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United States v. James

United States District Court, M.D. Louisiana

March 11, 2019




         This matter is before the Court on the Motion to Suppress Wiretap Interceptions filed by Defendant Michael Nelson (“Nelson”)[1] and Defendant Troy James (“James”).[2]These motions were adopted by co-Defendants Travis R. James, Joshua J. Mansion (“Mansion”), and Harris Hampton, III (“Hampton”).[3] The Government has filed an Opposition[4] to these motions. For the following reasons, the motions are DENIED.

         I. BACKGROUND

         This criminal action arises out of an Indictment charging fifteen Defendants in a drug conspiracy to distribute and to possess with the intent to distribute illegal narcotics between around January 2015 and continuing until around January 2018 in the Middle District of Louisiana and elsewhere.[5] As a result of an ongoing investigation by the Drug Enforcement Administration (“DEA”) and local law enforcement agencies into alleged narcotics trafficking by these Defendants, the Government applied to intercept wire and electronic communications occurring over several cellular telephones, beginning in March 2017, pursuant to 18 U.S.C. § 2516.[6] On March 27, 2017, then-Chief Judge Brian Jackson approved the Government's application to intercept wiretap and electronic communications occurring over cellular phone number (225) 202-9235, referred to as TARGET TELEPHONE, used by James Christian Hull (“Hull”).[7] On April 25, 2017, Judge James Brady granted the Government's request for a thirty-day extension to intercept communications used by Hull over TARGET TELEPHONE 1, which was the same phone number and phone associated with TARGET TELEPHONE.[8] In this extension request, the Government advised the Court that the Confidential Source (“CS”) upon which the Government had relied in its first application had become unreliable.

         The Government notes that neither the application nor the extension request identified Nelson, Travis James, Troy James, Hampton, Mansion, or Kim Murphy (“Murphy”) as targets of the investigation. Further, during the wiretap of TARGET TELEPHONE/TARGET TELEPHONE 1, the Government claims that federal law enforcement did not capture any communications to or from Nelson, Travis James, Troy James, Hampton, Mansion, or Murphy.[9]

         On April 20, 2017, Chief Judge Jackson granted a second application by the Government to intercept wiretap and electronic communications occurring over TARGET TELEPHONE 2 and TARGET TELEPHONE 3 used by Byron A. Lawson.[10] This application did not identify Nelson, Travis James, Hampton, Mansion, or Murphy as targets; however, during this time period, the Government intercepted communications between Nelson and Travis James over TARGET TELEPHONE 3.

         On May 6, 2017, Judge Brady granted the Government's application to intercept wiretap and electronic communications occurring over TARGET TELEPHONE 4 and TARGET TELEPHONE 5 for a thirty-day period.[11] The Order authorizing the interceptions pursuant to this application did identify Travis James and Troy James, a/k/a “Big Bro Troy, ” among others, as targets. On May 6, 2017, Judge Brady approved a thirty-day extension request to continue intercepting communications occurring over TARGET TELEPHONES 4 and 5.[12] The Order authorizing these interceptions identified Travis James, Troy James, Hampton, Nelson, and Mansion as targets, and law enforcement intercepted their communications, as well as Murphy's, occurring over TARGET TELEPHONES 4 and 5.

         On May 27, 2017, Judge Brady granted the Government's application to intercept wiretap and electronic communications occurring over TARGET TELEPHONE 6, used by Travis James. The application and Order authorizing the interceptions identified Travis James, Troy James, and Hampton as targets.[13]

         II. ARGUMENTS

         Nelson has moved to suppress the wiretap interceptions in this case. Nelson challenges the Government's interception of communications occurring over TARGET TELEPHONE/TARGET TELEPHONE 1 for lack of probable cause on the basis that the Government's first application was based on information from a confidential source later found to be unreliable. Nelson also contends that the Government's applications were defective because it failed to follow its statutory duty to consider alternative, traditional investigative techniques to achieve the objectives of this investigation. Thus, because Nelson contends the communications intercepted over TARGET TELEPHONES 3, 4, and 5 are fruits of the unconstitutional and unlawful interception that occurred over TARGET TELEPHONE/TARGET TELEPHONE 1, all intercepted communications should be suppressed.

