*3 government sought permission to use the CLAY, Before MOORE Circuit wiretap appeal which is the of this BELL, Judges; Judge.* District Chief (“the (Wenther wiretap”). Rice J.A. at 575 Test, 818). The Rice warrant MOORE, opinion delivered the J. issued; result, as a BELL, court, CLAY, J., joined. in which ultimately leading collected evidence to the 716-18), (pp. Chief D.J. delivered separate dissenting defendants’ indictments. opinion.
* Smith, Bell, Evans, Jr., The Thomas Derrick Allen Honorable Robert Holmes Chief Judge Crenshaw, Crenshaw, United States District for Western Terry James Demetrius Michigan, sitting by designation. District of Middleton, Walker, Raymel Yolanda Damon Moore, Defendants-Appellees Reginald 1. The are Sheppard, L. Montez Marcellus Rice, Jimenez-Huerta, Shantez Jose-Alberto (“the defendants”). Gray Terrell Jimenez-Huerta, German Jose Marshall Affidavit with known violent routinely A. Wenther histories carry firearms and wear bullet-resistant wiretap application was based vests, poses which an unreasonable dan- Affidavit. J.A. at 632. The Wenther ger to personnel law enforcement at- Affidavit contained section enti- tempting physical to conduct surveil- tled, Investigative “Alternative Proce- (Wenther Aff. lance. dures.” J.A. at 649 procedures It summarized these as fol- (Wenther J.A. at 652 Aff. at
lows:
that,
The district court found
based on
All
of investigation
normal avenues
affidavit,
this
an issuing judge would mis-
carefully
have been
evaluated for use or
takenly
that agents
think
had conducted
attempted
have been
with minimal re-
physical surveillance on Rice
his
and/or
*4
sults. The traditional
tech-
associates, and that Wenther had informa-
niques utilized thus far have included
leading
tion
him to
believe
“Rice
(against
the use of confidential sources
his associates had used violence or
and/or
known members of the
B[ullitt]
Shawn
violence,
histories,
threats of
had violent
organization), obtaining toll
records
firearms,
bullet-proof
carried
and wore
phone
target
other
lines and for the
(Oct. 13,
vests.” J.A. at 375
2005 Order at
telephone,
physical
surveillance.
22).
fact,
testimony
later
of Wen-
considered,
closely
Also
but not deemed
at
suppression hearing
ther
revealed
likely to succeed for reasons set forth
agents
any physical
had not conducted
below, include the use of undercover
they
surveillance on Rice and that
had no
agents,
Jury,
use of a Federal Grand
specific information on whether Rice car-
warrants,
of
serving
search
interviews of
(Wenther
ried a firearm.
at
associates,
J.A.
subjects or
and the use of
Test,
302).
Further,
at
pulls.”
“trash
court found that “the bald statement
(Wenther
18-19).
J.A. at 649-50
Aff. at
‘[mjembers
organization
of this criminal
type
investigative pro-
Each
of alternative
routinely carry
...
firearms and wear bul-
forth
cedure is set
below.
suffi-
provide
let-resistant vests’ does
Physical
Surveillance
magistrate
cient information to the
about
The Wenther Affidavit averred that
physical
Rice to determine whether
sur-
[ ]
subjects
of
“[pJhysical surveillance of
dangerous
attempt-
veillance was too
to be
investigation
this
has been conducted and
(Oct. 13,
ed.” J.A. at 377
2005 Order
only
with
lim-
presently being
is
conducted
24).
Physical
success.
surveillance has
ited
by
identified locations and vehicles utilized
Source
Confidential
organization. Physical
of
members
this
Affidavit states that:
The Wenther
has also corroborated informa-
surveillance
It
from the information received
appears
provided by
tion
the CS.” J.A.
source], as
from the
[confidential
CS
(Wenther
goes
Aff. at
The affidavit
my
experience,
Regi-
own
well as
on to state:
the full
unlikely
nald
is
to discuss
R[ice]
conducting long-term physi-
The risk of
activities or
organization’s
extent of his
investigation
cal
in this
surveillance
in the
membership. The CS utilized
outlined,
previously
two-fold. As
this
of the Shawn
or-
investigation
B[ullitt]
organization utilizes violence and/or
directly
was unable to meet
ganization
to fur-
threat of violence as intimidation
Bfullitt],
with
in-
with others associated
trafficking activities.
drug
ther
their
cluding Reginald
organization
R[ice]....
criminal
Members
this
(Wenther
at 653
conversations.
J.A.
Aff.
