United States v. Banks, Case No. 13-cr-40060-DDC

UNITED STATES OF AMERICA, Plaintiff, v. ALBERT DEWAYNE BANKS (01), PATRICIA BRIDGET FOY (04),JOHNNY LEE IVORY, III (05), MARTYE MADABUTI MADKINS, III (06),OTIS DEAN PONDS (08), ANTHONY CARLYLE THOMPSON (10),KAREN ANTOINETTE JOHNSON (12), and WALTER BERNARD TAYLOR (14), Defendants.

Case No. 13-cr-40060-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 15, 2015

MEMORANDUM AND ORDER

The procedural background of this case is familiar to the parties, so the Court describes it briefly. Three motions to suppress evidence obtained by search warrants were pending when the Court conducted a suppression hearing on August 21, 2014 (Docs. 338, 344, 357). At that same hearing, the Court preliminarily granted defendants' motions to suppress wiretap evidence, concluding that Kansas law required it to suppress any phone call intercepted outside Kansas' Eighth Judicial District (Doc. 517). When the Court issued this ruling, the parties had not presented any evidence that would enable the Court to determine which particular calls its ruling excluded, so it continued the case to permit the government to the obtain cell-site location data (Doc. 496). Recognizing that the resolution of the wiretap issue might affect which evidence it could consider when resolving the challenges to the underlying search warrants, the Courtdeferred its decision on the motions to suppress search warrants until it could determine which, if any, wiretap evidence survived its ruling.

Defendants have since filed two additional rounds of motions. The first argued that the government's cell-site evidence failed to establish the phones' locations within Kansas' Eighth Judicial District. The Court agreed with defendants' argument except as it applied to calls that pinged one of the six cell towers located in and around Junction City, Kansas. These calls, the Court concluded, likely originated or were recieved within the Eighth Judicial District and thus survived the Court's suppression ruling. See Doc. 580.

In response, defendants filed a second round of suppression motions, and now they are before the Court. These motions are:

• Anthony Thompson's motion to suppress evidence obtained from search of residence and subsequent wiretap order (Docs. 357, 590);

• Johnny Ivory's first and second motions to suppress (Docs. 338, 585);

• Albert Banks' motion to suppress evidence derived from defective search warrant and subsequent wiretap order (Docs. 344, 586);

• Otis Ponds' motion to suppress extraterritorial calls, derivative evidence, and improper disclosure of call contents (Doc. 584);

• Patricia Foy's motion to suppress (Doc. 591).

These motions include defendants' original motions to suppress search warrants (Docs. 338, 344, 357), motions asking the Court to exclude evidence they characterize as "derivative" of suppressed phone calls (Docs. 585, 586, 590), and motions asserting miscellaneous suppression arguments (Docs. 584, 591). Other defendants have filed motions seeking to join the suppression motions of their codefendants (Docs. 592, 593, 594, 595, 596), which the Court already has granted (Doc. 622). The government has filed a consolidated response to themotions to suppress (Doc. 597). In the sections that follow, the Court develops a legal framework for evaluating defendants' motions and then rules each of them.

I. Common Issues

Defendants' motions present many similar issues. In this section, the Court discusses the governing legal standard for each of these recurring issues.

A. Standard for Reviewing Probable Cause

"Probable cause 'requires only a probability or substantial chance of criminal activity,' rather than 'an actual showing of such activity.'" United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009) (quoting New York v. P.J. Video, Inc., 475 U.S. 868, 877-78 (1986)). When presented with an application for a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him[,] . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "When a court is required to determine the sufficiency of an affidavit previously offered in support of a request for a search warrant, it should view the affidavit in a commonsense, nontechnical manner, with deference to be given in marginal cases to the prior determination of probable cause by the issuing authority." United States v. Barrera, 843 F.2d 1576, 1581 (10th Cir. 1988). In so doing, a court must rely '"solely on the facts and circumstances presented in the affidavit.'" Id. (quoting United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979)). A court should uphold the issuing magistrate's determination so long as the magistrate had a "substantial basis" to find that the affidavit in support of the search warrant established probable cause. United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (citing Gates, 462 U.S. at 236).

