Plaintiff-Appellant United States of America ("the government") brings this interlocutory appeal challenging an order to suppress the fruits of a wiretap used in the government's case against the Defendants-Appellees,1 and an order denying the government's motion for reconsideration. Because the district court did not err in suppressing the fruits of the wiretap, and because there is no good-faith exception for warrants obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act, codified as 18 U.S.C. § § 2510 et seq. ("Title III"), we AFFIRM the district court's orders.

The facts giving rise to this case started when another wiretap on the phone of Shawn Bullitt ("Bullitt") recorded a discussion with Reginald Shantez Rice ("Rice") where the two spoke of the imminent arrival of "a hundred." Joint Appendix ("J.A.") at 572-74 (Wenther Test. at 315-17). Federal Bureau of Investigation ("FBI") Special Agent Scott Wenther ("Wenther") thought this was a reference to a large quantity of cocaine. Id. Within ten days of hearing this conversation, the government sought permission to use the wiretap which is the subject of this appeal ("the Rice wiretap"). J.A. at 575 (Wenther Test. at 318). The Rice wiretap warrant was issued; as a result, the government ultimately collected evidence leading to the defendants' indictments.

The wiretap application was based on the Wenther Affidavit. J.A. at 632. The Wenther Affidavit contained a section entitled, "Alternative Investigative Procedures." J.A. at 649 (Wenther Aff. at 18). It summarized these procedures as follows:

All normal avenues of investigation have been carefully evaluated for use or have been attempted with minimal results. The traditional investigative techniques utilized thus far have included the use of confidential sources (against known members of the Shawn B[ullitt] organization), obtaining toll records for other phone lines and for the target telephone, and physical surveillance. Also closely considered, but not deemed likely to succeed for reasons set forth below, include the use of undercover agents, use of a Federal Grand Jury, the serving of search warrants, interviews of subjects or associates, and the use of "trash pulls."

J.A. at 649-50 (Wenther Aff. at 18-19). Each type of alternative investigative procedure is set forth below.

The Wenther Affidavit averred that "[p]hysical surveillance of the subjects of this investigation has been conducted and is presently being conducted with only limited success. Physical surveillance has identified locations and vehicles utilized by members of this organization. Physical surveillance has also corroborated information provided by the CS." J.A. at 651 (Wenther Aff. at 20). The affidavit goes on to state:

The risk of conducting long-term physical surveillance in this investigation is two-fold. As previously outlined, this organization utilizes violence and/or the threat of violence as intimidation to further their drug trafficking activities. Members of this criminal organization with known violent histories routinely carry firearms and wear bullet-resistant vests, which poses an unreasonable danger to law enforcement personnel attempting to conduct physical surveillance.

J.A. at 652 (Wenther Aff. at 21).

The district court found that, based on this affidavit, an issuing judge would mistakenly think that agents had conducted physical surveillance on Rice and/or his associates, and that Wenther had information leading him to believe that "Rice and/or his associates had used violence or threats of violence, had violent histories, carried firearms, and wore bullet-proof vests." J.A. at 375 (Oct. 13, 2005 Order at 22). In fact, the later testimony of Wenther at the suppression hearing revealed that agents had not conducted any physical surveillance on Rice and that they had no specific information on whether Rice carried a firearm. J.A. at 544, 559 (Wenther Test. at 287, 302). Further, the district court found that "the bald statement that `[m]embers of this criminal organization . . . routinely carry firearms and wear bullet-resistant vests' does not provide sufficient information to the magistrate about [] Rice to determine whether physical surveillance was too dangerous to be attempted." J.A. at 377 (Oct. 13, 2005 Order at 24).

It appears from the information received from the CS [confidential source], as well as my own experience, that Reginald R[ice] is unlikely to discuss the full extent of his organization's activities or membership. The CS utilized in the investigation of the Shawn B[ullitt] organization was unable to meet directly with others associated with B[ullitt], including Reginald R[ice]. . . .

. . . [The] CS has not been able to purchase controlled substances from Reginald R[ice]. The CS is not closely associated with Reginald R[ice] and is therefore not in a position to attempt the purchase of controlled substances. No other confidential source has been identified in this investigation that would be in a position to attempt the purchase of controlled substances from Reginald R[ice].

[The] CS has stated that he/she has limited ability to introduce unfamiliar individuals to R[ice] or his co-conspirators.

