ORDER DENYING DEFENDANTS' MOTIONS TO SUPPRESS
DAVID ALAN EZRA, District Judge.
This court heard defendants' motions to suppress on August 25, 1992. After reviewing the motions and the supporting and opposing memoranda and hearing witness testimony as well as arguments of
On October 11, 1991, defendant Charles Kapela Stevens ("Stevens") and codefendants Aletha None Joseph
On May 11, 1992, Stevens filed a motion to suppress fruits of unlawful interception of wire communications. Stevens' motion to suppress the recorded telephone conversations is based on the following grounds:
Joseph, Padilla, Cambra, and Ramsey have all joined in Stevens' motion to suppress fruits of unlawful interception of wire communications.
On May 22 and 26, 1992, Stevens filed a total of five additional motions to suppress. On May 28, 1992, Padilla joined in one of Stevens' motions and filed another motion to suppress. On May 29, 1992, Joseph joined in some of the motions. The aforementioned motions seek suppression of evidence resulting from the following events:
I. MOTION TO SUPPRESS INTERCEPTED WIRE COMMUNICATIONS
On July 16, 1990, the plaintiff United States (the "government") filed an "Application for Interception of Wire Communications" seeking permission to conduct electronic surveillance of the home telephone of defendant Charles Stevens.
On July 16, 1990, Senior United States District Judge Martin Pence granted the government's application and issued a written "Order Authorizing Interception of Wire Communications" (the "Wiretap Order"). Gov't Ex. 3. Judge Pence determined that there was probable cause to believe that Stevens and many of his alleged associates,
Judge Pence also found that probable cause existed to believe that the authorized interception would result in the interception of wire communications concerning the manner, scope, and extent of the activities of Stevens and his alleged organization relating to the aforementioned allegations. Wiretap Order ¶ 2. The Wiretap Order indicated that the communications to be intercepted were expected to concern the dates, places, and methods of distributing the controlled substances. Id. Such communications were also expected to reveal places of operation, sources of supply, and the identities of other individuals involved in the alleged drug conspiracy. Id.
Additionally, Judge Pence found probable cause to believe that the subject telephone number, (808) 696-2108, has been used, is being used, and will continue to be used by Stevens and his alleged associates in connection with the commission of drug-related offenses. Wiretap Order ¶ 4. Finally, Judge Pence determined that the government had adequately demonstrated that normal investigative procedures were not a reasonable alternative. Id. ¶ 3.
The Wiretap Order provided that the FBI, as well as Honolulu Police Department ("HPD") officers under the direct supervision of the FBI, could monitor telephone conversations relating to the alleged drug conspiracy. Wiretap Order at 4-5. The surveillance was authorized to last for thirty days or until the purpose of the surveillance had been fully accomplished, whichever occurred first. Id. at 5-6. Judge Pence also required the government to provide him with weekly progress reports. Id. at 8.
The FBI commenced the electronic surveillance on July 16, 1990. All law enforcement personnel involved in the surveillance were provided with a comprehensive set of instructions on conducting electronic surveillance,
On August 14, 1990, the government applied for and obtained an order from Judge Pence authorizing the first renewal of interception of wire communications. Gov't Exs. 5, 7. The renewal application, like the original application, was supported by an affidavit of Agent Moroney. Gov't Ex. 6. The government obtained second and third renewal orders on September 13 and October 12, 1990, respectively. Gov't Exs. 8-13. On November 10, 1990, the government terminated the electronic surveillance. Gov't Mem. (Wiretap) at 5. In total, the government monitored approximately 13,000 telephone calls of which about 700 were deemed pertinent to unlawful activity. Id. at 32.
B. Franks Hearing
In his moving papers, Stevens requested an evidentiary hearing with respect to his challenge to the Wiretap Order. Stevens Mem. (Wiretap) at 2. The general rule regarding challenges to the facial sufficiency of search warrant affidavits is that evidentiary hearings are impermissible. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). The rationale behind this rule is that the court reviewing the probable cause determination underlying a search warrant should consider only the information presented to the issuing judge or magistrate. Spinelli v. United States, 393 U.S. 410, 413 n. 3, 89 S.Ct. 584, 587 n. 3, 21 L.Ed.2d 637 (1969).
The Supreme Court created an exception to this general rule in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In that case, the Court held:
438 U.S. at 155-56, 98 S.Ct. at 2676. Elaborating on its holding, the Court explained:
Id. at 171-72, 98 S.Ct. at 2684. Accord United States v. Tham, 960 F.2d 1391, 1394-96 (9th Cir.1992) (affirming district court's denial of a Franks evidentiary hearing); United States v. Ippolito, 774 F.2d 1482, 1484-85 (9th Cir.1985) (affirming district court's suppression of wiretap evidence under Franks due to intentionally false or misleading statements regarding the Title III necessity requirement in affidavit supporting wiretap application).
As indicated in Franks, the defendant can challenge the alleged falsity or
Moroney Aff. ¶ 241(e) (emphasis added). According to Stevens, Agent Moroney's allegations in the aforementioned paragraph were proven false by a small portion of FBI Special Agent Gregg R. Harmon's ("Agent Harmon") fifty-four page affidavit of October 4, 1990 in support of the application for a search warrant for Stevens' residence.
In paragraphs 93 through 100 of his October 4, 1990 affidavit, Agent Harmon related his knowledge and experience with the practices of drug traffickers in general. Agent Harmon explained the various types of code words which drug traffickers use to refer to certain drugs and amounts of drugs. Harmon Aff. ¶ 93. Agent Harmon also listed the types of drug-related evidence which is often recovered in a search of the residence of a drug trafficker. Id. ¶¶ 94-96, 98, 100. Accordingly, Agent Harmon concluded that a search of Stevens' residence may uncover evidence of drug-related activity, including firearms. Id. at 52-52.
The court finds that Agent Moroney did not make any false allegations regarding the feasibility of search warrants in his affidavit in support of the wiretap application. Agent Harmon averred that a search of Stevens' residence would likely uncover
In further justification of the positions of Agents Moroney and Harmon, the government asserts that one of the primary reasons that the FBI sought a search warrant for Stevens' residence was to allow them to install an electronic listening device, commonly referred to as a "bug," in Stevens' bedroom. On October 4, 1990, the same date that Agent Harmon applied for the search warrant, Agent Moroney submitted an application and supporting affidavit to Judge Pence seeking permission to intercept oral communications regarding Stevens' alleged drug activities. Gov't Ex. F.
In his October 4, 1990 affidavit, Agent Moroney repeated his earlier views that search warrants would have only limited usefulness. Agent Moroney then explained why the FBI was also applying for a search warrant at the same time:
Moroney (Bug) Aff. ¶ 56(e)(iii) (Gov't Ex. F). The preceding excerpt from Agent Moroney's affidavit supporting the listening device(s) application clearly indicates that the FBI was not attempting to deceive Judge Pence; rather the FBI kept Judge Pence fully apprised of the interrelationship of the different components of its investigation of Stevens.
