Criminal Action No. 99-140, SECTION "C".
September 6, 2000.
ORDER AND REASONS
The defendant, MICHAEL WILLIAMS, has filed a Motion to Suppress Evidence Obtained Through Wire and Electronic Surveillance and a Motion to Suppress Evidence resulting from a warrantless stop and search of his vehicle. Oral argument was heard on August 16, 2000, and an evidentiary hearing held on August 31, 2000. For the reasons given in open Court on August 16, 2000, and for the additional reasons set forth below, the Court PARTIALLY GRANTS and PARTIALLY DENIES the Motion to Suppress Evidence Obtained Through Wire and Electronic Surveillance and GRANTS the Motion to Suppress Evidence resulting from the warrantless stop and search of the vehicle.
I. The Wire and Electronic Surveillance
In his initial filing, the defendant sought to suppress all evidence resulting from three separate wiretaps. The first contested wiretap ("Wiretap #2") was approved on November 18, 1998; the second contested wiretap ("Wiretap #3") was approved on December 17, 1998, and the third contested wiretap ("Wiretap #4") was approved on January 15, 1999.
The initial wiretap ("Wiretap #1") was not challenged by the defendant.
The defendant challenged the legality of wiretap #2 on the basis that there was insufficient probable cause to support the order because the supporting affidavit contained false or misleading statements which, if excised from the affidavit, resulting in less than probable cause. If wiretap #2 lacked probable cause, then the subsequent wiretaps would be void for relying on information obtained during wiretap #2. The defendant had also requested a Franks hearing on wiretap #2.
Franks v. Delaware, 438 U.S. 154 (1978).
For the reasons stated at oral argument on August 16, 2000, the Court rejected the defendant's contention and found sufficient probable cause to support the issuance of wiretap #2 and denied the defendant's request for a Franks hearing.
The defendant also contended that the evidence obtained from wiretaps #2 through #4 should be suppressed because the supporting affidavits failed to satisfy the statutory "necessity" requirement of Title 18, United States Code, Section 2518(1)(c). That matter was argued and taken under submission on August 16, 2000.
Under Section 2518(1)(c) an application for a wiretap must 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."
In United States v. Hyde, 574 F.2d 856 (5th Cir. 1978), the Fifth Circuit elaborated on the requirements of this provision. Each case is to be decided upon its own facts, using flexible standards. "What the provision envisions is that the showing be tested in a practical and commonsense fashion . . ." Id., 574 F.2d at 867. While it is not necessary to show a comprehensive exhaustion of all possible techniques, the requirement is "to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Robertson, 504 F.2d 289 (5th Cir. 1974), cert. denied, 421 U.S. 913 (1975) (citation omitted.). Traditional investigative techniques would include standard visual or aural surveillance techniques by law enforcement officers, such as physical surveillance and pen registers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants.
The statutory mandate that law enforcement must demonstrate that a wiretap is "necessary" in light of all the alternative investigative techniques is due to the "highly intrusive nature of a wiretap." United States v. Guerra-Marez, 928 F.2d 665, 668 (5th Cir.), cert. denied, 502 U.S. 917 (1991). At the same time, electronic surveillance is probably the least expensive, as well as the "safest and most efficacious way for law enforcement officers to gain useful information about a suspected drug conspiracy." United States v. Castillo-Garcia, 117 F.3d 1179, 1194 (10th Cir.), cert. denied, 522 U.S. 962 (1997). Consequently, the temptation to law enforcement to resort to a wiretap is great, regardless of whether more cumbersome, less direct and riskier investigative techniques would suffice. This temptation is undoubtedly even greater when requesting an extension of an already pre-existing wiretap. This understandable temptation, combined with the highly intrusive nature of a wiretap, requires judges to be particularly vigilant in independently assessing whether such a wiretap is necessary. Each wiretap, including extensions of existing wiretaps, must be separately justified as "necessary" in light of the facts of the particular case.
