United States v. Belton

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UNITED STATES OF AMERICA, Plaintiff, v. DAVID POITIER BELTON, DEREK MICHAEL MIMS, ELMER MIMS, and ANTON TARRICE WHITNEY, JR., Defendants.

No. 22-CR-39 CJW-MAR

United States District Court, N.D. Iowa, Cedar Rapids Division

January 31, 2023

ORDER

C.J WILLIAMS UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION

II. STANDARD OF REVIEW

III. FACTUAL BACKGROUND

IV. DISCUSSION

A. Probable Cause

1. Defendant Belton

a. Factual Findings

b. Legal Objections

i. May 21, 2021 Affidavit

ii. Remaining Affidavits 2. Defendant D. Mims

3. Defendant Whitney

a. Factual Findings

b. Legal Findings

B. Necessity

C Good-Faith Exception

VI. CONCLUSION

I. INTRODUCTION

This matter is before the Court on defendants' motions to suppress wiretap evidence. (Docs. 241, 245, 256, 259). On October 20, 2022, defendant Whitney filed a motion to suppress. (Doc. 241). On October 21, 2022, defendant Elmer Mims (“E. Mims”) filed a motion to suppress. (Doc. 245). On October 28, 2022, defendants Belton and Derek Mims (“D. Mims”) also filed motions to suppress. (Docs. 256 & 259). The government filed a timely resistance. (Doc. 269). United States Magistrate Judge Mark A. Roberts recommended that this Court deny defendants' motions. (Doc. 355). Defendants timely filed objections to Judge Roberts' Report and Recommendation (“R&R”). (Docs. 361, 364, 365, 366).

For the following reasons, the Court denies defendants' motions to suppress wiretap evidence.

II. STANDARD OF REVIEW

When a party files a timely objection to a magistrate judge's report and recommendation, a “judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CRIM. P. 59(b)(3) (“The district judge must consider de novo any objection to the magistrate judge's recommendation.”); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (noting that a district judge must “undertake[ ] a de novo review of the disputed portions of a magistrate judge's report and recommendations”). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CRIM. P. 59(b)(3) (“The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.”). It is reversible error for a district court to fail to engage in a de novo review of a magistrate judge's report and recommendation when such review is required. Lothridge, 324 F.3d at 600. Accordingly, the Court reviews the disputed portions of the Report and Recommendation de novo.

III. FACTUAL BACKGROUND

After reviewing the government's wiretap applications, including affidavits authored by Officer Brian Furman, (Docs. 278, 278-1-4, 282, 282-1), the Court finds that Judge Roberts accurately and thoroughly set forth the relevant facts in the R&R as to the February 22, 2021 Affidavit, March 25, 2021 Affidavit, May 21, 2021 Affidavit, November 29, 2021 Affidavit, December 21, 2021 Affidavit, January 13, 2022 Affidavit, and February 11, 2022 Affidavit, (Doc. 355, at 5-40). The Court thus adopts Judge Roberts' summary of the facts here, unless stated otherwise. When relevant, the Court relies on and discusses additional facts in conjunction with its legal analysis.

IV. DISCUSSION

Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (“Wiretap Act”), codified at Title 18, United States Code, Sections 2510-22, provides that the government cannot intercept wire, oral, or electronic communications absent proper authorization. A wiretap is only properly authorized when the government shows it is (1) reasonable-that is, based on probable cause-and (2) necessary. United States v. Thompson, 690 F.3d 977, 984-986 (8th Cir. 2012). Even when a wiretap is authorized, however, “[a]ny aggrieved person” can move to suppress intercepted communications and “any evidence derived therefrom” if “the communication was unlawfully intercepted;” “the order of authorization or approval under which it was intercepted is insufficient on its face;” or “the interception was not made in conformity with the order of authorization.” 18 U.S.C. § 2518(10)(a). An “aggrieved person” is “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11).

Defendants are all aggrieved persons under the Wiretap Act. The Court now addresses their arguments.

A. Probable Cause

Defendants Belton, D. Mims, and Whitney object to Judge Roberts' finding of probable cause to issue the wiretap orders. (Docs. 361, at 4-5; 365, at 2-10; 366, at 13).

“[The Wiretap Act's] probable-cause requirement is coextensive with the Fourth Amendment's probable-cause requirement.” United States v. Merrett, 8 F.4th 743, 750 (8th Cir. 2021). “Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place.” United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)).

An application for authority to conduct a wiretap “must include facts establishing probable cause to believe: (1) that an individual is committing, has committed, or is about to commit a particular offense, 18 U.S.C. § 2518(3)(a); (2) that communications relevant to that offense will be intercepted through the wiretap, id. § 2518(3)(b); and (3) that the facilities from which communications are to be intercepted are being used in connection with the commission of the offense, id. § 2518(3)(d).” United States v. Gruber, 994 F.Supp. 1026, 1041 (N.D. Iowa 1998). When the judge relies solely on an affidavit, only the information within the four corners of the affidavit can be considered. United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995) (quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982)). Evidence derived from an invalid wiretap may not be considered in determining probable cause. See United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004) (“The sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information.”).

As with any search, in showing the basis for a wiretap under the totality of the circumstances, law enforcement officers can “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273 (analyzing investigatory traffic stop under reasonable-suspicion standard); accord Ornelas v. United States, 517 U.S. 690, 699 (providing that appellate review should “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers”). An officer's experience and training are useful in interpreting coded language. See United States v. Bellomo, 954 F.Supp. 630, 638 n.3 (S.D.N.Y. 1993). Accordingly, courts can rely on an officer's “expert opinion as to evidence in a wiretap application” when the officer “provide[s] credible interpretations of the content of these conversations.” United States v. Bellomo, 954 F.Supp. 630, 638 n.3 (S.D.N.Y. 1993); see also United States v. Smith, Case No. 19-00315-01-CR-W-DGK, 2022 WL 3572720, at *3-*4 (W.D. Mo. July 28, 2022) (finding as facts officer's training and experience on coded language in drug trade and officer's testimony to the meaning of certain coded language); cf. United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996) (describing officer testifying at trial as an expert assisting the court and jury by identifying “the meaning of jargon and codewords”).

An officer's conclusory statements, however, cannot support a finding of probable cause. See Illinois v. Gates, 462 U.S. 213, 239 (1983) (describing “mere conclusory statements” such as “affiants have received reliable information from a credible person and believe [that the suspect stored drugs in the home]” and “[the affiant] has cause to suspect and does believe that [the suspect committed a crime],” in “‘bare bones' affidavits”). Affidavits based only on suspicion and belief cannot show probable cause. Id. Still, absent such defects, probable cause is a “flexible, common-sense standard.” Id. This is because “[i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States, 338 U.S. 160, 175 (1949). Accordingly, “room must be allowed for some mistakes” by officers, so long as the mistakes are those of reasonable people, “acting on facts leading sensibly to their conclusions of probability.” Id.

For the following reasons, the Court agrees with Judge Roberts that the Affidavits showed probable cause and adopts his findings here.

1. Defendant Belton

Belton objects to Judge Roberts' finding of probable cause as to Belton to issue the wiretap orders. (Doc. 361, at 4-5). For the following reasons, the Court overrules Belton's objections.

a. Factual Findings

Before objecting to Judge Roberts' legal findings, Belton objects to Judge Roberts' factual findings in the R&R, arguing that in finding probable cause, Judge Roberts inappropriately relied on conclusory statements. (Id.,...