J.A. at 650-51 (Wenther Aff. at 19-20). The district court found that, with respect to the attempt to use a CS, the only information directly pertaining to Rice in the Wenther Affidavit was that the CS who was used in the Bullitt investigation was not in a position to assist with gathering information about Rice, and that the government had not identified a CS that would be in a position to do so. J.A. at 373 (Oct. 13, 2005 Order at 20). However, "[t]here is no indication that the government took any steps to develop such a source, nor is there any information about [] Rice's `organization' specifically that suggests that to do so in this case would be unlikely to succeed or dangerous . . . ." Id. (footnote omitted). The district court found inadequate the generic information included regarding how drug traffickers normally operate. Id.

3. Pen Registers and Telephone Toll Analysis

The Wenther Affidavit stated that, although a pen register and a trap and trace had been used on Rice, this was of limited usefulness. Although it indicated a pattern of telephone use by Rice with others suspected in the illegal-drug trade, the pen register did not identify the individuals actually making and receiving the calls, and did not reveal the contents of the conversations. J.A. at 653 (Wenther Aff. at 22). Therefore, according to the Wenther Affidavit, the information obtained by these methods did not establish the existence of a criminal conspiracy. Id.

The district court found this part of the affidavit mainly focused on "general language about the usefulness of pen registers in general." J.A. at 374 (Oct. 13, 2005 Order at 21). The only information specific to Rice was that "within the limitations of the technology, the pen register has been as useful as it possibly can be— linking Mr. Rice with other individuals with known drug histories." Id.

The Wenther Affidavit also discussed three other investigative techniques which were not attempted, and asserted that these techniques would not work. These techniques were a grand jury investigation, use of search warrants and subject interviews, and trash pulls. J.A. at 654-55 (Wenther Aff. at 23-24).

The district court found that the explanations offered for not attempting these techniques all "suffer[ ] from the same problem; [they] discuss[ ] typical problems with the techniques in typical drug cases, but make[ ] no reference to any facts about [] Rice specifically which would make the techniques ineffective or dangerous." J.A. at 379 (Oct. 13, 2005 Order at 26). Further, in making credibility determinations, the district court found "insufficient credible evidence" that other investigative methods had been considered. J.A. at 443 (Jan. 17, 2006 Order at 4).

B. The District Court's Decision to Suppress

The district court found that the misleading statement pertaining to physical surveillance was made recklessly. J.A. at 442 (Jan. 17, 2006 Order at 3). The district court found that the statements made in the Wenther Affidavit about the dangers of using surveillance were "equally unavailing" in that there was nothing in the affidavit that was specific to Rice (or even to those operating in his organization) that would lend credence to the assertion that he used firearms and bullet-proof vests. J.A. at 377 (Oct. 13, 2005 Order at 24). In light of the misleading information contained in the affidavit that was presented to the issuing judge, the district court found that it could not afford the same deference ordinarily due to an issuing judge's determination. Id.

The district court found that the Wenther Affidavit did not "indicate[ ][ ]either `serious consideration' of other investigative techniques []or the reasons for [ ] Wenther's belief in the inadequacy of the other measures as used against [] Rice." J.A. at 369 (footnote omitted) (Oct. 13, 2005 Order at 16). According to the district court, "[o]ther than some uncorroborated thoughts and opinions there is no evidence that any other investigative technique was ever used or even seriously considered." J.A. at 379 (Oct. 13, 2005 Order at 26).

Further, the district court found that the government was using the wiretap in a forbidden manner—as the first step in its investigation against Rice. Because the district court found that the Wenther Affidavit failed to satisfy the requirements under Title III, it granted the defendants' motion to suppress the fruits of the unlawful wiretap. J.A. at 380 (Oct. 13, 2005 Order at 27).

C. The District Court's Denial of the Motion for Reconsideration

The government then moved the district court to reconsider its suppression order. The government argued, inter alia, that the district court should have applied the good-faith exception under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and should have found that, despite the warrant's infirmities, the evidence was not subject to suppression. The district court determined that, assuming the good-faith exception applied in Title III cases, there was no good faith present here because the affiant acted with reckless disregard for the truth. J.A. at 444 (Jan. 17, 2006 Order at 5). Thus, the district court denied the government's motion for reconsideration. This interlocutory appeal follows; we have jurisdiction pursuant to 18 U.S.C. § 3731.