The court does not find the affidavits of Agents Moroney and Harmon to be incompatible. To the contrary, as explained above, the court finds their affirmations to be completely consistent, especially in light of the FBI's alternative purpose for the search warrant relating to the installation of the electronic listening device(s). Therefore, as the court finds that Agent Moroney did not knowingly, or with reckless disregard, make any false statements in his affidavit in support of the wiretap application, the court denies Stevens' request for an evidentiary Franks hearing regarding the Wiretap Order.
C. Probable Cause
Electronic surveillance is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2521. Section 2518 sets forth the necessary procedures which law enforcement officials must comply with in order to apply for a court order authorizing the interception of wire, oral, or electronic communications.
One of the requirements for such authorization is that the judge must determine, on the basis of facts submitted by the applicant, that:
18 U.S.C. § 2518(3)(a), (b), (d). The standards used for reviewing the probable cause requirements of Title III are essentially the same as those employed for traditional search warrants. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985).
The Supreme Court has indicated that probable cause should be determined by a "totality of the circumstances" analysis. Illinois v. Gates, 462 U.S. 213, 230-38, 103 S.Ct. 2317, 2328-32, 76 L.Ed.2d 527 (1983); see also United States v. Tham, 960 F.2d 1391, 1395 (9th Cir.1992). In Gates, the Court noted that "probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." 462 U.S. at 232, 103 S.Ct. at 2329. In adopting the totality of the circumstances test, the Court repeatedly emphasized that it was rejecting any rigid or technical approach to the determination of probable cause. 462 U.S. at 230-38, 103 S.Ct. at 2328-32.
When applying the totality of the circumstances test,
Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Moreover, the Supreme Court has indicated that "`only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Id. at 235, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969)).
The task of a court reviewing a probable cause determination is simply to ensure that the issuing judge or magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238, 103 S.Ct. at 2332 (emphasis added). The Supreme Court has cautioned:
Id. at 236, 103 S.Ct. at 2331 (citations omitted); see also United States v. McQuisten, 795 F.2d 858, 861-62 (9th Cir.1986).
A finding of probable cause by the issuing judge or magistrate must be upheld unless it is clearly erroneous. McQuisten, 795 F.2d at 861. Additionally, the Supreme Court has indicated that while determinations of whether an affidavit demonstrates the existence of probable cause will often be difficult, the resolution of doubtful or marginal cases should be determined largely by the preference to be accorded to warrants. Massachusetts v. Upton, 466 U.S. 727, 734, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984).
Turning to the facts of the present case, the court has no trouble in concluding that Judge Pence had a substantial basis for determining the existence of probable cause. Judge Pence's probable cause determination for the initial Wiretap Order was based on the detailed, eighty-four page
The heart of Agent Moroney's affidavit is his description of the information provided by the sixteen confidential sources. The various confidential informants describe the basic framework of Stevens' alleged drug distribution ring. For the most part, the information provided by individual informants is corroborated by the reports of other informants. Most of the informants related personal observations of drug-related activity taken by a number of Stevens' alleged associates named in the Wiretap Order.
Moreover, several of the informants reported direct, personal contact with Stevens on drug-related matters. For example, one of the confidential informants, referred to as S-16, is allegedly a former drug distribution associate of Stevens. Moroney Aff. ¶ 163. According to S-16, he was primarily involved in drug distribution for Stevens from 1988 until July 1989. Id. ¶ 165. Later in 1989, S-16 allegedly began collecting drug debts for Stevens. Id. S-16 states that he attended meetings at the Sheraton Makaha Resort where Stevens would divide drugs, including crystal methamphetamine and on one occasion two kilograms of cocaine, among key associates or "lieutenants" of Stevens' organization. Id. ¶ 171. S-16 also indicated that in early March 1990 he witnessed Stevens distribute a quantity of crystal methamphetamine to Alfredo "Maki" Corpuz. Id. ¶ 176.
Confidential informant S-3 claimed that from July 1987 to March 1988, he dealt in cocaine transactions with Stevens and another individual on a regular basis.
Another confidential informant, S-13, advised that he sold two ounces of crystal methamphetamine to Stevens for $7,000 in September 1989. Moroney Aff. ¶ 124. After that sale, S-13 indicated that Stevens continuously contacted him to purchase more crystal methamphetamine. Id. ¶ 129. S-13 further relayed that his own source, Tae Yong Choe ("Yong"),
In addition to S-13, confidential informant S-14, who allegedly had a reputation for being able to provide large quantities of crystal methamphetamine, indicated that Stevens contacted him on several occasions seeking to be supplied with crystal methamphetamine. Id. ¶¶ 142-46. S-14 also advised that one of Stevens' alleged associates relayed to him that Stevens wanted to purchase $500,000 worth of crystal methamphetamine. Id. ¶¶ 147-48.
Agent Moroney provides information concerning the reliability of all of the confidential sources. Two of the confidential informants, S-1 and S-10, are law enforcement officers. Moroney Aff. ¶¶ 29(a), 102. At least three of the sources, S-6, S-8, and S-12, are "good citizen" sources. Id. ¶¶ 77, 95, 108. A "good citizen" source is an individual who cooperates with law enforcement agencies, requests confidentiality, and is not known to be involved in criminal activity. Id. ¶ 77. Furthermore, three of the sources, S-2, S-14, and S-16, are allegedly former associates of Stevens' purported criminal network. Id. ¶¶ 32, 135(g), 163, 163(b).
In support of the reliability of the various confidential sources, the court notes that virtually all of the sources had been supplying the FBI and/or HPD with information for a period of more than one year.
Based on the foregoing discussion, the court finds that there was probable cause to believe that Stevens and his associates were involved in the distribution of illicit drugs, thereby satisfying the probable cause requirement of 18 U.S.C. § 2518(3)(a). The court notes that § 2518(3) also requires the existence of probable cause to believe that the electronic communications facility which is the subject of the application is being used in connection with the alleged offenses. 18 U.S.C. § 2518(3)(d). In light of the aforementioned evidence regarding Stevens' alleged illegal activity, the court finds that there was probable cause to believe that Stevens' home telephone was being used in connection with such activity. This determination is further supported by the pen register analysis and the fact that several of the confidential informants reported having drug-related conversations with Stevens while Stevens was talking on his home telephone line.
Stevens contends that Judge Pence did not have a substantial basis for concluding that there was probable cause to believe that Stevens and his alleged associates were involved in a drug distribution scheme. Stevens attempts to undermine the significance of all the information in Agent Moroney's affidavit by attacking the reliability or materiality of each of the informants' statements. The court finds Stevens' analysis to be flawed in two major respects.
