RICHARD W. STORY, District Judge.
This case is before the Court for consideration of the Report and Recommendation ("R & R") [294] of Magistrate Judge Russell G. Vineyard. After reviewing the Report and Recommendation and Defendant's Objections [303] thereto, the Court enters the following Order.
In his Objections to the R & R, Defendant asserts that the agents exceeded the scope of consent to search given by Defendant and seized items without probable cause to believe that those items were contraband or evidence of a crime. Defendant contends that he only consented to a search for particular items identified by the agents; i.e., documents that were, in Defendant's mind, related to J. Johnson. The Court finds that such a conclusion is not supported by the evidence. The R & R reviews the events related to Defendant's consent to search. This Court concurs in the conclusion in the R & R that Defendant gave a general consent to search and that his actions were consistent with that general consent. Further, the evidence shows that Defendant consented to the seizure of the items taken by agents. Therefore, Defendant's Objections on these grounds are
Defendant also asserts that he invoked his right to remain silent, and the agents did not honor his invocation. The basis for Defendant's contention is that the agents did not complete the papers that Defendant gave them before questioning him. Defendant argues that the completion of the papers was a condition precedent to Defendant being interviewed. Such was clearly not the case. Defendant knew the agents had not completed the papers and yet consented to be interviewed and, in fact, was interviewed. Thus, Defendant did not treat the completion of the papers as a condition precedent to his giving an interview. Therefore, the conclusion in the Report and Recommendation that Defendant was advised of his Miranda rights and voluntarily waived those rights is correct.
Based on the foregoing, the Report and Recommendation is received with approval and adopted as the Opinion and Order of this Court. Accordingly, Defendant Degaule's Motion to Suppress Intercepted Communications [144] and Motions to Suppress Evidence and Statements [146 and 206] are
RUSSELL G. VINEYARD, United States Magistrate Judge.
Attached is the Final Report, Recommendation, and Order of the United States
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. Failure to object to this Report and Recommendation waives a party's right to review. Fed.R.Crim.P. 59(b)(2).
Pursuant to Title 18, U.S.C. § 3161(h)(1)(F),
Defendant Jacques Degaule ("Degaule") is charged along with co-defendants Jiles Delwin Johnson ("J. Johnson"), Shannon Renee Johnson ("S. Johnson"), Mark Lamont Walker ("Walker"), Schawn Lemon Wortham ("Wortham"), Thallas Amie ("Amie"), and Laverne Simon ("Simon"), in a three-count superseding indictment. [Doc. 13]. Specifically, Degaule is charged in Count Two of the superseding indictment with conspiring to launder drug trafficking proceeds in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i)-(ii), and (h). [Id.].
Degaule moves to suppress evidence obtained as a result of four wiretap orders, [Doc. 144], which the government opposes, [Docs. 213 & 215]. For the reasons set forth herein, it is hereby
"Title III of The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, sets forth numerous requirements the government must meet before electronic surveillance (wiretaps) may be authorized." United States v. Flores, No. 1:05-cr-558-WSD-JFK, 2007 WL 2904109, at *21 (N.D.Ga. Sept. 27, 2007), adopted at *15. For example, pursuant to 18 U.S.C. § 2518, a wiretap application must include:
United States v. Gonzalez Perez, 283 Fed. Appx. 716, 720 (11th Cir.2008) (per curiam) (unpublished) (quoting 18 U.S.C. § 2518(1)(b), (c)) (internal marks omitted) (alterations in original). See also United States v. Woodley, No. CR408-315, 2009 WL 3415214, at *1 (S.D.Ga. Oct. 22, 2009), adopted at *1.
Upon a proper application, a district judge may issue an ex parte order authorizing the interception of wire communications if: "the judge finds probable cause to believe that an individual is committing or has committed a qualifying offense; that particular communications concerning that offense will be obtained through such interception; and that the facilities from which, or the place where, the communications are to be intercepted are being used in connection with the offense, or are leased to, listed in the name of, or commonly used by such person." United States v. Duarte-Rosales, Criminal File No. 1:05-CR-197-6-TWT, 2008 WL 140665, at *2 (N.D.Ga. Jan. 11, 2008), adopted at *1 (citing 18 U.S.C. § 2518(3)(a), (b) and (d)). See also United States v. Robles, 283 Fed.Appx. 726, 734-35 (11th Cir.2008) (per curiam) (unpublished). "Probable cause for a wiretap is the same probable cause required for a search warrant," Duarte-Rosales, 2008 WL 140665, at *2, and "[l]ike other types of warrants, probable cause must exist at the time surveillance is authorized," Flores, 2007 WL 2904109, at *21 (citing United States v. Domme, 753 F.2d 950, 953 (11th Cir.1985)). "[A] wiretap order is presumed to be valid, and a defendant has the burden of overcoming the presumption and of proving that the wiretap order was unlawfully obtained." Id. at *22 (citations omitted). "This Court need merely determine whether the judge who signed the warrant had a substantial basis for concluding that probable cause existed." Duarte-Rosales, 2008 WL 140665, at *2 (citations omitted).
On November 20, 2009, upon an application and 109-page affidavit submitted by Drug Enforcement Administration ("DEA") Special Agent Mario Lijoi ("Agent Lijoi"), the Honorable Richard W. Story ("Judge Story"), United States District Judge, entered an order authorizing the interception of wire communications over Target Telephone 1 ("TT1"), which was described as a U.S. Sprint cellular phone (assigned the telephone number of (678) 414-5114) subscribed to S. Johnson, and believed to have been used by J. Johnson. See [Ex. A attached under seal to the government's consolidated response].
In his affidavit in support of the application for the wiretap, Agent Lijoi provided background information regarding the investigation of drug trafficking and money laundering activities of a specific drug trafficking organization ("DTO"), which began in October of 2007. [Ex. A, Lijoi Aff. at 12-81].
In April of 2008, law enforcement agents seized a large amount of cocaine in the Philadelphia area, which was subsequently linked to the DTO. [Id. at 35]. Investigation during this seizure showed that the DTO had supplied cell phones to the distributors to be used during the specific deals or loads, and that these "load-phones" were pre-programmed with the DTO supplier's contact information, which was listed as "me." [Id.].
Agent Lijoi relayed that in July 2008, a cooperating source, who had been arrested in New York on narcotics-related charges, explained that the DTO had supplied him with cocaine for distribution in the past, and that it had also supplied another individual with cocaine for distribution in Philadelphia. [Id. at 30-31, 34]. Corroborating this information, Agent Lijoi explained that a confidential source of information ("CSI-2") provided detailed information regarding the DTO supplying cocaine in Philadelphia, and the DTO's supplier providing push-to-talk load phones pre-programmed with the contact "me" for use during the deals. [Id. at 37-38].
Agent Lijoi also relayed that in August 2008, another cooperating source, who had been arrested in Kansas City on narcotics-related charges, explained that the DTO had supplied him, as well as other distributors in the area, with cocaine in the past. [Id. at 19]. This source further explained that the DTO provided "load-phones" with a push-to-talk feature that were pre-programmed with the DTO supplier's contact information as "me." [Id. at 19-20]. Additionally, the source explained that the DTO utilized semi-trucks attached with semi-trailers to transport the narcotics to Kansas City, and that on at least one occasion, the source had observed cocaine being removed from one of these semi-trucks. [Id.]. The source said that the DTO utilized at least two couriers, one whom the source identified by name, in the Kansas City area, and that these couriers would actually deliver the cocaine to distributors and then collect the proceeds. [Id.].
