State v. Felton ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
:
v. :
:
FRANCISCO F. FELTON, V. : ID No. 1510017422
JOHNIE McDONALD : ID No. 1510017373
KEVIN A. McDONALD, Jr. : ID No. 1509002944
TAQUEN G. OWENS : ID No. 1509002964
JAMES M. SMITH : ID No. 1509006076
ABDUL WHITE : ID No. 1509002951
GARY D. WILLIAMS : ID No. 1509002954(A & B)
:
Defendants. : In and for Kent County
:
Submitted: May 19, 2016
Decided: June 22, 2016
OPINION AND ORDER
Upon Defendants’ Motions to Suppress
DENIED
Lindsay Taylor, Esquire, Department of Justice, Dover, Delaware, for the State.
Alexander Funk, Esquire, Dover, Delaware, for Defendant Francisco F. Felton, V.
Brian J. Chapman, Esquire, Dover, Delaware, for Defendant Johnie McDonald.
William J. Rhodunda, Jr., Esquire, Wilmington, Delaware, for Defendant Kevin A.
McDonald, Jr.
Andre M. Beauregard, Esquire, Dover, Delaware for Defendant Taquen G. Owens.
Jonothan Layton, Esquire, Wilmington, Delaware for Defendant James M. Smith
Edward C. Gill, Esquire, Georgetown, Delaware and Alexander Funk, Esquire, Dover,
Delaware, for Defendant Abdul White
J’Aime Walker, Esquire, Office of the Public Defender, Dover, Delaware for Gary D.
Williams.
Clark, J.
I. INTRODUCTION
The captioned Defendants (“Defendants”) are a subset of a group of nineteen
Defendants originally charged with Racketeering, Drug Dealing, Aggravated
Possession, Conspiracy Second Degree, and other charges. These charges resulted in
a multiple count indictment related to their alleged participation in a marijuana, cocaine,
and heroin distribution ring, allegedly led by Kevin M. McDonald (“McDonald”) and
Frank R. Lovett (“Lovett”). The Defendants have moved to suppress all evidence
recovered as the result of wiretaps that flow from, and cite to, a wire tap application
affidavit and order, submitted on August 17, 2015, for the line (302) 382-7892 (“7892
Affidavit”). The Defendants’ motions argue that the language in the affidavits contain
stale, conclusory, and boilerplate language, as well as minimal facts, which are
insufficient to support a finding of probable cause, and necessity as required by 11 Del.
C. § 2407(a)(3).1 The State opposes Defendants’ motions, stating that probable cause
and necessity are sufficiently established and the wiretap orders are valid. For the
reasons below, this Court finds the State’s position persuasive. Accordingly,
Defendants’ motions to suppress evidence derived from the respective wiretaps are
DENIED.2
II. FACTS AND PROCEDURAL BACKGROUND
The Delaware State Police (“DSP”) initiated a wiretap investigation in August
2015 based upon a multi-year drug trafficking investigation into McDonald, Lovett,
1
11 Del. C. § 2407(a)(3) requires that an application for a wiretap contain “[a] full and
complete statement as to whether or not other investigative procedures have been tried and failed,
why such procedures reasonably appear to be unlikely to succeed if tried, or why such procedures
would be to dangerous if tried.”
2
Two parties have raised issues alleging the necessity of a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). These claims are not addressed in this consolidated opinion.
2
their associates, and the area of Unity Lane in Greenwood, Delaware (“Unity Lane”).
The DSP had been conducting an active investigation into Lovett and McDonald’s
criminal drug trafficking organization (the “Organization”) and the area of Unity Lane
since 1992. Since this decision hinges solely on the four corners of the affidavits
submitted, all factual background cited herein is contained in the various affidavits of
probable cause in support of their respective wiretap applications.
The Organization is distinctly compartmentalized, allowing it to evade exposure
and investigation by law enforcement. Throughout the years, McDonald and his
associates, Lovett and Abdul T. White (“White”), have been arrested, convicted, and
pled guilty to various crimes dealing with drugs and violence. These crimes include:
possession of various drugs, assault, conspiracy, various firearm charges, resisting
arrest, various other weapons charges, tampering with physical evidence, forgery, drug
dealing, reckless endangerment, attempted murder, and robbery.
Furthermore, Unity Lane is a known open air drug market, nicknamed “the
Hole,” which is surrounded by trees and thick foliage, depending on the time of year,
with only one ingress and egress. Unity Lane includes a small community of
individuals who all know each other, and who know the respective vehicles driven by
their fellow residents. Multiple community members, including members of the
Organization, participate in its open air drug market. During the course of the
investigation, the DSP utilized three confidential informants (“CIs”), physical
surveillance, pole cameras, controlled buys, search warrants, arrests, suspect
interviews, and pen registers. Each of these techniques yielded some success.
However, the investigation’s goals of identifying the source of the drugs, stash
locations, and identifying additional members of the Organization were not met by
these efforts.
3
In furtherance of an on-going investigation, on August 17, 2015, the Attorney
General’s Office of the State of Delaware (“the State”) applied for and obtained an
order authorizing the use of wiretaps on cellular telephone number (302) 382-7892
(“7892"), which was a prepaid Verizon account allegedly used by McDonald in
conducting the Organization’s business.
After acquiring evidence from this first wiretap of 7892, the State applied for
and obtained five additional wiretap orders authorizing the use of wiretaps. The
additional phone lines targeted by those wiretap applications were as follows: (513)
265-4266 (“4266"), a prepaid Verison account allegedly used primarily by Kevin A.
McDonald Jr. (“K.A.McDonald”) on August 21, 2015; (904) 495-8851 (“8851"), a
prepaid Verizon account allegedly used primarily by Lovett on August 21, 20153; (615)
571-4038 (“4038"), a prepaid Verizon account allegedly used primarily by
K.A.McDonald on August 22, 2015; (302) 233-4375 (“4375"), a prepaid Verizon
account originally allegedly used primarily by Lovett on August 26, 20154, but later
discovered to belong to Gary D. Williams (“Williams”) prompting a new application
on September 3, 2015; and (954) 809-4794 (“4794"), a prepaid Verison account
originally allegedly used primarily by Kevin Dukes(“Dukes”) on September 2, 2015.
The police later discovered that the 4794 phone line belonged to Defendant James
Smith (“Smith”).
The 7892 Application and Affidavit
The same Superior Court Judge issued all wiretap orders discussed in this
3
In a later search warrant, the State asserted that after monitoring the communications of
8851, they discovered the phone line belonged to Defendant Owens. This will be discussed infra.
4
The discovery that the phone line belonged to Williams prompted the State to file a new
wiretap application and affidavit to be filed on September 3, 2015, with corrections and additional
information added.
4
decision. The linchpin affidavit, incorporated into the subsequent applications and
affidavits, was the one submitted for the 7892 wiretap (“7892 Affidavit”). That
affidavit was a fifty-three page document containing detailed information regarding the
affiants’ backgrounds, the targeted defendants’ backgrounds, a summary of each CI
used in the investigation, a history of the investigation, details of the need for
interception, and a segment on minimization. The affiants for the 7892 Affidavit were
Detective Jason Vernon (“Affiant Vernon”) and Sergeant Lance Skinner (“Affiant
Skinner”). Both affiants represented familiarity with all aspects of the investigation by
personal participation, and that they were both experienced in the investigation of drug
crimes.
Affiant Vernon is a Delaware State Trooper who has been employed by the DSP
since September 2007. He has been assigned to the Kent County Drug Unit since
August 2012. Furthermore, Affiant Vernon received Drug Training instruction by the
DSP, Drug Enforcement Administration, the Merit Group, the 420 Group, and the
International Association of Undercover Officers. Affiant Vernon made numerous
weapons and drug related arrests, and has authored numerous search warrants.
Furthermore, he has assisted in the execution of numerous other search warrants by the
DSP. Finally, Affiant Vernon previously assisted with six other wiretap investigations
in surveillance and call monitoring capacities.
Affiant Skinner has been employed by the DSP since July 2001, and assigned
to the Kent County Drug Unit since January 2012. From August 2003 until January
2007, Affiant Skinner was assigned to the Governor’s Task Force. Furthermore,
Affiant Skinner was an undercover detective for the DSP between January 2007 and
March 2011. Affiant Skinner also attended State and Federal courses sponsored by the
U.S. Department of Justice Drug Enforcement Administration, as well as other courses
5
relating to the identification, manufacturing, distribution, detection, and abuse of
controlled substances. Furthermore, Affiant Skinner has been an affiant for more than
one hundred search and seizure warrants, and has made numerous purchases of illegal
drugs while working in an undercover capacity. Finally, Affiant Skinner has been a lead
investigator and assisted with and supervised several wire-tap investigations throughout
the State of Delaware.
The 7892 Affidavit also includes a section outlining the goals of the
investigation, which is repeated in the subsequent affidavits. It also details the
background for each of the targeted individuals. The subsequent affidavits include
background for their own respective targeted individuals.
The next section of the 7892 Affidavit provides information on each of three
CIs. The first CI (“CI-1") was identified as a past-proven, reliable CI who has
provided information resulting in the recovery of illegal drugs and arrests of the
individual(s) involved. CI-1 provided information regarding McDonald, who he knew
as “Sprite.” CI-1 positively identified McDonald with a DELJIS photograph.
Furthermore, CI-1 conducted several controlled drug purchases from McDonald for
the DSP. The first controlled purchase was conducted on July 25, 2011. The second
controlled purchase with CI-1 was conducted on August 18, 2011. A third controlled
purchase with CI-1 was conducted on September 20, 2011. A fourth controlled
purchase with CI-1 was conducted on December 12, 2011.
