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United States v. Beavers

United States District Court, E.D. Michigan, Northern Division

September 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D - 1 DAMARLIN MARKEEL BEAVERS, D - 6 MICHAEL ALLEN PRATT, JR., D - 10 TERENCE JAEMAR JOHNSON, D - 11 LAMAR TERRELL SIMON, D - 15 CALVIN EARL MCREYNOLDS, JR., Defendants.

          ORDER DENYING MOTION TO SUPPRESS AND DENYING MOTIONS TO SEVER

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On October 12, 2016, an indictment was returned which charged thirteen Defendants with participating in a large-scale conspiracy to possess and distribute controlled substances. ECF No. 16. On April 12, 2017, a first superseding indictment was returned which named five additional Defendants. ECF No. 183. In the first superseding indictment, the Government alleges that the eighteen individuals “knowingly conspired and agreed together . . . to possess with intent to distribute and to distribute controlled substances.” Sup. Indict. at 2-3, ECF No. 183. Specifically, the Government contends that the Defendants possessed and distributed cocaine and heroin. Id. at 3. In total, the Government has charged thirty specific counts, all related to the possession or distribution of controlled substances. Of the eighteen Defendants, thirteen have pleaded guilty. Charges are currently pending against the remaining five Defendants.

         Currently, trial is set for September 26, 2017, at 8:30 a.m. On July 26, 2017, Defendant Beavers filed a motion to suppress the evidence obtained via use of a Title III wiretap. ECF No. 303. Defendants McRenyolds and Simon have also filed motions to sever. ECF Nos. 305, 311. On September 11, 2017, the Court held a hearing on these three motions. For the reasons stated on the record and in this order, the three motions will be denied.

         I.

         In the spring of 2015, law enforcement identified a group of individuals acting as major suppliers of heroin and cocaine in Saginaw, Michigan. Investigators utilized a wide variety of investigative techniques, including confidential informants, controlled buys, undercover officers, physical surveillance, and GPS surveillance. On June 1, 2016, investigators received approval to operate a pen register and trap and trace device on Defendant Damarlin Beavers's cell phone for a period of sixty days. At this point, investigators had also been utilizing a pole camera to record a suspected stash house for approximately a year. Despite these efforts, the investigators determined that a court order authorizing interception of communications on certain target cell phones was necessary to uncover the full scope of the criminal conspiracy.

         On June 14, 2016, the investigators submitted an application for a Title III wiretap of Defendant Damarlin Beavers's cellphone on June 14, 2016. An affidavit prepared by Special Agent King accompanied the application. The Title III wiretap was authorized the same day for a period of thirty days. The wiretap revealed that Defendant Derek Riley supplied drugs to the conspiracy. On July 21, 2016, investigators submitted a second application seeking authorization for a Title III wiretap of Riley's cell phone and to continue interception of Beavers's calls. The second application was also approved for a period of thirty days. On August 19, 2016, investigators submitted a third application requesting authorization to continue interception of Riley's cell phone for another thirty days. That application was also approved. Around the time the third application was approved, investigators also sought warrants to search a number of locations that investigators suspected were connected to the Sunnyside Gang's operations. The affidavits which accompanied the requests for search warrants were supported by frequent reference to information obtained via the Title II wiretaps. Beavers now argues that the Title III wiretaps (and all evidence later obtained as a result of their use) are inadmissible because the Government failed to establish that use of Title III wiretaps was necessary.

         II.

         The three motions identified above will be addressed in turn. For the reasons that follow, they will be denied.

         A.

         In his motion to suppress, Beavers argues that the wiretap was unnecessary. “The basic standards for a wiretap are similar to those for a search warrant, but there also must be strict compliance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.” United States v. Alfano, 838 F.2d 158, 161 (6th Cir. 1988). Title III provides a procedure whereby authorization for a wiretap can be sought. First, the law enforcement investigators must obtain permission from the United States Attorney General (or his designee) to seek approval of a wiretap. 18 U.S.C. § 2516(1). Then, a written application is submitted to “a judge of competent jurisdiction.” § 2518(1). The application must include the identity of the officer making the application, “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, . . . a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear unlikely to succeed if tried or to be too dangerous, ” a statement of the time period for the wiretap, and a statement of whether there have been previous applications for wiretaps in the investigation. Id. at § 2518(1)(a)-(f).

         The judge may authorize the wiretap only if the judge determines that there is probable cause to believe a crime enumerated in § 2516 is being committed, there is probable cause to believe that communications related to that offense will be obtained via the wiretap, and “normal investigative procedures have been tried and have failed to reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Id. at § 2518(3).

         Title III is thus “designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153 (1974). “Because the necessity requirement is a component of Title III, and because suppression is the appropriate remedy for a violation under Title III, where a warrant application does not meet the necessity requirement, the fruits of any evidence obtained through that warrant must be suppressed.” United States v. Rice, 478 F.3d 704, 710 (6th Cir. 2007). As the moving party, Beavers bears that burden “of production and persuasion.” United States v. Chaar, 137 F.3d 359, 363 (6th Cir. 1998).

         Title III wiretaps are not meant “‘to be routinely employed as the initial step in criminal investigation.'” United States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977) (quoting United States v. Giordano, 416 U.S. 505, 515 (1974)). But “the government is not required to prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted.” Rather, “[a]ll that is required is that the investigators give serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators' belief that such non-wiretap techniques have been or will likely be inadequate.” United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985). In other words, the Government is not required to show the impossibility of using other means to obtain information and, further, “‘the mere fact that some investigative techniques were successful in uncovering evidence of wrongdoing does not mandate that a court negate the need for wiretap surveillance.'” United States v. Wolcott, 483 F. App'x 980, 984 (6th Cir. 2012) (quoting United States v. Stewart, 306 F.3d 295, 305 (6th Cir. 2002)). Importantly, the Sixth Circuit has held that “‘wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation.'” Stewart, 306 F.3d at 305 (quoting Landmesser, 553 F.2d at 20).

         An affidavit accompanying a Title III wiretap application is inadequate if it is “a purely conclusory affidavit unrelated to the instant case and not showing any factual relations to the circumstances at hand.” Rice 478 F.3d at 710 (quoting Landmesser, 533 F.2d at 20). In reviewing the Title III wiretap, the Court should “judge the evidence in the affidavit based ‘on the totality of the circumstances ...


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