Another issue is the degree of deference to be given the judge who signed the order authorizing the wiretap. The government argues that the authorizing judge must be given "substantial deference," citing United States v. Olsen, 610 F. Supp. 1450 (N.D. Ill. 1985), aff'd, 830 F.2d 195 (7th Cir. 1987), cert. denied, 484 U.S. 1010 (1988) and United States v. Alfano, 838 F.2d 158, 162 (6th Cir.), cert. denied, 488 U.S. 821 (1988). However, both of those cases dealt with the deference given to the probable cause finding, not the "necessity" requirement. Olson, supra. The Tenth Circuit has opined that the "necessity" requirement is a question of law that is reviewed de novo, with no deference owed to the authorizing judge's decision. Castillo-Garcia, supra. This latter standard appears more reasonable — given the facts in the affidavit, assuming them to be true, was there a sufficient basis to conclude that the wiretap was "necessary."
(a) Wiretap #2 — Wiretap #2 was authorized on the telephone in the home where the defendant resided. The Court concludes the government sufficiently established that this wiretap was "necessary." At this point in the investigation, the police had established through normal investigative techniques that the defendant was in fact a dealer of cocaine in the Bogalusa area. Through physical surveillance, undercover buys and pen registers, law enforcement had identified several of the defendant's lower-level street dealers and established that at least part of his drug stash was located behind a house that he owned next door to where he lived. The particular location was in a secluded area at the end of a dead-end street, making undetected physical surveillance difficult. Confidential informants had been used, as had several undercover agents, but none had been able to provide any detailed information regarding the inner workings of the defendant's operation, including upper echelon individuals such as sources. Search warrants, subpoenas or a grand jury investigation all ran the risk of premature disclosure of the investigation before all the culpable parties, particularly the sources, could be identified. For all of these reasons, which are set forth in the affidavit, the wiretap #2 was "necessary."
(b) Wiretap #3 — Wiretap #3 is more difficult to justify. The affidavit in support of this wiretap adopted all the information in the affidavits for wiretap #1 and #2. The problem with wiretap #3, however, is that significant additional information was gathered during wiretap #2, information more that sufficient to return to normal investigative techniques to explore. Most significantly, wiretap #2 disclosed numerous conversations between the defendant and a woman named Gamez, in Houston, who was apparently the defendant's main source of drugs. In their conversations, they discuss other individuals who are also apparent sources for drugs, including one who travels to Mexico to obtain them. At one point, the affidavit states that based on a particular conversation, "Gamez and WILLIAMS were discussing the availability of drugs from sources in the Houston area, and possibly from Mexico, and trying to set up, through Gamez, the delivery of drugs to take place on Saturday, November 28, 1998." Affidavit, Wiretap #3, p. 17. Yet the affidavit is silent as to any subsequent physical surveillance or other follow-up to this tip. In a December 5, 1998, series of calls with new individuals, the affiant concludes that a 3 kilogram cocaine deal was arranged, which took place within the next day or so. Again, the affidavit does not indicate any follow-up through normal investigative techniques.
Other normal investigative techniques were seemingly ignored. The defendant was found to use the Chanelview, Texas, residence of a girlfriend when he was in the Houston area. Yet the affidavit is silent as to any attempt to place that location under surveillance or use a pen register on the telephone. Likewise, no mention is made of a pen register on the telephone of Gamez or physical surveillance of her residence. She appears to be the "hub" of the defendant's Houston drug connections. Likewise, the affidavit is silent as to the possible use of any confidential informants or undercover agents to elicit more evidence regarding Gamez and the sources who work through her to the defendant.
Instead of explaining why normal investigative techniques couldn't be used to develop these new fruitful lines of inquiry, the "necessity" section of the affidavit in support of wiretap #3 is nearly a verbatim repeat of the affidavit in support of wiretap #2, with no mention made of information gathered during wiretap #2. For these reasons, the government failed to establish that a continuation of the wiretap was "necessary" and the evidence gathered therefrom should be suppressed.