Travel records, financial records, phone records, and surveillance showed that the DTO supplier was in fact in Kansas City on various dates between June and August of 2008, and that there were communications between the cooperating source's and the DTO supplier's load-phones, as well as communications between TT1 and the alleged courier identified by the cooperating source. [Id. at 19-20, 22].
Agent Lijoi further relayed that in September of 2008, another confidential source of information ("CSI-3") reported that a large shipment of powder cocaine had arrived in Philadelphia from Atlanta. [Id. at 39-40]. At this time, CSI-3 reported observing vehicles in the Philadelphia area that were associated with the DTO's Atlanta-based supplier. [Id.]. Thereafter, in October 2008, an individual was arrested on narcotics-related charges, and at the time of his arrest, he had several cellular telephones with him, one of which contained an entry labeled "me." [Id. at 27-28]. Phone records during this time frame revealed that there was contact between load phones belonging to this individual and a load phone believed to belong to the DTO supplier. [Id. at 28-29]. Additionally, there were contacts on TT1 to other individuals, including one of the alleged Kansas City couriers. [Id. at 29]. Finally, phone records and cell tower utilization showed that TT1 continued to have contact with suspected members of the DTO, including Degaule, in March, August, September, October, and November of 2009. [Id. at 44, 46, 48, 50-51, 53-56, 66].
Based on these facts, Agent Lijoi explained that the interception of TT1 was necessary in order to accomplish the goals of the investigation, which included discovering: (a) the identities of all of the members of the DTO and money laundering network beyond those already discovered; (b)the locations of the target subjects and their unidentified accomplices; (c) the scope of the DTO in Atlanta, Kansas City, Philadelphia, and elsewhere; (d)the methods used for the shipment of drugs and collection of proceeds; (e) the identities of the DTO's customers in Atlanta, the other cities involved, and elsewhere; (f) stash house locations; (g) the identities of the DTO's chain of command and customers so that it could be dismantled; and (h) the identity of the DTO's source of supply, its operations, and its scope of distribution. [Id. at 81-82].
On December 22, 2009, the Honorable Timothy C. Batten, Sr. ("Judge Batten"),
Specifically, Agent Lijoi explained that the intercepted communications confirmed that TT1 was being used as a contact or anchor phone for the DTO. [Id. at 14-47]. In particular, Agent Lijoi described conversations and calls made between TT1 and various individuals, including Degaule, believed to be associated with the DTO, which led him to conclude that these individuals were conspiring to engage in drug trafficking and money laundering activities. [Id. at 14-49].
Based on the additional information obtained as a result of the intercepted communications on TT1, Agent Lijoi explained that the continued interception of TT1 was necessary because surveillance of the suspected DTO members had been unsuccessful since the members often met in isolated areas, and that it was only through the intercepted communications that the agents could discern their activities. [Id. at 54]. Additionally, Agent Lijoi relayed that the intercepted communications revealed a "complex methodology for laundering money involving international bank accounts that if not for the interception of [TT1], the level of sophistication would not have been learned." [Id.]. Agent Lijoi then explained why the traditional methods of investigations would not work to accomplish some of the goals of the investigation established in his original affidavit. [Id. at 54-79]. Agent Lijoi finally explained that the government would conduct the wiretap so as to minimize the continued interception of communications on TT1. [Id. at 79-83].
On January 28, 2010, the Honorable Thomas W. Thrash, Jr. ("Judge Thrash"), United States District Judge, signed an order authorizing a second extension of the interception of wire communications over TT1 and receipt of information regarding the location and travels of TT1 based on an application and 73-page affidavit submitted by Agent Lijoi. [Ex. C attached under seal to the government's consolidated response]. In addition to including some of the information provided in his previous affidavits, Agent Lijoi included in his affidavit in support of the second extension information obtained as a result of further intercepted communications on TT1 from December 23, 2009, through January 20, 2010. [Ex. C, Lijoi Aff. at 13-14]. Specifically,
Based on the additional information obtained as a result of the continued interception of communications on TT1, Agent Lijoi explained that the interception of TT1 was still necessary in order to accomplish the goals of the investigation. [Id. at 36, 38-39]. In particular, Agent Lijoi explained that he believed that the continued interception of communications would lead to information concerning the DTO supplier's "efforts to secure a new loan of illegal narcotics for which he appears to be positioning himself through the acquisition of a new semi-truck and trailer, and through his discussions about possible trucking routes." [Id. at 39]. Additionally, Agent Lijoi explained that he believed that information would be obtained that would allow him to "identify the new replacement `load-phone' to [TT2], upon which it is believed that [the DTO supplier] has detailed conversations related to his drug trafficking, money laundering and bank fraud activities." [Id. (emphasis omitted) ]. He then explained why traditional methods of investigation would not work to accomplish all of the goals of the investigation. [Id. at 40-69]. Finally, Agent Lijoi explained that the government would conduct the wiretap so as to minimize the continued interception of communications on TT1. [Id. at 69-72].
On May 28, 2010, Judge Batten entered an order authorizing the interception of wire communications over Target Telephone 7 ("TT7") based on an application and 84-page affidavit submitted by Agent Lijoi. [Ex. D attached under seal to the government's consolidated response]. In addition to including the information contained in his prior affidavits, Agent Lijoi explained in detail the relationship between the various load phones and anchor phones used to support the DTO's activities. [Ex. D, Lijoi Aff. at 15-37].
Specifically, Agent Lijoi explained that phone records showed the interrelationship between TT1 and TT2, but that when the use of TT2 started to diminish, toll analysis led to the identification of Target Telephone 3 ("TT3"), which was activated on January 5, 2010, and used as a replacement for TT2 in conjunction with anchor phone TT1. [Id. at 13-26, 32]. When activity on TT3 began to decline, toll analysis again led to the identity of Target Telephone 4 ("TT4"), which was activated on March 11, 2010, as the replacement phone. [Id. at 26-28]. Agent Lijoi explained that just as TT2 and TT3 had been used in conjunction with then existing anchor phone TT1, it was determined that TT4 was being used with the replacement anchor phone, Target Telephone 8 ("TT8"). [Id. at 27]. Activity on TT4 began to decline on March 21, 2010, and reverse toll analysis then led to the identification of TT7, which was activated on April 16, 2010. [Id. at 28-29, 38, 41]. Agent Lijoi further explained that based on the analysis of TT7 as the most recent replacement load phone for the DTO supplier, he believed
Agent Lijoi then explained why traditional methods of investigation would not work to accomplish the goals of the investigation established in his original affidavit. [Id. at 46-55, 58-80]. Finally, Agent Lijoi explained that the government would conduct the wiretap so as to minimize the interception of communications on TT7. [Id. at 80-83].