...
has not been able
[The] CS
22). Therefore,
Re-
according
controlled
from
to the
purchase
substances
Wen-
closely
asso-
ginald
Affidavit,
The CS is
by
R[ice].
ther
the information obtained
and is there-
Reginald R[iee]
ciated with
the exis-
these methods did not establish
attempt
in a
position
fore not
conspiracy.
a criminal
Id.
tence of
controlled substances. No
purchase of
part
court found this
of the
The district
confidential source has been iden-
other
mainly
“general
focused on
lan-
affidavit
investigation
in this
that would be
tified
pen regis-
guage about the usefulness of
attempt
purchase
in a
position
(Oct. 13,
at 374
general.”
ters
Reginald
from
controlled substances
only
specif-
information
Order at
R[ice].
ic to Rice was that “within the limitations
has
has stated that
[The] CS
he/she
technology,
pen register
has
unfamiliar
ability
limited
to introduce
possibly
as useful as it
can be—
co-conspira-
individuals to
or his
R[ice]
other
linking Mr. Rice with
individuals
tors.
Id.
drug
with known
histories.”
19-20).
(Wenther Aff. at
J.A. at 650-51
that,
respect
The district court found
with
Techniques
4. Other
CS,
attempt
to use a
infor-
to the
Affidavit also discussed
*5
directly
to Rice in the
pertaining
mation
techniques which
investigative
three other
who
Affidavit was
the CS
attempted, and asserted that
were not
investigation
Bullitt
was
was used
These
techniques
these
would
work.
position
gathering
not in a
to assist with
grand jury investiga-
techniques were
Rice,
gov-
about
and that the
information
tion,
subject
use of search warrants and
had not
identified a CS that
ernment
interviews,
pulls.
and trash
J.A. at 654-55
position
would be in a
to do so. J.A. at 373
(Wenther
23-24).
Aff. at
20).
(Oct. 13,
However,
at
2005 Order
govern-
no
that the
indication
“[t]here
expla-
The district court found that the
any steps
develop
ment
took
such
attempting
for not
nations offered
these
source,
any
nor is there
information about
techniques all
from the same
“suffer[]
‘organization’ specifically that
Rice’s
[]
problem; [they]
typical problems
]
discussf
that to
so in
case
suggests
do
this
would
cases,
techniques
typical drug
with the
”
unlikely
dangerous....
to succeed or
any
but
no reference to
facts about
make[ ]
omitted).
(footnote
Id.
The district court
specifically
Rice
which would make the
[ ]
generic
inadequate
found
information
techniques
dangerous.”
ineffective or
J.A.
regarding
drug
included
how
traffickers
(Oct.
26).
13,
at 379
2005 Order at
Fur-
normally operate. Id.
ther,
determinations,
making credibility
the district court found “insufficient credi-
Registers
Telephone
Pen
and
Toll
Analysis
ble evidence” that other
had
at
methods
been considered. J.A.
443
that, al-
The Wenther Affidavit stated
(Jan.
4).
17, 2006
at
Order
though pen register
trap
and a
and trace
Rice, this
of limited
had been used on
B. The District Court’s Decision to
Although
pattern
usefulness.
it indicated a
Suppress
telephone
by
of
use
Rice with others sus-
The district court found that
the mis-
trade,
pected
illegal-drug
pen
in the
leading
pertaining
physical
statement
register
identify
did not
the individuals
recklessly.
calls,
surveillance was made
J.A. at
actually making
receiving
(Jan.
3).
17,
442
2006 Order at
The dis-
and did not reveal
the contents
(1984), and should have found
made L.Ed.2d 677
the statements
found that
trict court
infirmities,
that,
despite the warrant’s
the dan-
Affidavit about
in the Wenther
suppression.
evidence was
“equally
using surveillance were
gers of
that,
The district court determined
assum-
nothing
in that
there was
unavailing”
in Ti-
(or
exception applied
ing
to Rice
specific
that was
the affidavit
cases,
faith
good
III
there was no
tle
organization)
operating
his
even to those
acted with
present here because the affiant
the assertion
credence to
that would lend
disregard for the truth.
J.A. at
reckless
bullet-proof
used firearms
that he
5).
(Jan.
Thus,
17,
2006 Order at
(Oct. 13,
2005 Order
vests.
J.A.
mo-
government’s
court denied the
misleading
information
light
interlocu-
tion for reconsideration. This
present-
that was
contained
the affidavit
follows;
jurisdiction
have
tory appeal
the district court
issuing judge,
to the
ed
to 18
pursuant
U.S.C.
the same
it could not afford
found
issuing
ordinarily due to an
deference
II. THE NECESSITY
Id.
judge’s determination.