B. Law Governing Derivative Evidence

Both the federal wiretap statute, commonly called "Title III," and Kansas' wiretap statute, which largely tracks its federal counterpart, require the Court to suppress unlawfully intercepted wire and oral communications and any "evidence derived therefrom." 18 U.S.C. § 2515; K.S.A. § 22-2517. The motions filed by Mr. Banks, Mr. Ivory, and Mr. Thompson ask the Court to find that certain search warrants "derived from" suppressed phone calls because the warrant applications relied, at least in part, on suppressed wiretap evidence to establish probable cause. Mr. Thompson's motion also requires the Court to conduct this analysis for a wiretap order that agents obtained after he changed phone numbers.

To apply the "evidence derived therefrom" component of this rule, the analogous and better-developed Fourth Amendment case guides the Court's analysis.¹ This line of cases instructs the Court, first, that "in a derivative evidence claim, the defendant must make a threshold showing that the challenged evidence is tainted" by unconstitutional conduct. United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001) (citing Alderman v. United States, 394 U.S. 165, 183 (1969)). Next, the defendant must establish a "factual nexus" between the primary violation and the derivative evidence. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). This test demands more than just a showing that the derivative evidence wouldnot have come to light "but for" the primary violation. Id. (citing Wong Sun, 371 U.S. at 488). Instead, "the ultimate 'fruit of the poisonous tree' inquiry asks whether the challenged evidence has been come at by exploitation of the primary violation or instead by means sufficiently distinguishable to be purged of the primary taint." Id. at 1131 n.1 (citing Wong Sun, 371 U.S. at 488).

In this context, the Court must invalidate the warrant "if [the suppressed] information was critical to establishing [the existence of] probable cause." United States v. Sims, 428 F.3d 945, 954 (10th Cir. 2005). "If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid." Id. To resolve defendants' motions, the Court will determine, first, what portions of the affidavit derive from suppressed evidence. Next, it will construct a reconstituted affidavit consisting only of the evidence untainted by the wiretap violation. Last, the Court will consider whether probable cause supported a search of targeted residences based solely on the information in the reconstituted affidavits.

C. Whether the Good-Faith Exception Applies to Evidence Derived From Wiretaps

In United States v. Leon, the Supreme Court held that the Fourth Amendment's exclusionary rule does not apply when an officer conducts a search "in objectively reasonable reliance on a subsequently invalidated search warrant." 468 U.S. 897, 922 (1984). The Court reasoned that the exclusionary rule seeks to deter police misconduct rather than judicial mistakes, and so courts should invoke the rule only in circumstances where it serve accomplish that goal. Id. at 918-21.

It its response brief, the government asserts repeatedly that the good-faith exception rescues the warrants even if their reconstituted affidavits fail to establish probable cause. If this argument is correct, the Court should proceed directly to the good-faith issue without conductinga more detailed analysis of the warrants. See United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000) (holding that when "reviewing suppression motions, courts have the discretion to proceed directly to an analysis of the good-faith exception without first addressing the underlying Fourth Amendment question"). The exception almost certainly applies because one would not expect the officers executing the search warrants to have apprehended the subtle, technical jurisdictional defect that forms the basis of the Court's threshold suppression ruling.

The Tenth Circuit has not decided whether the good-faith exception should apply to Title III. See United States v. Arrington, No. No. 99-1565, 2000 WL 775576, at *6 (10th Cir. 2000) (recognizing that "the applicability of Leon to the Title III context is unsettled in this Circuit") (citing United States v. Castillo-Garcia, 117 F.3d 1179, 1196 (10th Cir. 1997), overruled on other grounds by United States v. Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir. 2002)). Other circuits have split over this issue. See United States v. Rice, 478 F.3d 704, 712-14 (6th Cir. 2007) (good-faith exception does not apply to Title III); but compare United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (good-faith exception applies to Title III); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988) (same). After carefully examining theses rulings, the Court concludes that the Sixth Circuit's view of the issue is the more...