Degaule seeks to suppress all evidence obtained as a result of the four wiretaps, arguing that the law enforcement agents failed to minimize the intrusion on the target telephones and that the affidavits in support of the wiretap applications fail to establish probable cause or to meet the necessity requirement. He requests a necessity evidentiary hearing for the wiretaps, and a Franks
"To support an order of electronic surveillance, an affidavit must establish, among other things, probable cause to believe that an individual is committing, has committed, or is about to commit certain offenses enumerated in 18 U.S.C. § 2516, and probable cause to believe that communications concerning that offense will be obtained through electronic surveillance." United States v. Peterson, 627 F.Supp.2d 1359, 1363 (M.D.Ga.2008) (citation omitted). "The probable cause necessary to support a wiretap authorization is the same probable cause necessary for a search warrant." Id. (citing United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990)). See also Gonzalez Perez, 283 Fed. Appx. at 721. "Thus, probable cause exists if the totality of the circumstances indicate that there is a fair probability that the sought for evidence will be obtained." Peterson, 627 F.Supp.2d at 1363 (citing Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "The probable cause determination of the judge who issued the wiretap order will be upheld if the judge had a `substantial basis' for concluding that probable cause existed." Id. (citing Nixon, 918 F.2d at 900).
Contrary to Degaule's contentions, Agent Lijoi's affidavits alleged sufficient facts to establish probable cause to intercept communications over TT1 and TT7. Indeed, "[a] drug smuggling conspiracy of wide scope and long standing is described in some detail, and it is alleged that the telephone[s] sought to be tapped [were] used in furtherance of the conspiracy." United States v. Hyde, 574 F.2d 856, 862 (5th Cir.1978).
Additionally, Agent Lijoi explained how TT1 had contact with previously seized load phones and continued to have contact with suspected members of the DTO in a manner consistent with drug trafficking and money laundering activities. [Ex. A, Lijoi Aff. at 43-67]. As load phones were deactivated, the investigation showed that TT1 continued to be used as the anchor phone with newly identified load phones. [Id.]. "`[W]iretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation.'" United States v. Stokes, No. 96 CR. 481(SAS), 1996 WL 727400, at *5 (S.D.N.Y. Dec. 18, 1996) (quoting United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir.1975)). Therefore, Judge Story, who issued the order authorizing the initial wiretap, reasonably concluded based on the facts contained in the affidavit that there was probable cause to believe that information and evidence concerning drug trafficking and money laundering activities would be obtained through the interception of wire communications over TT1. [Ex. A, Order at 2-3].
After the initial authorization of the wiretap of TT1, the intercepted communications confirmed that TT1 was being used as an anchor phone for the DTO. [Ex. B, Lijoi Aff. at 14-47; Ex. C, Lijoi Aff. at 15-23, 27, 35]. Additionally, Agent Lijoi explained that intercepted conversations revealed discussions about moving large sums of money through various bank accounts and arranging for the use of commercial trucks to transport narcotics, which was corroborated through other sources, and upon which Judges Batten and Thrash reasonably found probable cause warranting two extensions of the interception of communications over TT1. [Ex. B, Lijoi Aff. at 14-49; Ex. B, Order; see also Ex. C, Lijoi Aff. at 15-23, 27-34, 39; Ex. C, Order].
Subsequently, through the use of these intercepted communications, cell tower utilization, surveillance, and phone records, Agent Lijoi explained that TT7 was identified as the new load phone for the DTO, and Judge Batten, who issued the order authorizing the wiretap, reasonably concluded based on the facts contained in the affidavit that there was probable cause to believe that information and evidence concerning drug trafficking and money laundering activities would be obtained through the interception of wire communications over TT7. [Ex. D, Lijoi Aff. at 13-39; Ex. D, Order at 2-3]. See United States v. Eiland, 398 F.Supp.2d 160, 171 (D.D.C.2005) (finding probable cause for wiretap where affidavit relied on confidential sources, physical surveillance, and previously captured calls to show that defendant was using the target phone to conduct drug trafficking related activities).
In his attempt to challenge Agent Lijoi's affidavit for lack of probable cause, Degaule asserts that the toll analysis/pen register sections "fail to provide sufficient information to establish probable cause." [Doc. 144 at 12]. In support of this argument, Degaule, citing to paragraphs 106 and 107 of Agent Lijoi's affidavit in support of the initial wiretap application for TT1 and paragraphs 72 and 73 of Agent Lijoi's affidavit in support of the wiretap for TT7, states, "[t]here are only two
Degaule also asserts that the information contained in the affidavit as it pertains to him, was "stale and not incriminatory." [Doc. 235 at 8]. Specifically, Degaule argues that while Agent Lijoi explains how he discovered that Degaule had made several large deposits, which he then in turn paid out to many creditors or third parties on behalf of J. Johnson's businesses, he "neglects to mention ... that [Degaule]... submitted 1099s for many, if not all, of these payments," and "did not attempt to hide his financial role on behalf of [J. Johnson's] legitimate businesses." [Id.]. Therefore, Degaule argues that the affidavit failed to establish probable cause that he had committed or was about to commit a crime. [Id. at 9].
However, "[i]n issuing the wiretap orders regarding [TT1 and TT7], the relevant probable cause inquiry is not whether [Degaule] was engaged in criminal activity but whether an individual was engaged in criminal activity and whether the conversations sought to be monitored over the target telephones were likely to contain evidence of a crime." United States v. Diaz, Criminal No. 3:08-CR-267-D (05), 2009 WL 348284, at *5 (N.D.Tex. Feb. 11, 2009). See also United States v. Ambrosio, 898 F.Supp. 177, 184-85 (S.D.N.Y.1995) ("[T]he relevant inquiry is whether the conversations sought to be monitored were likely to contain evidence of a crime") (citations omitted). That is, "as to those persons who are known to the investigators and listed in the wiretap application, the government need not establish probable cause `for each person named in an application.... What is required is sufficient information so that a judge could find probable cause to believe that the telephone in question is being used in an illegal operation.'" Woodley, 2009 WL 3415214, at *2 (quoting Domme, 753 F.2d at 954 n. 2).
Here, Degaule "improperly focus[es] on the investigation of his own conduct while ignoring the larger inquiry into the alleged conspiracy as a whole." United States v. Murdock, No. CR410-160, 2011 WL 43503, at *1 (S.D.Ga. Jan. 6, 2011). As previously discussed, Agent Lijoi's affidavits alleged sufficient facts to establish probable cause to believe that J. Johnson, and others, were part of a conspiracy to distribute narcotics and to launder the proceeds, and that communications regarding these activities would be intercepted over TT1 and TT7. Therefore, the issuing judges reasonably concluded that there was probable cause to believe that J. Johnson or another individual "was engaged in drug trafficking
Finally, Degaule argues that the deposits occurred between February 2008 and April 2009, and that "the last known deposit, which occurred in April, was significantly smaller than the remainder and was the first such deposit made by [Degaule] in almost five months." [Doc. 235 at 9]. Degaule then points out that "no other deposits allegedly attributable to [J. Johnson] were made by [Degaule] between April 2009 and November 2009, the date in which the application for a wiretap application was submitted," and he contends that the information contained in Agent Lijoi's affidavit was therefore stale and should not have been considered in the probable cause analysis. [Id.].
