United States v. Green , 259 F. App'x 601 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4680
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAYTON N. GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:05-cr-00088-AMD)
Submitted: December 10, 2007 Decided: December 28, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, William Joshua Morrow, SCHULMAN, TREEM,
KAMINKOW, GILDEN & RAVENELL, P.A., Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Philip S.
Jackson, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Payton N. Green appeals his conviction and sentence for
conspiracy to possess heroin with the intent to distribute, in
violation of 21 U.S.C. § 846 (2000). Green argues the district
court erred in denying his motion to suppress by finding the
application established probable cause and showed that other
investigation procedures had been tried and failed, would be
unlikely to succeed, or would be too dangerous; in basing the
denial of the motion on additional affidavits provided by the
Government; by considering the additional affidavits without first
conducting a Franks1 hearing; and because the affidavits do not
establish that the issuing judge knew Terry Page was willing to
cooperate with the investigation. For the following reasons, we
affirm.
When reviewing a district court’s ruling on a motion to
suppress, this court reviews underlying factual findings for clear
error and legal conclusions de novo. United States v. Wilson, 484
F.3d 267, 280 (4th Cir. 2007). Before authorizing a wiretap, an
issuing judge must find probable cause and 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.’” United States v. Oriakhi, 57 F.3d 1290, 1298 (4th
Cir. 1995) (quoting 18 U.S.C. § 2518(3)(c)); see also Md. Code
1
Franks v. Delaware, 438 U.S. 154 (1978).
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Ann., Cts. & Jud. Proc. § 10-408(a) (2006). A wiretap order should
not be granted “‘where traditional techniques could have led to
successful infiltration of the entire enterprise.’” Allen v.
State, 597 A.2d 489, 493 (Md. App. 1991) (quoting United States v.
Simpson, 813 F.2d 1462, 1472-73 (9th Cir. 1987)).
Green contends the warrant application did not show
probable cause to wiretap his phone line. However, the
eighty-nine-page application detailed Green’s involvement in
dealing heroin and his use of his phone to conduct his illicit
business. Our review of the application persuades us that it amply
supported the finding of probable cause to issue the wiretap order.
Green next argues the application did not show that
normal investigative procedures had failed, appeared unlikely to
succeed if tried, or were too dangerous. Appellate courts review
the determination of necessity with great deference. See Wilson,
484 F.3d at 280; Cantine v. State, 864 A.2d 226, 232 (Md. App.
2004). The application in support of the wiretap order was sworn
to by a Baltimore police officer and two agents for the Drug
Enforcement Administration, with nine years of cumulative
experience investigating narcotics activities. The application
detailed how investigators had utilized informants, search
warrants, surveillance, criminal histories, dialed number
recorders, and toll record analysis, and had obtained all the
information likely to be gained by these techniques.
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In addition, further use of search warrants would likely
have alerted Green to the investigation. The affiants explained
why use of undercover agents, cloned pagers, the global positioning
system, pole cameras, and trash searches were unlikely to uncover
useful information. The affiants further noted they chose not to
impanel a grand jury because they doubted Green would testify
truthfully or willingly incriminate himself. The investigators
exhaustively detailed specific factual information demonstrating
the difficulties of continuing to gather evidence without a
wiretap. We accordingly find no basis to reject the district
court’s conclusion that the application sufficiently demonstrated
the need for the wiretap.
Green next contends the district court erred by
considering additional affidavits presented by the Government in
denying the motion to suppress. At the hearing on the motion,
Green alleged that the second informant referred to in the
application for the wiretap was Terry Page, a member of Green’s
organization. He accordingly argued that the affiants lied when
they stated they had not found anyone from Green’s organization
willing to cooperate. The Government responded with affidavits
describing that at the time of the application, the affiants
informed the issuing state court judge that the second informant
was Terry Page, but they had worded the application indicating
otherwise in order to protect Page’s identity. The district court
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reviewed the affidavits and found that the issuing judge was not
materially misled as to the circumstances surrounding the warrant
application.
An application for authorization for a wiretap “shall be
made in writing upon oath or affirmation” and shall provide “[a]
full and complete statement of the facts and circumstances relied
upon by the applicant.” Md. Code Ann., Cts. & Jud. Proc.
§ 10-408(a). In reviewing the probable cause finding, courts are
ordinarily restricted to “the information provided in the warrant
and its accompanying application documents.” Greenstreet v. State,
898 A.2d 961, 971 (Md. 2006). An exception to this general rule
pertains when the defendant has shown that the affiants seeking the
warrant provided deliberately false material evidence or held a
reckless disregard for the truth, thus meriting a Franks hearing.
Greenstreet, 898 A.2d at 971.
The district court specifically stated it considered the
Government’s affidavits solely in order to determine whether the
investigators misrepresented the truth to the issuing judge, and
not in determining whether the application sufficiently
demonstrated probable cause. Therefore, the district court did not
err in considering the affidavits in denying the motion to
suppress.
Green also argues the district court erred by ruling on
the motion without first conducting a Franks hearing, thus
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depriving Green of the opportunity to contest the additional facts
presented in the affidavits. However, Green never requested a
Franks hearing or attempted to introduce additional evidence
regarding the affidavits. “Absent plain or fundamental error, we
need not consider on appeal legal points which were available to
the appellant but not presented for the district court’s
consideration.” United States v. Seidlitz, 589 F.2d 152, 160 (4th
Cir. 1978). Green has not alleged plain or fundamental error, nor
does the record reflect that such error occurred.
Finally, Green argues the Government’s additional
affidavits failed to establish the necessity of a wiretap order
because they did not establish that the issuing judge knew that
Terry Page was willing to cooperate with investigators. We
conclude that this claim does not entitle Green to relief as we
discern no persuasive basis to conclude that Page would or could
have provided further cooperation. Indeed, the affidavit of the
state’s attorney demonstrates that although Page provided useful
information, he could not provide additional evidence or infiltrate
Green’s organization as he had been incarcerated for two months,
unable to make bail, when the wiretap application was prepared, and
he did not have legal counsel to assist in the negotiation of a
cooperation agreement.
For these reasons, the district court did not err in
denying Green’s motion to suppress. Accordingly, we affirm the
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conviction and sentence.2 We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
2
We also grant the unopposed motion to withdraw as counsel for
Green filed by the law firm formerly known as Schulman, Treem,
Kaminkow, Gilden & Ravenell, P.A., and retaining as Green’s counsel
Kenneth W. Ravenell.
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