United States v. Merrett

8 F.4th 743

UNITED STATES of America, Plaintiff - Appellee

v.Marshaun Jordan MERRETT, also known as Sheez, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Johnnathan Monroe Frencher, also known as Ten, Defendant - Appellant

No. 20-1368

No. 20-2081

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2021

Filed: August 9, 2021

Rehearing and Rehearing En Banc Denied September 17, 2021

Counsel who presented argument on behalf of the appellant in 20-1368 and appeared on the appellant's brief, was Erin M. Carr, of Des Moines, IA. Counsel who presented argument on behalf of the appellant in 20-2081 and appeared on the appellant's brief, was Joseph Gilbert Bertogli, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the appellee's brief, was Adam Kerndt, AUSA, of Des Moines, IA. The following attorney(s) also appeared on the appellee's brief; Mikaela Jo Shotwell, AUSA, of Des Moines, IA.

Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.

SMITH, Chief Judge.

Marshaun Merrett and Johnnathan Frencher were members of a drug trafficking organization. Both were eventually arrested, convicted, and sentenced. On appeal, they challenge the substantive reasonableness of their sentences.¹ Frencher also argues that the district court² erred by denying his motion to suppress. We affirm the district court.

I. Frencher

A. Background

The Federal Bureau of Investigation (FBI) made five controlled drug buys from Frencher while investigating the drug trafficking organization that Merrett and Frencher had joined. To complete the controlled buys, the FBI directed a confidential source (CS). The CS had previously obtained a cellphone number to contact Frencher for drug purchases. For three of the controlled buys, the CS contacted Frencher using that cellphone number.

When the FBI's investigation into the drug trafficking organization failed to expose the full extent of its operations, the FBI applied for a wiretap on a phone that Frencher allegedly used. In early December 2018, a federal district court authorized use of the wiretap.

Within a couple of weeks, the FBI intercepted text messages between Frencher and his brother, Freddie. Freddie messaged Frencher that Freddie had information about a potential burglary. Almost instantly, Frencher called Freddie to discuss the proposed crime. The conversation between the brothers and an unidentified man included specifics about the intended victim, the layout and entry points of his house, his schedule and when he would be home, whether he owned weapons to protect himself, and the loot that could be obtained. They also discussed their readiness to attempt the crime that same night, but Frencher lamented that he could not immediately go because he did not have a car.

The FBI and the Des Moines Police Department promptly began surveilling Frencher's apartment in an unmarked vehicle. About two hours after the call, law-enforcement officers observed an SUV arrive at the apartment. Frencher and Freddie approached the SUV and entered the passenger side. When the SUV pulled away, the officers tailed it. Although both the SUV and the unmarked law-enforcement vehicle had their windows rolled up, an officer commented that he could smell marijuana coming from the SUV.

Eventually, different officers in a marked patrol car began following the SUV. The officers in the patrol car had been briefed on the communications between Frencher and Freddie and the potential marijuana smell. When the patrol car pulled behind the SUV, one of those officers also commented that she smelled marijuana. The officers in the patrol car then initiated a traffic stop. The marijuana smell did not dissipate. After running the driver's license and registration, the officers arrested the SUV's three occupants. The officers then searched the SUV. Under Frencher's and Freddie's seats, they found two loaded handguns with a total of 26 rounds of ammunition.

Additionally, when a backup officer arrived at the scene, he also smelled a strong marijuana odor. The vehicle search uncovered no marijuana.

During the criminal proceedings against Frencher, he moved to suppress the evidence obtained during the traffic stop, arguing that the wiretap was improper, the officers did not have reasonable suspicion to effect a traffic stop, and the officers did not have probable cause to search the SUV. The district court denied Frencher's motion to suppress.

Frencher pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and to distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court calculated Frencher's offense level as 25 and his criminal history category as V. The Guidelines range was 100 to 125 months’ imprisonment, though the statutory maximum was 120 months’ imprisonment. The district court sentenced Frencher to 110 months’ imprisonment. Frencher appeals the district court's denial of his motion to suppress and the reasonableness of his sentence.

B. Denial of the Motion to Suppress

"We review the denial of [a] motion to suppress under a mixed standard of review. We review the district court's findings of fact under the clearly erroneous standard, and the ultimate conclusion of whether the Fourth Amendment was violated is subject to de novo review." United States v. Holly , 983 F.3d 361, 363 (8th Cir. 2020) (emphasis omitted) (cleaned up). Frencher launches a three-pronged attack against the validity of the search, arguing that (1) the approval of the wiretap application was erroneous, (2) the officers did not have reasonable suspicion to initiate the traffic stop, and (3) the officers did not have probable cause to search the SUV.

1. Wiretap Authorization

To obtain a wiretap, the government must establish the following four requirements:

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [ 18 U.S.C. § 2516 ];

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) ... there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

18 U.S.C. § 2518(3). Frencher argues that the requirements in subsections (c) and (d) were not met.

a. Necessity

Subsection (c) requires a finding of necessity for the wiretap. We review the district court's fact finding for clear error. United States v. Campbell , 986 F.3d 782, 793 (8th Cir. 2021). Under clear-error review, we affirm unless (1) substantial evidence does not support the district court's necessity determination, (2) the determination "evolve[d] from an erroneous view of the applicable law," or (3) we, after reviewing the whole record, have a definite and firm conviction that the district court made a mistake. United States v. O'Connell , 841 F.2d 1408, 1414 (8th Cir. 1988).

To meet the necessity requirement, law enforcement must "establish that conventional investigatory techniques have not been successful in exposing the full extent of the conspiracy and the identity of each coconspirator." Campbell , 986 F.3d at 793 (quoting United States v. Turner , 781 F.3d 374, 382 (8th Cir. 2015) ). "But the necessity requirement does not require the government to exhaust every available investigative technique," United States v. Terrell , 912 F.3d 1125, 1129 (8th Cir. 2019), or "to use a wiretap only as a last resort." United States v. Perez-Trevino , 891 F.3d 359, 370 (8th Cir. 2018) (quoting United States v. Macklin , 902 F.2d 1320, 1327 (8th Cir. 1990) ).

The wiretap application in this case included a lengthy affidavit. The affidavit detailed multiple investigative techniques that law enforcement had used and explained why those techniques were unsuccessful in exposing the full extent of the drug trafficking organization. It also listed unused techniques and said why those techniques would have been ineffective or dangerous. For example, the affidavit discussed the limited utility of using a CS and conducting controlled drug buys, the fearful reticence of interviewees related to the organization, the perils of going to a grand jury before having more complete information, the risks and limited success of using physical surveillance and undercover agents, and the frequent futility of trash searches. And it also explained that law enforcement had been unable to discover the drug trafficking organization's sources, storage locations, and some of the high-ranking members within the organization's structure. The detailed affidavit provided ample information to meet the necessity requirement. See United States v. Milliner , 765 F.3d 836, 840 (8th Cir. 2014) (per curiam) ("Despite all these techniques, the government still did not know where [the defendant] obtained the cocaine, how he laundered the proceeds from the sales, and where he stored the drugs or the proceeds."); United States v. West , 589 F.3d 936, 939 (8th Cir. 2009) (finding that the necessity requirement was met where "the government had obtained a significant amount of information about the extensive drug operation in which [the defendant] was a primary player" but "had not uncovered the sources of the cocaine in which he dealt"). There was no clear error.

b. Probable Cause That the Cellphone Was Connected to Crime

Frencher urges that the government failed to establish subsection (d) because its wiretap application "failed to establish probable cause that the phone number to be intercepted ... was listed in the name of...