"It is fundamental that the information provided to a judge in the application for a wiretap order, just as for a search warrant, must be timely." United States v. Batiste, No. 06-20373-CR, 2007 WL 2412837, at *17 (S.D.Fla. Aug. 21, 2007) (citing Hyde, 574 F.2d at 864). "That is because probable cause must exist at the time the order issues." Id. (citations omitted). "Whether information submitted in support of a wiretap order is stale is an issue that is decided on the peculiar facts of each case." Id. (citing Hyde, 574 F.2d at 865). "Courts traditionally allow a fairly long period of time to elapse between information and search warrant in cases where the evidence shows a long-standing, on-going pattern of criminal activity." Id. (citation omitted). "This is even more reasonable in wiretap cases than in ordinary search warrant cases, because no tangible objects that can be quickly carried off are sought." Id. (citing United States v. Van Horn, 789 F.2d 1492, 1498-99 (11th Cir.1986) ("where investigation was of large, on-going drug importation and distribution conspiracy, the fact that the most recent information was two months old did not indicate the probable cause did not exist"); United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.1995) ("where FBI was investigating bank fraud conspiracy, passage of time was less significant when there was cause to believe continuing criminal activity")). Furthermore, "[i]t is well established ... that stale information is not fatal when ... updated information corroborates the alleged stale information." Ortega-Estrada, 2008 WL 4716949, at *7 (citation omitted).
Here, the investigation into the DTO's activities had been ongoing since October of 2007. While Degaule may not have made any deposits between April and November of 2009, the affidavit detailed how Degaule remained in contact with TT1 through November 3, 2009, and Agent Lijoi provided updated information concerning other members of the DTO and the DTO's activities up to the date of the application. See [Ex. A, Lijoi Aff. at 12-67, 78]. See also United States v. Thomas, 605 F.3d 300, 310 (6th Cir.2010) (8-month old evidence not stale where evidence was "refreshed" by more recent corroborating information in the affidavit); United States v. Diaz, 176 F.3d 52, 109-10 (2d Cir.1999)
"Given the nature of the offenses with which [Degaule has] been charged, and given the incompleteness of [the] plans, it was reasonable for the issuing judges to have concluded that the activities mentioned in the affidavits were of an on-going nature." Batiste, 2007 WL 2412837, at *18. Thus, the information included in Agent Lijoi's affidavit was not stale, and the Court rejects Degaule's argument in this regard. See United States v. Johnson, 290 Fed.Appx. 214, 223 (11th Cir. 2008) (per curiam) (unpublished) (collecting Eleventh Circuit cases that rejected staleness challenges involving information that was anywhere from six months to two years old); United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990) (finding an 18-month delay between informants' statements and the wiretap application did not render information stale); United States v. Word, 806 F.2d 658, 662 (6th Cir.1986) (four to five month old information in affidavit not stale where, inter alia, "the events alleged in the affidavit were of a continuing nature"). See also United States v. Spikes, 158 F.3d 913, 924 (6th Cir.1998) (evidence up to four years old sufficient to support probable cause where affidavit contained more recent information showing that drug trafficking was of an ongoing and continuing nature).
"Pursuant to 18 U.S.C. § 2518, court-ordered electronic surveillance is prohibited unless the government demonstrates the necessity of such techniques." United States v. Wilson, 314 Fed.Appx. 239, 243 (11th Cir.2009) (per curiam) (unpublished) (citation omitted). "This statute requires that wiretap applications include a `full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous....'" United States v. Collins, 300 Fed. Appx. 663, 666 (11th Cir.2008) (unpublished) (quoting 18 U.S.C. § 2518(1)(c)). See also Wilson, 314 Fed.Appx. at 243. "The purpose of this statute is to ensure that wiretapping is not resorted to in situations
Degaule contends that the government failed to establish the necessity for the wiretaps at issue in this case and that the fruits of the wiretap orders should therefore be suppressed. [Docs. 144 & 235]. Specifically, Degaule argues that the wiretap application "conflate[s] the Affiant's belief that there is probable cause to believe some suspects are engaged in criminal conduct, with the particularized necessity for a wiretap," asserting that the government has failed to demonstrate any need for the wiretaps with specificity. [Doc. 144 at 15]. In short, Degaule contends that Agent Lijoi's affidavits merely recite boiler-plate rationales by stating that traditional investigative measures have not been or will not be successful, and that the government has therefore failed to carry its burden of showing a necessity for the wiretaps. [Id. at 15-16]. The Court disagrees.
In his affidavits, Agent Lijoi described at length the two-year long investigation of the DTO in this case and explained that the wiretaps were necessary to accomplish specific objectives of the investigation, which included, inter alia, discovering the identities of all of the members of the DTO and money laundering network beyond those already discovered; the locations of the target subjects and their unidentified accomplices; the scope of the DTO in Atlanta, Kansas City, Philadelphia, and elsewhere; the methods used for the shipment of drugs and collection of proceeds; the identities of the DTO's customers in Atlanta, the other cities involved, and elsewhere; stash house locations; the identities of the DTO's chain of command and customers so that it could be dismantled; and the identity of the DTO's source of supply and its operations and scope of distribution. See [Ex. A, Lijoi Aff. at 81-82; Ex. B, Lijoi Aff. at 53-55; Ex. C, Lijoi Aff. at 36-41; Ex. D, Lijoi Aff. at 46-48]. Agent Lijoi then provided a detailed explanation of the techniques already employed and the reasons why these techniques, and others, had failed to achieve the investigation's objectives or why he believed such techniques would fail in this particular investigation.
While it is true that an affidavit supporting a wiretap application must "show with specificity why in this particular investigation ordinary means of investigation will fail," United States v. Carrazana, 921 F.2d 1557, 1565 (11th Cir.1991) (internal citations omitted), and that much of the conclusions in Agent Lijoi's affidavits would certainly apply to numerous drug and money laundering conspiracy investigations, such as the ineffectiveness of pen registers and tracking devices, or the fear that a grand jury or interviews with witnesses would alert the conspirators, see [Ex. A, Lijoi Aff. at 88, 96-97, 102, 104-05; Ex. B, Lijoi Aff. at 53-79; Ex. C, Lijoi Aff. at 36-69; Ex. D, Lijoi Aff. at 46-80], the affidavits in question here are sufficiently specific and do not constitute "boiler-plate rationales."
