 40.
• Citation: 825 F. Supp. 1512
• Parties: UNITED STATES of America, Plaintiff, v. Diane BENNETT, Calvin Bennett, Tyrous Clinton Mills, a/k/a Drey, Shirley Fern Olson, a/k/a Kelly, Suds, Naomi Mills, Gregory Adams, a/k/a "G", Greg, Thomas Hickman, Sharon Dixon, Tracy Davison, Meredith Murillo, a/k/a "Eve", Mary Martinez, James Givens, Rosalind Frascona, Donnie Eden, Joyce Williams, Angela Roberts, Andrew White, and George Brown, Defendants.
• Court: U.S. District Court — District of Colorado

825 F. Supp. 1512

UNITED STATES of America, Plaintiff, v. Diane BENNETT, Calvin Bennett, Tyrous Clinton Mills, a/k/a Drey, Shirley Fern Olson, a/k/a Kelly, Suds, Naomi Mills, Gregory Adams, a/k/a "G", Greg, Thomas Hickman, Sharon Dixon, Tracy Davison, Meredith Murillo, a/k/a "Eve", Mary Martinez, James Givens, Rosalind Frascona, Donnie Eden, Joyce Williams, Angela Roberts, Andrew White, and George Brown, Defendants.

Civ. A. No. 93 CR 40.

United States District Court, D. Colorado.

June 25, 1993.

COPYRIGHT MATERIAL OMITTED

Craig F. Wallace, Asst. U.S. Atty., Denver, CO, for plaintiff.

Jeralyn E. Merritt, Denver, CO, for Calvin Bennett.

Martha K. Horwitz, Denver, CO, for Shirley Fern Olson.

Stanley H. Marks, Denver, CO, for Gregory Adams.

David L. Miller, Denver, CO, for Sharon Dixon.

Craig B. Shaffer, Terry Jo Epstein, Denver, CO, for Meredith Murillo.

Rod W. Snow, Denver, CO, for Diane Bennett.

Michael G. Katz, Federal Public Defender, for Tyrous Clinton Mills.

David C. Japha, Denver, CO, for Naomi Mills.

Donald L. Lozow, Denver, CO, for Thomas Hickman.

Joseph Saint-Veltri, Denver, CO, for Tracy Davison.

Charles B. Hecht, Denver, CO, for James Givens.

Philip Dubois, Boulder, CO, for Rosalind Frascona.

Mary A. Kane, Denver, CO, for Joyce Williams.

Richard N. Stuckey, Denver, CO, for Andrew White.

Scott Jurdem, Englewood, CO, for Donnie Eden.

Elisa J. Moran, Denver, CO, for Angela Roberts.

Arthur S. Nieto, Lakewood, CO, for George Brown.

MEMORANDUM OPINION AND ORDER

NOTTINGHAM, Judge.

The indictment in this case charges all defendants with conspiring to possess, with intent to distribute, more than five kilograms of cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(A)(ii), and 846 (West 1981 & Supp.1993). The matter is before the court on numerous motions to suppress tapes of communications intercepted through the use of a wiretap device.¹ On May 14 and 21, 1993, the court held a hearing concerning defendants' motions to suppress. The following recitation constitutes the court's findings of fact and conclusions of law on all issues relating to suppression of evidence obtained through the use of wiretaps.

FINDINGS OF FACT

Two wiretaps were authorized in this case. The first wiretap, 92-WT-12, involved telephone number XXX-XXX-XXXX, located at 1771 S. Quebec Way, Apartment Q-202, and subscribed to by Defendant Tyrous Mills. It was authorized by an "Order Authorizing the Interception of Wire Communications" which Chief United States District Judge Sherman G. Finesilver signed on October 26, 1992. This wiretap was extended by an "Order Authorizing the Extension of Interception of Wire Communications" which I signed on November 25, 1992.

