State v. Hebeishy

522 P.3d 943

STATE of Utah, Appellee,

v.Sadat Ahmed HEBEISHY, Appellant.

No. 20200463-CA

Court of Appeals of Utah.

Filed December 8, 2022

Emily Adams and Benjamin Miller, Attorneys for Appellant

Sean D. Reyes, and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee

Justice Jill M. Pohlman authored this Opinion, in which Judge Gregory K. Orme and Justice Diana Hagen concurred.¹

Opinion

POHLMAN, Justice:

¶1 Sadat Ahmed Hebeishy entered a conditional guilty plea to one count of pattern of unlawful activity, reserving his right to appeal the district court's denial of his motion to suppress evidence obtained through two wiretaps. He now appeals, arguing that the wiretap applications failed to meet the necessity requirement of section 77-23a-10(1)(c) of Utah's Interception of Communications Act. We affirm.²

BACKGROUND

¶2 The Titanic Crip Society (TCS) is a small criminal street gang that has been operating in Weber County, Utah, since at least the 1990s. In 2015, law enforcement observed an increase in the number of crimes being committed by members of TCS and that the gang was recruiting juveniles who were participating "in fairly serious criminal offenses." Within a few months, an officer (Officer) of the Ogden Police Department who was assigned to the FBI's Safe Street Gang Unit Task Force began investigating TCS. As part of his investigation, Officer reviewed police reports, photographs, audio recordings, witness statements, and interview notes.

¶3 Officer's investigation revealed that TCS's organization is made up of "big homies and little homies." Big homies are the "shot callers" who "manag[e] the affairs of the gang" while taking "a hands-off approach" to the criminal conduct. The big homies direct the little homies in "their behavior and their conduct within the organization," and the big homies utilize the little homies "to recruit actively and often." Officer identified Sadat³ and his brother, Tamer Hebeishy, as big homies within TCS.

The First Wiretap – Tamer's Mobile Phone

¶4 In November 2015, Officer applied for a wiretap warrant on Tamer's mobile phone. In a 180-page affidavit supporting the application, Officer identified three investigatory objectives of the wiretap: (1) to document and confirm the identities of TCS members, including those in positions of management; (2) to "[d]issolve or ... severely disrupt" TCS's criminal operations; and (3) to obtain "gang-specific intelligence" to aid in "preventing, managing, or suppressing future criminal behavior(s)." In the affidavit, Officer asserted that the wiretap was "necessary" because of the difficulty in dismantling a gang with TCS's organizational structure. He explained: "There is a recurring theme which suggests TCS shot callers, including Tamer and Sadat Hebeishy, encourage and direct the criminal behavior of younger (often juvenile) and subordinate members. Thus, the shot callers mitigate their own risk of incarceration. This makes the dismantlement of the organization a difficult task, as the gang's leaders are free to repetitively recruit, groom, and manipulate new and impressionable members." (Cleaned up.)

¶5 Officer also detailed nearly twenty years of criminal activity documented in police records, analyzed phone recordings from the Weber County Jail, described evidence obtained from previously seized mobile phones belonging to other TCS members, and discussed an interview with Tamer and Sadat's brother, Sharif Hebeishy. Officer further explained that "traditional investigatory methods have failed to realize the dissolution of [TCS]" and that "those traditional methods which have not been attempted are either unpractical, too dangerous, or unlikely to result in the procurement of evidence to prosecute fully the participants who engage in criminal conduct on behalf and for the benefit of [TCS]." He then detailed the ineffectiveness of eight investigatory techniques: physical surveillance, knock and talks,⁴ undercover or covert operations, confidential informants, trash covers,⁵ controlled buys, searches and search warrants, and pen registers.⁶

¶6 The district court authorized the wiretap of Tamer's mobile phone on November 13, 2015. It found "probable cause to believe that ... [Tamer] and others" had and would continue to commit crimes, and "probable cause to believe that particular communications concerning [those crimes would] ... be obtained through" a wiretap of Tamer's phone. The court also determined that "normal investigative procedures ha[d] been tried and failed," were "unlikely to succeed," or were "too dangerous" based on "the specified objectives of this criminal investigation." Thus, the court concluded that the wiretap was "necessary to achieve the listed objectives of this criminal investigation."