For example, Agent Lijoi explained that counter-surveillance techniques used by the DTO and restricted access to various locations made physical surveillance unlikely to reveal all of the alleged conspirators in this case. [Ex. A, Lijoi Aff. at 89-95; Ex. B, Lijoi Aff. at 62-69; Ex. C, Lijoi Aff. at 48-57; Ex. D, Lijoi Aff. at 60-70]. In fact, the affidavits note that physical surveillance was insufficient due to the number of unknown co-conspirators and the DTO's attempts to elude law enforcement. [Ex. A, Lijoi Aff. at 89-95; Ex. B, Lijoi Aff. at 62-69; Ex. C, Lijoi Aff. at 48-57; Ex. D, Lijoi Aff. at 60-70]. Likewise, the use of pen registers and tracking devices could not lead to the identity of co-conspirators as they only identify the numbers called or the location of the suspects, and attempts to identify the suspects have been often unsuccessful since the phones usually contain false subscriber information and the number of vehicles at the DTO's disposal made identifying the members difficult. [Ex. A, Lijoi Aff. at 88-89, 104-05; Ex. B, Lijoi Aff. at 61-62, 78-79; Ex. C, Lijoi Aff. at 46-47, 67-69; Ex. D, Lijoi Aff. at 58-60, 79-80]. Agent Lijoi also explained that confidential sources, undercover agents, and consensual monitoring were not an option because "[i]t is difficult, if near impossible, for outsiders to penetrate the organization," and the government did not have contacts to get them sufficiently close to the conspiracy's inner core. [Ex. A, Lijoi Aff. at 97-102; Ex. B, Lijoi Aff. at 71-76; Ex. C, Lijoi Aff. at 59-64; Ex. D, Lijoi Aff. at 71-76]. Similarly, Agent Lijoi explained that using a grand jury investigation, interviewing witnesses or known subjects, and using search warrants would frustrate the broader purpose of the investigation by alerting other members of the DTO and possibly leading to the destruction of evidence. [Ex. A, Lijoi Aff. at 96, 102-03; Ex. B, Lijoi Aff. at 69-71, 76-78; Ex. C, Lijoi Aff. at 57-59, 64-67; Ex. D, Lijoi Aff. at 70-71, 77-79]. Finally, Agent Lijoi concluded that trash pulls would be unsuccessful given the restricted access to various locations and the counter-surveillance systems that were put into place. [Ex. A,
Degaule further contends that "the traditional investigative techniques employed by the police were actually working," contrary to Agent Lijoi's "belief that `normal investigative procedures appear[ed] reasonably unlikely to succeed in meeting the goals and objectives of the investigation.'" [Doc. 144 at 17-18 (citation omitted); see also Doc. 235 at 12]. However, "the fact that the traditional methods in use were producing evidence does not alter [the Court's] conclusion." United States v. Allen, 274 Fed.Appx. 811, 816 (11th Cir.2008) (per curiam) (unpublished). "Nothing in the law requires that the traditional methods be entirely useless or that the district court force the government to redefine its objectives." Id. In fact, "[t]his circuit has repeatedly held that, where conventional techniques will not show the entire scope of the conspiracy, a wiretap is permissible, even in those situations where conventional techniques will allow for the arrest and conviction of
Here, "[i]n the affidavit[s], the agent repeatedly emphasized that [the] evidence was . . . unhelpful to the government's goal of revealing the entire conspiracy." Allen, 274 Fed.Appx. at 816; see also [Ex. A, Lijoi Aff. at 82-89, 94-96, 100-02, 105; Ex. B, Lijoi Aff. at 54-62, 68-69, 73, 75-76, 79; Ex. C, Lijoi Aff. at 36-45, 47, 56-57, 61, 63, 68-69; Ex. D, Lijoi Aff. at 46-55, 59-60, 68-69, 73-77, 80]. Indeed, "[t]he evidence reflects that various members of the drug conspiracy facilitated the criminal enterprise through multiple telephone conversations from several locations," and "it does not appear that the government could have uncovered the full scope of the conspiracy, especially not in a relatively safe manner, without the wiretaps." United States v. Stewart, 306 F.3d 295, 305-06 (6th Cir.2002). Accordingly, the Court rejects Degaule's arguments in this regard, and "finds that the government met the necessity requirements of 18 U.S.C. § 2518 in its application[s] for a wiretap." Kelley, 2009 WL 2589086, at *3; United States v. Olmedo, 552 F.Supp.2d 1347, 1366 (S.D.Fla.2008), adopted at 1350.
Degaule moves to suppress any information or data obtained as a result of the seizure of the geographic location or GPS data of TT1 and TT7, arguing that the interception of such data is not authorized by Title III and constitutes an illegal search in violation of his Fourth Amendment right to a reasonable expectation of privacy. [Doc. 164 at 3-8]. However, as the government contends, [Doc. 213 at 49-54], Degaule overlooks the fact that he lacks standing to challenge the seizure of this information because he does not have a privacy or possessory interest in TT1 or TT7.
"The Fourth Amendment protects an individual in those places where he can demonstrate a reasonable expectation of privacy against government intrusion." United States v. Suarez-Blanca, Criminal Indictment No. 1:07-CR-0023-MHS/AJB,
"Courts have determined that an individual does not have a legitimate expectation of privacy in items that are not in the individual's name or when an individual uses an alias or fictitious name and there is no other evidence linking the defendant to the item or property." Id. (footnote and citations omitted). Here, Degaule has failed to show any reasonable expectation of privacy in TT1 and TT7. Indeed, the subscribers of TT1 and TT7 were identified as S. Johnson and Rosse Ram from Rancho Cucamonga, California, respectively, and both phones were described as being utilized by J. Johnson. [Ex. A, Lijoi Aff. at 9, 74; Ex. B, Lijoi Aff. at 9; Ex. C, Lijoi Aff. at 9; Ex. D, Lijoi Aff. at 9, 41]. Degaule has not shown that he had possession, ownership, or control over either TT1 or TT7, and the evidence before the Court is insufficient to establish that he has any reasonable expectation of privacy in these phones. See Suarez-Blanca, 2008 WL 4200156, at *7.
Degaule moves to suppress all evidence and statements arising from his arrest on June 17, 2010, and the subsequent search of his residence and former business. [Docs. 146 & 206]. For the following reasons, it is
On June 17, 2010, at 6:07 a.m., several law enforcement officers arrived at Degaule's residence located at 3220 Lynwood Drive in Atlanta to execute an arrest warrant for Degaule obtained following the return of the superseding indictment in this case. [Doc. 248 at 12-15, 18, 31, 43].
Upon entry, Officer Seeton asked Degaule whether anyone else was present in the home, and Degaule indicated that he was not sure whether his wife was exercising downstairs. [Doc. 248 at 22]; (Degaule Gov. Ex. 37 at 2).
After the agents walked back upstairs, Degaule retrieved a cloth briefcase or attache case, headed towards the dining room, and advised the agents that "I got something in there that I got to give you first." (Degaule Gov. Ex. 37 at 3); [Doc. 248 at 23-24]. Degaule then retrieved several documents from the case and presented them to the agents, instructing them to review and fill out the forms.
After they concluded the sweep of the residence, Degaule and Officer Seeton returned to the dining room and joined Agent Norton, Officer Lucas, and Sup. Robinson at the table. [Doc. 248 at 26]. At this time, Officer Seeton showed Degaule the arrest warrant, explained that based on a long-term investigation, he had been indicted with other co-conspirators, some of whom he identified by name, and advised him that the "charges that [he was] looking at are very, very severe," "obviously carry a long prison sentence," and that he was "definitely . . . going to jail . . . tonight." (Degaule Gov. Ex. 37 at 12-13); [Doc. 248 at 26, 30]. Officer Seeton then asked Degaule whether he understood what was going on and if he wanted to continue talking, and Degaule replied, "Sure." (Degaule Gov. Ex. 37 at 13); [Doc. 248 at 26].
Prior to interviewing him, Officer Seeton began to advise Degaule of his Miranda
Officer Seeton then proceeded to advise Degaule of his rights by reading the rights in English from a DEA-13 Advice of Rights and Waiver Form. [Doc. 248 at 27, 65]; (Degaule Gov. Ex. 5; Degaule Gov. Ex. 37 at 15).
However, as Officer Seeton began the interview, Degaule again asked whether the agents were "going to acknowledge [his] documents here to be filled out by all the agents." (Degaule Gov. Ex. 37 at 16). After a short discussion regarding Degaule's questionnaire, Agent Norton advised Degaule that he would fill it out as they were "going through this process." (Id. at 17).
At the onset of the interview, Officer Seeton explained to Degaule that one of their main concerns was whether there were any narcotics stashed in the house to which Degaule responded, "I do not do drugs," "I don't touch drugs at all," and "I don't deal with drugs; I don't do nothing with drugs," and he then offered to take Officer Seeton to "every closet." (Degaule Gov. Ex. 37 at 19). Officer Seeton asked Degaule for permission to have a "drug sniffing canine" walk through the house "real quick just to make sure," and Degaule responded, "I don't mind, come on in." (Id.); see also [Doc. 248 at 52]. At this point, Officer Seeton asked Agent Norton to secure a canine in order to conduct a canine sniff of the residence, and Degaule stated, "You . . . You guys know the house now?" (Degaule Gov. Ex. 37 at 19).