REQUIREMENT
court found that the Wen-
The district
A.
of Review
Standard
jeither
“indicate[ ][
did not
ther Affidavit
investiga-
of other
consideration’
‘serious
evaluating a decision to
When
the reasons for
techniques
[]
tive
[]or
wiretap,
we review
suppress
inadequacy
in the
belief
Wenther’s
findings
court’s
of fact for clear error.
against
used
Rice.
295,
[]
other measures as
United States v.
(footnote omitted) (Oct. 13,
denied,
at 369
Cir.2002),
cert.
537 U.S.
to the district
According
(2003),
2005 Order
ever (Oct. 13, made an affida at 379 2005 Order to whether statement disregard reckless for the vit is made with Further, the district court found a fact See United States question. truth is in a using wiretap government (6th Cir.1990) Bennett, 931, 905 F.2d 934 v. step the first its forbidden manner —as to (applying the clear error standard such investigation against Rice. Because question). Affi- court found that the Wenther requirements satisfy to davit failed Generally, reviewing the valid “[i]n III, it the defendants’ granted order, under Title surveillance ity of an electronic of the unlaw- to the fruits suppress motion determi great deference will accord (Oct. 13, 2005 wiretap. ful J.A. at 380 judge.” United issuing nations of the (6th Corrado, 528, Order at 539 v. 227 F.3d States omitted). (internal Cir.2000) quotation Denial of the The Court’s C. District However, logically this deference does Motion for Reconsideration given is issuing judge apply where wiretap ap in the misleading information government The then moved affidavits. plication supporting or suppression court to its order. reconsider alia, inter government argued, Title III Applicable B. Law Under applied have the district court should requires applica III that an Title exception under United States “ full 3405, contain ‘a Leon, 897, wiretap order 82 tion for 468 U.S. 104 S.Ct. v. 710 inadequate compli would ... as to whether or hand complete statement ance with the statute.” v. United States investigative procedures
not other have (6th Landmesser, 17, Cir.), F.2d 20 553 why they tried and failed or reason denied, 855, 174, 54 cert. 434 U.S. 98 S.Ct. unlikely to succeed if ably appear to be ” (1977). L.Ed.2d 126 dangerous.’ or to be too tried (quoting at 304 18 U.S.C. 306 F.3d Supreme explained Court 2518(l)(c)). § to as the This is referred remedy for violations of Title III as fol “necessity requirement.” purpose Id. The lows: necessity “to requirement ensure provides ] U.S.C. 2515 that no [18 wiretap
that a
‘is not resorted to
situa
part
any
of the contents of
wire or oral
tions where traditional
tech
communication, and no evidence derived
niques
expose
therefrom,
would suffice to
the crime.’
may be received at certain
trials,
Alfano,
proceedings, including
v.
163
“if
dis-
United States
838
denied,
closure of that information would be
Cir.), cert.
488 U.S.
chapter.”
violation of this
What disclo-
(1988)
(quoting
102 L.Ed.2d
S.Ct.
forbidden,
are
sures
and are
Kahn,
143, 153n.
United States v.
415 U.S.
suppress,
governed
motions to
is in turn
(1974)).
L.Ed.2d 225
S.Ct.
2518(10)(a),
by
provides
which
for
[§ ]
Further,
necessity requirement pro
suppression
following
of evidence on the
against
impermissible
tects
use of a
grounds:
step
as the “initial
criminal
[a]
“(i)
unlawfully
the communication was
Giordano,
investigation.” United
States
intercepted;”
505, 515,
94 S.Ct.
“(ii)
ap-
the order of authorization or
(1974).
L.Ed.2d 341
proval under which it was inter-
face;”
cepted is insufficient on its
Although Title III sets forth elabo
or
procedures
obtaining permission
rate
“(iii) the
interception was not made
a wiretap,
use
“the
is not
conformity with
au-
the order of
required
prove
every
other conceiv
approval.”
thorization or
able method has been tried and
or
failed
Giordano,
524-25,
416 U.S. at
that all
investigation
avenues of
have been
(footnote omitted).
Because the ne-
Alfano,
exhausted.”
