United States District Court, District of Columbia
PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE
This matter is before the Court on the motions of defendants Marcus Fenwick, Christopher Ford, and Theodore Sanders to suppress wiretap evidence and the motion of defendant Ford to dismiss Count One of the indictment on the basis of the government's alleged outrageous conduct. Defendants Levon Simmons, Anthony Hager, Andre Leach, and Rashard Grant adopt one or more of the motions. The government opposes the motions. Upon consideration of the parties' written submissions, the oral arguments presented at the pretrial motions hearing held on December 11 and 16, 2015, supplemental memoranda filed by some of the defendants and the government, the relevant case law, and the entire record in this case, the Court will deny the motions.
I. FACTUAL BACKGROUND
In early 2013, the Federal Bureau of Investigation ("FBI") and the Washington, D.C. Metropolitan Police Department ("MPD") began an investigation into narcotics trafficking in and around the Woodbury Village apartment complex in southeast Washington, D.C. First Wolford Aff. ¶ 20. Over the course of the investigation, the FBI and the MPD identified a narcotics trafficking organization involved in distributing phencyclidine ("PCP") in that area known as the "23rd Street Crew." Id. ¶¶ 21-22. The FBI and the MPD, relying on information obtained from executing three search warrants and from a confidential source who had conducted three controlled purchases of narcotics from defendant Levon Simmons (at least one purchase was of PCP), concluded that Simmons was distributing PCP in Woodbury Village. Id. ¶ 22.
On March 7, 2014, the FBI submitted an application and proposed order for a 30-day wiretap on Simmons's cell phone. First Wolford Aff. ¶ 4. The application was supported by the affidavit of FBI Special Agent Timothy B. Wolford, which detailed, inter alia, law enforcement's probable cause to believe that Simmons was involved in PCP trafficking, Id. ¶¶ 24-50, and an explanation of why a wiretap was necessary to bring all of the members of the 23rd Street Crew and not just Simmons to justice. Id. ¶¶ 51-80. Agent Wolford's affidavit did not identify as "target subjects" any of the defendants in this case except for Simmons. Id. ¶¶11-18. Judge Reggie B. Walton reviewed the application and affidavit, and signed the wiretap order, finding both probable cause and necessity. First Wiretap Order.
On April 24, 2014, the FBI submitted a second application supported by a second affidavit of Agent Wolford and proposed order, for a 30-day extension of the wiretap on Simmons's cell phone. Second Wolford Aff. This time, the FBI detailed the evidence that it had obtained from the first wiretap as support for probable cause and necessity. Second Wolford Aff ¶¶ 17-26. Agent Wolford's second affidavit idenfified defendants Ford, Sanders, Hager, Fenwick, and Grant as additional "target subjects, " Id. ¶ 12(b), (c), (d), (h), & (1), and cited interceptions involving each one of them as a basis for probable cause. Id. ¶¶ 17-26. Judge Walton signed the order extending the wiretap, finding again that Agent Wolford's affidavit amply demonstrated probable cause and necessity. Second Wiretap Order.
Based on evidence obtained from the controlled purchases and Simmons's many phone calls overheard on the wiretaps, the grand jury returned an indictment charging all seven defendants with one count of participating in a conspiracy to distribute PCP, in violation of 21 U.S.C. § 846. Accord Superseding Indictment at 1-4 (changing the drug quantity alleged for one defendant in Count One, the conspiracy count, but not adding or subtracting counts). Based on additional physical evidence law enforcement obtained while executing arrest warrants, the indictment also charges Simmons, Fenwick, and Leach with one or more counts of possession with intent to distribute PCP ("PWID PCP"), in violation of 21 U.S.C. § 841(a)(1); charges Simmons and Fenwick with one count each of using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and charges Simmons with one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Id. at 4-6.
Defendants challenge the wiretap evidence on three primary grounds: (1) Agent Wolford's affidavits fail to demonstrate necessity under 18 U.S.C. § 2518(l)(c); (2) the FBI and the MPD failed to minimize wiretap interceptions; and (3) Agent Wolford's affidavits contain reckless false statements or material omissions, entitling defendants to a hearing under Franks v. Delaware, 438 U.S. 154 (1978) ("Franks hearing"). The defendants suggest that, if any of these challenges is meritorious, the Court must suppress all "fruits" of the wiretap evidence, such as statements or physical evidence that the government obtained when executing arrest warrants for which the wiretap evidence provided probable cause. See Ford Mot. at 8; Sanders Mot. at 2; Simmons Mot. 2. After discussing some of the background principles underlying the federal wiretap statute, the Court will address each of these challenges in turn.