While Agent Norton worked on securing a canine, Officer Seeton continued his interview of Degaule. Specifically, Officer Seeton asked Degaule whether he presently had anything in the house belonging to J. Johnson and whether he had any cash in the house. (Id.). Degaule replied that he had J. Johnson's birth certificate and some paperwork of his, but no large amounts of cash. (Id. at 20-22). Degaule also explained that he maintained a small document safe in the home. (Id. at 21). During this discussion in the dining room, Officer Seeton requested consent to search the residence from Degaule, stating "I'm asking for permission basically just to search the house. I want to make sure there's no drugs here, I want to make sure that . . . my biggest concern is there's no drugs in this house," and Degaule responded, "No problem." (Id.); see also [Doc. 248 at 31-32, 55]. Officer Seeton advised Degaule that he did not have to consent to the search, presented him with a consent to search form for his residence, and asked that he read the form and sign it. (Degaule Gov. Ex. 37 at 21); [Doc. 248 at 31, 56]. After reading the form, Degaule affixed his postage stamp on the signature line and then signed over the stamp, acknowledging that he freely consented to the search of his residence. [Doc. 248 at 56]; (Degaule Gov. Ex. 4).
When asked where he kept his business records, Degaule explained that he kept them at his previously owned vacuum business on Goldsmith Road as well as in his house. (Id. at 41-42, 61-62).
During the search, Agent Norton advised Degaule that they had located documents that they "need to look at a little further," and that they were going to take
In addition to obtaining Degaule's consent to search the residence, Officer Seeton also asked Degaule for consent to search the Goldsmith Road location and a safe deposit box located at Wachovia Bank, which he granted. (Degaule Gov. Ex. 37 at 86, 142-44, 152-54); [Doc. 248 at 33, 57-58]. Specifically, the agents presented Degaule with a consent to search form for 1109 Goldsmith Road, Suite A, located in Stone Mountain, Georgia, and he then affixed a postage stamp on the signature line and signed over the stamp, acknowledging that he freely consented to the search. [Doc. 248 at 33-35]; (Degaule Gov. Ex. 6).
Degaule contends that all the evidence seized and statements he made on June 17, 2010, should be suppressed because the initial entry into his residence and subsequent search and seizure were illegal, and the waiver of his Miranda rights was involuntary. [Docs. 146 & 206; see also Doc. 273 at 8]. Degaule advances several arguments regarding the entry, warrantless search of his residence, subsequent seizure of evidence, and the statements he gave at that time, which the Court will now address.
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The principal intrusion against which the Fourth Amendment is aimed is physical entry into one's home. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citation and quotations omitted). However, "when law enforcement agents are armed with a valid arrest warrant, i.e., an arrest warrant founded upon probable cause, they possess the `limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.'" United States v. Rodriguez-Alejandro, 664 F.Supp.2d 1320, 1344 (N.D.Ga.2009), adopted at 1325 (quoting Payton, 445 U.S. at 603, 100 S.Ct. 1371). See also United States v. Bennett, 555 F.3d 962, 964-65 (11th Cir.2009) (per curiam). That is, "[a]bsent a search warrant, exigent circumstances or consent, officers typically
Additionally, a warrantless "protective sweep" of a residence upon entering to execute an arrest warrant is allowed in certain circumstances. See Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Delgado, 903 F.2d 1495, 1502 (11th Cir.1990) (citing Buie, 494 U.S. at 334, 110 S.Ct. 1093); United States v. Magluta, 44 F.3d 1530, 1538 (11th Cir.1995) (same). Indeed, "as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Buie, 494 U.S. at 334, 110 S.Ct. 1093. "`A protective sweep is a quick and limited search of a premise, incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.'" United States v. Rigsby, 943 F.2d 631, 637 (6th Cir.1991) (quoting Buie, 494 U.S. at 327, 110 S.Ct. 1093).
Officers Seeton and Lucas and Agent Norton, who were wearing protective vests with "Police" printed on the front and "Federal Agent" printed on the side and had their guns holstered, approached the front door of Degaule's residence, knocked, and after about thirty seconds, Degaule answered the door, standing approximately three to four feet inside his residence, away from the threshold. [Doc. 248 at 12-18, 22, 31, 43, 51]; (Degaule Gov. Ex. 37 at 1-2). Officer Seeton identified himself and explained that he had a warrant for Degaule's arrest. [Doc. 248 at 17-18, 22, 51]; (Degaule Gov. Ex. 37 at 1-2).
Once inside the doorway, Officer Seeton asked if anyone else was in the home, and Degaule said that he was not sure if his wife was exercising downstairs, and he offered to lead the agents downstairs to check. (Id.); [Doc. 248 at 22]. After the agents confirmed that there was no one present in the basement, Degaule lead them back upstairs to the dining room. [Doc. 248 at 22-24]; (Degaule Gov. Ex. 37 at 2-4). Shortly thereafter, Officer Seeton asked Degaule whether there were any other persons in the residence and if they could "walk around and just verify there's no one hiding," to which Degaule replied, "Let's go. Let's go. Let's go," and "Okay. Let's do it." [Doc. 248 at 24-25,
While the agents had a valid arrest warrant and were, therefore, authorized to enter the residence to arrest Degaule when he answered the door, see Rodriguez-Alejandro, 664 F.Supp.2d at 1344, and to conduct a "limited protective sweep in conjunction with [the] in-home arrest," United States v. Correa, No. 1:07-CR-00011-MP-AK, 2008 WL 1804309, at *6 (N.D.Fla. Apr. 18, 2008),
"In order for consent to a search to be deemed voluntary, it must be the product of an essentially free and unconstrained choice." Garcia, 890 F.2d at 360. Voluntariness of consent is judged in light of the totality of the circumstances. United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir.1995). Relevant factors include the presence of coercive police procedures, the extent of the defendant's cooperation with the officer, the defendant's awareness of his right to refuse consent, the defendant's education and intelligence, and the defendant's belief that no incriminating evidence will be found. United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir.2001). Ultimately, the burden is on the government to prove that the consent given was voluntary. United States v. Bentley, 151 Fed.Appx. 824, 827 (11th Cir. 2005) (per curiam) (unpublished) (citing United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984)); Tovar-Rico, 61 F.3d at 1536 (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); United States v. Blake, 888 F.2d 795, 798 (11th Cir.1989).