The second CI (“CI-2") was also identified as a past-proven, reliable CI who has
provided information resulting in the recovery of illegal drugs and arrests of the
individual(s) involved. CI-2 gave affiants information regarding McDonald, or
“Sprite,” and how he was distributing large quantities of cocaine in Kent and Sussex
Counties. CI-2 was also able to positively identify McDonald as “Sprite” from a
6
DELJIS photograph. Although CI-2 did not conduct controlled purchases for the DSP,
CI-2 assisted an undercover officer (“Delaney”) in conducting controlled drug
purchases. Namely, CI-2 introduced Delaney to McDonald during the last two weeks
of April of 2015, in which two separate controlled purchases were executed between
Delaney and McDonald. During the last two weeks of July, a third controlled purchase
was executed, with the assistance of CI-2. Finally, on August 12, 2015, Affiant
Skinner contacted CI-2 who provided information regarding a murder that took place
on August 8, 2015. CI-2 believed that McDonald had something to do with the murder
because CI-2 had been speaking with one of the victims that had been in the residence
at the time of the homicide. The individual that CI-2 was speaking with was not willing
to contact the police. Furthermore, CI-2 stated that the shooting was “Sprite’s MO”
and rumors linked him to the murder.
During the last two weeks of June 2015, a third CI (“CI-3") provided information
to a detective regarding an individual known as “Bricks”, who was believed to be
Defendant Abdul White. CI-3 stated that “Bricks” was in possession of roughly seven
to eight ounces of cocaine. At this point, the 7892 Affidavit notes that CI-3's relayed
information matched the fact that Defendant White was charged for attempted murder
in a home invasion and robbery case, but the charges were dismissed due to a lack of
victim cooperation. CI-3 also informed the detective that “Sprite,” or McDonald, was
one of the largest scale drug dealers in the area. CI-3 further stated that all of the
shootings and robberies around the area involved “Sprite’s people” from Philadelphia,
but that he did not know their identifies. Defendant White had Philadelphia ties,
including many arrests in Philadelphia. Finally, CI-3 informed the detective that
“Bricks” was “Sprite’s” cousin and was participating in the shootings and robberies,
and it was possible that “Little Sprite,” Defendant Kevin A. McDonald, who is
7
McDonald’s son, was also involved.
The following section in the 7892 Affidavit discusses the investigation to date,
which has already been summarized supra. The physical surveillance portion of the
Affidavit discusses Unity Lane, which has been described supra, and details the various
unsuccessful attempts of surveillance of Unity Lane during the investigation. The
affidavit further notes that aerial surveillance was not employed due to the large trees
and thick foliage that surround Unity Lane, limiting the ability to observe anything from
the air. Furthermore, because there was only one ingress and egress at Unity Lane, and
members of the community knew each other and were believed to notice anything that
did not belong, the DSP could not effectively deploy law enforcement personnel, even
in unmarked vehicles or in plain clothes because it would draw additional scrutiny and
alert the targets of the investigation. The 7892 Affidavit details that drive by
surveillance was conducted, as well as the deployment of sniper/observers into the
woods surrounding the area. Although this form of surveillance provided some insight
into the area and the organization, on two separate occasions, the surveillance operation
had to be terminated when the surveillance team was noticed by individuals from Unity
Lane. Physical surveillance was also conducted on McDonald’s residence at 92 Apple
Run in the Paris Villa development in Magnolia, Delaware as well. At the time of the
7892 Affidavit, this surveillance had not produced evidence of any drug related activity.
Other forms of investigation described in the 7892 Affidavit are search warrants,
the potential use of attorney general subpoenas, confidential informants (discussed
supra), undercover law enforcement activity (discussed supra), interview of suspects,
arrest of suspects, examination of discarded trash, use of pole cameras, use of GPS
tracking device, and controlled purchases (discussed supra). These sections explain
why those forms of investigation either were not used, or were used but did not meet
8
the objectives of the investigation. The issuing Judge approved the wire tap application
for 7982 on August 17, 2015.
The 4266 Application and Affidavit
Through intercepting the phone line of 7892 (“7892 Phone Line”), the
investigation led to various other phone lines that were connected to the illegal drug
trafficking organization. On August 17, 2015, the 7892 phone line placed a call to
(513) 265-4266 (“4266 Phone Line”). One caller asked another for a social security
number for paperwork purposes. Law enforcement checked the social security number
through DELJIS and discovered that it belonged to Defendant Kevin A. McDonald
(“K.A.McDonald”). From that point forward, the wiretap intercepted various calls to
and from the 4266 Phone Line, recording conversations between McDonald and
K.A.McDonald. These calls referenced various slang vernacular such as “jawns,”
“green ones,” “reggies,” “O,” and “female pucks.” Detective Vernon, one of the
affiants of the 7892 affidavit, explained that these terms were coded slang words
referencing illegal drugs. Affiant Vernon explained that the conversation regarding
“jawns” and “green ones” referred to a previous interception the day before where
McDonald obtained a quantity of marijuana. Furthermore, the conversation included
references to what the “ticket is on it” and a response stating “twelve-five.” Affiant
Vernon explained that reference to the “ticket” is a common street term to request the
price of drugs, and the price given of “twelve-five” translates to $1,250. It was also
determined, through these conversations, that K.A.McDonald had a room at the
McDonald residence.
With these intercepted conversations, Affiant Vernon applied for a wiretap order
on the 4266 Phone Line and authored the affidavit (“4266 Affidavit”). This affidavit
incorporates the above-mentioned intercepted calls including the alleged drug
9
vernacular. The 4266 Affidavit included much of the same information regarding the
investigation and need for interception as the 7892 Affidavit, discussed supra, which
was incorporated by reference in the 4266 Affidavit. However, the 4266 Affidavit
includes additional and updated information as well. Backgrounds given regarding
Defendants in the 4266 Affidavit include only Defendants being targeted in that specific
application, and not the same list of Defendants as the 7892 Affidavit. The portion of
the affidavit detailing CI Profiles varies as to the third CI profile, adding information
regarding the third CIs statement on “Bricks” and how “Little Sprite” is possibly
involved.5 Various other portions of the 4266 Affidavit contain information that was
not included in the 7892 Affidavit, including that there were no CIs who could perform
controlled purchases from or provide information on K.A.McDonald. Furthermore, the
4266 Affidavit states that K.A. McDonald does not have a vehicle registered in his
name, nor do law enforcement know of any vehicle that he operates. The 4266
Affidavit and application for a wiretap order was submitted, granted, and authorized
on August 21, 2015.
The 8851 Application and Affidavit
The third wiretap application and affidavit, for phone line (904) 495-8851 (“8851
Phone Line”), was also submitted, granted and authorized on August 21, 2015. This
application targeted Lovett as being the primary user of the phone line. The Affidavit
(“8851 Affidavit”) was also authored by Affiant Vernon and included much of the
same investigation and need for interception information discussed supra, with some
additional and updated information as well. As all other affidavits supporting the
various applications, the 8851 Affidavit incorporated the 7892 Affidavit by reference.
5
Discussed supra when detailing the various CIs and their roles in the investigation.
10
Throughout the investigation, law enforcement discovered that Lovett was a large scale
cocaine distributor and the source of supply of cocaine for McDonald, which was then
confirmed by the interception of communications on the 7892 Phone Line. During
undercover controlled purchases, McDonald would meet CI-2 and Delaney at a
designated meet location. McDonald was then followed to Unity Lane and back to the
designated meet location where the transaction would then occur. McDonald would
then return to Unity Lane where he would meet with Lovett.
DSP intercepted various conversations between McDonald and Lovett on the
7892 phone line. These conversations included references to “food” and “dog food”
and McDonald’s “usual.” Affiant Vernon described the term “dog food” to be
typically used to identify heroin. Furthermore, “my usual,” in reference to McDonald,
suggests cocaine based upon previous transactions with CI-2, Delaney, and
McDonald’s history. Furthermore, McDonald received various calls on the 7892
Phone Line regarding requests for orders. During an arranged controlled purchase, CI-
2 placed a call to the 7892 Phone Line to McDonald and requested the same thing that
he or she had previously received. McDonald advised that he would contact the same
supplier and let CI-2 know. Immediately thereafter, McDonald placed a call to the
8851 Phone line to check the status of the shipment. The male on the 8851 line was
suspected to be Lovett at the time of these intercepts. Following these intercepts,
Affiant Vernon authored the 8851 Affidavit to further the investigation. After the
wiretap application was granted and authorized, through monitoring the
communications on 8851, law enforcement discovered that the 8851 Phone Line
belonged to Taquen Owens (“Owens”), and not Lovett.6
6
This application originally targeted Lovett as primarily using the phone line, and listed Lovett
as well as McDonald as the primary targets. However, it was later discovered that the phone line
11
The 4038 Application and Affidavit
The fourth wiretap application and affidavit for phone line (615) 571-4038
(“4038 Phone Line”) was submitted, granted and authorized on August 22, 2015. The
primary target of this application is K.A.McDonald. This application and affidavit
(“4038 Affidavit”) incorporates the 7892 and 4266 Affidavits by reference, is also
authored by Affiant Vernon and includes much of the same investigation and need for
interception information discussed supra, with some additional and updated
information.
Additional and updated information includes the same type of variations as
previously discussed for the 4266 Affidavit. The 4266 Affidavit described the
intercepts of 7892 and 4266 Phone Lines, which provided communications between
K.A.McDonald and an unknown male. These conversations were regarding firearms
and a man by the name of “lil man” Hickman who was selling prescription drugs in
Sussex County, and had a lot of “bread,” which Affiant Vernon described as meaning
money. The conversations included a plan to kidnap and interrogate Hickman to
discover where his money was located,. Furthermore, McDonald received a call from
the 4038 Phone Line, in which his female companion, Amanda Pollard (“Pollard”),
answered. The male on the 4038 Phone Line requested to speak to his father,
McDonald, and the voice was positively identified as belonging to K.A.McDonald.
Following these intercepts, Affiant Vernon authored the 4038 Affidavit to further the
investigation.
The 4375 Applications and Affidavits
A fifth wiretap application and affidavit for phone line (302) 233-4375 (“4375
belonged to Defendant Owens and not Lovett.
