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United States v. Majeed

August 4, 2009

UNITED STATES OF AMERICA
v.
BURNIE MAJEED, KELVIN GANDY



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

This matter concerns the criminal prosecution of Defendants Burnie Majeed and Kelvin Gandy for charges related to an alleged drug conspiracy. On April 1, 2008, Defendants Majeed and Gandy, along with Jamille Barksdale and Troy Cauthorn, were charged in an indictment with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). The indictment asserts that, from at least January 2005 to December 2006, the defendants conspired to distribute a quantity of cocaine in excess of five kilograms in the city of Philadelphia, the city of Chester, the state of New Jersey, and the state of Delaware.

The investigation of the alleged conspiracy involved, among other things, the use of electronic wiretaps on many of the suspects' cellular telephones and on two vehicles. In addition to authorizing the surveillance of telephones belonging to Majeed, Gandy, Barksdale and Cauthorn, the wiretaps also authorized the surveillance of telephones belonging to Donald Johnson and Edward Kaplan, two of Defendants' alleged co-conspirators.

Defendants have moved in limine to suppress the evidence obtained from the wiretap warrants on several different grounds. Majeed asserts that Judge Seamus McCaffery, the judge who authorized each of the warrants, did not have authority to do so under the federal wiretap interception statute, 18 U.S.C. §§ 2510-2520, Title III, Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"). In addition, Majeed and Gandy both argue that the warrants are invalid because they do not show the necessity for a wiretap as required by Title III. Both Defendants also assert that the wiretap warrants are not supported by the requisite probable cause. They specifically focus their challenge on the alleged lack of probable cause for the first warrant issued in this case, Warrant 32-1 (2005), which was issued for the telephone of Donald Johnson, one of Defendants' alleged co-conspirators. Furthermore, Gandy specifically challenges the adequacy of the wiretap warrant authorizing the installation of hidden microphones in a Kia Sportage vehicle used by the alleged conspirators at one point during the investigation. Gandy asserts that the warrant lacked a showing of probable cause to believe that pertinent conversations would be obtained through those microphones and that the warrant did not meet the necessity requirement of Title III because it failed to mention that Richard Pierce, a person who allegedly conducted drug-related transactions with members of the organization, was cooperating with the police at the time the warrant was issued.

Additional questions regarding the warrants arose after this Court reviewed the warrant applications and noted that there appeared to be an error in two of the warrant extension applications 32-2 (2006) Extension 3 and 32-3 (2006) Extension 2 and 3. Both warrants authorized the interception of Majeed's telephone numbers. Warrant 32-2 authorized the interception of 267-918-9515 and Warrant 32-3 authorized the interception of 267-304-5325. However, the applications contained a large number of identical call logs, beginning with those obtained on February 15, 2006, to support the interception of the two separate numbers. The call logs did not specifically label the telephone number on which the calls were captured. This was problematic because each call could only have been obtained from one of the numbers and could therefore only support probable cause for the interception of one of the numbers. Following that discovery, this Court ordered the Government and Defendants to submit briefing regarding the effect of the apparent inconsistency on all of the warrants and other evidence at issue in this case. Defendants have since moved to suppress all evidence obtained through the mentioned warrant extensions and through any warrants and extensions issued as a result of applications that relied on those extensions.

Below we will analyze the validity of each one of the wiretap warrants on which the Government has indicated it plans to rely.*fn1 In Section III(A), we will begin by exploring issues and evidence that are common to all of the warrants. In Section III(B), we will turn to a warrant-by-warrant analysis. As part of that analysis, we will explore the issues presented by Warrant 32-2 (2006) Extension 3 and Warrant 32-3 (2006) Extensions 2 and 3.