Degaule contends that the agents "obtained [his] consent to enter and subsequently search his home by deception,
Degaule's contention that the agents misled him "into believing there was a privacy benefit to him which would avoid the embarrassment of his arrest were he to allow the officers to enter his home," [id. at 13],
Degaule also argues that the agents should not have "solicited consent to enter the home post arrest, particularly prior to [him] being advised of his 5th Amendment right to remain silent and his right to counsel before making decisions as to matters which could be used against him later in court." [Doc. 273 at 9]. However, "a request for consent to search does not elicit any incriminating information toward which the Fifth Amendment is direct[ed]," but rather, "a request for consent merely relates to the preliminary question of the lawfulness of the search." United States v. Rodriguez-Cabrera, 35 F.Supp.2d 181, 187-88 (D.P.R.1999) (citation omitted). That is, "[a] suspect's consent, in and of itself, is not evidence which tends to incriminate him." Id. at 188. See also Tukes v. Dugger, 911 F.2d 508, 513 (11th Cir.1990) (citations omitted). Thus, Officer Seeton's request for consent to enter the residence is not an interrogation whose purpose was to elicit an incriminating response, triggering the Miranda
Despite Degaule's arguments to the contrary, [Doc. 273 at 12], the evidence shows that he voluntarily consented to the agents entering his residence. Consent to enter was requested in the direct presence of only three agents, none of whom had their weapons drawn, threatened or restrained him in any way, or made any show of force. [Doc. 248 at 22, 25, 39, 52]. Likewise, consent to conduct a protective sweep of the residence was requested in the presence of the same agents, none of whom had drawn their weapons, threatened or restrained Degaule in any way, or made any show of force. [Id. at 22-26, 39, 52, 54, 67]; (Degaule Gov. Ex. 37 at 2, 9-10). Given the totality of the circumstances present here, the evidence establishes that Degaule voluntarily consented to the entry and subsequent sweep of his residence.
Degaule challenges the warrantless search of his residence and the Goldsmith Road location and subsequent seizure of evidence on several grounds. First, he contends that he only consented to a search for narcotics and that the agents therefore exceeded the scope of his consent by searching for documents related to J. Johnson. [Doc. 273 at 14]. Next, Degaule argues that the agents exceeded the scope of his consent to search when they actually seized documents from his home and the Goldsmith Road location. [Id. at 17-21]. Finally, Degaule argues that the agents unlawfully seized documents from his home and the Goldsmith Road location without probable cause to believe that the items being seized were contraband or otherwise evidence of a crime. [Id. at 21-25].
Degaule argues that the search went beyond the scope of his consent, and therefore, any evidence found or taken outside of the scope of his consent must be suppressed. [Id. at 14-17]. "Consensual searches have consistently been held to be reasonable." United States v. Susini, 261 Fed.Appx. 270, 273 (11th Cir.2008) (per curiam) (unpublished) (emphasis and citation omitted). "The only restraint on a validly authorized search conducted pursuant to consent is that the scope of the search be limited to the terms of its authorization." Id. (internal marks and citation omitted).
"When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless." United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.1992) (quoting United States v. Harris, 928 F.2d 1113, 1117 (11th Cir.1991)) (internal marks omitted). "Rather, it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass." Id. (quoting Harris, 928 F.2d at 1117) (internal marks omitted). See also United States v. Whaley, 415 Fed.Appx. 129, 132-33 (11th Cir.2011) (per curiam) (unpublished). "A general consent to search for specific items is reasonable if it is limited to any compartment or container that might reasonably contain those items." United States v. Woods, 445 F.Supp.2d 1328, 1332 (M.D.Ala.2006) (citing United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir.1999)). In this case, Degaule gave a generalized consent to search his residence, and though Degaule argues that he
While Officer Seeton initially explained to Degaule that one of their main concerns was whether there were any narcotics stashed in the house, and he asked Degaule for consent to have a "drug sniffing canine" walk through the house, (Degaule Gov. Ex. 37 at 18-19); [Doc. 248 at 52], Officer Seeton's subsequent request for consent to search the residence came after he had discussed with Degaule whether he kept any cash, jewelry, or other property related to J. Johnson in his home. (Degaule Gov. Ex. 37 at 19-22). Degaule then signed the consent to search form, acknowledging that he had been asked to permit the DEA agents to search his residence, that he had not been threatened or forced in any way, and that he freely consented to the search. (Gov. Ex. 4). Officer Seeton even advised Degaule that he did not have to consent to the search. (Degaule Gov. Ex. 37 at 21); [Doc. 248 at 31, 56]. In context, Officer Seeton's request for general permission to search Degaule's residence was understandable as a request to search for anything related to the investigation involving him, any of his co-conspirators, including J. Johnson, and was not limited to a search only for narcotics.
Additionally, even if Degaule did not initially understand that the search of his residence would include a search for documents, he was present during the entire search, and was allowed to move about his residence and observe as agents searched. As the interview progressed, it was made abundantly clear that the investigation centered around his alleged money laundering activities for a drug trafficking organization. (Degaule Gov. Ex. 37 at 26-36, 39, 43-60, 63-67, 74-78, 88-123, 127-29, 131-32, 134-40, 143, 145-47, 174-75, 181-85); [Doc. 248 at 68-69]. In fact, Degaule described where he kept his business records, and upon Agent Norton advising him that the investigation was very document intensive, he even offered to assist the agents in reviewing the documents in order to help narrow the scope of the search to only those documents related to his dealings with J. Johnson. (Degaule Gov. Ex. 37 at 41-42, 44, 48, 58, 61-64, 67-68, 101).
Moreover, Degaule consented to the search of a Wachovia safe deposit box, boxes located at the Goldsmith Road location, to the agents making a copy of his computer's hard drive, and he even provided the agents with combinations to two safes located in the home, and turned over his two cell phones and their chargers. (Id. at 45-46, 64, 72-73, 79-80, 83, 86, 142-44, 152-54; Gov. Exs. 3 & 6); [Doc. 248 at 32-35, 57-58, 60-63]. If Degaule intended the scope of his consent to be limited, he had ample opportunity to object or clarify, especially in light of the cordial, even friendly, tone of communications he had with the agents before and during the search. See United States v. Telcy, 362 Fed.Appx. 83, 87 (11th Cir.2010) (per curiam) (unpublished); United States v. Street, 472 F.3d 1298, 1308-09 (11th Cir. 2006); Woods, 445 F.Supp.2d at 1332-33; United States v. Lima-Suarez, No. 1:05CR40-SPM, 2006 WL 763426, at *5 (N.D.Fla. Mar. 23, 2006). In fact, at one point during the search, Agent Norton even advised Degaule that if he changed his mind and wanted to withdraw his consent, to just let them know, but Degaule never expressed a desire for the agents to stop the search. (Degaule Gov. Ex. 37 at
Degaule also argues that he "never consented to the seizure of any items from his home or his prior business location," and therefore the seizure of evidence exceeded the scope of his consent. [Doc. 273 at 17-21]. Degaule further contends that because he did not consent to the seizure of any evidence, suppression is warranted because the agents also lacked probable cause for the seizure. [Id. at 21-25]. Degaule's arguments in this regard, however, are without merit.
In support of his argument that he never consented to the seizure of any items, Degaule relies on his statements to the agents at the scene requesting to see the documents that the agents intended to take with them. [Doc. 273 at 19]. However, prior to requesting to see the documents the agents were taking, Degaule clearly acknowledged that he would be "glad to turn . . . over" any documents pertaining to the case. (Degaule Gov. Ex. 37 at 63-64). Despite Degaule's attempt to equate his request to see the documents prior to the agents taking them to "limitations with regard to the scope of his consent," [Doc. 273 at 20], the record shows that Degaule agreed to turn over any documents that were related to the investigation and even acknowledged the specific items that were taken, (Degaule Gov. Ex. 37 at 63-64; Gov. Exs. 8, 9, & 10). Accordingly, it is hereby
Degaule made statements to the agents on the date of his arrest that he now seeks to suppress, arguing that he did not voluntarily waive his Miranda rights. [Doc. 206; Doc. 273 at 25-30]. It is undisputed that Degaule was in custody at the time he made these statements, and that he was subjected to an "interrogation" by the agents after having been advised of his Miranda rights. The issue presented is whether Degaule knowingly, intelligently, and voluntarily waived his Miranda rights.