First, the Supreme Court has emphasized that probable cause must be evaluated based upon a common sense examination of the "totality of the circumstances." Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 230-38, 103 S.Ct. 2317, 2328-32, 76 L.Ed.2d 527 (1983). Stevens' attempt to attack each individual piece of evidence as insufficient to support a finding of probable cause ignores the Supreme Court's mandate to consider all the evidence as a whole in a practical manner. Moreover, the court notes that the interlocking nature of the statements of the various informants significantly enhances the credibility of their individual stories. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir.1989) ("Although the reliability of several of [the] confidential sources was not clearly established, the detailed nature of many of their statements and the interlocking nature of their stories enhanced their credibility."), cert. denied, ___ U.S. ___, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); see also United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, 467 U.S. 1230, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984).
Second, the court finds no merit to Stevens' individual objections. Stevens argues that some of the information in Agent Moroney's affidavit is false. The court notes that it has already rejected that argument in the context of the Franks hearing analysis. Stevens also contends that some of the information in Agent Moroney's affidavit is stale. The court finds Stevens' argument of staleness unpersuasive in light of the duration and continuity of Stevens' alleged drug activities. See Hernandez-Escarsega, 886 F.2d at 1566-67.
Stevens attacks the personal knowledge of several of the informants, however, the court notes that the majority of the informants related accounts of direct observation of, or contact with, Stevens or his alleged associates. With respect to Stevens' credibility challenges, the court notes that while some of the informants are presumably more reliable than others, almost all of the informants had been providing confidential information to law enforcement personnel for an extended period of time. The court similarly finds little merit to Stevens' claims of lack of corroboration.
In addition to the probable cause prerequisites, § 2518 of Title III requires the applicant to show that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). This condition is commonly referred to as the "necessity" requirement. United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985).
The Ninth Circuit has provided the following explanation:
Brown, 761 F.2d at 1275 (citations omitted). The conclusion of the issuing judge that the affidavit accompanying the application for a wiretap order satisfied the necessity requirement is reviewed only for an abuse of discretion.
The Ninth Circuit has cautioned that a court should not invalidate a wiretap order merely because a defendant is able to offer some alternative investigative method which could have been used by the investigating law enforcement agency. United States v. Carneiro, 861 F.2d 1171, 1178 (9th Cir.1988). In Carneiro, the defendants argued that the Drug Enforcement Administration ("DEA") had failed to satisfy the Title III necessity requirement. The defendants attempted to show several investigative methods which the DEA could have pursued in investigating their alleged criminal activities prior to seeking a wiretap order. Rejecting the defendants' contentions, the Ninth Circuit reasoned:
Id. at 1178.
In the present case, Judge Pence determined: "It has been adequately demonstrated that normal investigative procedures have been tried without success, reasonably
In his affidavit, Agent Moroney elaborated on the reasons why normal investigative procedures were no longer reasonable. Moroney Aff. at 76-82. Agent Moroney explained that while the confidential informants had provided a considerable amount of information, they were not able to describe the full nature of Stevens' involvement in the distribution of controlled substances in Hawaii nor were they able to identify all the members of his alleged distribution organization. Id. ¶ 241(a). Of even greater significance, the confidential informants provided very little information concerning Stevens' alleged drug suppliers. Id.
Agent Moroney stated that the use of undercover agents had not been attempted. Moroney Aff. ¶ 241(b). However, Agent Moroney explained why the use of confidential informants would likely be unsuccessful:
Id. Additionally, and of significance, Agent Moroney concluded that the use of undercover agents would be particularly dangerous in light of the propensity for violence, including murder, allegedly attributable to Stevens and his alleged associates. Id.
Agent Moroney further indicated that physical surveillance was not a reasonable alternative. Moroney Aff. ¶ 241(c). According to Agent Moroney, as well as other FBI agents and several experienced HPD officers familiar with the Waianae region, attempted physical surveillance of Stevens and his alleged associates would result in a high probability of being spotted by Stevens' group. Id. ¶ 241(c)(i), (ii). Again, Agent Moroney pointed to the close-knit nature of the Waianae community. Agent Moroney also stated that Stevens employs various counter-surveillance tactics in order to frustrate law enforcement surveillance efforts.
In his affidavit, Agent Moroney also explained why other types of investigative techniques were not reasonable alternatives under the circumstances. Agent Moroney stated that the pen registers, while helpful, cannot provide the nature of the conversation or the identity of the people conversing. Moroney Aff. ¶ 241(d). Agent Moroney indicated that search warrants were unlikely to produce evidence sufficient to show the full extent of the suspected criminal activity or the identity of all the participants. Id. ¶ 241(e). Agent Moroney further advised that use of search warrants, as well as grand jury subpoenas and interviews, would alert Stevens and his alleged associates to the existence of the government's investigation, thereby likely resulting in the destruction of important evidence. Id. ¶ 241(e)-(f).
Stevens asserts that the wiretap was not necessary because the government already knew about Stevens' sources, distributors, and disposition of profits.
First, there is no indication in Agent Moroney's affidavit that S-13 ever distributed crystal methamphetamine to Stevens other than the sale of two ounces in September 1989. Moroney Aff. ¶¶ 114, 124. Second, according to the government, Tommy Titsworth ceased to be a potential significant supplier of crystal methamphetamine to the Stevens organization after Titsworth's arrest in March 1990, several months prior to the wiretap application. Gov't Reply Mem. at 4-5 (citing Moroney Aff. ¶ 185). Furthermore, there is no indication that Stevens ever received crystal methamphetamine directly from Titsworth. Moroney Aff. ¶ 185. Third, Mervyn Chang died in December 1989. Id. ¶ 65. Fourth, Agent Moroney's affidavit states that according to S-16 George "Fluff" Kukila was making "kickbacks" to Stevens; the affidavit does not indicate that Kukila was actually supplying Stevens with crystal methamphetamine. Id. ¶ 177. In sum, the information in Agent Moroney's affidavit did not clearly identify Stevens' current suppliers of crystal methamphetamine and in fact indicates the government's inability to fully identify those sources.
Similarly, Stevens exaggerates the extent of the government's information regarding his alleged drug distributors. Stevens Supplemental Mem. (Wiretap) at 5-9, 22. Whereas Agent Moroney's affidavit has numerous accounts from the confidential sources regarding members of Stevens' alleged crystal methamphetamine distribution ring, the majority of this information was hearsay evidence which would not be admissible at trial. Only a few of the informants actually reported purchases of crystal methamphetamine from alleged associates of Stevens. See, e.g. Moroney Aff. ¶ 104(c) (S-11); ¶ 112 (S-12). Thus, while the government had reliable intelligence information regarding the criminal activities of Stevens and his purported associates, the government had not generated a prosecutable case at the time of the wiretap application.
With respect to disposition of drug-related income, S-2 and S-4 related that Stevens laundered his drug money by investing two to three million dollars in the Medeiros Trucking Company. Moroney Aff. ¶¶ 51, 59. Furthermore, S-16 advised that Stevens "`washes' his drug money through hidden interests in legitimate businesses, but never under his own name." Id. ¶ 166. Again, while this information is significant, it does not provide a thorough look at Stevens' disposition of drug profits.