A. Statutory Background
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 211-25 (codified as amended at 18 U.S.C. §§ 2510 et seg..), established the detailed procedures for the interception of wire, oral, or electronic communications. Among other requirements, the statute requires that the government's affidavit in support of the wiretap application must contain an explanation of the facts and circumstances that the officer applying for the wiretap believes justify the wiretap and a statement explaining the necessity of the wiretap to the government's investigation. 18 U.S.C. § 2518(l)(b)-(c). Before issuing the wiretap order, a judge must determine that the wiretap is necessary for the investigation and that there exists probable cause to believe that the target phone is or soon will be used in connection with particular enumerated criminal offenses. 18 U.S.C. § 2518(3)(c)-(d). Title III requires that the court order authorizing the wiretap specify the nature and location of the communications facilities to be wiretapped and contain a provision mandating that law enforcement minimize the interception of communications that fall outside the scope of the wiretap order. 18 U.S.C. §§2518(4)(b), 2518(5).
Normal Fourth Amendment search and seizure principles and "the judicially fashioned exclusionary rule" developed by the case law do not describe the outer bounds of the legitimacy of a wiretap. See United States v. Scurrv. No. 12-3104, 2016 WL 1391995, at *8 (D.C. Cir. Apr. 8, 2016) (quoting United States v. Giordano. 416 U.S. 505, 524 (1974)). Title III is more restrictive than the Fourth Amendment; it contains "its own exclusionary mandate." Id. at *3. The statute provides:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of [Title III].
18 U.S.C. §2515.
A defendant seeking to exclude wiretap evidence under this section "must have Title III 'standing, ' which Title III defines as '[a]ny aggrieved person in any trial, hearing, or proceeding, ' 18U.S.C. § 2518(10)(a), who was a target of the wiretap or a person party to a wiretap intercept, Id. § 2510(11)." United States v. Scurry, 2016 WL 1391995, at *3. Any "aggrieved person . . . may move to suppress" wiretap evidence and its fruits "on the grounds that (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. § 2518(10)(a)(i)-(iii); see also United States v. Brodie, 742 F.3d 1058, 1062-63 (D.C. Cir. 2014). But "[suppression [of the wiretap evidence] is required only when the government fails to comply with 'those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.'" United States v. Scurry, 2016 WL 1391995, at *8 (quoting United States v. Giordano, 416 U.S. at 527). Those statutory requirements that "directly and substantially implement" the intent of Congress - at least so far as are relevant here - include necessity, probable cause, and minimization. "Consequently, not every failure to comply with Title III will warrant suppression under section 2518(10)(a)(i)." Id.
In this case, defendants do not claim that the wiretap orders are facially insufficient. Rather, their arguments fall within the first and third statutory grounds for suppression. Defendants' arguments that Agent Wolford's affidavit (1) failed to demonstrate necessity under 18 U.S.C. § 2518(l)(c) and (2) contained reckless falsehoods or material omissions that entitle defendants to a Franks hearing both fall within 18 U.S.C. § 2510(a)(i) as allegations that "the communication was unlawfully intercepted." Their argument that the FBI and the MPD failed to minimize recordings under 18 U.S.C. § 2518(5) falls within 18 U.S.C. § 2510(a)(iii) as an allegation that "the interception was not made in conformity with the [wiretap] order." The Court addresses the necessity and minimization arguments first before turning to probable cause and the request for a Franks hearing.
Title Ill's necessity requirement demands that the government's affidavit in support of 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(l)(c). The necessity requirement applies equally to applications to extend a wiretap for additional 30-day periods. 18 U.S.C. § 2518(5); see also 18 U.S.C. § 2518(3).
Defendants contend that Agent Wolford's affidavits lack 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.'" Ford Mot. at 9 (quoting 18 U.S.C. § 2518(l)(c)); see also Fenwick Mot. at 1-9; Sanders Mot. at 3-4. On defendants' view, Agent Wolford's affidavits contained "boilerplate" recitations of what "would be true in most narcotics investigations" and failed to show that law enforcement had "exhausted all other possible investigative techniques before seeking approval" of a wiretap. Ford Mot. at 10. They propose a number of investigative methods short of a wiretap that they allege could have achieved the same results: (1) confidential sources and undercover officers, (2) ...