II. LEGAL STANDARD

A. Requirements of Title III

Title III requires that an application for a wiretap show that:

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

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

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

18 U.S.C. § 2518(3). In addition, Title III requires that the application show that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c).*fn2

An application for probable cause to issue a wiretap warrant "must be supported by the same probable cause necessary for a search warrant." United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990) (citing United States v. Hyde, 574 F.2d 856, 862 (5th Cir.1978)). The Third Circuit has rejected the argument that wiretap applications must be supported by a higher degree of probable cause than search warrants applications explaining that "[p]robable cause is not a matter of degree." United States v. Falcone, 505 F.2d 478, 481 (3d Cir. 1974) (overruled on other grounds by United States v. Ojeda Rios, 495 U.S. 257, 265 (U.S. 1990)). The Court has further noted that "no special probable cause requirement can be found in the statutory scheme" and that "[c]ertainly if a higher degree of probable cause were intended, Congress would have so stated." Id.

Therefore, a judge authorizing a wiretap warrant has the traditional task of "mak[ing] a 'practical, common-sense decision' about whether the 'totality of the circumstances' indicate that there is probable cause that the sought-for evidence will be obtained." Nixon, 918 F.2d at 900 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). In reviewing the authorization, our role is to "ensure that the magistrate had a 'substantial basis for . . . concluding' that probable cause existed." Id. (citing Gates, 462 U.S. at 238-39). Furthermore, as the Third Circuit has explained:

A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.'. . .'A grudging or negative attitude by reviewing courts toward warrants,' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; 'courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.'

United States v. Ritter, 416 F.3d 256, 264 (3d Cir. 2005).

B. Relying on Affiants' Interpretations

In determining whether the warrant applications meet Title III's requirements, we "may properly take into account affirmations which are founded in part upon the experience of specially trained agents." United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997) (citations omitted). In this case, the warrant and extension applications contain the affiants' interpretations of many cryptic and coded conversations among the suspected conspirators. These interpretations are supported by the affiants' training and experience regarding "the methods, devices, and modus operandi" of drug traffickers as well as the "language, code numbers, code words and slang terms used to refer to controlled substances." (Warrant 32-1 (2005) pp. 2-3.) Courts have specifically found that troopers' interpretations of coded conversations can support probable cause in obtaining a warrant. See United States v. Beltran, 11 Fed. App'x 786, 787 (9th Cir. 2001) ("We see no reason why the district court could not rely on [the agent's] interpretations [of intercepted conversations] to find probable cause."); United States v. Carr, No. 07-40034, 2007 U.S. Dist. LEXIS 56149, at *10 (D. Kan. July 31, 2007) (finding that "cryptic or coded conversations can support a finding of probable cause"); United States v. Feola, 651 F. Supp. 1068, 1096 (S.D.N.Y. 1987) (holding that the agents' interpretations "properly contributed to a finding of probable cause"). Accordingly, in assessing the sufficiency of the evidence contained in the warrant and extension applications, we rely on the affiants' interpretations of cryptic and coded language contained in the calls.

III. DISCUSSION

A. Common Issues

1. Issuing Judge's Authority under Title III

Majeed claims that the wiretap orders are unlawful because the issuing judge was not a judge of competent jurisdiction under Title III. Title III states that a state judge is a judge of competent jurisdiction if he is a "judge of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interception of wire, oral, or electronic communications." 18 U.S.C. § 2510. The issuing judge for each of the warrants was Pennsylvania Supreme Court Justice Seamus McCaffery, who was a Judge on the Pennsylvania Superior Court at the time of the warrant authorizations. Contrary to Majeed's assertions, the Pennsylvania Superior Court is indeed a court of general jurisdiction. See Newman v. Thorn, 518 A.2d 1231, 1235 (Pa. Super. Ct. 1986) (describing the Superior Court as "the court of general appellate jurisdiction" and stating that it "exercises a general jurisdiction over all appeals from common pleas 'regardless of the nature of the controversy'"). Furthermore, Pennsylvania's wiretap statute, the Pennsylvania Wiretapping and Electronic Surveillance Control Act, specifically vests on Superior Court judges the exclusive authority to issue wiretaps orders under that act. 18 Pa. Cons. Stat. Ann. § 2510. Accordingly, we find that, at the relevant time the issuing judge was a judge of competent jurisdiction under the meaning of Title III.