*7
cessity requirement
is a
of Ti-
component
Rather,
required
that is
“[a]ll
is that the
III,
suppression
tle
and because
is the
investigators give serious
consideration
appropriate remedy for a violation under
non-wiretap techniques prior
apply
the
III,
application
Title
where a warrant
does
ing
wiretap authority
and that
necessity requirement,
not meet the
court be informed of the reasons for the
any
fruits of
through
evidence obtained
investigators’
non-wiretap
belief
such
suppressed.
that warrant must be
techniques
likely
have been or will
be inad
(internal
C.
District Court Did Not Commit
equate.”
quotation
Id. at 163-64
Determining
Clear Error
In
omitted).
That
prior experi
marks
“While
Physical
Statements About
Surveil-
investigative
ence of
officers is indeed rele
lance
the Wenther Affidavit Were
in determining
vant
whether other investi
Misleading and
Made Reck-
Were
gative procedures
unlikely
are
to succeed
lessly.
tried,
if
purely conclusory
affidavit unre
lated to the instant
showing
case and not
Background
As outlined in the
sec
any
supra,
closely
factual relations to the circumstances
tion
the district court
exam-
record,
reviewing the
we find that
Affidavit
After
part
each
of the Wenther
ined
testimony at the
compared it to the
the district court was not
error
con-
and
discovering
hearing. After
suppression
cluding that what was left of the Wenther
actually
had
physical
that no
surveillance
“a full
com-
provide
Affidavit did not
Rice,
court
been conducted
or not other
plete statement as whether
Affidavit would
the Wenther
found
procedures have been tried
issuing judge
an
to be-
erroneously lead
why they reasonably appear
and failed or
con-
surveillance had been
lieve that such
if
unlikely
to be
to succeed
tried or to be
(Oct. 13, 2005 Order at
J.A. at 376
ducted.
dangerous.”
too
23).
that the
court concluded
The district
Thus,
deci-
we affirm the district court’s
made
about surveillance was
statement
wiretap.
the fruits of the
suppress
sion to
(Jan. 17,
recklessly.
2006 Or-
reviewing the
After
Wenther
der
THE
III.
GOOD-FAITH EXCEPTION
Affidavit,
district
say
cannot
that the
OF LEON
determining
clear error
court committed
A. The Leon Decision
Affidavit was
part
that this
of the Wenther
denying
govern
In its order
issuing judge.
to the
misleading
reconsideration,
ment’s motion for
the dis
Did Not Err In
D. The District Court
rejected
government’s argu
trict court
Determining
Af-
That
Wenther
ment that the warrant was valid under the
fidavit,
Fac-
Reformed for its
When
warrant
re
good-faith exception to the
Deficiencies, Failed to Meet
tual
previ
we have not
quirement. Because
Necessity Requirement.
ously
made clear whether the
improperly
exception applies to warrants
that it could
determining
After
not
III,
the district court
information,
issued under Title
misleading
consider the
government’s good-faith
ar
left of
addressed
judge examined what was
Affidavit to determine wheth
“out of an abundance of caution.”
gument
the Wenther
(Jan. 17,
fulfilled.
necessity requirement
2006 Order at We
er
J.A. at
in the
Affidavit
remained
ar
government’s good-faith
What
hold that the
(1)
following:
that the CS used
was the
merit,
good-
because the
gument is without
investigation
of Bullitt was
able
exception
requirement
faith
to the warrant
therefore,
and,
make contact with Rice
pur
applicable
is not
to warrants obtained
(2)
use;
pen
would
to Title III.
suant
pos
registers
telephone
tolls revealed
Leon,
United States
people
to other
with his
sible connections
created
Supreme
Court
Beyond
drug-related
tories of
arrests.
rule
to the usual
good-faith exception
that,
that the Wen-
district court found
evidence ob-
should exclude
that courts
generalized and
Affidavit contained
ther
Amend-
of the Fourth
tained
violation
why
information about
uncorroborated
*8
Leon as fol-
have summarized
ment. We
jury subpoenas, witness interview
grand
lows:
warrants,
pulls
and trash
ing and search
modified the
v. Leon
States
United
(Jan. 17,
at 443
would not be useful. J.A.
from
exclusionary rule so as not
bar
4) (“There was insufficient
2006 Order at
in reason-
evidence “seized
admission
support or even con
credible evidence to
able,
on a search
good-faith reliance
the hear
[AJfter
firm those assertions....
held to be
subsequently
that is
warrant
[cjourt
position
was in the best
ing,
897, 905, 104 S.Ct.
468 U.S.
defective.”
credibility issues concern
determine these
reliance on
an officer’s
techniques.”).
3405. Where
ing unused
reasonable,
objectively
906-07,
warrant
plies.
