United States v. Baraka Chauka ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4545
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BARAKA ZUBERI CHAUKA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:14-cr-00414-ELH-2)
Submitted: April 21, 2016 Decided: May 4, 2016
Before GREGORY, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan P. Van Hoven, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Jason D. Medinger,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Baraka Zuberi Chauka appeals the district court’s denial of
his motion to suppress evidence derived from several wiretaps,
and his subsequent conviction for conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846 (2012), and possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841 (2012).
On appeal, Chauka argues that the wiretap applications were
defective and the district court erred in failing to suppress
evidence gathered as a result of those wiretaps. Chauka
contends that: (1) officers misrepresented the need for a
wiretap because traditional investigative techniques were
successful in this case; (2) officers did not provide sufficient
justification to extend the wiretaps to Chauka; and (3) the
officers were not acting in good faith reliance on the wiretap
orders due to misrepresentations in the affidavits.
We review de novo legal conclusions from a district court’s
denial of a motion to suppress evidence, and review the court’s
factual findings for clear error. United States v. Wilson, 484
F.3d 267, 280 (4th Cir. 2007). Determinations of necessity for
a wiretap are reviewed for abuse of discretion. Id. Wiretap
orders must conform to both state and federal law, United
States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994), but the
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relevant federal and Maryland statutes are substantially
similar. Davis v. State, 43 A.3d 1044, 1046 (Md. 2012).
Federal and Maryland wiretap statutes require that police
officers exhaust ordinary investigative techniques before
applying for a wiretap. Compare Md. Code, Cts. & Jud. Proc.
§§ 10-408(a)(1)(iii), (c)(1)(iii) (Lexis Nexis 2013) with 18
U.S.C. § 2518(1)(c), (3)(c) (2012). This exhaustion requirement
is “designed to ensure that the relatively intrusive device of
wiretapping is [not] ‘routinely employed as the initial step in
a criminal investigation.’” Smith, 31 F.3d at 1297 (quoting
United States v. Giordano, 416 U.S. 505, 515 (1974)).
“[H]owever, the burden . . . impose[d] upon the government to
show the inadequacy of normal investigative techniques is not
great, and the adequacy of such a showing is to be tested in a
practical and commonsense fashion.” Id. (internal quotation
marks omitted). The Government is not required to demonstrate
“that it has exhausted all possible alternatives to
wiretapping,” but instead “need only present specific factual
information sufficient to establish that it has encountered
difficulties in penetrating the criminal enterprise or in
gathering evidence — to the point where wiretapping becomes
reasonable.” Id. at 1297-98 (ellipsis, brackets, citation, and
internal quotation marks omitted).
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We conclude that the district court correctly found that
the affidavits satisfied state and federal exhaustion
requirements. * The affidavits noted that several investigative
techniques were attempted but failed to reveal the full scope of
Chauka’s organization; these techniques included physical
surveillance, informants, and analysis of telephone toll
records. Additionally, the affidavits provided particularized
reasons why numerous other techniques were unlikely to achieve
all the goals of the investigation. These explanations were
sufficient to establish necessity for the wiretaps. Wilson, 484
F.3d at 281; Smith, 31 F.3d at 1299; United States v. Leavis,
853 F.2d 215, 221 (4th Cir. 1988).
We also conclude that the affidavits were not contradicted
by the officers’ actions. First, Chauka argues that the
officers contradicted themselves by stating that physical
surveillance would be ineffective, while simultaneously
employing “extensive physical surveillance with numerous mobile
units.” Although the officers did conduct surveillance on Reed
and Chauka, the surveillance was often frustrated by the
counter-surveillance techniques employed by both men.
Surveillance was made more difficult by the rural location where
*We assume, without deciding, that Chauka has standing to
challenge the wiretaps on Lamont Reed’s phone lines.
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Chauka operated, making it “nearly impossible” to enter the area
without being seen.
As the district court noted, much of the successful
surveillance did not occur in spite of, or alongside the
wiretaps, but as a direct result of the wiretaps. Officers
learned where Chauka was traveling and why, and were able to
surveil him away from his rural area of operation due to the
information gleaned in the wiretaps. Chauka’s arrest was
facilitated not by physical surveillance, but by wiretaps that
revealed Chauka was purchasing cocaine.
Chauka points out that the affidavits attested that GPS
tracking would likely be ineffective, but officers
simultaneously applied for a warrant to install a GPS device.
While the use of tracking devices would assist the police in
tracking Chauka, however, they could not track all of his
activities because he had access to multiple vehicles. The use
of GPS would assist police in determining where Chauka (or
rather, the vehicle primarily used by Chauka) was at any given
moment, but could not reveal what Chauka was doing at those
locations. The officers never asserted that the use of a GPS
device was impossible, merely that its use was “reasonably
likely to fail . . . to achieve the full goals and objectives of
th[e] investigation.”
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Finally, Chauka argues that the search warrant executed on
his home demonstrates that the wiretap affidavits were
inconsistent with the officers’ actions. The affidavits
asserted that search warrants would “not be helpful at this
stage” because the “conspiracy ha[d] not been fully defined” and
the execution of search warrants would alert coconspirators
while only temporarily disrupting Chauka’s operation. However,
the application for a search warrant on Chauka’s residence, and
the concomitant disclosure of the surveillance, occurred after
police arrested Chauka for possession of more than 125 grams of
cocaine. At that time, officers had been investigating and
conducting surveillance on Chauka for nearly 2 months, had been
listening to his phone calls through wiretaps for more than 1
month, and had been tracking him through the use of GPS for 11
days. This lengthy monitoring materially changed the
circumstances of the investigation. Thus, the officers’ later
use of a search warrant does not contradict their previous
assertions.
Because we conclude that the district court correctly found
that the wiretap authorizations were properly issued, we need
not address Chauka’s argument that the good faith exception does
not apply. Accordingly, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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