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United States v. Kaplan

November 13, 2009


The opinion of the court was delivered by: Schiller, J.


In a nine-count Second Superseding Indictment, the Government charges Defendants Edward "Pooh" Kaplan and Leonard Mason with various drug offenses stemming from their alleged participation in a large drug trafficking operation centered in Chester, Pennsylvania. During the investigation into the drug ring, law enforcement received approval to search both real and personal property and conduct wiretaps of cellular phones used by purported members of the drug ring. Kaplan filed a motion to suppress the evidence against him obtained through six orders authorizing wiretaps and through a search warrant allowing two properties and a vehicle to be searched. Mason also seeks to suppress wiretap evidence and evidence obtained from a vehicle he was operating in July of 2006.

Kaplan challenges the following: (1) an April 19, 2006 order authorizing a wiretap on a prepaid cellular phone used by Kaplan; (2) an August 2, 2006 order authorizing a wiretap on another cellular phone used by Kaplan; (3) orders of August 29, 2006 and September 27, 2006 authorizing the continued interception of the cellular phone subject to the August 2, 2006 order; (4) orders of August 14, 2006 and September 12, 2006 authorizing interception of a cellular phone used by Kaplan; and (5) search warrants executed on November 22, 2006 that allowed police to search a third floor apartment at 416 Chelten Avenue in Philadelphia, property at 122 West Wyneva Street in Philadelphia, and a Nissan Maxima that Kaplan was using.

Mason challenges a June 22, 2006 order authorizing a wiretap of a cellular phone he used and a July 20, 2006 order authorizing the continued interception of the cellular phone subject to the June 22, 2006 order. Mason also seeks to suppress evidence seized based on a July 19, 2006 search warrant, which permitted officers to search a Chrysler Town & Country minivan Mason was driving when police pulled him over on Interstate 95 in Chester, Pennsylvania. For the reasons below, the Court denies Defendants' motions in their entirety.


Kaplan and Mason raise identical arguments for suppressing evidence obtained from wiretaps. First, they argue that the evidence must be suppressed because the orders authorizing the wiretaps were signed by a Pennsylvania Superior Court judge and such a judge is not authorized by federal law to sign such authorizations. Second, Kaplan and Mason argue that the Government lacked probable cause. Third, Defendants claim that the Government failed to show that electronic audio surveillance was necessary, as required by federal law.

A. Factual Background

1. Kaplan

The April 19, 2006 affidavit is the "core" affidavit -- all subsequent wiretap applications challenged in Defendants' motion build upon and incorporate this affidavit. Accordingly, the Court will outline the information from this core affidavit, which totals close to 400 single-spaced pages.

a. Affiants' Experience and Qualifications

The affidavits were attested to by Pennsylvania State Troopers Michael Skahill and Sean Regan, both of whom have extensive experience and training in drug-related investigations. Trooper Skahill has successfully completed the Pennsylvania State Police twenty-five week basic training program and an extensive one-week Drug Investigators Course conducted by the Pennsylvania State Police. He teaches at the Top Gun Narcotics Investigators Course and has taught Drug Investigation classes at the Pennsylvania State Police Academy. He has been an affiant on twenty prior non-consensual electronic interceptions and has been qualified as an expert in the field of drugs and drug investigations. As a result of his training and experience, he is familiar with "the methods, devices, and modus operandi of persons and organizations that illegally distribute controlled substances." He is also familiar with techniques used to conceal drugs as well as lingo and slang used by those engaged in illegal drug activity. Trooper Regan has also successfully completed the Pennsylvania State Police twenty-six week training academy. He has attended a number of schools and training courses related to drug trafficking, concealment and identification. Over the course of his career, he has been involved in hundreds of narcotics investigations and has executed search warrants and made controlled purchases. Like Officer Skahill, he is familiar with techniques used to conceal drugs as well as lingo and slang used by those engaged in illegal drug activity.

b. Confidential Informants

In January of 2005, affiants interviewed a confidential informant, CI#1, who provided information about persons in Chester, Pennsylvania whom CI#1 knew to be involved in the illegal drug trade. One such person was Jamille Barksdale, from whom CI#1 purchased large amounts of cocaine. The informant also provided officers with a telephone number that CI#1 used to contact Barksdale. CI#1 further related that Burnie Majeed and Troy Cauthorn supplied Barksdale with cocaine.*fn1 CI#1 also informed officers that Barksdale would meet with Majeed and Cauthorn every couple of weeks and was expected to pay them large sums of money for the cocaine. According to the affidavit, CI#1 previously provided the affiants reliable information that had been independently corroborated.

Trooper Skahill spoke with Officer David Tyler of the Chester City Police Department about Barksdale, Majeed and Cauthorn, and the drug trade in Chester. Officer Tyler reported that a reliable confidential informant, CI#2, mentioned Barksdale, Majeed, and Cauthorn as persons involved in the illegal drug trade; CI#2 had seen Majeed carrying large amounts of cocaine and conducting drug transactions. In fact, CI#2 reported that Majeed and Cauthorn are among the largest cocaine traffickers in Chester. CI#2 also reported that a number of persons reported buying cocaine from Barksdale and Cauthorn.