         The motion to suppress by Troy James asserts these same arguments; however, Troy James contends he has standing to challenge the interception occurring over TARGET TELEPHONE 1. Troy James contends that the information gained from the unlawful wiretap of TARGET TELEPHONE 1, based on an unreliable confidential informant, led to the authorization to intercept the communications occurring over TARGET TELEPHONES 4, 5, and 6, and these communications should be suppressed as unlawful fruits of the poisonous tree. Troy James also argues that the application failed to identify the individual operating as “Big Bro Troy”; thus, there was no probable cause to link him to “Big Bro Troy.”[14]

         The Government opposes the Motions to Suppress, arguing that the Defendants lack standing to challenge the application for TARGET TELEPHONE/TARGET TELEPHONE 1 as they were not targets of this investigation, and no communications intercepted pursuant to this application were theirs; thus, they cannot suppress the subsequent wiretaps under the fruit of the poisonous tree doctrine. The Government also contends that the supporting affidavit provided sufficient probable cause to believe that drug trafficking conversations were occurring over TARGET TELEPHONE/TARGET TELEPHONE 1 because, notwithstanding the fact that CS was later found to be unreliable, the affidavit was based on information provided by CS that was corroborated on several occasions by law enforcement. Addressing Troy James' argument that he was not sufficiently linked to the name “Big Bro Troy, ” the Government cites Supreme Court jurisprudence and argues that the failure to identify a target in a wiretap application, where probable causes exists to do so, does not warrant suppression.[15] The Government further argues that it satisfied the necessity requirement in seeking the wiretap application. Finally, the Government maintains that the agents relied in good faith on the sufficiency of the wiretap warrant; thus, the good faith exception would apply to the exclusionary rule in this case.


         Title III of the Omnibus Crime Control and Safe Streets Act of 1968[16] (“Title III”), governs the interception of wire, oral and electronic communications by the government and private parties. Title III broadly prohibits all wiretapping and electronic surveillance conducted by persons other than law enforcement officials engaged in the investigation of specified crimes after obtaining a court order.[17]

         A. Standing

         Section 2518(10)(a) of Title III states that any “aggrieved person” may move to suppress the contents of any wire or oral communication intercepted pursuant to Title III, or any fruits derived therefrom, on the grounds that the communication was unlawfully intercepted or was not made in conformity with the authorizing order.[18] An “aggrieved person” for Title III purposes is one who is either (1) a party to any intercepted communication, or (2) a person against whom the interception was directed.[19]

         Although Title III contains this express standing provision, courts have long recognized that the intent of Congress was to apply the existing law of Fourth Amendment standing to wiretap cases.[20] Relying on this Congressional intent, courts have continued to construe Title III standing in accordance with standing requirements applied to suppression claims under the Fourth Amendment.[21] Thus, one does not become an “aggrieved person” under Title III solely by the introduction of damaging evidence.[22]

         Nelson, a subject of interceptions of TARGET TELEPHONES 3 and 4, contends he has standing as an “aggrieved person” because “a telephone number the Government attributed to Michael Nelson was identified - by the government's admission - as a direct result of the interceptions beginning on March 27, 2017. As such, Nelson has standing to challenge all the interception authorizations in this matter.”[23]

         Troy James, a subject of interceptions of TARGET TELEPHONES 4, 5 and 6, argues essentially the same as Nelson with regard to standing: the phone number identified by the Government attributed to Troy James was identified “as a direct result of the interceptions beginning on March 27, 2017, of the incoming and outgoing calls to Telephones #4, #5, and #6, thus, Troy James has standing to challenge all the interceptions authorizations in this matter.”[24]

         Both Nelson and Troy James rely on the Supreme Court's decision in United States v. Giordano, wherein the Court held that, because the original interceptions failed to comply with the law, suppression of all later fruits of the poisonous tree was required.[25]However, as the Government points out, the facts of Giordano are distinguishable from those presented herein. In Giordano, the defendant was the target of the original wiretap order that was ultimately held unlawful.

         The Court finds that the facts of this case are similar to those set forth in United States v. Scasino, wherein defendants sought to suppress Title III recordings that were the undisputed fruits of a prior illegal wiretap.[26] The Fifth Circuit concluded that the defendants lacked standing to challenge the prior wiretap primarily because they were not directly implicated by the wiretap.[27] The Scasino court adopted the standard set forth by the Fourth Circuit in United States v. Gibson, wherein the court concluded that “[t]he clear implication of [Section 2518(10)(a)] is that an ‘aggrieved person' should not include one who is not implicated and against whom no one has made of proffer of information derived from the defectively authorized tap.”[28]