The court notes that the present case is similar to United States v. Commito, 918 F.2d 95 (9th Cir.1990), cert. denied, ___ U.S. ___, 112 S.Ct. 224, 116 L.Ed.2d 181 (1991). In that case, the district court granted the defendant's motion to suppress on the basis that the FBI's affidavit accompanying the application for a wiretap order did not satisfy the necessity requirement of 18 U.S.C. § 2518. Reversing the district court, the Ninth Circuit noted that "[t]he judge who suppressed the evidence after a detailed critique of the affidavit of defense counsel held the government to a standard that would allow virtually no wiretaps in
Moreover, the Ninth Circuit in Commito rejected the notion that the government already had sufficient evidence against the defendant and that the wiretap was therefore unnecessary. The court explained:
Id. at 98.
Stevens further contends that the FBI presented false allegations to Judge Pence regarding the likelihood of success of normal investigative procedures, namely the effectiveness of search warrants. Stevens Supplemental Mem. (Wiretap) at 10-12, 18-20. The court notes that it has already determined, in the context of evaluating whether a Franks evidentiary hearing was required, that the FBI did not knowingly make false representations to Judge Pence regarding the effectiveness of search warrants.
Finally, Stevens argues that the FBI could have, but did not, have confidential source S-14 pursue a pre-existing relationship with Stevens. Stevens Supplemental Mem. (Wiretap) at 12, 22-24. According to Agent Moroney's affidavit, S-14 was a longtime close associate of Stevens and had participated in numerous criminal acts with Stevens in the past. Moroney Aff. ¶ 135(g). S-14 indicated that he met Stevens in September 1989 and that Stevens gave him his home telephone number for future meetings. Id. ¶ 139.
In February 1990, S-14 "put the word out" that he had the ability to provide large quantities of crystal methamphetamine. Id. ¶ 142. As a result, S-14 purportedly received calls from a large number of individuals, including Stevens, inquiring about his ability to supply crystal methamphetamine. Id. ¶ 142. During the middle of February, S-14 had at least four telephone conversations with Stevens, of which at least two calls involved requests by Stevens for crystal methamphetamine. Id. ¶ 146.
According to the government, S-14 never consummated any drug deals with Stevens. Gov't Reply Mem. at 9. Additionally, there is no information in Agent Moroney's affidavit which would indicate that S-14 had any contact with Stevens subsequent to February 1990. In fact, it appears that S-14 may have been incarcerated at the time of the wiretap application. Moroney Aff. ¶ 135(f).
The court finds that the FBI's failure to attempt to further pursue S-14's relationship to Stevens does not demonstrate that the issuing judge abused his discretion in determining that the government had satisfied its burden of proving necessity. As indicated above, a court should not invalidate a wiretap order merely because a defendant is able to suggest, with the benefit of hindsight, some alternative investigative method which could have been used. United States v. Carneiro, 861 F.2d 1171, 1178 (9th Cir.1988) (rejecting defendant's argument that the Drug Enforcement Agency did not satisfy the necessity requirement because it, among other things, did not aggressively pursue interviews with persons associated with defendant's drug ring).
While Stevens relies on United States v. Simpson, 813 F.2d 1462 (9th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987), the court finds that case to be distinguishable from the instant case. In Simpson, the district court suppressed evidence obtained through a wiretap because the FBI had misrepresented the role of a key informant in the affidavit supporting the wiretap application. Id. at
On appeal, the government argued that the evidence should not be suppressed because the FBI's misrepresentations were not material to the issuing judge's finding of necessity. Id. at 1472. Holding that the misrepresentations were material, the Ninth Circuit noted that the informant at issue had established a very close relationship, including sexual involvement over several months, with the defendant. Id. at 1465, 1472. Furthermore, the informant had been present on several occasions when the defendant had conducted business with other members of the alleged drug ring. Id. at 1472. Finally, the informant had become trusted enough to be permitted to identify potential drug purchasers for the defendant. Id. Within two months of meeting the defendant, the informant had twice arranged for him to sell heroin to undercover agents and had also introduced him to another undercover agent. Id. at 1471-72.
In comparison, the court finds that the documented relationship between S-14 and Stevens does not approach the level of involvement of the informant and the defendant in Simpson. To the contrary, the court finds the present case to be similar to the facts of United States v. Commito, 918 F.2d 95 (9th Cir.1990).
In Commito, a labor racketeering case, the undercover FBI agent won the defendant's confidence sufficient to receive an illegal kickback offer from the defendant in consideration for his business. Id. at 97. The defendant "invited the undercover agent to several meetings regarding other deals, solicited the agent's business, encouraged him to become further involved in his enterprise, and put him in touch with other business associates." Id. at 98. Nonetheless, at the end of ten months of undercover work, the agent had only limited knowledge regarding the details of the defendant's criminal network. Id. Accordingly, the Ninth Circuit held that the "government was not obligated to continue this relatively unproductive undercover state of affairs in the hope of gaining [the defendant's] complete trust." Id.
In light of the information provided in Agent Moroney's affidavit regarding the likelihood of success of normal investigative procedures, the court finds that Judge Pence did not abuse his discretion in determining that the government had satisfied the necessity requirement.
Stevens argues that the Wiretap Order was overly broad. Stevens Mem. (Wiretap) at 26-27. Pursuant to 18 U.S.C. § 2518(4)(c), a wiretap order must specify "a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." Such order must also indicate "the period of time during which such interception is authorized." 18 U.S.C. § 2518(4)(e). Moreover, the wiretap order must terminate upon attainment of the authorized objection or within thirty days, whichever is earlier. 18 U.S.C. § 2518(5).
As the Wiretap Order in this case directly tracked the aforementioned statutory language from Title III, the court finds no merit to Stevens' overbreadth argument. See generally United States v. Carneiro, 861 F.2d 1171, 1178-80 (9th Cir.1988) (discussing overbreadth challenges to wiretap orders). The court also notes that Stevens has provided absolutely no evidence which would indicate that the government employed the subject wiretaps for any longer than was necessary. In contrast, the government has supplied credible evidence that the wiretap lasted no longer than was justified.
Title III requires the government to conduct wire intercepts in a manner "to minimize the interception of communications not otherwise subject to interception" under Title III. 18 U.S.C. § 2518(5). The Ninth Circuit has elaborated upon the minimization requirement:
United States v. Torres, 908 F.2d 1417, 1423-24 (9th Cir.) (citations omitted), cert. denied, ___ U.S. ___, ___, 111 S.Ct. 272, 366, 112 L.Ed.2d 228, 329 (1990). The government has the burden of proving proper minimization. 908 F.2d at 1423.
In Torres, a case very similar to the present case, the Ninth Circuit rejected the defendants' contention that the Drug Enforcement Administration ("DEA") failed to minimize its monitoring of phone calls from the home telephone of one of the defendants, a suspected drug dealer. 908 F.2d at 1423-24. The court noted: "Because the record does not indicate that the DEA intercepted a `clear pattern of any substantial number of innocent calls,' we find the interception was properly minimized." Id. at 1423 (citation omitted).