2. Necessity Requirement

Defendants assert that the wiretap applications did not comply with the requirements of Title III because they failed to show that "normal investigative procedures with respect to the offense were tried and failed or reasonably appear to have been unlikely to succeed if tried or are too dangerous to employ." (Gandy's Mot. Suppress ¶ 27); see 18 U.S.C. § 2518(3)(c). Courts have consistently held that "18 U.S.C. § 2518(3)(c) does not require the government to exhaust all other investigative procedures before resorting to electronic surveillance." United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997). Instead "[t]he government need only lay a 'factual predicate' sufficient to inform the judge why other methods of investigation are not sufficient." Id. The Third Circuit Court of Appeals has highlighted that, in determining whether the government has established that factual predicate, "[t]he government's showing is to be 'tested in a practical and commonsense fashion.'" Id.

Although each affidavit asserts specific facts relevant to establishing the necessity requirement of Title III, there are several issues pertaining to necessity that are applicable to all of the warrants. The affidavits detail the other types of investigative tools in this type of criminal investigation and discusses in detail why those methods would not be sufficient. (See, e.g., Warrant 32-1 (2005) 77-81). The methods discussed include: (1) the use of confidential informants, (2) the use of undercover agents, (3) the use of visual physical surveillance, 4) the execution of search warrants, (5) the use of a grand jury, and (6) the use of a pen register/trap and trace device on telephones.

The affidavits explain that the use of confidential informants and undercover agents would not have been sufficient to investigate the drug-trafficking organizations because the troopers believed, based on their training and experience, that the suspects would be unwilling to introduce any potential buyers to their suppliers or co-conspirators and thereby run the risk of cutting themselves out of the profit chain. (See, e.g., id. at 77-78.) The affidavits also explain that the troopers had already been using confidential informants prior to beginning wiretap surveillance and that the practice had not resulted in introductions to any of the suspects' suppliers. (See, e.g., id. at 78.) The affiants further state that it would be very dangerous for a confidential informant to try to push the suspects to introduce him to his suppliers. (See, e.g., id.)

The affidavits also explain that physical surveillance would not be sufficient in this case because, due to the suspects' sophistication as drug dealers and the close-knit nature of the community where they operate, surveillance would likely be detected. (See, e.g., id. at 78-79.) The agents highlighted that, on prior occasions during the investigation, the suspects had spotted surveillance vehicles and had taken actions to defeat surveillance. (See, e.g., id. at 79.) The agents also indicated that members of the Chester community are easily able to identify outsiders and habitually confront the agents or alert other members of the community when law enforcement vehicles are spotted. (See, e.g., id.) For these reasons, the officers believed that surveillance on its own would not provide sufficient information for a successful investigation of the suspects' drug trafficking organization.

The affidavits next explain that search warrants would not be sufficient because the suspects were likely to have several stash houses that could not be easily identified by the officers. (See, e.g., id. at 79-80.) In addition, the search warrants would not be likely to provide sufficient information about the suspects' confederates or the activities of the organization as a whole. (See, e.g., id. at 79.) Also, conducting the search warrants early in the investigation would alert other members of the organization about the investigation, which would make them much more likely to destroy evidence and take steps to evade the police. (See, e.g., id. at 80.)

Similarly, the affiants assert the issuance of subpoena for a grand jury would also alert the suspects' confederates that there was an ongoing investigation, which would likely lead to the destruction of evidence and would make it much more difficult to investigate the organization. (See, e.g., id. at 81.) They also highlight that the grand jury process would likely put the individuals who had been cooperating with the investigation at risk of being discovered. (See, e.g., id.)