In February of 2005, Officers Skahill and Regan met with a third confidential informant, who provided them with information that they determined to be reliable, both through independent police investigation and through other sources of information. CI#3 told the officers about drug traffickers who had purchased cocaine from Cauthorn. He also stated that he saw Barksdale meet with Majeed prior to a meeting between CI#3 and Barksdale, during which Barksdale sold CI#3 nine ounces of cocaine.

Troopers Skahill and Regan also spoke with Officer Tyler regarding another confidential informant, CI#4, who described Barksdale, Majeed, and Cauthorn as known drug traffickers in Chester. Over a two-year period, CI#4 purchased cocaine from Barksdale, Majeed, and Cauthorn. CI#4 also had seen Cauthorn and Majeed in a home in New Jersey with a money counting machine and cash in excess of $100,000. According to the affidavit, CI#4 was unwilling to introduce an undercover officer to any of the drug traffickers and, out of safety concerns, was unwilling to help in the arrest of Barksdale, Majeed or Cauthorn.

In March of 2006, the officers spoke to another confidential informant, CI#5, who had, over the past few years, bought large quantities of cocaine directly from Barksdale and Cauthorn. CI#5 was aware of Majeed's drug trafficking activity from conversations with other drug traffickers, although CI#5 had not purchased cocaine directly from Majeed for several years.

In April of 2006, Trooper Skahill spoke with Officer Andy Rehr of the Philadelphia Police Department about Edward Kaplan and his suspected drug dealing in the Philadelphia area. Officer Rehr reported that he had received information from a reliable confidential informant, CI#6, that CI#6 had personally purchased kilogram quantities of cocaine from Kaplan, that CI#6 had seen Kaplan with large amounts of cocaine and that other drug traffickers informed CI#6 that they had purchased kilogram quantities of cocaine from Kaplan. CI#6 also reported that he saw Kaplan with an associate known as "Burn" and that he saw "Burn" driving a cream-colored or white BMW 745. The officers believed that "Burn" was Majeed, who had been known to drive a cream-colored or white BMW.

c. Controlled drug purchases

The affiants additionally directed controlled purchases of cocaine from Barksdale. In January of 2005, CI#1 placed a recorded call to Barksdale in which CI#1 scheduled a meeting to purchase cocaine. The transaction occurred exactly as CI#1 informed the officers it would and CI#1 was able to purchase over 123 grams of cocaine from Barksdale. Using the help of CI#1, officers set up another controlled purchase from Barksdale in April of 2005. Following the purchase of 122 grams of cocaine, CI#1 called Barksdale. During the call, Barksdale reported to CI#1 that he had noticed what he considered to be suspicious vehicles in the area during the transaction. Barksdale was correct; he had spotted surveillance vehicles. Shortly after this controlled purchase Barksdale told CI#1 that he was "laying low" for a period of time and that Barksdale would not be using the cell phone number he had previously provided to CI#1. However, Barksdale provided CI#1 with a new cell phone number. In June of 2005, under the supervision of law enforcement, CI#1 called Barksdale and inquired whether Barksdale has resumed his drug trafficking. Based on the conversation, CI#1 believed that Barksdale had resumed his illegal activities. According to CI#1, the best way to introduce an undercover officer to Barksdale would be in a social setting, but attempts to arrange such a meeting had proved unsuccessful. Nonetheless, additional controlled purchases from Barksdale were made on June 15, 2005 and November 4, 2005.

d. Pen Registers/DNR Trap and Trace Devices

Throughout their investigation, law enforcement officials obtained orders for Pen Registers and DNR Trap and Trace Devices on Barksdale's cell phones, which allowed them to capture incoming and outgoing phone numbers as well as the duration of Barksdale's phone calls. Using these investigative techniques, officers noted a much higher number of incoming calls, which is typical of suppliers with established customers. Furthermore, the timing of the calls revealed that Barksdale received calls at all hours of the day and night but made few calls in the early morning. According to Troopers Skahill and Regan, "traffickers of controlled substances will receive calls at all hours of the day, but as a rule of thumb, tend not to be early risers." Law enforcement also noticed that he received calls from persons convicted of drug offenses. Finally, the officers observed that Barksdale ceased making outgoing calls after he had spotted what he believed to be surveillance vehicles during a controlled purchase, consistent with behavior that, according to the affiants, is exhibited by drug dealers seeking to avoid detection.

e. Wiretaps and Surveillance

Wiretaps on Barksdale's cell phone in September of 2005 revealed that he and Majeed were in constant contact and, according to the affidavit, their conversations were often "drug related." The wiretaps revealed that Majeed often used cell phones registered to Barksdale. When the conversations turned to drugs, the two men would encrypt their discussions to ensure that their messages got across yet enabled them to deny that they were discussing drugs. For example, the affiants related one call between Majeed and Barksdale in which they set up a meeting "[n]ot where you went to sleep but just cross from there." The officers also heard conversations in which Majeed and Barksdale talked of getting new cell phones, which drug traffickers frequently do to evade law enforcement.