12
Phone Line”) was submitted, granted and authorized on August 26, 2015. The primary
target on this application is Lovett. This application and affidavit (“4375 Affidavit”)
incorporates the 7892 and 8851 Affidavits by reference, is also authored by Affiant
Vernon and includes much of the same investigation and need for interception
information discussed supra, with some additional and updated information. The
additional and updated information includes communications that were intercepted from
authorized wiretaps included conversations regarding a “bun” and “forty of hand,”
which Affiant Vernon described to mean crack cocaine costing forty dollars a piece.
Lovett received various calls and texts on the 8851 Phone Line regarding: “smoke,”
which Affiant Vernon described to mean marijuana; “The Hole,” which was described
as the nick name for Unity Lane; the “Lake,” described to be the Silver Lake
Apartments in Milford where Lovett had been previously observed selling narcotics;
“logs,” which Affiant Vernon described to mean ten bundles of heroin; among other
similar conversations. In a conversation between Lovett and McDonald, Lovett told
McDonald to contact (302) 233-4375 in order to get in contact with him. Affiant
Vernon stated in the 4375 Affidavit that this number was believed to be Lovett’s
secondary contact number for high scale clientele and suppliers. Following these
intercepts, Affiant Vernon authored the 4375 Affidavit to further the investigation.
However, after monitoring the 4375 Phone Line, law enforcement discovered
that the number belonged to Defendant Gary Williams (“Williams”) and not Lovett,
but was used by both to facilitate their drug distribution. Due to this discovery, on
September 3, 2015, Affiant Vernon submitted another wiretap application and affidavit
(“4375 Updated Affidavit”) for the 4375 Phone Line with corrected information and
added additional information gathered from the interception of the line. The outgoing
call record showed multiple calls to (302) 284-2062 and (302) 396-1130. Eventually
13
a female answered and an argument ensued between the female of 2062/1130 and male
of 4375. During this argument, the female referred to the male as “Gary.” A DELJIS
inquiry into the 2062 number provided that the number belonged to a Lindy
Cadwallader, and there were numerous reported domestic incidents reported involving
Ms. Cadwallader and Williams. Furthermore, the wiretap of 4375 intercepted various
conversations between Williams and K.A.McDonald regarding various firearms. Other
conversations intercepted included whether Williams had “bud,” described to be
marijuana, and “half a ball,” described to be a quantity of cocaine, and also if Williams
had a “girl,” which he did not. The 4375 Updated Affidavit also includes information
regarding communications that are pertinent to and detailed the sixth wiretap
application, which will be discussed infra. Through the interceptions of the 4375 Phone
Line, law enforcement discovered that Williams might be a potential source of supply
of cocaine for McDonald as well, and applied the updated application and affidavit to
further the investigation.
Updates regarding the necessity showing are also included. Namely, the original
4375 application focused on the necessity for the wiretap believing the line to belong
solely to Lovett. The 4375 updated Affidavit notes: (1) attempts at physical
surveillance of Gary Williams and its limits; (2) that no undercover officer or CIs were
currently available to perform undercover or controlled purchases from Gary Williams;
and (3) also other investigative limitations relating to Gary Williams
The 4794 Application and Affidavit
A sixth wiretap application and affidavit for phone line (954) 809-4794 (“4794
Phone Line”) was submitted, granted and authorized on September 2, 2015. The
primary target on this application is Dukes. This application and affidavit (“4794
Affidavit”) incorporates the 7892, 8851, 4038, and 4375 Affidavits by reference, is also
14
authored by Affiant Vernon and includes much of the same investigation and need for
interception information discussed supra, with some additional and updated
information. The additional and updated information includes similar variations as
discussed supra. Through the intercepts of communications on the authorized phone
lines, conversations were captured between K.A.McDonald and an unknown male at
the 4794 Phone Line regarding “what is in stock” and whether he could get an
unknown quantity for “eighteen-two racks.” Affiant Vernon, based on his experience
in the field, opined that the conversation was regarding high grade marijuana, and that
a rack meant a thousand dollars, and “eighteen-two” amounted to $18,200.
Conversations between a female and K.A.McDonald were also captured, regarding
something that was to be left at the door of the female’s residence. Furthermore, law
enforcement monitored additional conversations between K.A.McDonald and the
unknown male at the 4794 Phone Line regarding if “she” was shaky this time, and that
the male’s portion was “pretty.” Affiant Vernon advised, based on his experience, that
this conversation was regarding powder cocaine and crack cocaine. The 4794 Affidavit
referenced information from the 4375 Affidavit regarding conversations between an
individual believed to be Williams and K.A.McDonald regarding firearms that the
individual obtained.
Furthermore, through the intercepted communications available at the time of the
4794 Affidavit, law enforcement were able to observe a potential transaction which
occurred between K.A.McDonald and the unknown male of the 4794 Phone Line who
was driving a Silver Mercedes. This transaction occurred at Nascar Lane, where the
individual on the 4794 Phone Line stated that he was parked behind K.A.McDonald.
Officers observed a Silver Mercedes where the individual stated he was parked. A
second potential transaction occurred between K.A.McDonald and the unknown
15
individual at Woodland Mobile Home Manor. Intercepted communications between the
4794 Phone Line and K.A.McDonald revealed that the unknown individual was about
to leave Nascar Lane to meet K.A.McDonald. At the time this communication was
intercepted, officers observed a blue Oldsmobile Intrigue departing Nascar Lane. Law
enforcement followed the blue Oldsmobile to Woodland Mobile Home Manor, in
which they were unable to observe the meeting and potential transaction between
K.A.McDonald and the 4794 individual. However, law enforcement knew that
K.A.McDonald was in the same area as the blue Oldsmobile Intrigue due to GPS
tracking that was installed on K.A.McDonald’s vehicle. The registration of the
Oldsmobile belonged to Dukes, and the detective observing the activity positively
identified the male as Dukes. This detective further stated that the individual in the
Oldsmobile, identified as Dukes, was the same individual operating the previously
observed Mercedes. Based on this information, Affiant Vernon authored the 4794
Affidavit and wiretap application to further the investigation.
On September 8, 2015, Affiants Skinner and Vernon submitted a search warrant
application and affidavit to search a residence at 1361 Layton Corners Road,
Harrington, Delaware. The search warrant also sought to search the vehicles located
at the property. Furthermore, the search warrant sought to search Defendant Smith, a
Silver 1999 Mercedes E320 Station Wagon, and another residence at 1 New Street
Harrington, Delaware. In the affidavit for this search warrant application, the affiants
stated that investigators originally believed the 4794 Phone Line was primarily used by
Dukes, however, since interception began, surveillance units have been able to
positively identify the user of the 4794 Phone Line as Smith. There is no indication of
an additional or updated wiretap application or affidavit addressing the 4794 Phone
Line and the identity of the user being Smith.
16
Current Stage of the Proceedings
In February 2016, the captioned Defendants moved for orders to suppress
evidence related to all wire interceptions in which they were involved, alleging failure
to establish probable cause and necessity. The Court held oral argument on the
motions on April 13, 2016 and April 15, 2016. During argument on April 13, 2016,
Defendant Williams also moved to sever charges as well as relief from prejudicial
joinder in a joint trial. Both were granted by the Court. Following the arguments, the
Defendants were allotted additional time to provide this Court with supplemental
briefing regarding issues raised during the hearings. Defendants submitted supplemental
briefings on May 2, 2016 and the State submitted responses to each Defendant on May
19, 2016. Because these motions present common questions of fact and law, the Court
will address them in this consolidated opinion.
The Court will discuss the extent of the standing for each Defendant to challenge
the separate warrants. Furthermore, each separate warrant application and affidavit
will be examined and discussed since the Court finds that at least one Defendant has
standing to challenge the sufficiency of each warrant.
The memoranda present numerous claims in support of the motions. The first
general claim is that the affiants relied on minimal or irrelevant information that did not
amount to probable cause. The second claim is that law enforcement relied on stale,
conclusory, and boilerplate language, failing to satisfy the necessity requirement of 11
Del. C. § 2407(a)(3). The third claim is that the wiretap order unlawfully authorized
law enforcement to intercept communications outside the State’s territorial jurisdiction
permitted under 11 Del. C. § 2407(c)(3).
17
III. DISCUSSION
A. Defendants’ standing to challenge the wiretap orders
1. Standard for determining standing.
The first issue before the Court is whether the Defendants have standing to
challenge the respective wiretap orders in the Defendants’ motions. Within a motion
to suppress, the burden is on the Defendant to set forth his or her standing and state the
grounds “upon which [the motion is] made with sufficient specificity to give the state
reasonable notice of the issues and to enable the court to determine what proceedings
are appropriate to address them.”7 In regards to evidence derived from wiretaps
authorized by Delaware statute, standing can be achieved in one of two ways:
constitutionally by the Fourth and Fourteenth Amendment of the United States
Constitution; or statutorily as an “aggrieved person,” pursuant to 11 Del. C. § 2401(1).
a. Fourth and Fourteenth Amendments
"In Delaware, an individual's right to be free from unlawful searches and
seizures is secured by the Fourth Amendment of the United States Constitution[,] which
guarantees that individuals will be ‘secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.'"8 Additionally, Delaware's Constitution
guarantees individuals’ rights to be "secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures."9 Because these rights are
protected by both, Federal and State Constitution, a defendant “would be entitled to the
7
Del. Super. Ct. Crim. R. 41.
8
State v. Porter, 2004 WL 2419166, at *2 (Del. Super. Ct. Sept. 29, 2004) (citing U.S.
Const. Amend. IV).
9
Id. (citing Del. Const. art I, § 6).