When evaluating a decision to suppress a wiretap, we review the district court's findings of fact for clear error. United States v. Stewart, 306 F.3d 295, 304 (6th Cir.2002), cert. denied, 537 U.S. 1138, 123 S. Ct. 930, 154 L. Ed. 2d 832 (2003), 537 U.S. 1146, 123 S. Ct. 946, 154 L. Ed. 2d 847 (2003), 538 U.S. 1036, 123 S. Ct. 2074, 155 L. Ed. 2d 1067 (2003). We review questions of law de novo. Id. The determination as to whether a statement made in an affidavit is made with reckless disregard for the truth is a fact question. See United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990) (applying the clear error standard to such a question).

Generally, "[i]n reviewing the validity of an electronic surveillance order, we will accord great deference to the determinations of the issuing judge." United States v. Corrado, 227 F.3d 528, 539 (6th Cir.2000) (internal quotation omitted). However, this deference does not logically apply where the issuing judge is given misleading information in the wiretap application or supporting affidavits.

Title III requires that an application for a wiretap order contain "`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.'" Stewart, 306 F.3d at 304 (quoting 18 U.S.C. § 2518(1)(c)). This is referred to as the "necessity requirement." Id. The purpose of the necessity requirement is "to ensure that a wiretap `is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'" United States v. Alfano, 838 F.2d 158, 163 (6th Cir.), cert. denied, 488 U.S. 821, 109 S. Ct. 64, 102 L. Ed. 2d 42 (1988) (quoting United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974)). Further, the necessity requirement protects against the impermissible use of a wiretap as the "initial step in [a] criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974).

Although Title III sets forth elaborate procedures for obtaining permission to use a wiretap, "the government is not required to prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted." Alfano, 838 F.2d at 163. Rather, "[a]ll that is required is that the investigators give serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators' belief that such non-wiretap techniques have been or will likely be inadequate." Id. at 163-64 (internal quotation marks omitted). "While the prior experience of investigative officers is indeed relevant in determining whether other investigative procedures are unlikely to succeed if tried, a purely conclusory affidavit unrelated to the instant case and not showing any factual relations to the circumstances at hand would be . . . inadequate compliance with the statute." United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.), cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977).

The Supreme Court explained the remedy for violations of Title III as follows:

[18 U.S.C. §] 2515 provides that no part of the contents of any wire or oral communication, and no evidence derived therefrom, may be received at certain proceedings, including trials, "if the disclosure of that information would be in violation of this chapter." What disclosures are forbidden, and are subject to motions to suppress, is in turn governed by [§] 2518(10)(a), which provides for suppression of evidence on the following grounds:

"(i) the communication was unlawfully intercepted;"

"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face;" or

"(iii) the interception was not made in conformity with the order of authorization or approval."

Giordano, 416 U.S. at 524-25, 94 S. Ct. 1820 (footnote omitted). Because the necessity requirement is a component of Title III, and because suppression is the appropriate remedy for a violation under Title III, where a warrant application does not meet the necessity requirement, the fruits of any evidence obtained through that warrant must be suppressed.

C. The District Court Did Not Commit Clear Error In Determining That Statements About Physical Surveillance in the Wenther Affidavit Were Misleading and Were Made Recklessly.

As outlined in the Background section supra, the district court closely examined each part of the Wenther Affidavit and compared it to the testimony at the suppression hearing. After discovering that no physical surveillance had actually been conducted on Rice, the district court found that the Wenther Affidavit would erroneously lead an issuing judge to believe that such surveillance had been conducted. J.A. at 376 (Oct. 13, 2005 Order at 23). The district court concluded that the statement about surveillance was made recklessly. J.A. at 442 (Jan. 17, 2006 Order at 3). After reviewing the Wenther Affidavit, we cannot say that the district court committed clear error in determining that this part of the Wenther Affidavit was misleading to the issuing judge.

D. The District Court Did Not Err In Determining That The Wenther Affidavit, When Reformed for its Factual Deficiencies, Failed to Meet the Necessity Requirement.

After determining that it could not consider the misleading information, the district judge examined what was left of the Wenther Affidavit to determine whether the necessity requirement was fulfilled. What remained in the Wenther Affidavit was the following: (1) that the CS used in the investigation of Bullitt was not able to make contact with Rice and, therefore, would not be of use; and (2) that pen registers and telephone tolls revealed possible connections to other people with histories of drug-related arrests. Beyond that, the district court found that the Wenther Affidavit contained generalized and uncorroborated information about why grand jury subpoenas, witness interviewing and search warrants, and trash pulls would not be useful. J.A. at 443 (Jan. 17, 2006 Order at 4) ("There was insufficient credible evidence to support or even confirm those assertions. . . . [A]fter the hearing, the [c]ourt was in the best position to determine these credibility issues concerning unused investigative techniques.").