Additional wiretaps on the phones of Barksdale, Cauthorn, and others supported the affiants' belief that they were involved in a major drug ring. During a conversation between Barksdale and Cauthorn, Barksdale discussed exacting revenge after he was shot. According to the officers, Barksdale's prominence as a drug trafficker in Chester made him a mark for robbers and stick-up men. If Barksdale failed to strike back, the entire drug ring, of which he was a key member, would lose status. A wiretap on Cauthorn's cell phone revealed almost daily discussions about buying and delivering drugs and collecting money from drug deals. Cauthorn regularly spoke with his drug distributers and avoided overtly discussing drugs by using the same veiled language designed to hide the purpose behind the calls. In one of the intercepted calls, an unidentified male told Cauthorn, "I need stuff man. I have these people in downstairs from me buying 16th's man and." Cauthorn responded, "No, no, no a, I'll call you tomorrow man stop talking on the phone like that." During another intercepted call, Cauthorn spoke with an unidentified male about the quality of marijuana. Officers also tapped Majeed's cell phone and confirmed a similar modus operandi of speaking in code when discussing drug transactions. Such conversations were kept to a minimum -- those in on the call knew exactly what was being discussed without directly stating the matter.

Majeed and Cauthorn knew that law enforcement was monitoring their movements. For example, during an intercepted call between Majeed and Cauthorn, Majeed spotted a surveillance car while he was nearing the Ben Franklin Bridge. Majeed then switched lanes as though he was going toward the Walt Whitman Bridge only to again switch lanes and head toward the Ben Franklin Bridge, detailing his movements as he was followed. Cauthorn spoke of how they were "hot" and that he needed to switch cell phones. Majeed warned Cauthorn to "go ahead and do what ya do, but just keep your eyes."*fn2 The two later discussed that Cauthorn was "scared to be around [Majeed] cause [Majeed] gotta tail on me." After obtaining new phones, the two men set up a time to meet, rather than exchange numbers over the phone. During a call intercepted in March of 2006, Cauthorn told Majeed that he "talked to main man down the way. I told him try to come down that way so tell main man ya knamean, try and get that in motion yamean? Try to get that in motion yamean?" Troopers Regan and Skahill believed that "main man" referred to Kaplan and that Cauthorn wanted Kaplan involved in a drug deal in Atlanta. Indeed, officers heard Kaplan in the background during this call. Later that month, police intercepted a call between Majeed and Kaplan -- which occurred shortly after a call between Majeed and Barksdale -- in which they attempted to acquire cocaine from Kaplan. The next day Majeed spoke with Kaplan and ended the call by telling Kaplan that he would "call your phone just to kick it witchu and shit for a minute," which Troopers Skahill and Regan believed indicated that Majeed either wanted to talk with Kaplan about buying cocaine or that Majeed wanted to buy cocaine from Kaplan at that time. Later that day, Kaplan invited Majeed to a meeting location; Troopers Skahill and Regan concluded that Majeed would be in Kaplan's drug trafficking locale (Wayne Avenue and Wyneva Street) shortly either to conduct a drug transaction or to discuss their drug distribution network. Indeed, police later observed Majeed meeting with Kaplan inside a silver Pontiac on Wyneva Street near Wayne Avenue. The affidavit reiterates that when Kaplan and his cohorts discussed meetings related to drug trafficking, they spoke in code to shield the meaning of their conversations from law enforcement. A call between Barksdale and Majeed intercepted on March 28, 2006 suggested that the two men meet "where we go to sleep at." Troopers Skahill and Regan reported being familiar with the location "where [they] go to sleep at" and that surveillance had seen various members of the drug organization conference at that location.

The affidavit also relays an April 12, 2006 phone call in which Majeed called Kaplan in an effort to obtain cocaine. During another call later that day, Majeed told Barksdale that he was going to "go up top right now, and bullshit, wit witchacallit," which the affiants believed referred to Kaplan. Later that day, Majeed met Kaplan in the area of Wayne Avenue and Wyneva Street; subsequently, Majeed delivered a kilo of cocaine to an unknown male, who immediately distributed the drugs to a third party in Chester. Majeed then paid Kaplan at least a portion of the money owed for the cocaine.

Just four days later, Kaplan and Majeed again discussed meeting so that Majeed could buy cocaine from Kaplan. The two men were careful not to reveal their meeting location to law enforcement officials. Kaplan did, however, indicate that he was on his way to a restaurant where he would be for about a half an hour. Kaplan told Majeed that he would call him upon leaving the restaurant so they could meet for the drug transaction. Following the conversation, Kaplan's vehicle was spotted at this restaurant. Less than an hour later, while Majeed and Kaplan again talked on the ...

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