18
suppression of . . . evidence originating in electronic surveillance violative of his own
Fourth Amendment right to be free of unreasonable searches and seizures. Such
violation would occur if [the State] unlawfully overheard conversations of a [defendant]
himself or conversations occurring on his premises, whether or not he was present or
participated in those conversations.”10
The Defendant bears the burden of proving not only that the search was illegal,
but also that he had a legitimate expectation of privacy in what was searched.11 In
order to establish standing to challenge the constitutionality of a search or seizure under
the Fourth Amendment of the United States Constitution, Defendants must first show
a personal privacy interest in the subject of the search or seizure.12
b. Standing as an aggrieved person pursuant to 11 Del. C. §2401
Delaware’s statute on Wiretapping, Electronic Surveillance and Interception of
Communications13 provides that any aggrieved person may move to suppress the
contents of an unlawfully-intercepted communication.14 The specific language of 11
Del. C. § 2407(i)(1) provides that:
(1) Any aggrieved person in any trial, hearing or proceeding in
or before any court, department, officer, agency, regulatory
body or other authority of this State or a political
subdivision thereof may move to suppress the contents of
any intercepted wire, oral or electronic communication or
evidence derived therefrom on the grounds that:
a. The communication was unlawfully intercepted;
10
Alderman v. United States, 394 U.S. 165, 176 (1969).
11
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
12
Id.
13
11 Del. C. § 2401 et al.
14
11 Del. C. § 2407(i)(1).
19
b. The order of authorization under which it was
intercepted is insufficient under this chapter; or
c. The interception was not made in conformity
with the order of authorization granted under
this chapter.15
Under Delaware law, an “aggrieved person” is defined as “a person who was a
party to any intercepted wire, oral or electronic communication or a person against
whom the interception was directed.”16 The Delaware statute is very similar to the
federal statute on electronic surveillance, which provides that “Under Title III, an
“aggrieved person” has standing to move to suppress the contents of an
unlawfully-intercepted communication.”17 Furthermore, under federal law, “aggrieved
person” is defined as “a person who was a party to any intercepted wire, oral, or
electronic communication or a person against whom the interception was directed .”18
Due to the limited law in Delaware addressing the scope of what is an
“aggrieved person,” and the Delaware statute’s similarity to the federal law, the Court
will look to federal law. Under federal law, “[a]n aggrieved person is one who was
a party to, overheard on, or recorded by an objectionable wiretap, or a person against
whom the wiretap was directed (e.g., named in the warrant)”19 Accordingly, in order
to have standing to challenge the wiretap interceptions under the electronic surveillance
statute, a Defendant may show that he is an “aggrieved person” as described herein.
2. Defendants’ respective standing to challenge the various wiretaps
James M. Smith
15
11 Del. C. § 2407(i)(1).
16
11 Del. C.§ 2401(1).
17
18 U.S.C. § 2518(10).
18
U.S. v. Salazar-Rojas, 2015 WL 687348, at *3 (W.D. Wash. Feb. 18, 2015).
19
U.S. v. Vasconcellos, 658 F. Supp. 2d 366, 382 (N.D.N.Y. 2009).
20
Defendant Smith challenges the 7892, 4038, 4375, and 4794 Affidavits in
support of the respective wiretap applications. The State argues that Defendant has
standing only for intercepts in which his voice has been captured or affidavits that
target him. The Defendant argues that he has a Fourth Amendment, and a statutory,
right to challenge the affidavit which targets the 4794 Phone Line, as well as the other
affidavits incorporated therein. Although Defendant Smith was not the target of an
investigation or affidavit, Defendant argues that he is an “aggrieved person” for each
of the wiretaps, as defined by 11 Del. C. § 2401(1). Defendant further argues that the
State asserted Defendant Smith was the owner of the 4794 Phone Line instead of
Dukes, in a subsequent search warrant. Therefore, Defendant Smith became a target
of the wiretap application, even though he was not named. However, the State did not
have any information regarding his existence when the affidavit was made. Defendant
argues that the affidavit targets “others yet unknown,” which, in the context of this
case, included Defendant Smith. Namely Smith, argues that since “others yet
unknown” were targeted in the affidavits, and Defendant Smith later became a known
target, he is a person against whom the interception was directed, and therefore is an
“aggrieved person.”
The State does not deny that Defendant Smith has standing to challenge the lines
on which he was intercepted. The State proffers that Defendant Smith was intercepted
on the 4038, 4375, and 4794 Phone Lines, and therefore, may justly challenge those
affidavits. However, the State argues the Defendant Smith does not have standing to
challenge any other affidavit for any other wiretap. Defendant Smith, as others, argues
that he has standing to challenge all wiretaps by virtue of their incorporation into the
affidavit and application of the phone lines in which Defendant himself was intercepted.
Defendant asserts that if a previous affidavit can contribute to probable cause and
21
necessity for a subsequent affidavit, contributing to the authorization of a subsequent
wiretap, then an aggrieved individual must be able to challenge all aspects of the
subsequent application. This includes the previous affidavit incorporated by reference
therein.
Black’s Law Dictionary’s definition is helpful in this regard. In relevant part, it
provides the following:
incorporation by reference 1. A method of making a secondary
document part of a primary document by including in the primary
document a statement that the secondary document should be
treated as if it were contained within the primary one.20
Other Courts have examined the issue of incorporation of documents in affidavits
supporting probable cause. Namely, in People v. Tambe, the Court of Appeals of New
York has held that “material previously submitted to a Judge” may be incorporated by
reference in a subsequent warrant application to him so long as the earlier information
was given under oath, is either available to the Magistrate [or Judge] or sufficiently
fresh in the Magistrate's memory so that he or she can accurately assess it and it is
available in a form which can be reviewed at a later date.”21
In Tambe, law enforcement obtained an eavesdropping warrant, which contained
over 200 pages.22 Included in the 200 pages was an affidavit by the investigating
officer.23 At a later date, the same investigating officer made an oral application by
phone to the same Judge, to search the residence of one of the defendant’s associates
in the drug distribution being investigated.24 In this oral application, the officer
20
INCORPORATION BY REFERENCE, Black's Law Dictionary (10th ed. 2014).
21
People v. Tambe, 71 N.Y.2d 492, 502 (1988).
22
Id. at 498.
23
Id.
24
Id.
22
requested that the Judge “incorporate by reference all of the facts and circumstances
contained in the 200 page application for the eavesdropping warrant issued 15 days
earlier and he explained why he thought there was probable cause” for the search.25
The Judge in Tambe “authorized a no-knock warrant based upon all the information
presented, including the information supplied to support the eavesdropping warrant
incorporated by reference into the search warrant application.”26 While Delaware’s
warrant process in the case at hand has obvious differences, the same principle
regarding incorporation apply.
Likewise, in United States v. Tortorello, the Second Circuit examined the New
York District Attorney’s application for an order permitting law enforcement to tap two
telephones.27 The application was supported by an affidavit, which incorporated, by
reference, previous orders and supporting affidavits pertaining to the same
investigation, “for a more particular description of the offenses and conversations to be
intercepted.”28 The Court there found that “ the affidavits which were incorporated by
reference in the orders clearly indicated the specific crimes to be investigated,” which
was enough to satisfy amendment and renewal requirements under New York Law.29
The State, understandably focuses on the strict definition of “aggrieved person”,
and the expectation of privacy issue. The State emphasizes that in the case of some of
the defendants in this case, a defendant who was not known to be involved in the
conspiracy at the time of the first wiretap and whose conversations were not intercepted
in the earlier wiretap, could not have standing to go back in time and challenge the prior
25
Id. at 498-99.
26
Id. at 499.
27
U.S. v. Tortorello, 480 F.2d 764, 771 (2d Cir. 1973).
28
Id. at 782.
29
Id. at 783.
23
warrant. The Court does not accept that argument, however. It would be inconsistent
to not permit a defendant to challenge the probable cause allegations in a prior affidavit
that is relied upon by the State, through incorporation of that document, to convince a
judge or magistrate that there is probable cause for the warrant. As discussed in the
Tambe and Tortorello cases, the State has the right to rely upon that prior incorporated
affidavit for purposes of establishing probable cause and necessity. It would be
inconsistent to allow the State to benefit from prior affidavits in support of a search and
seizure while prohibiting an affected Defendant from challenging their sufficiency. The
application and affidavits in these various warrants become intertwined upon
incorporation. The orders authorizing the wiretaps do as well, giving an expanded
degree of standing.
Here, the affidavits in support of wiretap applications of 4038, 4375, and 4794
all incorporate, by reference, the 7892 Affidavit. The 4794 Affidavit also incorporates
the 8851, 4038, and 4375 Affidavits by reference. Each of those prior wiretap
applications and affidavits were presented to the same Judge issuing the orders. Each
affidavit was available for the Judge to review, and they were close enough in time for
the information to be remembered. Furthermore, each application and corresponding
affidavit was in writing, with each affidavit beings sworn to under oath. The Judge’s
decision to issue the subsequent warrants could fairly rely in part upon the previous
incorporated affidavits.
Accordingly, by incorporating the previous affidavits, they become part of the
new affidavit. If a Defendant has standing to challenge the newer warrant, then the
Defendant should be able to challenge the earlier warrant, that had as an integral part,
the prior affidavit providing the basis for that warrant. This Court finds that Defendant
Smith has standing to challenge all warrants based upon affidavits incorporated into the
24
4794 Affidavit. Specifically, the Court finds that Defendant Smith has standing to
challenge the 7892, 4038, 4375, and 4794 Affidavits.
Kevin A. McDonald
Defendant K.A.McDonald challenges the (513) 265-4266 Affidavit in support
of the respective wiretap application. This affidavit directly targeted K.A.McDonald.
Therefore, he has standing to challenge the 4266 Affidavit as an aggrieved individual,
as well as having a privacy interest in that which was searched. The 4266 Affidavit also
incorporates the 7892 also Affidavit by reference. For these reasons, the Court finds
that Defendant K.A.McDonald has standing to challenge the 4266 Affidavit and any
warrant based upon an affidavit incorporated by reference in the 4266 affidavit.