(c) Wiretap #4 — Wiretap #4 is the least justified of all. By the time this extension was applied for, the defendant had been arrested and found in possession of $100,000 in cash, 3 kilos of cocaine and 25 pounds of marijuana. A search warrant had also been executed at the target phone location, his home. Despite these substantial new developments, the "necessity" section of the affidavit is largely a rehash of the same sections from the earlier affidavits. Some of the information was clearly stale. For example, the affidavit claims that several normal investigative techniques, such as subpoenas, search warrants and grand jury investigation, couldn't be used because that "would alert" others that an investigation was going on. At the same time, the affidavit acknowledged that "(n)ews of the search (of the defendant's residence) spread quickly through Bogalusa, which is a relatively small city. WILLIAMS and other SUBJECTS now know that he is the subject of a federal investigation." Affidavit, Wiretap #4, p. 25-26. The affidavit is absolutely silent regarding any attempt to question the various other individuals who had already been identified as implicated in the investigation. With the purported kingpin of the local drug conspiracy arrested, it would appear an opportune time to interrogate his associates who might well be more than ready to cooperate to minimize their own exposure. As with the affidavit in support of wiretap #3, the affidavit in support of wiretap #4 fails to establish that the continuation of the wiretap was "necessary" and therefore the evidence gathered therefrom should be suppressed.
II. Legality of the Defendant's Arrest and Search of his Truck
Louisiana State Trooper Mike Hebert arrested the defendant on January 10, 1999. Prior to stopping the defendant's pick-up truck, Trooper Hebert had received information from Sgt. Tim Lafleur that a truck matching the defendant's would be traveling on 1-10 and would be "possibly" carrying narcotics. Sgt. Lafleur's information came from a BOLO ("be on the lookout") issued by Louisiana State Trooper Murphy Paul who was a narcotics investigator and had been involved for some months in an investigation of the defendant.
Paul testified at the hearing about suspicious information gained regarding the defendant, which came from sources independent of Wiretap #3 — i.e. information that the defendant regularly traveled to Texas to obtain drugs; information that drug dealing increased in Bogalusa after the defendant returned from these trips. In addition, the Court takes note of the defendant's other drug related activity set forth in the affidavits for the initial and second wiretap which the Court has found to be valid. Nevertheless, Trooper Paul testified that it was based on an intercepted Wiretap #3 call of January 9, 1999, in which he learned that the defendant and Brittany Roberts were headed to Houston that following day, that he notified law enforcement in Texas to set up physical surveillance. Based on evidence developed during that physical surveillance, Trooper Paul concluded that the defendant had in fact obtained drugs from his source and so he sent out the BOLO over the police radio system. It was the BOLO information that Trooper Hebert received from Sgt. Lafleur. Quite clearly, therefore, it was the information gained in Wiretap #3 that led to the physical surveillance which in turn triggered the BOLO.
While Trooper Paul testified they had had "spot" surveillance on the defendant in the past, there was no indication that the defendant would have been watched on this particular occasion, but for the information gained from Wiretap #3.
The government does not argue that the BOLO would have been issued independently of the information gleaned from the wiretap. As already noted, the physical surveillance of the defendant in Houston was a direct result of information gained from the wiretap.
While the Court concludes that the BOLO information must be suppressed, the Court also concludes that the arrest of the defendant and the search of his vehicle was illegal, regardless of whether the BOLO information is included or withheld.
The Court will not decide at this juncture what all the consequences of suppressing Wiretap #3 will be in terms of admissible evidence. It only decides here the impact on the arrest and search of the defendant and his truck.
The Court heard the testimony of Trooper Hebert and found his testimony to be credible. According to Trooper Hebert, he initially pursued the defendant's truck because it was tailgating an 18-wheeler at a relatively high rate of speed. While he realized before he actually stopped the truck, that this was the vehicle alluded to by Sgt. Lafleur, he had justification for the stop because of the traffic violation, regardless of any ulterior motive that may have flowed from the information he had received. Whren v. United States, 517 U.S. 806 (1996).