See id. at
vide the
with a substantial
ing
good-faith exception
into
III
Title
determining
basis for
the existence of
First,
cause,
language
warrants.
Title III
probable
or where the affidavit
lacking
probable
was so
indicia of
provides that exclusion is the exclusive
cause as to render official belief in its
remedy
illegally
for an
obtained warrant.
(4)
entirely unreasonable;
existence
governing probable
contrast to the law
where the officer’s reliance on the war-
Amendment,
cause under the Fourth
rant
in good
objectively
was not
faith or
governing
law
electronic surveillance via
reasonable, such as where the warrant is wiretap is
in comprehensive
codified a
stat-
facially
deficient. See id. at
104 utory scheme providing explicit require-
S.Ct. 3405.
ments, procedures,
protections.
United
Hython,
States v.
§§
Giordano,
U.S.C.
seq.;
2510 et
see also
(6th Cir.2006)
omitted).
(parallel citations
514-15,
U.S.
(setting
S.Ct. 1820
rule announced
Leon was borne
statutory
forth the
framework for obtain-
lengthy
out of a
discussion on the social
III).
ing wiretap
warrant under Title
costs and
exclusionary
benefits of the
rule.
provides
Section 2515 of Title III
Leon,
906-13,
See
104 S.Ct.
“[wjhenever any wire ... communication
Supreme
3405. The
explained
Court
has
intercepted,
part
no
of the con-
Fourth
pro-
“[t]he
Amendment contains no
tents of such communication and no evi-
expressly precluding
vision
the use of evi-
dence
may
derived therefrom
be received
dence obtained in violation of its com-
in any
evidence
trial....
18 U.S.C.
mands,” and that
the exclusionary rule
“
2518(10)(a)
§
2515. See also 18 U.S.C.
developed
judicially
‘a
remedy
created
(providing aggrieved persons with the
designed
safeguard
Fourth Amendment
power to move for suppression of evidence
rights....’”
Id. at
713 persuade or us that elude otherwise which discussing Second, Report the Senate In otherwise. United we should conclude press “to the no desire III indicates Title (6th Baranek, 1068, 1072 F.2d v. 903 beyond 'pres- States role suppression the scope of Cir.1990), court a of this decided that panel No. S.Rep. law.” and seizure ent search pre the case peculiar the facts of (1968), 1968 under reprinted in 90-1097 sented, apply appropriate it was the sup- (emphasis 2185 U.S.C.C.A.N. a 1968; suppression doctrine to case plain-view Leon Title III was plied). passed III. in Bar- brought under Title The issue obviously Congress in 1984. decided narrowly framed as “whether a anek was Fourth Amendment know that could not telephone on a that conversation overheard would embrace law and seizure search of a Title III should is the years after exception sixteen good-faith when, at the time of the III, suppressed language and the of Title passage the telephone the was inadver interception, indicates a desire Report from the Senate Id. tently off the hook use.” and search and seizure incorporate only the that it intend panel 1069. The clear time of the made at the place that was law narrow, quite stating holding ed the to be Title III. passage the involved are that “since circumstances mentioned, Supreme the Finally, as fortuitous, impact or wholly will not product of is the Leon decision Court’s Id. at 1070. future conduct....” shape costs and balancing of the social judicial applying that it was explained The panel ju- exclusionary rule. The the benefits of it in exception because plain-view exclusionary created dicial branch “clearly not an unusual scenario volved thus, of that rule rule, modification at 1072. by Id. contemplated [Title III].” In judiciary. of the province to the falls Further, stated “that where the decision III, has contrast, Congress under Title than protection III provides greater Title bene- social costs and already balanced the a defendant is enti fourth amendment suppression has provided fits and ” Id. protection.... tled to enhanced of the stat- remedy violations sole a narrow hold- decision is The Baranek judicial modifi- rationale ute. The behind contrast, In is, thus, to its facts. ing confined exclusionary rule cation fact garden-variety presents case at bar obtained to warrants respect with absent a wire- desires scenario: statutory scheme. See Title Ill’s under wiretap application, obtains tap, submits 800 Spadaccino, States v. United wiretap, use collects (2d Cir.1986) permission to this same ratio- (using wiretap which it from in information conclusion reaching the same nale and against evidence to use as then seeks Leon ex- analyzing whether at bar in the case The scenario defendant. wiretapping stat- applied to a ception state III, Title contemplated by type ute). very is the changes our anal- nothing Baranek does exception Leon holding that the ysis today.2 improperly issued to warrants apply Moore, In United States III, that there are no we note under Title denied, (8th Cir.1994), cert. U.S. us to con- 376 require cases which either prior curiam), 19, 1998) (per cert. Nov. Cir. on dicta government’s also relies brief denied, S.Ct. unpublished case that the footnote of an (1999). statement This L.Ed.2d 376 good faith passing that "observe[d] good- possibility speculates as to ob may apply to evidence exception also cases. exception applies to Title III To faith wiretap.” States v. Hollo by United tained speculation to rest. 98-5175, day laywe at *3 n. way, WL No. *10 714