The government bears the burden of proving by a preponderance of evidence that Degaule validly waived his Miranda rights. United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir.1997). See also Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). In Miranda, the Supreme Court acknowledged that custodial interrogations, by their very nature, create "compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467, 86 S.Ct. 1602. Therefore, to address this inherent compulsion and protect a suspect's Fifth Amendment privilege against self-incrimination, Miranda established certain
A defendant may waive his rights if the waiver is made knowingly, intelligently, and voluntarily. Id. at 444, 86 S.Ct. 1602. This inquiry has two distinct dimensions:
United States v. Patterson, No. 1:06-CR-500-1-TWT, 2007 WL 2331080, at *3 (N.D.Ga. Aug. 10, 2007), adopted at *1 (quoting United States v. Barbour, 70 F.3d 580, 585 (11th Cir.1995)). See also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Fare v. Michael C, 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "No single factor is necessarily determinative of the issue whether a defendant knowingly and intelligently waived his rights but the court must engage in a fact-specific inquiry based on all of the circumstances." Patterson, 2007 WL 2331080, at *3. However, an express oral or written waiver of Miranda is strong proof of the validity of the waiver. United States v. Stephens, 202 F.Supp.2d 1361, 1370 (N.D.Ga.2002). To find a waiver involuntary, "coercive police activity is a necessary predicate." Connelly, 479 U.S. at 167, 107 S.Ct. 515.
After Degaule was detained, Officer Seeton advised him of his Miranda rights by reading the rights from a DEA-13 Advice of Rights and Waiver Form. [Doc. 248 at 27, 65]; (Degaule Gov. Ex. 5; Degaule Gov. Ex. 37 at 15). Degaule acknowledged that he understood his rights, initialed each of the five rights on the form, agreed to waive them by signing the waiver portion of the form, and indicated that he was willing to speak with the agents.
Degaule contends that his waiver was not voluntary because the agents "promised [him] that they would fill out the forms for him if he would waive his Fifth Amendment rights and speak to them," but that the "forms were never completed" and that the agents therefore used trickery and deception by making a promise in exchange for his waiver that they never intended to fulfill.
The Eleventh Circuit and other courts have held that "[t]rickery does not make it impossible per se to find that a defendant voluntarily waived his rights." United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991); United States v. Farley, 607 F.3d 1294, 1331 (11th Cir.2010); United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir.1984) ("the police's use of a trick alone will not render a confession involuntary."). Instead, an allegation that police deception or trickery invalidated a waiver of rights must be evaluated within the totality of the circumstances of the interrogation. United States v. Middleton, 245 Fed.Appx. 867, 871 (11th Cir.2007) (per curiam) (unpublished). See also United States v. Grossman, 233 Fed.Appx. 963, 967 (11th Cir. 2007) (per curiam) (unpublished).
In this case, Degaule asserts that he was presented the Advice of Rights and Waiver Form to read, initial, and sign and that it was only after the agents agreed to fill out his questionnaire that he agreed to waive his rights. Degaule further asserts that because several of the questions on the questionnaire "indirectly invoke or at least ask for explanation of certain Fifth Amendment rights under the U.S. Constitution,"
"[O]ne who is told he is free to refuse to answer questions is in a curious posture to later complain that his answers were compelled." Farley, 607 F.3d at 1327 (internal marks and citation omitted). Indeed, "Miranda requires the police to inform a suspect, without qualification, that anything he says may be used against him," which "conveys to a suspect the nature of his constitutional privilege and the consequences of abandoning it." Id. (internal
The totality of the circumstances here indicate that Degaule voluntarily, knowingly, and intelligently waived his rights. Degaule was read his Miranda rights and was provided the opportunity to read them himself. [Doc. 248 at 27-28, 65-66]; (Degaule Gov. Ex. 37 at 15, 17-18; Degaule Gov. Ex. 5). Officer Seeton clearly advised Degaule of his right to remain silent and to have counsel present, and warned him that anything he said could be used against him in court. (Degaule Gov. Ex. 37 at 15; Degaule Gov. Ex. 5). Degaule then waived those rights by signing a written waiver and proceeded to make incriminating statements. [Doc. 248 at 27-28, 65-66]; (Degaule Gov. Ex. 37 at 17-18; Degaule Gov. Ex. 5). There is no evidence that the agents threatened Degaule, and his mental and physical status at the time of the interrogation did not result in any misunderstanding of his rights. [Doc. 248 at 28-30, 46].
Degaule has moved for disclosure of the names and location of confidential informants in this case. [Doc. 145]. Specifically, Degaule seeks to know the "precise number, identity and present location of
In Roviaro, the Supreme Court recognized that the government has the privilege to withhold from disclosure the identity of its informants, but that this privilege is limited. 353 U.S. at 53, 77 S.Ct. 623. See also United States v. Flores, 572 F.3d 1254, 1265 (11th Cir.2009) (per curiam). If disclosure of an informant's identity is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623. In deciding whether disclosure is required, the Court must engage in a balancing test, taking into consideration "`the extent of the informant's participation in the criminal activity, the directness of the relationship between the defendant's asserted defense and the probable testimony of the informant, and the government's interest in nondisclosure.'" United States v. Gutierrez, 931 F.2d 1482, 1490 (11th Cir.1991) (quoting United States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir.1985)). The burden is on the defendant to establish that the Roviaro criteria in a particular case counsel in favor of disclosure by way of sufficiently specific demonstration of the relevancy and potential helpfulness of each of the informers' testimony. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); United States v. Ayala, 643 F.2d 244, 247 (5th Cir.1981). "Mere conjecture about the possible relevance of the informant's testimony is insufficient." United States v. Young, 161 Fed.Appx. 922, 927 (11th Cir. 2006) (per curiam) (unpublished). See also United States v. Cantrell, Criminal Action No. 1:10-Cr-00131-MHS, 2010 WL 3800684, at *2 (N.D.Ga. Sept. 23, 2010).
In cases where an informant is more than a mere tipster and may offer testimony that would materially support a defendant's defense, "[a]n in camera hearing may be helpful in balancing the interests of the [defendants] against those of the government." United States v. Vann, 336 Fed.Appx. 944, 950 (11th Cir.2009) (per curiam) (unpublished). See also Young, 161 Fed.Appx. at 927; United States v. Rutherford, 175 F.3d 899, 902-03 (11th Cir.1999). Indeed, "[t]he evidence. . . shows that to strike the balance in this case[,] the district court must find out what the confidential informant's testimony would be." United States v. Panton, 846 F.2d 1335, 1336 (11th Cir.1988).
Although the Court is not convinced that Degaule made a sufficiently specific demonstration of the relevancy and potential helpfulness of the informers' testimony to merit an in camera hearing, the Court did conduct an in camera conference with the government regarding the information sought by Degaule's motion, and upon consideration of the briefs and the information provided during this in camera proceeding, the Court concludes
For the foregoing reasons and cited authority, Degaule's motions for oral argument, [Doc. 279], and for the disclosure of confidential informants, [Doc. 145], are
There are no other pending matters before the Magistrate Judge, and the undersigned is aware of no problems relating to the scheduling of this case.