The Ninth Circuit in Torres also found that the DEA had adopted reasonable procedures to ensure minimization. 908 F.2d at 1423. Of particular relevance to the instant case, the court further noted:
Id. at 1424 (citations omitted).
In Torres, the Ninth Circuit relied in part on the Supreme Court's reasoning in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). In that case, government agents, investigating a narcotics distribution conspiracy, intercepted via wiretap all of the calls made to or from one of the defendants' home telephones. Id. at 139, 98 S.Ct. at 1724. Apparently the agents did not utilize any minimization techniques. The Supreme Court held that the government's lack of minimization was not unreasonable under the particular circumstances. Id. at 141, 98 S.Ct. at 1725. The Court explained that investigation of a wide-spread conspiracy justifies more extensive surveillance. Id. at 140, 98 S.Ct. at 1724. The Court further reasoned that in a case "involving a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed." Id. at 142, 98 S.Ct. at 1725.
Turning to the present case, the court finds that the FBI properly minimized intercepted conversations. FBI monitoring agents were initially briefed on minimization procedures and then required to read a seventeen-page set of instructions on conducting the electronic surveillance at issue.
Stevens raises several specific objections to the FBI's minimization procedures. First, he contends that many of the conversations are in "pidgin" and are very difficult to understand. Stevens Mem. (Wiretap) at 25. The court fails to see how this contention is relevant to the issue of whether the government properly minimized its monitoring.
Second, Stevens argues that the FBI intercepted innocent conversations after a pattern of innocent calls developed. Stevens Supplemental Mem. (Wiretap) at 27-28. In particular, Stevens objects to the monitoring of phone calls involving his great grandmother-in-law, Elmira Orso ("Mrs. Orso"), and his then four-year old daughter Charlesee Stevens. Id. While Stevens does not seem to allege that the FBI failed to properly minimize these calls, he apparently argues that the FBI should not have monitored any portion of these calls. Id. With respect to Charlesee Stevens, the court is unaware of any telephone calls which were initiated by her or any calls in which she was a significant participant. See Second Decl. of FBI Special Agent Daniel P. Kelley ¶ 12 (attached to Gov't Reply Mem.).
With respect to Mrs. Orso, the government contends that some of her calls were pertinent to the investigation. Gov't Reply Mem. at 27. The government indicates that while most members of the Stevens family spoke in coded language when discussing criminal matters over the phone, Mrs. Orso was forthright and outspoken. Id. More importantly, the government points to specific conversations in which Mrs. Orso makes reference to family members' use of crystal methamphetamine as well as the April 3, 1988 murder of Lorenzo Young which she indicated was done by Sharn Stevens' ex-boyfriend, Wallace "Didi" Rodriguez. Id. (relying on transcripts of Calls 929 and 2375, attached to Gov't Reply Mem.). Accordingly, the court finds that it was not unreasonable for the FBI to intercept calls involving Mrs. Orso.
Third, Stevens contends that his wife, codefendant Aletha None Joseph, was named in the Wiretap Order without probable cause.
Fourth, Stevens contends that the government monitored conversations between his wife, codefendant Aletha None Joseph, and himself in violation of the marital communication privilege. Stevens
Instructions ¶¶ 16-17. Stevens has presented no evidence that the monitoring agents acted contrary to the Wiretap Instructions regarding the marital privilege.
Accordingly, as there is significant evidence that Joseph was an active member of Stevens' alleged drug conspiracy, the court finds no merit to Stevens' marital communications privilege claim. The Ninth Circuit has squarely held that the privilege does not apply to communications regarding present or future crimes in which both spouses are involved. United States v. Marashi, 913 F.2d 724, 730 (9th Cir.1990).
Fifth, Stevens argues that the FBI failed to properly minimize the interception of innocent phone calls. Stevens Supplemental Mem. (Wiretap) at 13-16, 30. In particular, Stevens relies on eight calls which were allegedly innocent calls which were not minimized properly. Id. at 15-16. However, as the government explains in its reply memorandum, these calls were in fact monitored in accordance with the approved minimization procedures. Gov't Reply Mem. at 20-26.
With respect to seven of the eight challenged calls, Stevens' interpretation of the FBI's minimization of the call was contradicted by the actual electronic surveillance log sheets which the monitoring agents filled out for every call. Id. (Call Nos. 2426, 3406, 3500, 5390, 5391, 5473, 9978). The other call, while not pertinent when viewed in isolation, was not minimized due to the context of the call in relation to other calls; the call at issue was preceded by numerous calls on that same date between the same parties in which drug-related activity was discussed. Id. at 21-23 (Call No. 2833).
Additionally, at the suppression hearing, Stevens introduced into evidence a table containing a summary of approximately 389 calls which he contends were improperly minimized. Stevens Ex. 1. The table was prepared by Anette Aiwohi ("Aiwohi"), a paralegal working for Stevens' attorney. There is no evidence that Aiwohi has had any prior experience with wiretap investigations or has had any training which would qualify her to examine wiretap results. Aiwohi conceded that she had no experience in law enforcement or criminal investigation. Accordingly, while the court admitted the table into evidence, the court notes the questionable credibility of the table in light of Aiwohi's complete lack of expertise in the area of criminal wiretap investigations.
According to Aiwohi, all of the calls listed in the table were non-pertinent calls which exceeded two minutes and were improperly minimized after the initial two minutes. Upon cross examination, Aiwohi admitted that some of the calls described above involved conversations which were innocent at the start of the call but turned to criminal matters later in the call. Aiwohi further admitted that she did not seek to ascertain whether calls which, when examined in isolation might seem non-pertinent, were in fact relevant to the investigation when viewed in light of other calls immediately surrounding the call at issue.
After cross examination of Aiwohi revealed that a significant number of the allegedly improperly minimized calls had apparently been minimized in accordance with the government's minimization instructions,
Having carefully and thoroughly reviewed all of Stevens' general and specific objections to the FBI's minimization techniques, the government's responses, and the electronic surveillance log sheets at issue, the court finds that the FBI's minimization efforts were reasonable under the circumstances of this case. See generally Scott v. United States, 436 U.S. 128, 139-43, 98 S.Ct. 1717, 1724-26, 56 L.Ed.2d 168 (1978); United States v. Torres, 908 F.2d 1417, 1423-24 (9th Cir.1990); United States v. Wilson, 835 F.2d 1440, 1445-46 (D.C.Cir. 1987).
Moreover, the FBI's monitoring procedures were in accordance with previously-established judicial parameters. United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992) (Title III not violated where agents routinely listened to the first two minutes of each conversation) United States v. Angiulo, 847 F.2d 956, 978-80 (1st Cir.) (upholding government's spot monitoring practice of randomly turning the recording equipment on for two minutes and then off for one minute), cert. denied, 488 U.S. 852, 928, 109 S.Ct. 138, 314, 102 L.Ed.2d 110, 332 (1988). Furthermore, even if a few of the more than thirteen thousand intercepted phone calls were inadvertently minimized improperly, the court need not invalidate the entire results of the wiretap. United States v. Torres, 908 F.2d 1417, 1423-24 (9th Cir.), cert. denied, ___ U.S. ___, ___, 111 S.Ct. 272, 366, 112 L.Ed.2d 228, 329 (1990).