1121,
1985,
L.Ed.2d
Ill
incorporate only
115 S.Ct.
131
872
Fourth
what
(1995),
that
Eighth
the
Circuit held
the
jurisprudence
Amendment
existed at the
good-faith exception applies
Leon
(which
passage
time of the Act’s
was be-
2518(10)(a)
§
Title III. The court
of
found
Leon)
fore
nothing
more.
First,
applied
that Leon
for two reasons.
Malekzadeh,
In United
States
2518(10)(a)
§
it
determined
“is word-
1492,
(11th Cir.1988),
cert. de
suppression
ed to
the
decision
make
dis- nied,
489 U.S.
(‘If
cretionary
granted’)....
the motion is
(1989),
L.Ed.2d 209
Second,
“legisla-
Id.
it determined that the
(1989),
S.Ct.
making that decision. Section sets Because we conclude that the Leon ex- forth application what a valid a wiretap ception to the requirement warrant does warrant contain. must Section 2515 re- apply improperly warrants issued quires that evidence obtained in violation III, under Title affirm provisions of the Act must be sup- pressed. denying court’s order whole, government’s When read as a it is clear suppression motion to decision must reconsider. made within the strict confines of Title III IV. CONCLUSION
itself, and is far “discretionary” from Eighth sense which the implies. Circuit Because the district court did not err in suppressing the fruits of the wiretap, and Second, already as we have explained, because there no good-faith exception the legislative history clearly does not ex- for warrants improperly issued press an under Title import intent to Fourth Amend- III, we AFFIRM principles ment the district court’s or- arising such as those from III; fact, ders suppressing Leon into Title it does the fruits very opposite. If anything, meaning denying government’s motion for Report Senate is that it intends Title reconsideration. 2006). However, The Fourth Circuit also wrote a recent un exclusively Brewer relied on published ap Moore, decision which Malekzadeh, contained dicta reaching and Baranek in proving of the use of the Leon above, this conclusion. As we have set forth exception in Title III cases. United States v. misplaced. such reliance is Brewer, Fed.Appx. Cir.
715 found that this state- district dissenting. The court BELL, Judge, District Chief judge cause reasonable ment “would is that there majority with the I concur the that reading the affidavit believe ob- warrants exception for no Mr. on performed had surveillance agents III of the Omni- to Title pursuant tained at 376-77. The to no avail.” J.A. Rice Act, Streets and Safe Control bus Crime true that this was not However, court noted I district §§ 2510 et seq. 18 U.S.C. acknowledged at majority’s Agent from the Wenther dissent because respectfully did not 20, 2005, court that the district that no June hearing conclusion the on the wire- of the fruits suppressing err in on Mr. had been conducted surveillance tap. the On Rice. J.A. at 377. reconsideration that that it assumed court stated district Judge John G. District Court
Chief deliberately not at- did “Agent at issue Wenther II, the issued Heyburn, issuing judge; that the how- tempt determined the mislead in this matter necessity re of the ever, importance had satisfied the of the light 2518(l)(c) by § es of 18 U.S.C. quirement was question his mistake statement investigative pro tablishing that “normal 442. J.A. at reckless.” failed, tried have cedures have been sufficiency previously issued of The unlikely to suc appear to be reasonably analyzed is wiretap warrant and executed to em tried, dangerous too if or are ceed in Franks v. outlined procedure under the “Generally, a district 696. J.A. at ploy.” 2674, Delaware, 57 S.Ct. of requirements finding that court’s (1978). Stewart, 306 F.3d L.Ed.2d 667 2518(l)(e) are afforded met have been Franks, if defendant Under 304-06. States United discretion.’ ‘considerable a false affiant included that (6th shows Cir. 306 F.3d v. know- in the warrant affidavit statement 2002) Landmes v. States (quoting United Cir.1977)). intentionally, or with reckless (6th ingly See ser, 553 F.2d Corvado, truth, material the false disregard for also States United (“In Cir.2000) reviewing the must be aside and affidavit must be set order, surveillance an electronic of the validity sufficiency of on the basis reviewed to the de ‘great 155-56, deference’ we will accord 438 U.S. at remaining content. issuing judge.”). of terminations 2674. S.Ct. court did However, I believe wiretap application, In its June judge the deference issuing give that it the court government advised reviewing upon based he was due subjects target nineteen investigating “the Wenther
