8 F.4th 743
8th Cir.2021Background:
- Frencher and Merrett were part of a drug trafficking organization investigated by the FBI; the FBI used a confidential source (CS) and conducted controlled buys via a cellphone number tied to Frencher.
- The government obtained a court-authorized wiretap in December 2018; intercepted communications showed Frencher and his brother discussing an imminent, detailed burglary plan.
- Surveillance observed an SUV arrive at Frencher’s apartment; officers smelled marijuana during follow and traffic stop; searches of the SUV (Frencher) revealed two loaded handguns under seats; Frencher pleaded guilty to felon-in-possession and distributing cocaine and was sentenced to 110 months.
- Merrett was stopped in a separate lawful traffic stop in December 2018, officers smelled marijuana, searched the car and found marijuana and a loaded handgun and ammunition; Merrett pleaded guilty to felon-in-possession of ammunition and was sentenced to 105 months.
- Frencher moved to suppress (challenging wiretap, the stop, and the search); district court denied suppression. Both defendants appealed the substantive reasonableness of their within-Guidelines sentences; both appeals were denied. The court also declined to revisit United States v. Walker regarding a sentencing enhancement.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wiretap necessity (18 U.S.C. §2518(3)(c)) | Frencher: government failed to show conventional techniques were insufficient | Gov't: detailed affidavit showed prior techniques tried/limited and other techniques unlikely/safety concerns | Necessity finding not clearly erroneous; wiretap lawful |
| Wiretap facility probable cause (§2518(3)(d)) | Frencher: record didn’t show the tapped phone was listed to or commonly used by him | Gov't: CS used that number for controlled buys and identified it as Frencher’s | Probable cause existed to intercept that cellphone |
| Traffic stop reasonable suspicion | Frencher: officers lacked reasonable suspicion to stop the SUV | Gov't: intercepted burglary planning + SUV arrival supplying transport created reasonable suspicion they were en route to commit burglary | Stop supported by reasonable suspicion |
| Stop duration / escalation to search | Frencher: stop unlawfully prolonged, occupants handcuffed, interviews and warrantless search exceeded mission | Gov't: officers smelled marijuana, which provided probable cause and lawfully expanded the stop’s mission | Duration and escalation reasonable; search lawful under automobile exception |
| Probable cause for vehicle search / standing | Frencher: no probable cause for warrantless search (and standing challenge) | Gov't: strong marijuana odor provided probable cause; standing assumed but not decided | Search constitutional; marijuana odor furnished probable cause |
| Sentencing substantive reasonableness & Walker enhancement | Both: sentences greater than necessary; ask to revisit Walker on §2K2.1(b)(6)(B) enhancement and raise mitigating factors and disparities | Gov't: within‑Guidelines, district court considered §3553(a) factors and Walker remains controlling | Sentences affirmed as substantively reasonable; court declined to revisit Walker (Walker remains binding) |
Key Cases Cited
- United States v. Holly, 983 F.3d 361 (8th Cir. 2020) (standard of review for suppression: factual findings clearly erroneous, legal conclusions de novo)
- United States v. Donovan, 429 U.S. 413 (1977) (interpreting §2518(d) to require probable cause that target facilities are used in criminal activity)
- Rodriguez v. United States, 575 U.S. 348 (2015) (limits on prolonging a traffic stop beyond its mission)
- United States v. Mosley, 878 F.3d 246 (8th Cir. 2017) (reasonable suspicion standard for traffic stops under the totality of circumstances)
- United States v. Milliner, 765 F.3d 836 (8th Cir. 2014) (wiretap necessity upheld where other methods failed to reveal full scope of operation)
- United States v. Williams, 955 F.3d 734 (8th Cir. 2020) (odor of marijuana can supply probable cause for warrantless vehicle search)
- United States v. Hager, 710 F.3d 830 (8th Cir. 2013) (probable cause for targeting communications assessed under totality of circumstances)