Finally, in his memorandum accompanying his joinder in Stevens' motion to suppress the intercepted communications, defendant John G. Cambra objects to a specific telephone call between Stevens and himself which occurred in the morning of September 19, 1990. In that conversation, Stevens and Cambra talked about automechanics for a significant amount of time before starting to discuss a potential purchase of crystal methamphetamine. The telephone call lasted for thirty minutes and thirty-nine seconds. Cambra contends that the FBI agents monitored the entire conversation and failed to minimize in light of the non-criminal nature of the phone call. Cambra Mem. at 4.
The court finds that Cambra's assessment of the monitoring of the subject call is incorrect. As explained by the monitoring agent, FBI Special Agent Daniel Kelly ("Agent Kelly"), shortly after the conversation began Cambra mentioned the word "pohaku." Gov't Ex. 15, at 1. According to the government, pohaku is the Hawaiian word for rock and is also a term which Stevens and his alleged associates use in reference to crystal methamphetamine. Gov't Mem. (Wiretap) at 51. Attesting to the significance and the drug-related nature of the word pohaku, Agent Kelly described the reference to pohaku in his written summary of the conversation. Gov't Ex. 14. Thus, from the very beginning of
Moreover, Agent Kelly engaged in significant minimization throughout the subject phone call. He stopped listening, in order to minimize, at eight different points in the discussion. Gov't Mem. (Wiretap) at 52. According to the government, Agent Kelly stopped listening for a total of sixteen minutes and thirty-seven seconds which accounted for more than fifty percent of the conversation. Id. This assertion is confirmed by Agent Kelly's electronic surveillance log sheet pertaining to the telephone call at issue. Gov't Ex. 14. Accordingly, the court rejects the defendants' minimization objections.
II. SEARCHES, SEIZURES, AND ARRESTS
A. Search of Stevens on March 22, 1990
On March 22, 1990, the government contends that several HPD officers were conducting physical surveillance of an Ewa Beach residence for the purpose of locating a robbery suspect. After observing a grey-colored Lincoln Continental with heavily tinted windows depart from the residence, the officers followed the vehicle. According to the government, the suspect car was accelerating, screeching its tires, changing lanes in traffic at a high rate of speed, and generally driving in a reckless manner. The government further contends that the subject vehicle was clocked at seventy miles per hour in a forty-five mile per hour zone and that the vehicle had an expired tax decal.
The government maintains that the vehicle was pulled over on the basis of the aforementioned conduct. Stevens was ascertained to be the driver while James Caminos ("Caminos"), Alvin Seguin, and Narcissa Lemau were identified as passengers. During the stop, an HPD officer allegedly observed Caminos attempting to stuff a brown leather handbag under the front seat of the car. According to the officer, Caminos appeared nervous and uneasy. The officer allegedly feared that the bag might contain a weapon. When the officer went to retrieve the bag, Caminos allegedly resisted releasing the bag. During the ensuing struggle, the officer purportedly observed a clear plastic bag containing a white crystal substance resembling crystal methamphetamine protruding from a partially opened zippered compartment on the bag. All of the occupants were arrested for promoting dangerous drugs in the third degree and Stevens was also arrested for various traffic violations.
On March 23, 1990, the authorities obtained a search warrant from State District Court Judge Tany S. Hong permitting a search of the car and the leather hand bag. According to the government, the search of the hand bag revealed: two zip-locked bags containing approximately 2.0 grams of crystal methamphetamine; two glass pipes used for smoking crystal methamphetamine; $4,000 in bundles of $1,000; Stevens' wallet containing $2,500 worth of personal checks made out to him; and miscellaneous items of drug paraphernalia. In a statement made to the police, Caminos indicated that the crystal methamphetamine and the two pipes were his while the leather bag and the remaining contents belonged to Stevens.
Stevens contends that he did not violate any traffic laws and that the stop was merely a pretext for an illegal stop and search. After stepping out of the vehicle, Stevens maintains that HPD officers executed an extensive search of the car and the personal belongings of the occupants. Stevens alleges that the leather bag was searched at the scene of the stop without his permission.
The court finds no merit to Stevens' pretext argument. The court finds the HPD officers' explanation regarding Stevens' traffic violations credible. Beyond mere conclusory allegations, Stevens has provided no evidence of a bad faith, pretextual search. Moreover, the Ninth Circuit's recent decision in United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) is controlling for the present case.
On appeal of his conviction, the defendant argued that the officer's stop of his vehicle for traffic violations was merely a pretext for investigating his methamphetamine activities. Id. The Ninth Circuit rejected the defendant's argument. Id. The court noted that while the officer who stopped the defendant knew about the defendant's suspected drug manufacturing, the officer testified that he would have stopped him anyway because of his speeding and careless driving. Id.
Having established the validity of the stop in the present case, the court further finds that the search of Stevens' brown leather hand bag was valid. The government contends that the bag was searched on the day after the stop pursuant to a state search warrant. Stevens does not challenge the state search warrant. Thus, under the government's version of the events, the search was clearly constitutional. Stevens argues that the HPD officers searched his bag at the scene of the stop without his consent. Assuming arguendo that Stevens' version of the facts is true, the search is still in accordance with the Fourth Amendment under the Supreme Court's holding in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
In Belton, the Supreme Court established the following bright-line rule:
453 U.S. at 460, 101 S.Ct. at 2864; see also United States v. Lorenzo, 867 F.2d 561, 561-62 (9th Cir.1989). Thus, in light of the search warrant which was obtained and the arresting officers' authority to search pursuant to Belton, the court denies Stevens' motion to suppress the evidence obtained in the search of his automobile and leather hand bag.
B. Statement of Stevens on March 28, 1990
Following his arrest of March 22, 1990, Stevens was taken to the St. Francis Hospital for emergency room treatment of his hand which appeared infected. Although Stevens was under police custody when he was admitted to the hospital, he was released from custody on March 24, 1990.
On March 28, 1990, HPD Detectives Francis Williams ("Detective Williams") and Lambert Ohia ("Detective Ohia") visited Stevens. One of the officers wore a concealed body tape recorder. The officers engaged Stevens in conversation about crystal methamphetamine and its distribution in the Waianae area. Stevens did not know that his conversation was being recorded.
Gov't Mem. (Searches) at 4.
Stevens argues that his statements must be suppressed because he was not given a Miranda warning prior to the aforementioned questioning.
The judicial requirement that law enforcement officials must advise criminal suspects of their Fifth Amendment rights prior to taking a suspect's statement only applies to situations involving custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). Thus, the requirements of Miranda are inapplicable to situations not involving both "custody" and "interrogation." When determining whether a suspect was in custody, court must consider the totality of the circumstances involved. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983).