         In United States v. Martin, Martin moved for suppression of the fruits of conversations that were intercepted pursuant to Title III in an investigation into matters unrelated to the crimes charged against Martin.[29] The government had previously received authorization to intercept communications from the phone of Cecil Brown, referred to as the “Brown T-III.”[30] Although none of the conversations intercepted pursuant to the Brown T-III incriminated Martin, one of his social conversations was intercepted.[31] The interceptions pursuant to the Brown T-III led to authorization to intercept communications on the phones of other targets of the investigation and, ultimately, in prosecuting Martin, the government sought to introduce nine conversations intercepted pursuant to the later T-III orders. The court noted that “none of the conversations captured on the Brown T-III are relevant to the criminal tax charges pending.”[32]

         Martin moved to suppress all wiretap interceptions, arguing that the Brown T-III wiretap was obtained in violation of Title III and the Fourth Amendment for lack of probable cause and a demonstration of necessity.[33] Thus, Martin argued, any evidence derived from the Brown T-III interceptions, including the conversations introduced against him in his criminal matter, must be suppressed.[34] The government argued that Martin lacked standing to challenge the validity of the Brown T-III because “Title III implicitly requires that the intercepted communication be incriminating to the interceptee who seeks to be an ‘aggrieved person' under the standing provision[, ]” and [i]t [was] undisputed that Martin's intercepted phone conversation was in no way incriminating to him and gave the Government no impetus to investigate him with respect to the crimes charged in the current indictment.”[35] The Government relied on the Scasino and Gibson decisions discussed above.

         The court, however, distinguished these cases:

Although Scasino and Gibson are undoubtedly supportive of the Government's position, they fall short of making the Government's point in this case due to a key factual distinction present in this case: Unlike Martin, the defendants in Scasino and Gibson were never intercepted on the illegal T-III surveillance that they sought to indirectly attack. Thus, those defendants did not meet one of the express statutory standing provisions like Martin does.[36]

         The court noted that,

the real inquiry would appear to be whether Title III would give Martin standing to suppress the specific Brown T-III conversations which did in fact provide probable cause for the subsequent surveillance that captured the conversations under attack in this motion. After all, the conversations Martin is trying to exclude in the instant motion are fruits of conversations to which Martin was not a party-they are not fruits of Martin's intercepted phone call. Other courts have recognized that an interceptee might very well have standing with respect to conversations in which he participates but lack standing as to other conversations, captured on the same wiretap, as to which he was not a party. See, e.g., United States v. Plescia, 773 F.Supp. 1068, 1077 (N.D.Ill.1991); see also United States v. Holmes, 521 F.2d 859 (1975), vacated in part, 537 F.2d 227 (5th Cir.1976) (en banc).[37]

         Ultimately, the court held that Martin lacked standing to challenge the Brown T-III interceptions, from which all evidence against him was subsequently derived, because:

Martin's argument, however, presupposes that Title III would treat every Brown T-III conversation equally for standing purposes such that one serendipitous phone call intercepted during months of surveillance would give him standing to challenge the fruits of hundreds of hours of communications in which he had no privacy interest whatsoever. This broad interpretation is contrary to Fourth Amendment standing law which has been held to govern motions to suppress under Title III. Standing under the Fourth Amendment is narrowly construed to include only those whose privacy rights are actually violated. Alderman, 394 U.S. at 171-72, 89 S.Ct. at 965. Because Martin was not an interceptee in the Brown T-III conversations that provided probable cause for the subsequent surveillance and had no privacy interest in those conversations, he would have no standing to suppress them directly. Consequently, he cannot rely on their alleged illegality to suppress their fruits, i.e., the nine conversations under attack in the instant motion.[38]

         In the present case, none of the moving Defendants were the targets of the first application regarding TARGET TELEPHONE/TARGET TELEPHONE 1, and it is undisputed that no communications to or from Nelson, Travis James, Troy James, Hampton, Mansion or Murphy were intercepted. Thus, the facts of this case fall squarely under the reasoning and analysis of Scasino and Gibson. Accordingly, the moving Defendants lack standing to challenge the validity of the TARGET TELEPHONE/TARGET TELEPHONE 1 interceptions.

         B. Probable Cause

         Although the Court has found that the moving Defendants lack standing to challenge the TARGET TELEPHONE/TARGET TELEPHONE 1 interceptions, in the alternative, the Court also addresses the challenges to probable cause.