Once stopped, Trooper Hebert described the defendant as "very nervous," more so than what would be expected in a "normal" traffic stop. The defendant nonetheless provided Trooper Hebert with a valid and accurate driver's license and car registration papers. When asked his criminal history, the defendant acknowledged an arrest for aggravated assault but apparently denied any narcotics arrests. Trooper Hebert's criminal history check disclosed a narcotics arrest. Trooper Hebert asked the defendant directly if he had narcotics in the truck, to which the defendant replied that he just wanted to get home. Trooper Hebert asked for permission to search the car, which the defendant refused.
At that point, in this Court's opinion, Trooper Hebert did not have enough information to justify further detention and he should have allowed the defendant to proceed. Instead, he radioed for a narcotics canine unit which arrived some 40 minutes later. The dog "alerted" to the truck, which then provided probable cause for the subsequent search and arrest.
The recent Fifth Circuit decision of United States v. Dortch, 199 F.3d 193, (5th Cir. 1999), opinion corrected on denial of reh'g, 203 F.3d 883 (5th Cir. 2000), is helpful. In that case, highway patrol officers made a routine traffic stop on 1-10. The subsequent questioning of the occupants disclosed the following: (a) the car was rented to a third person and Dortch, who was driving, was not an authorized driver; (b) Dortch and the car's passenger gave inconsistent answers regarding Dortch's relationship to the person renting the car; (c) Dortch claimed they had been in Houston the past two days, but the rental papers indicated the car was rented in Florida the day before; (d) Dortch had no luggage; (e) Dortch was "very nervous" and "couldn't stand still." While one officer ran on a computer check on the car to see if it was stolen, another asked permission to search the car. Dortch said they could search the trunk, but not the car. No search was conducted at that time. The officers instead called for a canine unit. The computer check apparently uncovered that Dortch had a criminal record but the details were not disclosed in the opinion. The car was not reported to be stolen. Once the canine unit arrived, some 20 minutes after the initial stop, it alerted to the car and eventually drugs were found.
Dortch's position on appeal was that the initial traffic stop was valid, as was some period of detention thereafter, but that the length of detention became unreasonable and exceeded that permitted by a Terry stop. The Fifth Circuit agreed. Once the computer check cleared the car as not being stolen, the police had no reason to continue the detention. They had "no reasonable or articulable suspicion that Dortch was trafficking in drugs." Id., 199 F.3d at 198. Dortch's nervousness, and the inconsistencies regarding their recent whereabouts and the relationship of Dortch to the person who rented the car only gave rise to a reasonable suspicion that the car was stolen, which turned out to be incorrect. Since Dortch was not permitted to drive away once the car was cleared, the extended detention became an unreasonable seizure which was not supported by probable cause. "Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal search or seizure must be suppressed . . ." Id. 199 F.3d at 200.
A similar outcome is required here. In this case, the evidence of suspicious activity was limited to the defendant being nervous and not initially acknowledging a prior narcotics arrest. His driver's license and car registration papers were proper. None of his answers were inconsistent, nor were his travel plans suspicious, and Trooper Hebert did not testify to anything unusual about the truck. The government argues that Trooper Hebert could consider the defendant's refusal to allow the search of his truck as a factor justifying further detention, but clearly the defendant's legitimate right to refuse consent cannot be so considered. Officers cannot use a traveler's "refusal to consent to the search of his bags as support for the requisite reasonable, articulable suspicion." United States v. White, 890 F.2d 1413, 1417 n. 4 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990); see also United States v. Torres, 65 F.3d 1241, 1246-1247 (4th Cir. 1995), on rehearing, 77 F.3d 91 (4th Cir. 1996) (and other cases cited therein).