Custody is determined by assessing whether a reasonable person in the suspect's position would believe that he was free to leave. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir.1986). A court should consider the following factors in the custody analysis: the language used by the officers in summoning the person interviewed; the physical characteristics of the place where the interrogation occurred; the degree of pressure applied to detain the individual; the duration of the detention; and the extent to which the person was confronted with evidence of his guilt. Id. at 1236 (citing United States v. Booth, 669 F.2d 1231, 1235 (9th Cir.1981)).
The court finds that under the totality of the circumstances a reasonable person in Stevens' circumstances would have believed that he was free to leave. First, according to the police reports and the testimony of Detective Williams at the suppression hearing, it is evident that Stevens had not been in HPD custody for several days. As stated in the two HPD arrest reports relating to Stevens' arrests on March 22, 1990 for traffic violations as well as drug-related offenses, Stevens was "discharged" by HPD Detective Atkinson at 4:00 p.m. on March 24, 1990. See Gov't Exs. 2, 3 (introduced into evidence at the suppression hearing). The arrest reports further indicate that Stevens was "released" by Detective Ohia at the same time. Id. Detective Williams testified that Detective Ohia informed Stevens at 4:00 p.m. on March 24, 1990 that he was no longer in custody as of that moment.
Second, the recorded statements of Stevens in his conversation with Detective Williams indicate that Stevens was aware of that fact that he had been released from custody. Immediately prior to the pertinent portion of the conversation, Detective Williams discussed with Stevens a possible effort by an unknown person to kill Stevens. Detective Williams inquired whether Stevens wanted a police guard posted outside his hospital room.
In relevant part, the recorded conversation was as follows:
Gov't Ex. K at 3. Additionally, later on in the conversation, Stevens talked about possibly going home earlier than the doctors had originally advised. Id. at 5. Stevens also indicated that he had been having plenty of visitors. Id.
The court finds that the transcript of the conversation clearly indicates that Stevens knew that he was no longer in custody. Stevens was informed that his room was no longer being guarded; a factor clearly indicating a lack of custody. In the conversation with Detective Williams, Stevens expressly acknowledged that he was free to go. The only reason he was remaining in the hospital was for the ongoing treatment of his hand. Furthermore, Stevens' assertions of considering leaving early and having lots of visitors are incompatible with the notion that he was still in police custody.
As the court finds that Stevens was not in custody at the time of the challenged statements, Miranda does not apply. Therefore, the court denies Stevens' motion to suppress his statements of March 28, 1990.
C. Search of Stevens' Residence on October 5, 1990
On October 4, 1990, Agent Harmon filed an "Application and Affidavit for Search Warrant" seeking permission to search Stevens' residence at 84-049 Lawaia Street, Waianae, Hawaii, as well as a light blue Volkswagen Bug, with State of Hawaii license plate number CSV 236, which was on the premises. See Gov't Ex. B. Generally, the application sought permission to search for: controlled substances, including marijuana and crystal methamphetamine; drug paraphernalia; books and records relating to drug trafficking and drug-related income; and firearms and ammunition. Id. Along with the application, Agent Harmon submitted a fifty-two page affidavit. Id. On the day the application was made, Judge Pence issued the search warrant requested.
In his affidavit, Agent Harmon asserted that probable cause existed to believe that a search of Stevens' residence would uncover the specified evidence relating to illegal drug trafficking. His probable cause assertion was based upon: (1) information provided by nine confidential sources and one identified source; (2) arrests of Stevens for firearm and drug offenses on March 22 and August 1, 1990;
With respect to the nine confidential sources and the one identified source, the court notes that all of these informants were previously utilized as sources to support the government's wiretap applications. The sources cited in Agent Harmon's affidavit included: S-2, S-3, S-5, S-9, S-12, S-13, S-14, S-15, S-16, and Paciano "Sonny" Guerrero. Harmon Aff. ¶¶ 8-77. As the information provided by these sources is virtually identical to the recitations made in Agent Moroney's initial affidavit to support the wiretap application, the court need not repeat the litany of information detailing Stevens' alleged drug-related activities.
In addition to the informants and the aforementioned arrests and statements of Stevens, Agent Harmon relied upon the results of the government's wiretap on Stevens' home telephone. Agent Harmon recounted the basic substance of some forty-six drug-related conversations. Harmon Aff. ¶¶ 92(a)-(tt). For example, Agent Harmon indicated that on September 19, 1990, at approximately 8:38 a.m., Stevens and codefendant Cambra had a conversation
In paragraphs ninety-three through one hundred, Agent Harmon describes his general knowledge of the typical practices of drug traffickers. Agent Harmon explains the various types of code words which drug traffickers use to refer to certain drugs and amounts of drugs. Harmon Aff. ¶ 93. Agent Harmon also listed the types of drug-related evidence which is often recovered in a search of the residence of a drug trafficker. Id. ¶¶ 94-96, 98, 100. Accordingly, Agent Harmon concluded that a search of Stevens' residence may uncover evidence of drug-related activity, including firearms. Id. at 52-52.
Stevens moves to suppress the fruits of the search of October 5, 1990 on the ground that the search warrant was not based upon probable cause.
Relying on the same arguments as he presented with respect to the wiretaps, Stevens contends that the information provided by the numerous informants is unreliable. Stevens also argues that the forty-six recorded conversations were not a proper basis for probable cause because the wiretap was illegal. The court notes that it has already thoroughly considered and rejected these arguments in the wiretap portion of this order. The court has also rejected Stevens' argument regarding the legality of his arrest on March 22, 1990 and his statements of March 28, 1990.
Finally, Stevens argues that Agent Harmon's affidavit was inconsistent with Agent Moroney's affidavits supporting the wiretap applications. Again this court rejected this argument in the discussion relating to the Franks hearing issue. Accordingly, the court finds that probable cause did exist with respect to the search warrant issued on October 4, 1990. Thus, the court denies Stevens' motion to suppress the fruits of the search of October 5, 1990.
D. Search of Padilla's Residence on October 23, 1990
On October 23, 1990, Agent Harmon applied for a search warrant seeking permission to search the alleged residence of codefendant Lawrence Padilla, as well as Rosaline "Rose" Gonsalves ("Gonsalves"), at 94-107 Pupuole Place, Apt. A, Waipahu, Oahu, Hawaii. See Gov't Ex. D. Generally, the application sought permission to search for: controlled substances, including marijuana and crystal methamphetamine; drug paraphernalia; books and records relating to drug trafficking and drug-related income; and firearms and ammunition. Id. Along with the application, Agent Harmon submitted a twenty-three page affidavit. Id. On the day the application was made, Judge Pence issued the
In his affidavit, Agent Harmon asserted that probable cause existed to believe that a search of the subject residence would uncover the specified evidence relating to illegal drug trafficking. The probable cause showing was evidenced by the undercover work of confidential informant S-20, including purchases of crystal methamphetamine from Gonsalves, and twenty-three drug-related conversations between Stevens and Padilla. Harmon Aff. of 10/23/90, ¶¶ 6-12; id. ¶¶ 13(a)-(x). These conversations indicated, among other things, that by late September 1990, Stevens had distributed a quantity of crystal methamphetamine to Padilla for further distribution.