judge’s determination con- conspiracy to distribute concerning a of misleading characterization Affidavit’s at 603. J.A. trolled substances. requires physical of surveillance its use physi- did state affidavit Wenther necessity de analyze the that the Court had been conducted cal surveillance anew.” termination sub- those nineteen every one of each and following court found The district physical it state that did jects. Neither sur- “Physical misleading: statement conduct- specifically had been surveillance investiga- subjects this veillance of statement Accordingly, Rice. ed on presently is conducted and tion has been subjects surveillance “[physical success. only limited with being conducted conducted investigation has of this loca- has identified surveillance Physical with being conducted presently and is by members utilized and vehicles tions ¶ success,” not false. limited Aff. organization.” this There even evidence in the erately is not record false or were made with reckless support finding the statement truth, disregard for the the district court’s twenty-six was misleading. page affi- give decision not to deference to the issu- *12 davit contains numerous to references ing judge’s necessity determination was pertaining unspecified facts to members of clearly erroneous. drug organization distribution and oth- Not did this district court in err er pertaining specifical- references to facts failing give to to issuing deference ly to Every Rice. time the affidavit dis- judge’s necessity determination, it also specific cusses facts to Rice it names Rice in erred the manner in which it conducted places capital his name letters. The its own review. The district court conclud- regarding physical statements surveillance ed that the Wenther affidavit failed to do not nothing mention Rice. There is satisfy necessity requirements because this record to indicate that the issuing it specificity lacked the required to enable judge was misled about the nature of the issuing judge perform his review. surveillance conducted on Rice. The district court further concluded that Furthermore, court did not the affidavit demonstrated gov- find that deliberately Wenther intended to ernment used the step the first issuing Instead, mislead the judge. in its investigation of Rice. J.A. at 380. district court found that the statements These conclusions are product of an concerning physical surveillance were ob unduly application restrictive of the law
jectively misleading and that Wenther’s
clearly
and several
erroneous factual de-
mistake
“Allegations
was reckless.
of neg
terminations.
ligence or innocent mistake are insuffi
requires
Federal law
that wiretap ap-
cient” to show
falsity
the deliberate
or
plication include “a full and complete state-
disregard
reckless
justify
that will
im
ment as to whether or not
investiga-
other
Franks,
peaching the affidavit.
procedures
tive
have been tried and failed
2674.
S.Ct.
the warrant
“[I]f
why they
or
reasonably appear to be un-
affiant had no reason to believe the infor
likely to succeed if tried or to be too
false,
mation was
there
nowas
violation of
2518(l)(c).
dangerous.”
18 U.S.C.
the Fourth Amendment.” Id at 172 n.
statutory
“This
‘necessity requirement’
t- T-l t-
m
an informant
placing
the difficulties
the inves-
reasons
of-the
informed
be
maintaining continual surveillance
non-wiretap
or
that such
tigators’ belief
it
likely
far-flung operations”
will
involved
or
those
have been
techniques
showing both
obligation of
its
had satisfied
inadequate.
of other meas-
the “serious consideration”
States
(quoting United
163-64
Id. at
the belief
“reasons” for
and the
Cir.1985)). ures
Lambert,
F.2d at
We
inadequacy. 838
their
tested
is to be
necessity requirement
district court’s
reversed the
accordingly
fashion.”
common sense
practical
“in a
Id.
order.
Landmesser,
(quoting suppression
F.2d at 19-20
S.Rep.
U.S.C.C.A.N., p.
1097, 1968
No.
to credit evi-
refusal
court’s
The district
*13
drug
to
that
in the affidavit
related
dence
acknowledged that
court
district
Al-
also error.
general was
conspiracies assertion
an explicit
affidavit contained
the
conclusory affidavit” un-
“purely
though
with
associated
Bullitt were
Rice
that
and
case would be inade-
specific
the
related to
that this
and
drug
trade
the
each other
statute,
the
“the
with
comply
to
quate
con-
by the
corroborated
was
association
...
affidavit
rested
fact
the
mere
that
Bullitt record-
Rice and
between
versation
equally
that would
part on statements
at
J.A.
wiretap order.
