United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER OF COURT DENYING DEFENDANT
FITZGERALD'S MOTION TO SUPPRESS WIRETAPS (DOC. NO.
J. Schwab United States District Court Judge.
the Court is Defendant Fitzgerald's Motion to Suppress
Wiretaps. Doc. no. 81. The Government filed a
Response opposing the Motion. Doc. no. 109. For the
reasons that follow, the Court will deny Defendant
Fitzgerald's Motion to Suppress Wiretaps.
against Defendant Fitzgerald includes intercepted
conversations obtained via wiretap surveillance.
Miscellaneous case number 17-229(e). The wiretap surveillance
was authorized by United States District Judge David Stewart
Cercone on October 21, 2017, and was supported by 106-page
Affidavit sworn by a DEA task force agent, Michael C.
contends that the wiretap application failed to meet the
“necessity” requirement as required by 18 U.S.C.
§ 2518(1)(c). This portion of what is commonly known as
the “Wiretap Act” reads as follows:
(1) Each application for an order authorizing or approving
the interception of a wire, oral, or electronic communication
under this chapter shall be made in writing upon oath or
affirmation to a judge of competent jurisdiction and shall
state the applicant's authority to make such application.
Each application shall include the following information:
(c) 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;
18 U.S.C. § 2518(1)(c).
the Government and Defendant Fitzgerald admit in their
respective submissions, the necessity requirement under the
Wiretap Act does not impose a great statutory burden on the
Government. United States v. Armocida, 515 F.2d 29,
38 (3d Cir. 1975). Applications “whose sole bases are
general declarations and conclusory statements by the
affiants” and “[t]he use of ‘boiler
plate' and the absence of particulars in requests for
wiretap authorizations have not been permitted.”
U.S. v. Vento, 533 F.2d 838, 849-50 (3d Cir. 1976).
However, “[t]here is no requirement that every
investigative methodology be exhausted … [and]
[i]nvestigators are not obliged to try all theoretically
possible approaches. It is sufficient that the government
show that other techniques are impractical under the
circumstances and that it would be unreasonable to require
pursuit of those avenues of investigation.”
Id. at 849. Simply stated, this case law suggests
that a pragmatic approach must be taken, and the
“necessity” of a wiretap must be evaluated given
the specific circumstances and scope of the investigation.
case, the application in question at Misc. No. 17-229(e),
provides a sufficient factual basis to demonstrate the
necessity of the wiretap. Specifically, Section VII of the
application, which is entitled “Assessment of Requisite
Necessity” provides pages of foundation relating to the
necessity of the wiretap. For example, paragraph 106 reads in
106. As specifically stated in Affidavit #5 and further
corroborated in this Affidavit, this Organization is a
multi-level DTO, with coconspirators who are well-versed in
the tactics utilized to facilitate the illegal distribution
of narcotics. The simultaneous utilization of multiple mobile
telephones, the continual switching of mobile telephones, the
disciplined utilization of coded language, the face-to-face
meetings, their cautious mode of operation, the longevity of
their illegal drug trafficking activities, amongst other
tactics, are clear indications that the members in this
Organization arc determined to continue their illegal drug
trafficking activities unimpeded. . . .
remainder of paragraph 106 and paragraphs 107 through and
including 109, specifically reference Defendant Fitzgerald
and the need for a wiretap with respect to his phone(s) given
his alleged role in the Organization and the manner in which
the Organization was operating.
Section VIII of the Application, entitled “Alternative
Investigative Techniques, ” describes other modalities
of investigation. By way of example, and as raised by
Defendant Fitzgerald in his Motion to Suppress, one modality
known as pen register and toll record data was discussed in
paragraphs 110 through 111. The application makes it clear
that although the analysis of pen register and toll record
data, among other investigative tools, was helpful and would
continue to be utilized to further the investigation, without
the wiretap, the pen register and toll record data analyses
alone would not give the investigators the opportunity to
gather enough evidence “sufficient for
prosecution.” The application is replete with
additional examples of other modalities of investigation that
were being used by investigators, and yet each method did not
yield the necessary evidence to pursue prosecution.
upon this Court's review of the Affidavit - which was
attached as Exhibit A (under seal) to Defendant
Fitzgerald's Motion to Suppress Wiretaps - which was also
filed at misc. no. 17-229(e), the Court herby DENIES
Defendant Fitzgerald's Motion to Suppress Wiretaps.
Doc. no. 81.