On October 23, 1990, at approximately 6:00 a.m., FBI agents executed the search warrant. Stevens and Joseph were found lying on the living room floor. Stevens was wearing only underwear. It appeared that they had been sleeping before the agents entered. Padilla was located alone in a separate bedroom. He made an effort to grab a .38 caliber Smith and Wesson handgun
Stevens and Padilla both seek to suppress the evidence obtained as a result of the search. Padilla argues that the information provided by S-20 cannot support the probable cause finding because there was insufficient evidence of S-20's reliability. According to Padilla, the only information pertaining to S-20's reliability is the following paragraph from Agent Harmon's affidavit:
Harmon Aff. ¶ 6.
Nonetheless, the court notes that irrespective of S-20's information there is significant evidence of Padilla's criminal activity contained in the conversations with Stevens which were intercepted pursuant to the Wiretap Order. Upon reviewing Agent Harmon's affidavit in support of the search warrant, the court finds that under the totality of the circumstances Judge Pence had a substantial basis for determining the existence of probable cause based solely upon the intercepted conversations.
Although Stevens does not specify the evidence he seeks to suppress, he contends that he was outside of the scope of the search warrant because he was merely a visitor at the premises.
The Ninth Circuit has visited this issue on several occasions. In United States v. Williams, 687 F.2d 290 (9th Cir.1982), the Ninth Circuit held that a search warrant authorizing the search of a log cabin supported the search of the defendant's lunch box which had his name on it. Id. at 293.
In United States v. Robertson, 833 F.2d 777 (9th Cir.1987), the Ninth Circuit held that a search warrant for a residence did not encompass the nonconsensual search of an unknown visitor's backpack and purse which the visitor was carrying as she was leaving the house on the walkway. Id. at 779, 783-86. The court distinguished its prior ruling in Williams as follows:
Id. at 784.
Turning to the claims of Stevens and Padilla, the court finds no basis for suppression. The search of Padilla's residence did not result in the seizure of any evidence which was actually found on Stevens. None of the evidence seized was in his immediate possession. Moreover, none of the evidence seized was immediately and plainly identifiable as being property which belonged to Stevens. Finally, the visitor exception to residential search warrants does not apply to Padilla who, at the time of the search, was residing at the residence which was the subject of the search warrant.
E. Search of Laurie Rellin's Residence on March 4, 1991
On February 27, 1991, State District Court Judge Tenney Z. Tongg issued a search warrant for a residence owned by the family of Laurie Rellin located at 84-116 Jade Street, Makaha, Oahu, Hawaii. Gov't Ex. J. On March 4, 1991, HPD officers executed the search warrant. The officers found six adults located on the premises, including Stevens and codefendant Glenn "Whitey" Sequin, Jr. who were found in the television room. A search of a brown vinyl bag located under a table in the room revealed three glass pipes of the kind used to smoke crystal methamphetamine as well as Stevens' social security card. HPD officers also found a .308 caliber rifle with twenty-nine rounds of ammunition and a box of shotgun shells in the room.
Stevens was arrested on several charges including felon in possession of a firearm and possession of drug paraphernalia. HPD officers found $9,040 in currency in Stevens' jacket. After his arrest, Stevens was transported to the HPD receiving desk where he was again searched incident to his arrest. A small clear plastic bag containing 1.346 grams of cocaine was found in his right rear pocket.
At the suppression hearing, Stevens orally withdrew his motion to suppress the evidence obtained from the March 4, 1991 search.
F. Interview of Padilla on June 4, 1991
On June 4, 1991, Padilla was interviewed by an HPD officer and an FBI special agent at a holding cell at HPD Headquarters. Padilla was in custody as a consequence of being arrested for assaulting an officer. Padilla has moved to suppress his statements on the ground that he was not given a Miranda warning. The government indicates that it does not intend to use any of Padilla's statements from the interview in its case-in-chief. Gov't Mem. (Searches) at 15. Therefore, at this stage of the proceedings, Padilla's motion is moot.
G. Removal of Listening Device(s) from Stevens' Residence on October 15, 1991
On October 4, 1990, Judge Pence issued an order authorizing the placement
Gov't Ex. E at 6 (emphasis added). On October 18, 1990, the government notified the court of the retrieval of the listening devices in accordance with the order of October 4, 1990.
On October 15, 1991, Stevens was arrested, pursuant to the indictments in Cr. Nos. 91-01618 DAE and 91-01621 ACK, by FBI agents at Stevens' residence. After Stevens was placed under arrest, several agents, including Agent Moroney, entered Stevens' bedroom for the purpose of removing one or more of the authorized listening devices. Agent Moroney observed a manila envelope, opened at one end, lying on top of some clothes in a laundry basket which was on top of Stevens' bed. The envelope was addressed to the Bureau of Alcohol, Tobacco and Firearms. Agent Moroney further observed the butt of a handgun protruding from the open end of the envelope. Agent Moroney removed and seized the gun which was identified as a .38 caliber Llama semi-automatic handgun. A sock covered the muzzle of the gun. Within the sock, Agent Moroney found six rounds of .38 caliber ammunition.
Stevens seeks to suppress the gun. Stevens argues that the search which uncovered the gun was outside the scope of a search incident to a lawful arrest. Yet the government maintains that the gun was discovered during the process of removing the listening device(s) pursuant to Judge Pence's order.
At the suppression hearing, Detective Williams, who was also present at Stevens' residence on October 15, 1991, recounted
For the reasons stated above, the court DENIES all of the aforementioned motions to suppress.
IT IS SO ORDERED.
Assuming arguendo that Stevens had vacated his residence prior to October 3, 1990, the court does not find that the aforementioned evidence, if true, indicates that the government had actual knowledge of that situation as of October 3, 1990. At the suppression hearing, the government stated that Stevens immediately left his residence after the search of October 4, 1990. A few days later, however, the government claims that Stevens seemed to indicate that he would return. The evidence further indicates that Judge Pence was apprised of these events in the government's seven-day reports to him.
In the present case, the government has made a very strong showing of probable cause. Therefore, Stevens apparently attempts to use the strong showing of probable cause against the government by arguing that the government already had so much evidence against Stevens that the wiretap was unnecessary. Although Stevens' necessity argument has some visceral appeal, it does not withstand legal scrutiny under the deferential standards pertaining to the necessity requirement.
835 F.2d at 1445-1446.
Stevens and Joseph also argued that Judge Pence's order authorizing the bug was overly broad in not requiring removal of the device within a certain amount of time after it was deactivated. The court notes that the government did submit a report to Judge Pence, a couple days following the removal, elaborating on the removal of the bug. More importantly, the court notes that there is no requirement, either statutory or in Judge Pence's order, which requires the government to remove the bug within a certain amount of time. Furthermore, there is no evidence which would suggest that the timing of the government's retrieval of the bug was used as a pretext for an impermissible search.