The second wiretap, 92-WT-14, involved telephone number XXX-XXX-XXXX, located at 4608 S. Kittridge Street, and subscribed to by Ms. Ellen Roy. It was authorized by an "Order Authorizing the Interception of Wire Communications" which United States District Judge Lewis T. Babcock signed on November 20, 1992. It was extended by an "Order Authorizing the Extension of Interception of Wire Communications" which Judge Babcock signed on December 24, 1992.

Defendants challenge the validity of these two wiretaps on a number of grounds. According to defendants, evidence obtained as a result of these wiretaps should be suppressed because (1) the orders authorizing the interceptions are facially insufficient; (2) the orders fail to meet the "necessity" requirement of sections 2518(1)(c) and (3)(c); (3) the tapes were not sealed immediately; (4) the affidavits attached to the applications do not contain a sufficient showing of probable cause; (5) the officers did not minimize the interceptions in conformity with the minimization provision of the orders; and (6) various technical or clerical errors are contained in the orders. With respect to these contentions, I conclude as follows: (1) The orders and extensions for both wiretaps are facially sufficient. Even if they were not sufficient, suppression of the evidence is not required here. (2) The orders and extensions adequately demonstrate the "necessity" for the wiretaps. (3) The short delay in sealing the tapes was excusable. (4) The affidavits attached to the applications establish probable cause. (5) The officials reasonably minimized the interceptions of communications. (6) The clerical errors do not invalidate the wiretap orders. Defendants' motions to suppress evidence obtained through the intercepted communications are denied.²

CONCLUSIONS OF LAW

I. Facial Sufficiency of the Wiretap Orders

A. Statutory Background

Electronic eavesdropping by law enforcement officials is governed by the federal wiretap statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C.A. §§ 2510-2521 (West 1970 & Supp.1993). Title III has a dual purpose of (1) protecting the privacy of wire and oral communications and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. See Omnibus Crime Control and Safe Streets Act, Pub.L. No. 90-351, 1968 U.S.C.C.A.N. (82 Stat.) 2112, 2153. To assure the privacy of oral and wire communications, title III establishes a three-tiered procedure for obtaining authorization to intercept wire or oral communications. First, a duly-authorized law enforcement officer must obtain approval from the United States Attorney General or a specially designated Assistant Attorney General in order to apply to a federal judge for a wiretap. See 18 U.S.C.A. 2516(1) (West 1970). Second, once such approval is obtained, the officer must present a written application for a wiretap to the judge. Third, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C.A. 2518(1), (3), and (4) (West 1970). Strict adherence to these procedural steps is a prerequisite to issuance of a wiretap order. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Kalustian, 529 F.2d 585, 589 (9th Cir.1976). See 114 Cong.Rec. at 14751 ("A bill as controversial as this ... requires close attention to the dotting of every `i' and the crossing of every `t'....") (Remarks of Sen. McClellan).

Each written application presented to the judge is supposed to include, inter alia, the following:

(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed; (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; (iii) a particular description of the type of communications sought to be intercepted; (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted....

18 U.S.C.A. § 2518(1)(b) (emphasis added). Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire or oral communications.

What the judge must find before he can issue such an order is specified in sections 2518(3)(a) through (d). On the basis of the facts submitted in the application, the judge must determine that —

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

With the findings required by subparagraphs (a) and (b), the order links up the specific person, specific offense, and specific place. 1968 U.S.C.C.A.N. (82 Stat.) at 2191. "Together they are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity." 1968 U.S.C.C.A.N. at 2191 (citing Berger v. New York, 388 U.S. 41, 58-60, 87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040 1967; Katz v. United States, 389 U.S. 347, 354-56, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 1967).

Having made the findings specified by section 2518(3), the judge is supposed to issue an order specifying the matters enumerated in section 2518(4). Section 2518(4) provides:

(4) Each order authorizing or approving the interception of any wire or oral communication shall specify —

(a) the identity of the person, if known, whose communications are to be intercepted;

(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

18 U.S.C.A. § 2518(4) (emphasis added). The emphasized language in section 2518(4) tracks the language in section 2518(1)(b) concerning the contents of the wiretap application.

B. Facial Sufficiency of the Orders in This Case...