After reviewing the record, we find that the district court was not in error in concluding that what was left of the Wenther Affidavit did not provide "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." Stewart, 306 F.3d at 304. Thus, we affirm the district court's decision to suppress the fruits of the wiretap.

In its order denying the government's motion for reconsideration, the district court rejected the government's argument that the warrant was valid under the good-faith exception to the warrant requirement. Because we have not previously made clear whether the good-faith exception applies to warrants improperly issued under Title III, the district court addressed the government's good-faith argument "out of an abundance of caution." J.A. at 444 (Jan. 17, 2006 Order at 5). We hold that the government's good-faith argument is without merit, because the good-faith exception to the warrant requirement is not applicable to warrants obtained pursuant to Title III.

In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, the Supreme Court created a good-faith exception to the usual rule that courts should exclude evidence obtained in violation of the Fourth Amendment. We have summarized Leon as follows:

United States v. Leon modified the exclusionary rule so as not to bar from admission evidence "seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." 468 U.S. 897, 905, 104 S. Ct. 3405. Where an officer's reliance on a warrant is objectively reasonable, the Supreme Court held, no additional deterrent effect will be achieved through the exclusion from evidence of the fruits of that search. See id. at 922, 104 S. Ct. 3405. However, the good-faith exception is inapposite in four situations: (1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a "bare bones" affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer's reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 104 S. Ct. 3405.

United States v. Hython, 443 F.3d 480, 484 (6th Cir.2006) (parallel citations omitted).

The rule announced in Leon was borne out of a lengthy discussion on the social costs and benefits of the exclusionary rule. See Leon, 468 U.S. at 906-13, 104 S. Ct. 3405. The Supreme Court explained that "[t]he Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands," and that the exclusionary rule developed as "`a judicially created remedy designed to safeguard Fourth Amendment rights. . . .'" Id. at 906, 104 S. Ct. 3405 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)). Because the exclusionary rule is a judicial remedy, it is within the judiciary's province to determine when the rule applies. See id. at 906-07, 104 S. Ct. 3405 (explaining that the question before the Supreme Court was for it to determine when the rule applies by "weighing the costs and benefits"). Thus, the rationale supporting the holding in Leon was firmly rooted in the idea that the exclusionary rule is a judicially created remedy used to ameliorate violations under the Fourth Amendment, and that, as a judicially created remedy, it is subject to judicial modification based on social utility analysis.

B. Leon Is Inapplicable To Warrants Improperly Issued Under Title III

The language and legislative history of Title III strongly militate against engrafting the good-faith exception into Title III warrants. First, the language in Title III provides that exclusion is the exclusive remedy for an illegally obtained warrant. In contrast to the law governing probable cause under the Fourth Amendment, the law governing electronic surveillance via wiretap is codified in a comprehensive statutory scheme providing explicit requirements, procedures, and protections. 18 U.S.C. §§ 2510 et seq.; see also Giordano, 416 U.S. at 514-15, 94 S. Ct. 1820 (setting forth the statutory framework for obtaining a wiretap warrant under Title III). Section 2515 of Title III provides that "[w]henever any wire . . . communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial. . . ." 18 U.S.C. § 2515. See also 18 U.S.C. § 2518(10)(a) (providing aggrieved persons with the power to move for suppression of evidence obtained pursuant to an unlawful wiretap). The statute is clear on its face and does not provide for any exception. Courts must suppress illegally obtained wire communications.

Second, the Senate Report discussing Title III indicates no desire "to press the scope of the suppression role beyond present search and seizure law." S.Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2185 (emphasis supplied). Title III was passed in 1968; Leon was decided in 1984. Congress obviously could not know that Fourth Amendment search and seizure law would embrace a good-faith exception sixteen years after the passage of Title III, and the language from the Senate Report indicates a desire to incorporate only the search and seizure law that was in place at the time of the passage of Title III.

Finally, as mentioned, the Supreme Court's Leon decision is the product of judicial balancing of the social costs and benefits of the exclusionary rule. The judicial branch created the exclusionary rule, and thus, modification of that rule falls to the province of the judiciary. In contrast, under Title III, Congress has already balanced the social costs and benefits and has provided that suppression is the sole remedy for violations of the statute. The rationale behind judicial modification of the exclusionary rule is, thus, absent with respect to warrants obtained under Title III's statutory scheme. See United States v. Spadaccino, 800 F.2d 292, 296 (2d Cir.1986) (using this same rationale and reaching the same conclusion in analyzing whether the Leon good-faith exception applied to a state wiretapping statute).

