4:18-cr-00003
N.D. Ga.Jul 25, 2019Background
- Indictment (2018) charges Jeffrey Alan Bourassa with RICO, drug trafficking, kidnapping, maiming, and related offenses tied to the Ghostface Gangsters; Bourassa moved to suppress state-authorized Cobb County wiretap interceptions used in the federal prosecution.
- Cobb County prosecutors obtained a series of state court wiretap orders in 2008 (targeting multiple telephones, including TT#1 attributed to Bourassa) and renewed/extended them through August 28, 2008; interceptions ceased by late September 2008.
- Agent David Schweizer’s affidavits (first affidavit central) described informant information, physical surveillance, jail calls, counter-surveillance, and corroborating controlled buys implicating Bourassa and supporting probable cause and necessity for electronic surveillance.
- After interceptions ended, agents placed recorded disks in evidence; the disks were delivered to a Cobb Superior Court senior judge on October 7, 2008 (eight days after the statutory "immediate" sealing window) and the judge issued an order directing the clerk to maintain the originals in custody.
- Bourassa challenged: lack of probable cause; lack of necessity; failure to timely seal/make recordings available to the judge; impermissible publication of wiretap-related forms; and alleged improper territorial execution of the wiretaps.
- The magistrate judge held an evidentiary hearing, found the affidavits sufficient (or otherwise insulated by good-faith reliance), accepted the Government’s explanation for the short delay in delivering disks, and recommended denial of the suppression motion.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Bourassa) | Held |
|---|---|---|---|
| Probable cause for wiretaps | Affidavits (Schweizer) supplied detailed, corroborated facts tying TT#1 to drug trafficking; issuing judges had substantial basis. | Affidavits lacked adequate, reliable basis to establish probable cause. | Upheld probable cause; alternatively, evidence admissible under Leon good-faith exception. |
| Necessity (§2518(1)(c)) | Affidavit showed traditional techniques tried/insufficient and explained why wiretap was needed; necessity hurdle low. | Government failed to show traditional methods were inadequate; CS reliability insufficient. | Necessity satisfied; corroboration and practical explanation adequate. |
| Immediate presentation and sealing (§2518(8)(a)) | Disks were secured immediately, stored, and then placed in court/clerk custody per judge’s order; short (8-day) delay excused by workload and ambiguous order language. | Recordings were not made available/sealed "immediately" as required; failure merits suppression. | Delay of eight days found noncompliant but satisfactorily explained; disks sealed under judge’s directions—no suppression. |
| Publication / confidentiality of applications (§2518(8)(b)) | Any inadvertent posting of draft forms was not prejudicial and state-law nonpublication rules do not control admissibility in federal court. | Draft wiretap forms used as seminar handouts and briefly posted online, violating confidentiality and warranting suppression. | Disclosure did not show prejudice or bad faith; federal admissibility unaffected—no suppression. |
| Territorial execution / jurisdiction | Federal law governs admissibility; listening post was in Cobb County; even if state-law territorial defects existed, they do not require suppression and Leon covers good-faith. | Warrants issued in Cobb were executed in other counties, violating state territorial limits and invalidating intercepts. | Listening post was in Cobb; territorial claim fails. Even if defective under state law, suppression not required under federal standards and Leon still applies. |
Key Cases Cited
- United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule)
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances standard for probable cause)
- United States v. Ojeda Rios, 495 U.S. 257 (§2518(8)(a) requires satisfactory explanation for delay in sealing)
- United States v. Matthews, 431 F.3d 1296 (11th Cir.) ("immediately" means within one or two days for sealing/turnover)
- United States v. Nelson, 837 F.2d 1519 (11th Cir.) (territorial defects in state-issued intercepts do not necessarily mandate suppression)