United States v. Ward

UNITED STATES OF AMERICA, Plaintiff, v. LAMONT ALFONZO WARD, JR. (01), Defendant.

Case No. 13-cr-40066-DDC

Case No. 14-cr-40139-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 30, 2015

MEMORANDUM AND ORDER

This case comes before the Court on two motions to suppress filed by defendant Lamont Ward, Jr. Mr. Ward filed a motion to suppress in the first iteration of this prosecution, Case. No. 13-40066 (Doc. 27). He also joined the suppression motions filed by the defendants in a related case, United States v. Banks (Doc. 37 in Case No. 13-40060).

In Banks, this Court granted the defendants' motions to suppress the government's wiretap evidence in part because investigators had intercepted certain calls outside the jurisdiction of the state court judge who issued the wiretap orders. See Doc. 580 in Case No. 13-40060. Investigators used the content of some of these now-suppressed phone calls in the affidavit supporting their application for search warrants. Relying in part on subsequently suppressed wiretap evidence, Judge David Platt of Kansas' Eighth Judicial District issued a warrant authorizing a search of Mr. Ward's residence. Officers executed the warrant and seized evidence the government likely will use against Mr. Ward at trial.

In response to the order in Banks, Mr. Ward supplemented his motion to suppress (Doc. 46). His supplemental motion argues that the Court must suppress the evidence seized at his residence because, when one excludes the improperly-obtained wiretap evidence, the affidavitsupporting the warrant application fails to establish probable cause. The government has filed a response opposing Mr. Ward's motion (Doc. 50). The Court conducted a hearing on Mr. Ward's motion on April 17, 2015. After considering the facts and arguments presented by the parties, the Court denies Mr. Ward's motion for the reasons explained below.

A. Procedural Background

The government has indicted Mr. Ward for the same offenses—possession of cocaine with intent to distribute, felon in possession of a firearm, and possession of a firearm in furtherance of drug trafficking—in two separate cases. See Doc. 1 in Case No. 14-40139; Doc. 3 in Case No. 13-40066. The government filed the First Indictment on May 29, 2013.

Following an August 22, 2014 hearing in Banks, this Court issued an order ruling that it would suppress certain wiretap evidence unless the government could produce evidence showing that the tapped phones were within Kansas' Eighth Judicial District when agents intercepted the calls. See Doc. 517 in Case No. 13-40060. Some of the evidence affected by the Court's suppression order is relevant to Mr. Ward's case. See Doc. 10 in Case No. 13-40066. In response to the Court's order, the government asserted that it needed time to process evidence about the phone's locations. At a status conference conducted on September 15, 2014, the government informed Mr. Ward that it intended to dismiss the First Indictment and refile a second indictment as soon as practical. The Court had yet to decide Mr. Ward's first motion to suppress when the government voluntarily dismissed the First Indictment. The grand jury returned the Second Indictment on November 12, 2014. Doc. 1 in Case No. 14-40139.

On January 12, 2015, Mr. Ward's previous counsel filed a motion to withdraw (Doc. 27), asserting that her relationship with Mr. Ward had deteriorated and thus precluded effective representation. The Court conducted a hearing and advised Mr. Ward that if it appointed newcounsel, it would postpone the trial so that his new attorney could adequately for trial. Advised of this consequence, Mr. Ward stood on his demand for new counsel, so the Court granted the motion (Doc. 32). Mr. Ward's new attorney informed the Court that he wished to file additional pretrial motions. The Court allowed it. This new round of motions includes the supplemental motion to suppress now before the Court. In it, Mr. Ward reasserts his original motion to suppress from the first case and also asserts additional arguments based on the Court's suppression ruling in Banks. The Court addresses each motion, below.

B. Framework for Resolving Mr. Ward's Motion

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 also "any evidence derived therefrom." 18 U.S.C. § 2515; K.S.A. § 22-2517. To apply the "evidence derived therefrom" component of this rule, the Court looks to the analogous and better developed Fourth Amendment case law for guidance.¹ "[I]n 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 show a "factual nexus" between the primary violation and thederivative evidence. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000). This test demands more than a showing that the derivative evidence would not 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. (citing Wong Sun, 371 U.S. at 488).

Mr. Ward's motion asks the Court to decide the validity of a search warrant that relied, in part, on suppressed evidence to establish probable cause. In this context, the Court must invalidate the warrant "if [the suppressed] information was critical to establishing 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 this motion, 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. And last, the Court will consider whether probable cause supported a search of the Springhill Drive residence based on the information in the reconstituted affidavit.

C. The Reconstituted Affidavit

The parties agree that only seven paragraphs in the search warrant affidavit contain information about Mr. Ward. They are: ¶¶ 259, 335, 339, 429, 498, 706, and 909. Doc. 395-1. Among other information, these paragraphs identify six calls and two texts messages between Mr. Ward and others that agents intercepted.

Mr. Ward argues that four of these calls or text messages—identified in ¶¶ 259, 429 and 706—are inadmissible because the government lacks the cell-site location information associatedwith them. Indeed, the government admits that Penlink, its interception software, was not working properly when agents intercepted these four communications. It thus failed to log the cell-site information associated with those calls. As a result, Mr. Ward asserts that they cannot survive the Court's suppression order, and the Court should not consider them to determine whether probable cause existed.

The government agrees that ¶¶ 259 and 706 are inadmissible.² Though Mr. Ward does not challenge it, the government also agreed to redact ¶ 339 from the affidavit voluntarily. Both parties agree that ¶¶ 335, 486, 498, 909 survive the Court's suppression order, but they do dispute whether of ¶ 429 should survive.

Paragraph 429 of the affidavit submitted as support for the search warrant describes a series of phone calls occurring on March 23, 2013, at approximately 10:30 p.m. Call #6465 is a call Mr. Ward placed to Albert Banks. Mr. Ward asked Mr. Banks if he was "back yet," and indicated that wanted to get some drugs from Mr. Banks. In response, Mr. Banks asked Mr. Ward if he wanted a "B z" (which, the affidavit asserts is slang for an eighth-ounce of crack cocaine). Mr. Banks told Mr. Ward that he would put the crack "on the bench" (meaning a bench scale). Mr. Ward then asked Mr. Banks for a "half one," and, moments later, Mr. Banks asked him for a "bench" because his was in Ogden, Kansas. Mr. Ward advised Mr. Banks that he did not care what the cocaine looked like, and just to make it "a little bit over." Mr. Banks also made a comment that he "gets down here" and "snow done covered the shit up" (referring to snow on the ground covering an item that Detective Babcock believed to be drugs). Detective Babcock's affidavit understood this conversation to be consistent with a drug transaction.

The government argues that the content of this phone call and the calls occurring immediately before and after it establish that Mr. Ward was in Junction City and, hence, inside the Eighth Judicial District when these communications took place. Mr. Ward and Mr. Banks were discussing a drug delivery to Mr. Ward, who lives in Junction City. These facts, along with the statements about Mr. Banks getting "down here," led the agents to believe that Mr. Banks also was in Junction City—and thus within the Eighth Judicial District—at the time of the call. Also, the government contends that the two calls bracketing this conversation corroborate their claim about Mr. Ward's location in Junction City. In call #6486, a call that occurred less than five minutes before the conversation described in ¶ 429, Mr. Banks told Sylvester Jackson that he was outside of Mr. Jackson's house, which agents asserted also was located in Junction City. In call #6494, less than one minute after the conversation between Mr. Banks and Mr. Ward, Mr. Banks indicated that he was at Tiffany Young's residence, also located in Junction City.

The government's theory about the content of the two phone calls "bracketing," i.e., the call preceding and...