In holding that the Leon exception does not apply to warrants improperly issued under Title III, we note that there are no prior cases which either require us to conclude otherwise or which persuade us that we should conclude otherwise. In United States v. Baranek, 903 F.2d 1068, 1072 (6th Cir.1990), a panel of this court decided that under the peculiar facts of the case presented, it was appropriate to apply the plain-view doctrine to a suppression case brought under Title III. The issue in Baranek was framed narrowly as "whether a conversation overheard on a telephone that is the subject of a Title III wiretap should be suppressed when, at the time of the interception, the telephone was inadvertently off the hook and not in use." Id. at 1069. The panel made clear that it intended the holding to be quite narrow, stating that "since the circumstances involved are wholly fortuitous, we will not impact or shape future conduct. . . ." Id. at 1070. The panel explained that it was applying the plain-view exception because it involved an unusual scenario "clearly not contemplated by [Title III]." Id. at 1072. Further, the decision stated "that where Title III provides greater protection than the fourth amendment a defendant is entitled to the enhanced protection. . . ." Id.

The Baranek decision is a narrow holding confined to its facts. In contrast, the case at bar presents a garden-variety fact scenario: the government desires a wiretap, submits a wiretap application, obtains permission to use a wiretap, and collects information from that wiretap which it then seeks to use as evidence against the defendant. The scenario in the case at bar is the very type contemplated by Title III, and nothing in Baranek changes our analysis today.2

In United States v. Moore, 41 F.3d 370, 376 (8th Cir.1994), cert. denied, 514 U.S. 1121, 115 S. Ct. 1985, 131 L. Ed. 2d 872 (1995), the Eighth Circuit held that the Leon good-faith exception applies to § 2518(10)(a) of Title III. The court found that Leon applied for two reasons. First, it determined that § 2518(10)(a) "is worded to make the suppression decision discretionary (`If the motion is granted'). . . ." Id. Second, it determined that the "legislative history [of Title III] expresses a clear intent to adopt suppression principles developed in Fourth Amendment cases." Id. (citing S.Rep. No. 90-1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2185).

The Eighth Circuit's conclusion that Leon applies to warrants improperly issued under Title III is built on faulty reasoning. First, the Eighth Circuit took the statement "if the motion is granted" out of context, thereby erroneously concluding that § 2518(10)(a) makes the suppression decision discretionary. Of course, the district court decides whether or not to grant a motion to suppress, but that does not mean it has unbridled discretion in making that decision. Section 2518(1) sets forth what a valid application for a wiretap warrant must contain. Section 2515 requires that evidence obtained in violation of the provisions of the Act must be suppressed. When read as a whole, it is clear that the suppression decision must be made within the strict confines of Title III itself, and is far from "discretionary" in the sense which the Eighth Circuit implies.

Second, as we have already explained, the legislative history does not clearly express an intent to import Fourth Amendment principles such as those arising from Leon into Title III; in fact, it does the very opposite. If anything, the meaning of the Senate Report is that it intends Title III to incorporate only what Fourth Amendment jurisprudence existed at the time of the Act's passage (which was before Leon) and nothing more.

In United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir.1988), cert. denied, 489 U.S. 1024, 109 S. Ct. 1149, 103 L. Ed. 2d 209 (1989), 489 U.S. 1029, 109 S. Ct. 1163, 103 L. Ed. 2d 221 (1989), the Eleventh Circuit also held that the Leon good-faith exception applied to a warrant improperly issued under Title III. In Malekzadeh, the court merely recites the rationale for Leon, stating that although the point of the exclusionary rule is deterrence, "in some circumstances, application of the rule affords none of these protections . . . ." Id. The opinion then states that the same rationale should be applied to the case at bar. Id. The Eleventh Circuit made no attempt to explain why reasoning from a Fourth Amendment exclusionary-rule case was appropriately imported into a Title III case. Simply put, we are unpersuaded.3

Because we conclude that the Leon exception to the warrant requirement does not apply to warrants improperly issued under Title III, we affirm the district court's order denying the government's motion to reconsider.

Because the district court did not err in suppressing the fruits of the wiretap, and because there is no good-faith exception for warrants improperly issued under Title III, we AFFIRM the district court's orders suppressing the fruits of the wiretap and denying the government's motion for reconsideration.