Abdul T. White
Defendant White challenges the 7892, 4266, and 4038 Affidavits in support of
their respective wiretap applications. The State alleges that Defendant White made
incriminating statements during communications that were intercepted and recorded on
the 4266 and 4038 Phone Lines. The affidavits for the 4266 and 4038 Affidavits
incorporate the 7892 Affidavit by reference. Because Defendant White’s
communications were intercepted and recorded on the 4266 and 4038 Phone Lines, he
has a personal privacy interest right to challenge those wiretaps under the Fourth
Amendment. Furthermore, Defendant White satisfies the statutory definition of an
aggrieved person. The 7892 Affidavit is incorporated by reference in the 4266 and
4038 Affidavits, and therefore is subject to the same analysis regarding incorporation
by reference, discussed above. Accordingly, the Court finds that Defendant White has
standing to challenge the 7892, 4266 and 4038 Affidavits.
Francisco F. Felton, IV
Defendant Felton challenges the 7892, 4266, and 4038 Affidavits in support of
25
the respective wiretap applications. The State responds that he only has standing to
challenge 4038, and only regarding some of the calls therein because his voice was
intercepted on some of the conversations on that line. Here, for the aforementioned
reasons, since the 4038 affidavit incorporates both the 7892 and 4266 affidavits, Felton
has standing to challenge all three. Accordingly, the Court finds that Defendant Felton
has standing to challenge the 7892, 4266 and 4038 Affidavits.
Taquen Owens
Defendant Owens challenges the 7892, 4038,4375, 4794, and 8851 Affidavits
in support of the respective wiretap applications. Regarding 8851, Defendant Owens
has standing to challenge the affidavit, since his communications were intercepted and
recorded on the 8851 Phone Line, and since the phone line belonged to Defendant
Owens and not Lovett. Accordingly, Owens has a personal privacy interest in the
wiretap authorized for the 8851 Phone Line, as well and an aggrieved person status.
Furthermore, per the reasoning discussed supra, Defendant Owens may challenge the
7892 Affidavit incorporated by reference within the 8851 Affidavit.
However, as to the 4038, 4375, and 4794 Affidavits, both constitutionally and
pursuant to court rule, the Defendant bears the burden of showing a personal privacy
interest, or that he is a person aggrieved as defined by statute. 30 Here, Defendant has
not provided or even proffered evidence of a violation of his personal privacy interest
in those lines, or that he is a person aggrieved with regards to the 4038, 4375, and 4794
orders. Defendant accordingly has not met his burden regarding standing for the 4038,
4375, and 4794 warrants and therefore does not have standing to challenge them.
Defendant Owens has standing to challenge only the 7892 and 8851 wire taps.
30
Super. Ct. Crim. R. 41(f).
26
Gary D. Williams
Defendant Williams challenges the sufficiency of the 4375 Affidavit in support
of the respective wiretap application. Defendant Williams’ communications has been
allegedly intercepted and recorded on the 4375 Phone Line, and then subsequently
targeted in the updated wiretap application and affidavit for 4375. Accordingly,
Williams has standing to challenge both 4375 Affidavits, as well as the 7892 Affidavit
incorporated therein.
Johnie McDonald
Defendant Johnie McDonald (“J. McDonald”) moved to join the motions to
suppress submitted by Defendants McDonald, K.A.McDonald, and Smith. Defendant
J. McDonald did not provide his own motion to suppress nor did he state which
affidavit(s) and application(s) he is challenging. Since Defendant J. McDonald moved
to join other motions, it can only be assumed that J. McDonald is challenging the
sufficiency of affidavits challenged in the other motions.
Neither the affidavits challenged, nor the various motions to suppress included
any information regarding Defendant J. McDonald. None of the affidavits named
Defendant J. McDonald as a target nor was there any allegations for any warrant, and
corresponding affidavit, that J. McDonald’s communications were intercepted and
recorded. The burden of proving standing to suppress evidence, with sufficient
specificity to provide reasonable notice as to the issues, is on the Defendant.31 Because
Defendant did not provide sufficient specificity when alleging that suppression is
warranted or adequately support his standing, the Court finds that Defendant J.
McDonald does not have standing to challenging any of the wire taps.
31
Id.
27
Conclusion as to Standing
Finally, because at least one defendant has standing to challenge each of the
wiretaps, the Court will consider each challenged affidavit for (1) probable cause and
(2) whether they contain a complete statement of necessity. As each affidavit must rise
or fall on its four corners, each warrant will be examined separately.
B. The Court finds that a showing of probable cause and necessity are established
in each of the wire tap applications and affidavits.
The Defendants’ contentions that the affidavits do not establish probable cause
and contained boilerplate language, or that the limitations suggested by the affiants are
limitations inherent to a particular technique, are not availing. As Defendants
emphasize, the affidavits do contain generic and repeated language. However, each
of them includes specific facts related to the targets in each individual affidavit, and
why each discussed technique would not accomplish their investigatory goals. When
considered in their entirety, the affidavits separately and specifically refer to limitations
encountered in the investigation of the Organization. With these limitations, and the
supporting factual allegations, each affidavit supplies sufficient information and
evidence to support a showing of probable cause and necessity.
1. Standards and the law
a. Motion to Suppress
In a Motion to Suppress challenging the validity of a search warrant, the
defendant bears the burden of proving that the challenged search or seizure was
unlawful.32 The burden on a motion to suppress is by a preponderance of the
32
State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005).
28
evidence.33 The issuing Judge must “make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, including the veracity
and basis of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.
And the duty of a reviewing court is simply to ensure that the magistrate had a
substantial basis for ... conclud[ing] that probable cause existed.”34 Those same basic
principles apply to the review of warrants authorizing wiretaps. A Judge’s
“determination of probable cause should be paid great deference by reviewing courts.35
b. Probable cause and necessity
An order authorizing the interception of wire, oral, or electric communications
may be granted upon a determination that: 1) there is probable cause to believe that a
person has committed, is committing, or is about to commit an enumerated crime; 2)
there is probable cause to believe that communications concerning the enumerated
offense will be obtained through the wire intercept; 3) normal investigative procedures
have been tried and have failed or reasonably appear to be unlikely to succeed if
attempted or would be too dangerous; and 4) there is probable cause to believe that the
telephone number from which communications are being intercepted are being used in
the commission of an enumerated offense or are used by an individual engaged in
criminal activity.36
Probable cause exists “when the officer possesses information which would
33
State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July
3, 2007).
34
Illinois v. Gates, 462 U.S. 213 (1983) (citations omitted).
35
Id. at 236 (1983).
36
11 Del. C. § 2407.
29
warrant a reasonable man in believing that a crime has been committed.”37 The finding
of probable cause does not require proof beyond a reasonable doubt, or even that the
defendant’s guilt is more likely than not. “Probable cause is established if the totality
of the circumstances contained in the affidavit indicates a probability of criminal
activity and that evidence of the criminal activity could be obtained through the use of
electronic surveillance.”38
Older information relied upon in an affidavit in support of an application for a
wiretap authorization is not stale solely by virtue of its age.39 Older information may
provide context and insight into a long term investigation and shows the judge that a
wiretap is not the initial step in a criminal investigation.40 Although probable cause to
issue a wiretap order must exist at the time the order is sought, its existence is
“determined on an ad hoc basis and depends upon the nature of the criminal activity
alleged.”41 Furthermore, “the validity of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts relied upon and the
issuing of the affidavit.”42 An affidavit of probable cause will be considered in a
flexible and practical manner, and will be considered as a whole rather than on the
basis of its separate components.43 An issuing judge’s finding of probable cause “will
not be invalidated by a hyper-technical, rather than a common sense, interpretation of
37
State v. Betts, 2015 WL 2066602, at *1 (Del. Super. Apr. 1, 2015).
38
U.S. v. Ambrosio, 898 F. Supp. 177, 181 (S.D.N.Y. 1995)
39
State v. Brooks, 2013 WL 4051049, at *6 (Del. Super. July 30, 2013), aff'd, 132 A.3d 1
(Del. 2016)
40
Id.
41
Blount v. State, 511 A.2d 1030, 1033 (Del. 1986) (quoting Jensen v. State, 482 A.2d 105,
111 (Del. 1984)).
42
Jensen, 482 A.2d at 112 (internal quotations omitted).
43
Id. at 111, 112.
30
the warrant affidavit.”44
An order authorizing the interception of a wire, oral, or electronic
communication must also include “[a] full and complete statement as to whether or not
other investigative procedures have been tried and failed, why such procedures
reasonably appear to be unlikely to succeed if tried, or why such procedures would be
too dangerous if tried.”45 The order may issue only if the Judge determines that
“[n]ormal investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too dangerous.”46 In order to show that
traditional methods would not likely succeed, “an affidavit must allege specific
circumstances that render normal investigative techniques particularly ineffective.”47
However, “[b]oilerplate assertions that are unsupported by specific facts relevant to the
particular circumstances of [the] case are not sufficient.”48 Wiretap statutes implicate
an intrusion into a person’s constitutionally recognized right to privacy and thus should
be strictly interpreted.49
A literal reading of the statute reveals that a judge must find normal investigative
procedures have failed, or reasonably appear unlikely to succeed, or are too dangerous.
Affidavits explaining the prospective or retroactive failure of several reasonable
investigative techniques will suffice.50 Judges are given broad discretion when issuing
44
Id. at 111 (citing U.S. v. Ventresca, 380 U.S. 102, 109 (1965)).
45
11 Del. C. § 2407(a)(3).
46
11 Del. C. § 2407(c)(1)(c); U.S. v. Landeros-Lopez, 718 F. Supp. 2d 1058, 1063 (D. Ariz.
2010).
47
Landeros-Lopez, 718 F. Supp. 2d at 1065 (citing U.S. v. Blackmon, 273 F.3d 1204, 1210
(9th Cir. 2001)).
48
Id.
49
State v. Jock, 404 A.2d 518, 520 (Del. Super. 1979).
50
U.S. v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978).