         Notably, a judge's decision to issue a wiretap order based on a determination that probable cause exists is entitled to great deference.[39] “When the judge authorizing a wiretap ‘uses common sense and bases [his] finding on the entire picture presented to [him],' review of that decision is limited.”[40] In fact, a judge's “determination is conclusive in the absence of arbitrariness.”[41] Thus, this Court's task is to undertake an independent review of the sufficiency of the affidavit to ensure that the judge had a substantial basis for concluding that probable cause existed.[42]

         The challenge to this affidavit focuses on Defendants' argument, and the Government's acknowledgement, that the confidential source providing information that formed the basis of the affidavit of probable cause to support the initial wiretap application was later deemed unreliable. Nelson argues that the affidavit supporting the wiretap application is “fatally flawed” due to the unreliable informant, [43] and notes that the Government “admits that not all of the information provided by CS has been fully corroborated.”[44] Troy James makes essentially the same arguments.[45]

         The Government maintains that the affidavit sets forth probable cause for the initial wiretap application, noting the difference between the unreliability of CS versus the reliability of the information CS provided that was corroborated. In the initial application, Hull was identified as a source of heroin and methamphetamine. CS described the vehicle driven by Hull as a red Jeep Cherokee and also provided the location of Hull's residence, information that was later corroborated by law enforcement.[46] Further, this CS was used in a controlled buy with Hull set up by federal law enforcement agents on February 6, 2017. Agents recorded and reviewed the calls and texts between Hull and CS leading up to the transaction. Agents supplied CS with the money to purchase methamphetamine from Hull, law enforcement observed CS meet Hull at the agreed upon location, and CS returned from this meeting with the methamphetamine purchased from Hull. Additionally, this transaction was videotaped by law enforcement. A second controlled buy between Hull and CS took place on February 13, 2017. This transaction was set up by law enforcement, observed by law enforcement, and CS returned with the methamphetamine and heroin he was instructed to buy from Hull.[47]

         The affidavit is replete with instances of information provided by CS that was later corroborated by law enforcement via surveillance, audio, and video recording. That CS was later deemed unreliable does not render the information CS provided, which was corroborated independently by law enforcement, unreliable for purposes of providing probable cause.

         DEA Task Force Officer Charles Scott Courrege did, indeed, attest: “Affiant has determined that CS is no longer a reliable source of information for law enforcement purposes.” But the very next statement provides: “However, the information provided by the CS through March 10, 2017, has been corroborated (to the extent possible) by independent sources and was used to form the basis of probable cause for this application.”[48]

         In United States v. Little, Little was charged with ten co-defendants with various drug trafficking offenses, and he moved to suppress wiretap interceptions, arguing that the supporting affidavit lacked probable cause.[49] Investigators had developed two confidential sources familiar with the drug operations of the defendants, and two undercover agents made controlled drug purchases from a co-defendant which was demonstrated by recorded conversations and text messages.[50] Thus, based on information received from confidential sources, undercover agents, surveillance, controlled drug purchases, and pen registers, a wiretap application was sought and granted for the interception of communications from the phone number of a co-defendant. Little was identified as a “target interceptee, ” and conversations between Little and the co-defendant were intercepted.[51]

         Little argued the wiretap affidavit lacked probable cause because, inter alia, there was insufficient evidence tying him to the drug conspiracy, few references were made to him in the supporting affidavit, and statements implicating him were made without factual support for accuracy.[52] The court rejected these arguments, finding that certain challenged statements made by confidential sources were also corroborated by a co-defendant herself.[53] The court also found that the affidavit was not required to contain numerous references to Little since the application was to intercept communications from the phone of a co-defendant, not Little.[54]

         The court quoted the Fifth Circuit's directive that: “We must be mindful that probable cause is the sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.”[55] The court found that “Little's argument ignores the totality of the facts and circumstances set forth in Trooper Haynes's affidavit. Even if his actions, standing alone, were lawful, there still existed the probability that he was acting unlawfully. As such, Little's innocent explanations do not undermine the probable cause finding.”[56]

         The court also rejected Little's claim that the confidential sources providing the information were unreliable:

Finally, with respect to Little's challenge to the reliability of the two confidential sources, the Court notes that according to the affidavit, CS 1 and CS 2 had been providing verified and corroborated information to law enforcement for the previous eleven and eight months, respectively. As the Fifth Circuit has explained, “mutually enforcing and corroborative information from confidential sources is a strong indicator of probable cause even when the individual reliability of the sources is not clearly established.” United States v. Weinrich, 586 F.2d 481, 490 (5th Cir.1978). Lastly, while the two confidential sources provided helpful information to the investigation, it is imprudent to suggest that they, alone, established probable cause. Rather, the probable cause supporting the issuance of the wiretap was based in large part upon several controlled drug buys between the undercover agents and ...

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