¶7 Four days after the wiretap was approved, Tamer's phone was intercepted. Interception continued until the middle of January 2016 pursuant to two orders extending the duration of the initial wiretap.

The Second Wiretap – Sadat's Mobile Phone

¶8 In December 2015, Officer applied for a wiretap warrant on Sadat's mobile phone. Officer's supporting affidavit was substantially similar to his affidavit in support of the wiretap on Tamer's mobile phone, but there were a few differences. In addition to identifying the same overall investigatory objectives, Officer explained that an additional objective of the second wiretap was to identify Sadat's "specific role" within TCS and to determine "his individual rights and/or responsibilities ... as one of the gang's primary managers." Officer also explained that law enforcement had recently utilized other traditional techniques to investigate Sadat, including installing an electronic monitoring device on his vehicle, conducting physical surveillance at his residence, and collecting trash from a garbage can in front of that residence. Those techniques, however, failed to yield the evidence needed to achieve law enforcement's goal of acquiring evidence of Sadat's "position and influence" within TCS. Finally, the affidavit contained a thirteen-page section on necessity similar to that included in Officer's first affidavit, detailing other investigatory techniques that had been tried and failed, were not likely to succeed, or were too dangerous. The district court authorized the wiretap.⁷

¶9 Sadat's mobile phone was intercepted beginning in December 2015 and continuing through January 2016.

The Motion to Suppress

¶10 Several months after collecting evidence through the wiretaps, the State brought charges against Sadat and five other TCS co-defendants (including Tamer). Sadat was charged with one count of pattern of unlawful activity with gang enhancement and one count of possession of a dangerous weapon by a restricted person. Prior to trial, Sadat filed a motion to suppress the evidence obtained from the wiretaps. He argued, in part, that Officer's wiretap applications failed to show necessity because Officer did not personally "attempt[ ]" or "seriously consider[ ]" several traditional investigatory techniques before seeking the wiretaps and because his affidavits were based mostly on "generalities and conclusory statements" about the ineffectiveness of those techniques.

¶11 After briefing and oral argument, the motion was denied. The district court rejected Sadat's argument that the affidavits were conclusory and lacked supporting facts, and it found that Officer "described law enforcement techniques that had been tried and failed, were not likely to succeed, or [were] too dangerous to try." Specifically, the court found that Officer "explained with factual information how surveillance, jail phone calls, witness interviews, search warrants, trash runs, confidential informants or undercover informants, and pen register-type information had been obtained and failed to fully identify and stop the leaders and members of TCS from the commission of criminal activity" and why those investigative techniques "were not likely to succeed if tried again" or were "too dangerous to try." And based on those findings, the court determined that the necessity requirement of Utah's Interception of Communications Act had been satisfied and that Sadat had failed to demonstrate that the evidence obtained from the wiretaps should be suppressed.

¶12 Sadat subsequently entered a conditional guilty plea to one count of pattern of unlawful activity, reserving his right to appeal the district court's ruling on his motion to suppress. Sadat now appeals.

ISSUE AND STANDARD OF REVIEW

¶13 Sadat contends that the district court erred in denying his motion to suppress evidence obtained through the two wiretaps. More specifically, Sadat contends that the court incorrectly determined that law enforcement had satisfied the necessity requirement of Utah's Interception of Communications Act.

¶14 The parties disagree over what standard of review applies to this question.⁸ Relying on the standard traditionally applied to the review of denials of motions to suppress based on violations of the Fourth Amendment, Sadat argues that we should review this issue as a mixed question of law and fact, reviewing the district court's factual findings for clear error but affording no deference to the district court's necessity determination. The State, in contrast, invites us to review the district court's necessity determination for an abuse of discretion, contending that we should adopt the standard applied by the majority of federal appeals courts in reviewing necessity determinations under the federal wiretap statute. See United States v. Ramirez-Encarnacion , 291 F.3d 1219, 1222 n.1 (10th Cir. 2002) (collecting cases). We need not resolve this dispute because, even reviewing the district court's necessity determination for correctness as urged by Sadat, we discern no error by the district court.

ANALYSIS

¶15 The district court denied Sadat's motion to suppress, concluding that Officer's applications demonstrated the necessity required for the...