31
a wiretap order, and the “government’s burden of establishing compliance is not
great.”51 The necessity requirement is not designed “to foreclose electronic
surveillance until every other imaginable method of investigation has been
unsuccessfully attempted, but simply to inform the issuing judge of the difficulties
involved in the use of conventional techniques.”52 “A wiretap order should not be
invalidated ‘simply because [defendants] are able to suggest post factum some
investigative technique that might have been used and was not.’”53
2. The Affidavits
(302) 382-7892 – Target Defendant: McDonald
On August 17, 2015, the State acquired an Order for interception of
communications on (302) 382-7892, which was the number primarily used by
McDonald. The 7982 Affidavit is 53 pages containing sufficient particularized facts
to establish probable cause and necessity. As discussed, the affidavit is broken into
various sections: introduction of the affiants, introduction to the investigation, identities
of those believed to be intercepted (Kevin M. McDonald, Frank R. Lovett, Amanda
Pollard, and Abdul T. White), short summaries of the confidential informants (“CI”)
used during the investigation, the geographical considerations of Unity Lane,
investigation and probable cause, need for interception, physical surveillance, search
warrants, use of Attorney General Subpoenas, investigation through the use of
confidential informants, undercover officers, and controlled purchases, other methods
of potential investigations and their effectiveness, and finally a section on minimization.
51
Id.
52
State v. Perry, 599 A.2d 759, 764 (Del. Super. 1990) (citing U.S. v. Alfonso, 552 F.2d 605,
611 (5th Cir. 1977) (internal quotations omitted)).
53
Perry, 599 A.2d at 764 (quoting Hyde, 574 F.2d at 867).
32
The 7892 Affidavit contains significant information regarding the investigation
of the Organization. For instance, it contains the criminal backgrounds of each targeted
individual, information regarding CI activity and controlled drug purchases from
McDonald himself. Furthermore, the 7892 Affidavit explains what the officers
observed during various attempts at physical surveillance. The long-term investigation
into McDonald, Lovett, and the Organization, and other facts alleged, convinces this
Court that the issuing Judge had a substantial basis to believe that probable cause
exited. Although there is information dating back to 1992, this Court finds that such
older information is not stale because it provides context into the investigation of
McDonald, Lovett, and the Organization.
Moreover, the affidavit provides much more recent and specific information
establishing probable cause that (1) McDonald is currently committing drug crimes, and
(2) that communications regarding these crimes will be intercepted on the 7892 phone
line. For instance, included in the warrant application, is the statement that a DSP
detective overheard a 7892 call involving a drug transaction. Furthermore, a pen
register confirmed that the line at issue had extremely high usage, consistent with drug
operations. After considering the affidavit in a flexible and practical manner, and
considering it as a whole rather than on the basis of its separate components, the Court
finds that the issuing Judge properly found probable cause at the time the wiretap order
was issued.
Furthermore, it is clear from the record that the affiants supplied a full and
complete statement as to whether or not other investigative procedures have been tried
and failed, why such procedures reasonably appear to be unlikely to succeed if tried,
or why such procedures would be too dangerous if tried. The affiants described the
difficulty in conducting physical surveillance of Unity Lane, where a great deal of drug
33
activity occurs, including operations of the Organization, and how physical
surveillance, although valuable, was not enough to identify all of the members and
associates of the Organization as well as the stash locations and suppliers.
Furthermore, it clearly explains as to why interviews of suspects, arrests, search
warrants and among other investigative techniques, would not be sufficient because
they would alert the targets and impair the investigation. It details what methods were
undertaken and what they yielded, as well as adequately explains their limitations. For
these reasons, the Court finds that the necessity for interception has been sufficiently
justified as well. Accordingly, Defendants’ motions to suppress evidence derived from
the 7892 wiretap is DENIED.
(513) 264-4266 – Target Defendant: K.A.McDonald
Defendant K.A.McDonald, along with Defendants Felton, and White, challenge
the sufficiency of probable cause and necessity for the 4266 Affidavit in support of the
respective wiretap applications. Defendant K.A.McDonald argues that the sum total
of justifications for getting a wiretap on 4266 were six phone calls between
K.A.McDonald and McDonald, intercepted through the 7892 wiretap. Four of those
calls were alleged to be drug related. Defendant asserts that the four calls were
completely innocent and unrelated to drug activity. Defendants asserts that there was
extensive investigation into McDonald, yet there was little to no information regarding
K.A.McDonald other than his identification by social security number and the six
phone calls referenced in the 4266 Affidavit. Defendants emphasize that other than
these calls, the 4266 wiretap application and affidavit included primarily boilerplate
language that was copied and pasted from the 7892 Affidavit.
The probable cause issue linking the 4266 line to drug activity presents the most
narrow probable cause issue in this case regarding any of the affidavits. Namely, the
34
slang terms overheard in the four calls either provided probable cause or they did not.
The State relies upon these slang terms translated by the affiants in arguing that they
are direct references to drug activity. Defendant K.A.McDonald, on the other hand,
points to the various terms used during intercepted conversations between McDonald
and K.A.McDonald, and asserts that those communications were obviously innocent
or misconstrued by the affiant as being drug related. Namely, Defendant points to the
use of “jawns,” stating that law enforcement alleged this to mean marijuana when it
really means any “thing.” Further, Defendant discusses how McDonald refers to a man
named “Reggie”, and refers to him as “Big.” Finally, Defendant points to two other
communications that law enforcement believed to be drug related, but Defendant
asserts were about the dogs that McDonald and K.A.McDonald raise and sell.
Defendant K.A.McDonald argues that these facts fall short of being sufficient for a
finding of probable cause.
Defendants Felton and White also point to the vernacular used in the
communications intercepted between McDonald and K.A.McDonald. Defendants
argue that the callers repeated use of terms such as “jawns,” “green ones,” “reggie,”
“O,” “girls,” “females,” “pucks,” and “bread” are innocent, and offer their personal
interpretations of those terms.
In support of their argument regarding the lack of weight to subscribe to these
statements, the Defendants cite generally to United States v. Garcia, stating that the
inclusion of such jargon cannot contribute to a finding of probable cause because the
affiants failed to indicate that they have any experience or training in linguistics,
phraseology, cryptology, semiotics, or any other field relevant to coded language.54
54
U.S. v. Garcia, 752 F.3d 382, 398 (4th Cir. 2014).
35
Garcia, however, is distinguishable. The issue before the Fourth Circuit Court in that
case was the admission of testimony at trial by a federal agent who was called as a
decoding expert, for various coded words and phrases within communications that were
intercepted through wiretaps.55 Defendant was convicted, and then appealed his
conviction, arguing that the court’s admission of the decoding expert was in error.56
The court in Garcia found that the district court below did not abuse its discretion in
qualifying the Agent as an expert, based on her five years of experience, her multitude
of wiretap monitoring shifts, and the fact that her job required her to work in close
proximity with drug users on a daily basis.57 However, the court there also found that
the Agent’s testimony was fraught with error, failing to reliably apply her methodology,
contradicting her own interpretations, and her failure to state on the record adequate
foundation for many of her specific interpretations. 58 Here, a finding of probable cause
only requires a showing of fair probability and does not require the same rigorous
gatekeeper analysis necessary after a full evidentiary hearing. Namely, a four corners
analysis of an affidavit does not require a formal Daubert review when the attesting
officer adequately explains his training and experience that gives him the basis for his
interpretation of drug vernacular.
More on point is the Third Circuit decision in U.S. v. Kaplan that established
that “[s]tatements in an affidavit may not be read in isolation, the affidavit must be read
as a whole” and that “[t]he issuing judge or magistrate may give considerable weight
to the conclusions of experienced law enforcement officers.”59 As in the case at hand,
55
Garcia, 752 F.3d at 385-89.
56
Id. at 384.
57
Id. at 391.
58
Id. at 391-92.
59
U.S. v. Kaplan, 526 F. App'x 208, 212 (3d Cir. 2013)
36
Kaplan involved an investigation into a drug trafficking operation where investigators
obtained information through the use of wiretaps.60 The intercepted communications
“were frequent, cryptic, and repeatedly used code language, such as referring to a
particular meeting location as “where we go to sleep at,” referring to Kaplan as
“whatchacallit,” and referring to drug transactions as “kick it.” The affiants explained
that the use of this jargon showed that the speakers were experienced drug traffickers
who understood the need to be cautious.”61
Likewise, in United States v. Booker, a Federal District Court held that “[c]ourts
considering wiretap applications are allowed to rely upon the reasonable interpretations
given by experienced law enforcement affiant-agents as to the code, slang or obtuse
language used by those persons engaged in allegedly conspiratorial communications.”62
Booker was another case where law enforcement relied heavily upon coded
conversations that were then interpreted by law enforcement to support a finding of
probable cause to authorize a wiretap.63
Here, Affiant Vernon has an extensive history in the Kent County Drug Unit and
has received specialized drug training. Affiant Vernon has also had experience in an
undercover capacity, has authored and assisted in the execution of numerous search
warrants, as well as six other wiretap investigations. He provides a detailed
explanations of his training and experience in drug investigations and a detailed
interpretation of drug related slang overheard on the 4266 line conversations with the
7892 line. Like in Kaplan and Booker, Affiant Vernon’s general reliability as an expert
60
Id. at 210.
61
Id. at 213.
62
United States v. Booker, 2013 WL 2468694, at *17 (N.D. Ga. June 7, 2013).
63
Id.
37
in narcotics to give his opinion as to the meaning of coded language, has been
established. Therefore, like in Kaplan and Booker, the magistrate reasonably relied
upon Affiant Vernon’s interpretations of the intercepted communications and coded
conversations. After considering the affidavit in a flexible and practical manner, and
considering the totality of the circumstances, the Court finds that probable cause
existed at the time the wiretap order was issued.
Defendants K.A.McDonald, Felton, and White next argue that Affiant Vernon
did not provide a full and complete statement of necessity, as required by 11 Del. C.