May
the
ed under
type of
any
almost
[similar
to
applicable
analy-
Nevertheless,
necessity
in its
362.
the affidavit insuffi-
not render
does
case]
to consider
court refused
the district
sis
there
also “infor-
cient,”
is
provided
af-
in the Wenther
information
substantial
at
of the
particular facts
case
mation about
not
was
the information
fidavit because
that wiretaps
indicate
hand which would
This ex-
toward Rice.1
specifically
directed
the
‘routinely employed as
being
are not
not con-
is
evidentiary requirement
acting
(cid:127) investigation.’
in criminal
step
initial
to test
obligation
court’s
with the
sistent
(citations
Landmesser,
F.2d at
a practical
“in
necessity requirement
the
omitted).
Landmesser,
sense fashion.”
and common
the Wen-
finding
its
support
In
of
matter,
practical
As a
F.2d
19-20.
necessity require-
the
failed
ther affidavit
may
in the organization
about others
facts
the
ments,
court noted
establishing the
to
relevant
very well be
in its
“inherently limited
register was
pen
in the
wiretap as to others
of
necessity
had
source
the confidential
usefulness” and
may be some
and
organization,
with,
peo-
introduce
to meet
not been able
who is
on someone
evidence available
purchases
to,
controlled
conduct
or
ple
organization.
in the
higher up
Alfano
inves-
fact
alternative
from Rice. The
had
government
the
held that where
attempted
had been
techniques
tigative
with re-
it had taken
steps
the
“indicated
precisely
is
successful
had not been
targets, and
investigative
gard to other
used be-
been
sources had
that confidential
held that
example,
district court
1. For
been recruit-
referred to had
it did
because
cause
source
insufficient
affidavit was
rather
investigative measures
on Bullitt
why
provide
other
information
indicate
ed to
against Mr. Rice."
"as used
court
inadequate
were
J.A. at 378. The
on
than
Rice.
refused
district court
J.A. at 369.
the discus-
because
the affidavit
also criticized
other
of
physical surveillance
consider
techniques
that had
sion
evidence
organization and
members of
problems with
typical
on
used
focused
routinely
firearms
carried
that other members
cases, made
typical drug
but
techniques in
having any
as
vests
wore bullet-resistant
Mr. Rice
any facts about
reference
"no
wiretap
necessity
relevance to
techniques
would make
specifically which
According to the district
J.A.
Rice.
dangerous.”
at 379.
ineffective or
court,
not have indicated
should
the affidavit
However,
that the court
telephone.
contrary
kind of evidence
should Rice’s
accept
support
required showing
for the
finding,
the district court’s
intercepted
techniques
that traditional
will not suffice
call was not the “first hint” of Rice’s in-
Stewart,
expose
the crime. See
government
volvement. The
had been
gathering information about Rice since at
29, 2003,
least October
eight
some
months
affidavit,
As
in the
explained
wiretap application
before the
for Rice’s
drug conspiracies are difficult to investi
telephone, when the Confidential Source
gate
secrecy.
of their
because
The most
provided information that Rice and Bullitt
definitive evidence the
were associated with each other
in-
develop
through
able to
on Rice came
volved in the trafficking multi-kilogram
telephone.
of Bullitt’s
We have
¶ 7(d).
quantities of cocaine. Wenther Aff.
previously recognized that “wiretapping is
Rice
target subject
was also named as a
particularly appropriate when the tele
May
2004 application for the wire-
phone
routinely
relied on to conduct the
tap
telephone.
of Bullitt’s
enterprise
criminal
under
investigation.”
(quoting
dating from 1992 to that he has been local,
listed as a in numerous state investigations,
and federal and that he has violent, reputation being well-known
large-scale cocaine distributor who has successfully intimidated individuals CORRIGAN, al., James T. et through violence the threat of vio- and/or Plaintiffs-Appellants, ¶¶ lence. Wenther Aff. 8 & 10. Finally, erroneously the district court UNITED STATES STEEL CORPO- government found that the used the wire- RATION; Steel, Ltd., Kobe De- tap application as step the first its inves- fendants-Appellees. tigation of Mr. Rice. This conclusion was No. 05-4625. in part based on finding the district court’s government requested wiretap United States Court of Appeals, “[wjithin days ten of the first hint of Mr. Sixth Circuit. Rice’s involvement.” J.A. at 379. On June Argued: Nov. 13, 2004, intercepted a Decided and Filed: March telephone call between Bullitt and Rice regarding large shipment cocaine on 23, 2004,
June applied it