Finally the affidavits explain that the use of a pen register on the suspects' telephones would not be sufficient because many drug dealers use pre-paid telephones or telephones that are registered in the names of other people, making it difficult to accurately determine the identity of the individuals that are in contact with the suspects. (See, e.g., id. at 80.)

As the Third Circuit has explained, "[a]lthough the government has actual knowledge of a conspiracy and evidence sufficient to prosecute one of the conspirators, it is unrealistic to require the termination of an investigation before the entire scope of the narcotics distribution network is uncovered and the identity of its participants learned." United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975). We find that these common factors mentioned in each of the wiretap orders, in addition to the other individual factor mentioned therein, support a finding of necessity for the wiretap orders.

B. Individual Warrants

1. Warrant 32-1 (2005), August 31, 2005 - Barksdale

Warrant 32-1 (2005) was authorized on August 31, 2005 for the interception of Barksdale's telephone number 267-292-3401. The affidavit asserts sufficient facts, including those explained above, to fulfill the necessity requirement of Title III. (Aff. 77-81). In addition, the affidavit contains ample evidence to support the findings of probable cause required by Title III, 18 U.S.C. § 2518(3).

The affidavit details extensive information obtained from four confidential informants regarding the drug-trafficking activities of Barksdale, Majeed, and Cauthorn. Each of the four confidential informants mentioned in the affidavit had previously provided information regarding drug-traffickers to the police. The police had corroborated that information through other sources and independent investigation and had found that information to be reliable. The officers that interviewed these confidential informants found them to have been consistently truthful in the past. Furthermore, the information provided by the informants regarding Barksdale's status as a drug-trafficker were later corroborated through three controlled purchases and surveillance as detailed below. In addition, each of the confidential informants had previously provided reliable information to the police and had been found to be truthful. Each of the informants has personally observed or interacted with one or more of the suspected co-conspirators as they took part in drug-related activities. As the Third Circuit Court of Appeals has explained, "[i]n evaluating the worth of an informant's report, we employ a 'totality of the circumstances' approach, considering, among other factors, the informant's veracity, reliability, and basis of knowledge." United States v. Holmes, 69 Fed. App'x 66, 68-69 (3d Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 230 (U.S. 1983)). We find that, based on the totality of the circumstances, the information from the confidential informants was an adequate basis to support a finding of probable cause.

The confidential informant referred to in the affidavit as CI-1 stated during his January 2005 interview that he had purchased large amounts of cocaine from Barksdale in the past and that Barksdale utilized his cellular telephone to arrange drug transactions. (Aff. 8.) He also stated that he knew that within six months prior to January 2005 Barksdale had purchased approximately $140,000 of cocaine from Majeed and Cauthorn every two to three weeks. (Id. at 9.) He also related that, in January 2005, he observed Barksdale taking part in what CI-1 believed to be a drug transaction. (Id. at 8.) CI-1 also indicated that he knows that Cauthorn supplies drugs to other traffickers in the city of Chester. (Id. at 9.)

The confidential informant referred to in the affidavits as CI-2 stated during his April 2005 interview that, in the preceding few months, he had seen Majeed in the possession of large amounts of cocaine and had seen him conduct sales of large amounts of cocaine. (Id. at 11.) The confidential informant referred to in the affidavits as CI-3 stated that in the early 1990s he had seen Cauthorn sell one kilogram of cocaine to another drug dealer. (Id. at 12.) He further stated that approximately three to four years before the date of the interview he had purchased large amounts of cocaine from Barksdale. (Id.) He also stated that, on one occasion, he placed an order for cocaine with Barksdale and then saw Barksdale meet with Majeed before filling CI-3's order. (Id.) The confidential informant referred to in the affidavits as CI-4 stated, in part, that he has recently seen Majeed and Cauthorn in the possession of what he believed to be more than $100,000. (Id. at 54.) He also stated that, in previous years, he had personally made direct purchases of cocaine from Barksdale, Majeed, and Cauthorn.*fn3 (Id.)