§ 2407. In particular, Defendants cite United States v. Heilman, which provide that
“applications which use general declarations and conclusory statements or boiler plate
[statements] and the absence of particulars do not meet the full and complete statement
requirement.”64 Accordingly, “[s]uch generalized wiretap applications must be denied
to prevent wiretapping from becoming a routine investigative recourse.”65 Furthermore,
Defendants cite United States v. Blackmon, asserting that a wiretap application cannot
stand when it makes “only general allegations that would be true in most narcotics
investigations” as well as “boilerplate conclusions that merely describe inherent
limitations of normal investigative procedures.”66
Consequently, Defendant K.A.McDonald contends that law enforcement
misleadingly focus on the investigative procedures used on McDonald and not
K.A.McDonald. He asserts that the application for 4266 appears to be lifted almost
entirely from McDonald’s wiretap application for 7892. Defendant K.A.McDonald
64
U.S. v. Heilman, 377 F. App'x 157, 186 (3d Cir. 2010) (quoting U.S. v. Vento, 533 F.2d
838, 849-50 (3d Cir. 1976)).
65
Id. (quoting Vento, 533 F.2d at 850).
66
U.S. v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001).
38
contends that there was no explanation provided as to why normal investigation, such
as physical surveillance, could not be conducted on K.A.McDonald. Finally,
K.A.McDonald points to the statement in the 4266 affidavit stating that
“K.A.McDonald may or may not be a high level drug trafficker at this time.”
Defendant contends that this statement underscores the fact that no investigation was
conducted regarding K.A.McDonald.
Defendants Felton and White contend the same points, with some additional
support. Defendants, in their motion to suppress, compare the language of an unrelated
wiretap affidavit in a completely unrelated case, to the 7892 affidavit, as support in
arguing that the language is boilerplate and conclusory. Defendants Felton and White
point to similarities between the affidavits, concluding that twenty-one out of thirty-
three paragraphs contain significantly similar boilerplate language. Furthermore, seven
of the twelve categories are nearly identical. Finally, Defendants Felton and White
contend that traditional investigative methods could have been expected to prove useful
in the course of investigation. To support that contention, Defendants allege that
physical surveillance allowed law enforcement to identify various suspects, motor
vehicles, and physical locations used as drug and money storage locations.
Furthermore, they contend that the use of CIs and undercover law enforcement has
provided investigators with valuable information. These Defendants cite the holding in
Blackmon to support their contentions.
However, in Blackmon, the affidavit was found to be boilerplate and generic
because the particularized information was purged from the affidavit because of
material misstatements and omissions.67 There, the defendant was indicted following
67
Id. at 1209.
39
a narcotics investigation that utilized wiretaps and investigated multiple suspects.68
Prior to trial, defendant moved to suppress any wire-tap related evidence, alleging that
the application failed to satisfy the necessity requirement, and also sought a hearing
pursuant to Franks v. Delaware.69 The District Court denied both and then convicted
the defendant.70 On appeal, the United States Court of Appeals for the Ninth Circuit
found that, pursuant to Franks v. Delaware71, the affidavit, in the necessity portion,
contained misstatements in reckless disregard for the truth.72 Therefore, the court held
that those statements should be excluded from the affidavit in determining probable
cause and necessity.73 The court there then considered what was only the remaining
boilerplate repetitive language when determining “whether upon review of this
application, purged of its misstatements, a reasonable issuing judge would find that the
application nonetheless conforms to the [necessity] requirements.”74 The court held
that the purged affidavit, on its face, failed to meet the full and complete statement
requirement for a wiretap application.75
Heilman, cited by the Defendants, includes supportive language for the
68
Id. at 1206.
69
Id.
70
Id.
71
Franks v. Delaware, 438 U.S. 154 (1978) (holding that where the defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing
be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's
false material set to one side, the affidavit's remaining content is insufficient to establish probable
cause, the search warrant must be voided)
72
Blackmon, 273 F.3d at 1209.
73
Id.
74
Id.
75
Id. at 1209-10.
40
defendants but does not support their argument in application. Namely, in that case,
defendants were charged and convicted of drug trafficking related charges, as members
of the Breed, an organization with many members. During the investigation of the
Breed, law enforcement sought and obtained wiretaps for two phones used by one
defendant and one phone used by a second defendant. Those two defendants contend
that “the government failed to make a facial showing, within the four corners of the
affidavits, to establish necessity for three separate wiretaps.”76 The defendants moved
to suppress evidence from the wiretaps, arguing that the application contained
boilerplate recitations and conclusory language about the limitations of certain
investigative techniques.77 Defendants further contended that normal investigative tools,
including surveillance and informants, have been successful. The District Court denied
defendants’ motions to suppress, finding that necessity had been appropriately
established.78 The Third Circuit, in Heilman, reviewed the affidavit de novo to
determine if the wiretap application contained the requisite statement of necessity.79 In
doing so, the Court recognized that “[t]he Government does not have a ‘great’ burden
in proving necessity, because it need not prove to a certainty that normal investigative
techniques will not succeed, but rather it needs only to show that such techniques
reasonably appear to be unlikely to succeed if tried. The affidavit need only establish
a “factual predicate” for why other investigative techniques are not sufficient.”80
Furthermore, the Third Circuit held that “the issuing court should take into
account affirmations based on the specialized training and experience of law
76
Heilman, 377 F. App'x at 185.
77
Id. at 186.
78
Id.
79
Id. at 185.
80
Id. at 185-86 (citations omitted).
41
enforcement officers.”81 The Heilman Court held that the District Court did not abuse
its discretion by finding necessity and denied the defendants’ motions to suppress.82
The Court reasoned that the affiant explained how normal investigatory tools would be
insufficient to aid law enforcement in obtaining the information they need to locate co-
conspirators, the supply source and how deliveries occur.83 Furthermore, the affiant
submitted that physical surveillance was dangerous because the organization members
were aware of their surroundings and would likely be able to identify undercover
vehicles used for surveillance.84 Additionally, “[t]he fact that law enforcement had
some success using physical surveillance does not render a wiretap per se
unnecessary.”85 The Third Circuit held that “[w]e do not require law enforcement to
prove that a certain investigative approach is useless to pursue a wiretap; it is only
obligated to give a full explanation as to why a technique is impractical under the
circumstances and that it would be unreasonable to require pursuit of those avenues.”86
For the aforementioned reasons, the court in Heilman found that the wiretap application
contained a full and complete statement of necessity.87
Furthermore, this Court, in State v. Dollard, held that a short time between
warrant applications does not preclude a finding of necessity. There, a wiretap was
upheld even though the wiretap order was issued only six days after learning of the
defendant Dollard’s involvement in an ongoing investigation of a suspected drug dealer
81
Id. at 186.
82
Id. at 187.
83
Id.
84
Id.
85
Id.
86
Id.
87
Id. at 188.
42
named Galen Brooks.88 As the Defendants in the case at hand, Dollard argued that the
affidavit supporting the wiretap application for his telephone contained the same
recitation of normal investigative techniques that were used in the Brooks wiretap
affidavits, and that the State “cannot establish that other normal investigative
techniques would have been futile or too dangerous without a separate and independent
investigation of Dollard.”89 Dollard claimed it was impossible to conclude that
traditional techniques had been tried and failed during the short period between the
discovery of his involvement with Brooks and the application for a wiretap warrant on
his telephone.90 The Court noted that
[a]lthough much of the evidence referenced to establish necessity in
Dollard’s wiretap warrant was also referenced in Brooks’ warrants, it was
reasonable for the authorizing Judge to conclude that other normal
investigative techniques would also fail with regard to Dollard, because
Dollard belonged to the same secretive drug organization as Brooks. The
fact that only six days had passed between the time that the police became
aware of Dollard and when they applied for a wiretap warrant is
immaterial if the police can establish that normal investigative procedures
would be futile.91
The Court then held “it is clear that Dollard, having been identified in the affidavit as
a Brooks’ drug supplier, was believed to have become part of a large drug conspiracy
that the police had been investigating for years.”92
The Defendants are correct in that much of the information in the 4266 Affidavit
regarding the investigation and need for interception is identical to that of the 7892
88
State v. Dollard, 2013 WL 4080311, at *4 (Del. Super. July 30, 2013).
89
Id.
90
Id. at *3.
91
Dollard, 2013 WL 4080311, at *4.
92
Id.
43
Affidavit. However, as in Dollard, both Affidavits are for the same investigation and
apply to the same larger Organization. It is therefore natural to include much of the
same information in subsequent affidavits. This information cannot automatically be
considered stale and irrelevant when considering the nature of the criminal activity
alleged. Further, the 4266 Affidavit includes additional facts relating to necessity for
this subsequent warrant. Namely, the affidavit alleges specifically as to K.A.McDonald,
that there are no undercover officers or CIs available that could conduct direct
purchases of narcotics from him. As to trash pulls, the affidavit cites the presence of
dogs at K. A. McDonald’s residence that would make it too difficult or dangerous to
conduct such activity.
Unlike in Blackmon, this affidavit was not subject to a Franks Hearing, and no
information has been purged from this affidavit and as a result sufficient information
is contained within the 4266 affidavit to establish probable cause. As in Heilman, the
4266 Affidavit explained how normal investigative techniques would not be sufficient
to locate co-conspirators, stash locations, among other objectives of the investigation.
Because there was probable cause to believe that K.A.McDonald belonged to
the same drug organization after interceptions from the 7892 Phone Line, it was
reasonable to conclude that other normal investigative techniques would be too
dangerous or would fair regarding K.A.McDonald. For the foregoing reasons,
suppression on the grounds that the State failed meet the necessity requirement of 11
Del. C. § 2407(a)(3) is also denied. Accordingly, Defendants’ motions to suppress
any evidence derived from the 4266 application and affidavit are DENIED.