All things considered, absent the BOLO information, Trooper Hebert did not have sufficient justification to extend the detention. Hence, the continued detention became an unreasonable seizure in violation of the Fourth Amendment and the subsequent search and arrest were invalid.
(B) Legality of the arrest/search with the BOLO information admitted
The additional information Trooper Hebert received from the BOLO was minimal. While the description of the pick-up truck was detailed and accurate, he was given no information whatsoever as to why the defendant was suspected of carrying narcotics. Indeed, all he was told was that the vehicle was "possibly" carrying narcotics, a level of chance which is arguably true of every vehicle on the highway. While Louisiana State Police Trooper Murphy Paul had a great deal of additional information and opined that he believed there was probable cause to stop the defendant's truck, Trooper Hebert had only the barebones "possibility" that the truck carried narcotics with no backup information to support that suspicion. The government argues that Trooper Paul's knowledge can be attributed to Trooper Hebert under "the collective knowledge doctrine" articulated inCharles v. Smith, 894 F.2d 718 (5th Cir.), cert. denied, 498 U.S. 957 (1990). That case is clearly distinguishable. In Charles, the arresting officer had a great deal of information — he knew that a woman had been raped just a short time earlier, he had a clothing description of the assailant and the direction in which the rapist had gone on foot; he also knew that another officer had spoken to the defendant, who was hitchhiking nearby, a short time before the rape. The arresting officer then spotted the defendant, again hitchhiking, less than mile from the scene of the rape, and wearing clothes that matched those of the assailant. The issue in Charles was whether it mattered where the arresting officer had gotten the information — whether it had come directly from the victim or from another officer who had spoken to the victim. The Fifth Circuit found that it did not matter. Even though the arresting officer had no "personal knowledge" of the facts establishing probable cause, he had in fact been provided enough information by those with such knowledge as to justify the arrest. It is clear that the "collective knowledge doctrine" as set forth by the Fifth Circuit requires that the collective knowledge be communicated to the arresting officer. It's not enough that it was simply in the head of someone else. Accord, United States v. Webster, 750 F.2d 307, 323 (5th Cir. 1984),cert. denied, 471 U.S. 1106 (1985).
In this case, the only information communicated to Trooper Hebert was a detailed description of the defendant's truck and the "possibility" that it might contain narcotics, with no factual support for that suspicion. The Court therefore rejects the government's contention that the "collective knowledge doctrine" provided Trooper Hebert with sufficient probable cause to arrest the defendant and search his vehicle.
The United States Supreme Court has held that a police department's "wanted flyer" calling for the detention of an individual suspected of committing a felony is sufficient, in and of itself, to justify a Terry stop, even if the officer does not have the backup information. United States v. Hensley, 469 U.S. 221 (1985). Even assuming the BOLO in this case constituted such a "wanted flyer," the detaining officer may only check identification, pose questions and hold the person briefly while attempting to obtain further information. Hensley, 469 U.S. at 231. In this case, the "further information" obtained — that the defendant was who his identification said he was, that his truck was properly registered to him, that there was nothing suspicious about the vehicle, or his travel itinerary, that he was "nervous" and that he was not totally forthcoming about his prior criminal history, which including a narcotics arrest — was insufficient to justify extending his detention to summon a canine unit. Even if the BOLO was sufficient "reasonable suspicion" to warrant the initial stop, the further inquiry did not ripen into probable cause. Hence the continued detention was a violation of the Fourth Amendment. Dortch, supra.
Trooper Paul initially vacillated on whether he himself considered the evidence sufficient to justify a stop, but eventually opined that there was probable cause to arrest.
IT IS ORDERED that the Motion to Suppress Evidence Obtained Through Wire and Electronic Surveillance filed by Michael Williams is PARTIALLY GRANTED and PARTIALLY DENIED and the Motion to Suppress Evidence resulting from the warrantless stop and search of the vehicle is GRANTED.