Majeed argues that the evidence provided in the supporting affidavit was stale. In particular, Majeed asserts that "[t]he time frame provided by each of the confidential informants regarding the alleged criminal conduct of Jamille Barksdale and others is not close enough in time . . . [t]o support probable cause for the issuance of the August 31, 2005 wiretap." (Majeed's 1st Supp. Mot. To Suppress 13-19.) We disagree. The Third Circuit Court of Appeals has explained that "where the facts adduced to support probable cause describe a course or pattern of ongoing and continuous criminality, the passage of time between the occurrence of the facts set forth in the affidavit and the submission of the affidavit itself loses significance." United States v. Urban, 404 F.3d 754, 774 (3d Cir. 2005). The Court has further specified that "[t]he liberal examination given staleness in a protracted criminal conduct case 'is even more defensible in wiretap cases than in ordinary warrant cases, since no tangible objects which can be quickly carried off are sought.'" Id. at 775. In the present case, there are numerous factors that indicate a pattern of ongoing criminal activity. For example, CI-1 related to the police that he had purchased drugs from Barksdale a few months prior to January 2005. (Id. at 7-8.) He also stated that he witnessed Barksdale taking part in what CI-1 believed to be a drug transaction in January 2005. (Id. at 8.) CI-1 further indicated that he knew that, within six months prior to January 2005, Barksdale was paying Cauthorn and Majeed $140,000 every two to three weeks for cocaine. (Id. at 9.) CI-3 and CI-4 both stated that they had purchased cocaine from Barksdale in previous years. Based on the totality of the evidence provided, we find that the confidential informant evidence supporting the issuance of the wiretap order was not stale.

In addition to the details provided by the confidential informants, the affidavit presented evidence of several controlled purchases during which CI-1 obtained cocaine from Barksdale. The purchases took place on January 11, 2005, April 13, 2005, and June 15, 2005. (Id. at 22-25; 43-46.) On each occasion, CI-1 contacted Barksdale using Barksdale cellular telephone number. (Id. at 22-25; 43-46.) During the last transaction, he contacted Barksdale using the cellular telephone number that was the subject of the August 31, 2005 wiretap. (Id. at 22-25; 43-46.)

The affidavit also reported on the extensive drug-related criminal histories of Barksdale, Cauthorn and Majeed. (Id. at 12-19.) Such criminal records are relevant to a determination of probable cause. See United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993). The affidavit further reported that a pen register placed on Barksdale's original phone revealed that he received an inordinate amount of phone calls. (Id. at 69.) In addition, the pen register showed that following the controlled purchase conducted in April of 2005, during which Barksdale suspected that he was under surveillance, Barksdale discontinued utilizing the phone. (Id. at 29-30.) It also showed that Barksdale was in contact with someone utilizing two telephone numbers that were registered in the name of Geraldine Majeed, Majeed's mother. (Id. at 71.)

Finally, the affidavit indicates that toll records showed that the telephone number that was subject to the wiretap, 267-972-3401, was subscribed to Jamille Barksdale. (Aff. 42.) It also states that, after Barksdale discontinued using his original telephone following the April 2005 controlled buy, he provided CI-1 with the telephone number 267-972-3401 as his new telephone number.

The above-mentioned evidence provides sufficient probable cause to find that (1) Barksdale was involved in drug-trafficking activities; (2) a wiretap of the targeted telephone number was likely to yield conversations between Barksdale and the people with whom he engaged in drug-trafficking activities; and (3) Barksdale utilized the targeted telephone number, which was subscribed in his name, to engage in drug-trafficking. Accordingly, we find that the affidavit provided sufficient probable cause to support the issuance of the August 31, 2005 wiretap order.

2. Warrant 32-4 (2005), December 19, 2005 - Cauthorn

On December 19, 2005, a wiretap warrant was issued for Troy Cauthorn's cellular telephone number 215-360-9729. For the reasons stated below, we find that the affidavit accompanying the wiretap application complies with the requirements of Title III.

First, the affidavit shows necessity because it provides a sufficient factual background to show that other traditional methods of investigation would not be sufficient in this case. (Aff. 86-92.) Secondly, the affidavit provides ample probable cause to support the wiretap. The affidavit details the information provided by the confidential informants described above who indicated that Cauthorn had been a drug-trafficker for several years. (Aff. 12-14.) In addition, the affidavit provides evidence derived from a combination of electronic surveillance, physical surveillance, and the expert interpretation of the investigating officers indicating that Cauthorn received drugs from a person named Styles Beckles on December 11, 2005. (Aff. 49-54.) Furthermore, the affidavit indicates that Cauthorn remained in contact with Beckles regarding the payment for that drug delivery as late as December 17, 2005. (Aff. 76 Log 302.)*fn4 The affidavit also showed that Cauthorn communicated with Beckles using the targeted telephone number 215-360-9729. (Id.) Therefore we find that the affidavit provides sufficient probable cause that: (1) Cauthorn was involved in drug-trafficking; (2) Cauthorn utilized the targeted telephone number to conduct drug-trafficking activities; (3) a wiretap of the targeted telephone number was likely to yield conversations regarding drug-trafficking. Accordingly, we find that the wiretap order was lawfully issued.

Extension 1 for Warrant 32-4 (2005) was issued on January 27, 2006. The affidavit supporting the application showed, for example, that on January 14, 2006, Cauthorn spoke with Majeed on the targeted telephone and Majeed told him, in coded language, that he just learned that he would be receiving cocaine from one of his sources. (Aff. 2173-74 Log 84.)*fn5 It also shows that on January 15, 2006, Cauthorn spoke with Majeed to ask him whether the supply of cocaine was ready. (Id. at 002180-81 Log 187.) The affidavit also shows that, on January 16, 2006, Cauthorn spoke with Majeed on the targeted telephone and told him that he had to sell his current cocaine supply to which Majeed responded "that [is] gonna go fast though." (Id. at 002184, Log 222.)

Extension 2 to Warrant 32-4 (2005) was authorized on February 15, 2006. The supporting affidavit shows that, on February 2, 2006, Cauthorn spoke to one of his customers and told him that he had cocaine for him earlier but that he had since run out. (Aff. 2754-55 Log 1342.) It also shows that, on February 8, 2006, Cauthorn spoke with Barksdale and asked him whether he wanted to purchase cocaine. (Id. at 2755-56 Log 1345.) Later that same day, Cauthorn spoke with an unidentified customer to negotiate a price of cocaine. (Id. at 2757-58 Log 1351.)

Extension 3 to Warrant 32-4 (2005) was authorized on March 13, 2006. The supporting affidavit shows that, on February 24, 2006, Cauthorn spoke with Barksdale about the size of a cocaine supply. (Aff. 311-12 Log 2271.) It also shows that, on February 25, 2006, Cauthorn spoke with Majeed who told him that he had detected surveillance vehicles and that they should be careful. (Aff. 316-18 Log 2343.) In addition, it shows that, on March 1, 2006, Cauthorn spoke with an unidentified male about the price of cocaine. (Aff. 327 Log 2495.)

Extension 4 to Warrant 32-4 (2005) was authorized on April 10, 2006. The affidavit shows that, on March 17, 2006, Cauthorn made a series of calls to an unidentified male regarding what the affiants believe to be payment for a delivery of approximately half a kilogram of cocaine. (Aff. 358-9 Logs 2979, 2982, 2983, 2986, 2987.) It also shows that, on March 22, 2006, Cauthorn spoke with one of his suspected cocaine distributors. (Id. at 370 Log 3257.) According to the affiants' interpretation, Cauthorn was telling his distributor that he had cocaine available for him. (Id.) The affidavit further shows that, on March 23, 2006, ...


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