(904) 495-8851 – Target Defendant: Lovett
Defendant Owens challenges the sufficiency of probable cause and necessity for
the 8851Affidavit in support of the respective wiretap application. The motion to
44
suppress evidence gathered from the wiretap on 8851 contains the same arguments as
in the motions to suppress evidence gathered from the wiretap on 7892 and 4266.
Furthermore, Defendant Owens asserts that the 8851 Affidavit contains false or
inaccurate misrepresentations with reckless disregard for the truth, requesting a Franks
Hearing. In support of this contention, Defendant Owens points to an error in
identifying the primary user of the 8851 Phone Line. Law enforcement believed Lovett
was the primary user of the 8851 Phone line, however, it was later discovered that
Owens was the primary user. Owens asserts that there has been no attempt to rectify
the error, yet law enforcement continued intercepting the communications on the 8851
line.93
The “investigation and probable cause” portion of the affidavit in support of a
wiretap on 8851 incorporates the 7982 Affidavit by reference. In addition, it adds
details of telephone calls and surveillance involving Lovett and McDonald, as well as
unknown associates. Furthermore, the 8851 Affidavit provides specific details for the
8851Phone Line, with relevant facts included in additional to those provided in the
7982 Affidavit. The telephone conversations between Lovett and McDonald provided
probable cause that both were part of a larger drug conspiracy that had been under
investigation for a much longer time period and that the 8851 phone line was used in
furtherance of this conspiracy.
The fact that the named individual for the 8851 Phone Line was incorrect does
not deter from the fact that the phone line itself was the primary target, not the
individual. It is not a requirement for the issuance of a warrant that the owner of the
93
Defendant Owens raises this issue in a separate motion. While not citing Franks, the
standard forwarded by Defendant in his argument in that motion is the same as required by Franks.
This argument will be addressed by separate order.
45
line even be known.94 The phone line was intercepted on other authorized wiretaps and
was connected to criminal activity, without regard to who owned the number.
Furthermore, because the target of the 8851 Affidavit was Lovett, the investigation
described in the 7892 Affidavit applied to Lovett as well. The fact that the 8851
Affidavit is fairly similar in parts to the 7892 Affidavit does not render the 8851
Affidavit inappropriately generic and boilerplate. The same investigation and facts in
the 7892 Affidavit apply to Lovett, and therefore are sufficient to support a finding of
probable cause for the 8851 Affidavit. After considering the affidavit in a flexible and
practical manner, and by a totality of the circumstances, this Court finds that probable
cause existed at the time the wiretap order was issued.
Regarding suppression on the grounds that the State failed to meet the necessity
requirement of 11 Del. C. § 2407(a)(3) , for the same reasons discussed supra for the
4266 Affidavit, as well as those discussed supra regarding the 7892 Affidavit, this
Court is convinced that the necessity for interception has been sufficiently provided by
Affiant Vernon. Lovett, the target of the 8851 warrant application, resided at Unity
Lane, where numerous attempts at surveillance were conducted. Affiant Vernon
sufficiently explained how the community of Unity Lane makes any form of
surveillance or investigation unlikely to succeed due to the fact that the community is
very aware of its surrounding. Accordingly, as to the 8851 warrant, there is a sufficient
showing of necessity. Defendants’ motions to suppress any evidence derived from the
8851 application and affidavit are also DENIED.
(615) 571-4038 – Target Defendant: K.A.McDonald
Various Defendants challenge the sufficiency of probable cause and necessity
94
See 11 Del.C. § 2407(a)(1)c(recognizing that the affidavit contain “[t]he identify of the
person, if known . . .”)(empahsis added).
46
for the 4038Affidavit in support of the respective wiretap application. Defendants’
motions to suppress evidence gathered from the wiretap on 4038 contain the same
arguments, discussed above. The facts and legal authority discussed previously, when
applied to the affidavit for this warrant, clearly establishes probable cause.
Regarding suppression on the grounds that the State failed to meet the necessity
requirement of 11 Del. C. § 2407(a)(3), for the same reasons discussed supra, the
Court is convinced that the necessity for interception has been sufficiently provided by
Affiant Vernon. Because of the short time frame between the affidavits, being one
day, it would be unlikely that investigation methods would have yielded more positive
results than when the 4266 Affidavit was authored. The investigation involved the
same ongoing investigation. Therefore, it was reasonable for the issuing Judge to find
that a full and complete statement of necessity had been appropriately provided.
Defendants’ motions to suppress any evidence derived from the 4038 application and
affidavit are DENIED.
(302) 233-4375 – Target Defendants: Lovett and then Williams
Defendants Williams, Smith, and Owens challenge the sufficiency of probable
cause and necessity for the 4375 Affidavit in support of the respective wiretap
application.95 The motion to suppress evidence gathered from the wiretap on 4375
contains many of the same arguments used in the motion to suppress evidence gathered
from the wiretap on 4038, 7892, 4266, and 8851. Additionally, Defendants Smith and
Owens contend that Affiant Vernon summarized intercepted communications, instead
of providing direct quotes or transcripts. Defendants also contend that there is no
indication that Affiant Vernon had the requisite experience or training to engage in an
95
Defendant Smith also alleges that a Franks hearing is necessary regarding the 4375 warrant.
This issue will be discussed in a separate order.
47
accurate linguistic interpretation.
As to Defendants’ challenge regarding probable cause, the affidavit in support
of a wiretap on 4375 incorporates the 7982 and 8851Affidavits by reference. In
addition, it adds details of telephone calls and surveillance involving McDonald,
Lovett, and an unknown male regarding various conversations about drugs. The
communications intercepted referenced various coded terms such as a “bun” and “forty
of hand.” Affiant Vernon advised that a “bun” was a common street term for a bundle
of heroin, and “forty of hand” indicated $40 piece of cocaine. Other jargon was used
such as a “log” which Affiant Vernon advised to mean ten bundles of heroin. As
previously discussed, Affiant Vernon has substantial experience investigating narcotics
and monitoring wiretaps. It was reasonable to rely on his experience and training to
interpret these intercepted communications.
Furthermore, in an intercepted conversation between Lovett and McDonald
regarding drugs, Lovett told McDonald to contact (302) 233-4375 for further contact
with him. Affiant Vernon stated in the 4375 Affidavit that this number was believed
to be Lovett’s secondary contact number for high scale clientele and suppliers. The
intercepted communications indicated that the 4375 Phone Line was directly connected
to illegal activity. The intercepted telephone conversations established that Defendants
and the unknown male were part of a larger drug conspiracy that had been under
investigation for a much longer time period. After considering the affidavit in a flexible
and practical manner, and by a totality of the circumstances, this Court finds that
probable cause existed at the time this wiretap order was issued.
Likewise, after review of the facts alleged in the affidavit, in light of the
previously discussed authority, suppression on the grounds that the State failed to meet
the necessity requirement of 11 Del. C. § 2407(a)(3) is also denied. This affidavit
48
targeted Lovett, who has been a target of the investigation from the beginning.
Therefore, the investigation techniques into Lovett had already proved unsuccessful in
various ways, as discussed supra. The burden on law enforcement to provide a full and
complete statement of necessity is not great, and given the significant facts stated as to
Lovett, this Court finds that the necessity requirement as been met.
As to the second application and affidavit for the 4375 Phone Line, the primary
target was shifted to Williams after he was identified as the individual primarily using
the number. As discussed supra, the phone line was unquestionably linked to criminal
activity through previous intercepts from authorized wiretaps, so regardless of who the
phone line belonged to, there was probable cause to believe the phone line itself was
involved in criminal activity. Furthermore, information in the second 4375 Affidavit
was added that was not present in the original affidavit. The initial wiretap of 4375
intercepted various conversations between Williams and K.A.McDonald regarding
various firearms. Other conversations intercepted included whether Williams had
“bud,” described to be marijuana, and “half a ball,” described to be a quantity of
cocaine, and also a if Williams had a “girl,” which he did not. These conversations
indicate that the phone line was probably connected to criminal activity, regardless of
the fact that someone else was the primary user of the line. Furthermore, a criminal
history of Williams was provided in the new 4375 Updated Affidavit. Williams had a
criminal history ranging from 2005 to 2013, with various drug charges, as well as
providing false statements to law enforcement and possession of a firearm by a person
prohibited charges.
As to necessity, the 4375 Updated Affidavit addressed the separate investigative
techniques as applied to Williams’ circumstances. The Court finds that the issuing
Judge was justified in finding necessity as to the new application regarding Defendant
49
Williams as well. Consequently, Defendants’ motions to suppress evidence derived
from the 4375 applications and affidavits are DENIED.
(954) 809-4794 – Target Defendant: Dukes
Defendants Smith challenges the sufficiency of probable cause and necessity for
the 4794 Affidavit in support of the respective wiretap application. The motion to
suppress evidence gathered from the wiretap on 4794 contains the same arguments
presented by Defendants for the wiretaps on 4375, 4038, 7892, 4266, and 8851.96
The “investigation and probable cause” portion of the affidavit in support of a
wiretap on 4794 incorporates the 7982, 8851, 4038, and 4375 Affidavits by reference.
In addition, it adds details of telephone calls and surveillance involving K.A.McDonald,
Williams, and an unknown male regarding drugs and firearms. In particular,
K.A.McDonald and an unknown male at the 4794 Phone Line communicated regarding
“what is in stock” and if he could get an unknown quantity for “eighteen-two racks.”
Affiant Vernon, based on his experience in the field, opined that the conversation was
regarding high grade marijuana, and that a rack meant a thousand dollars, and
“eighteen-two” amounted to $18,200. The communications further lead law
enforcement to observe two potential transactions between Dukes and K.A.McDonald.
During the second potential transaction, Dukes was positively identified by the
observing detective and was driving a vehicle registered in his name. Furthermore,
GPS tracking of K.A.McDonald’s vehicle indicated that K.A.McDonald was in the
same area as Dukes, which was consistent with communications intercepted on
K.A.McDonald’s phone lines.
Furthermore, the 4794 Affidavit provides specific details for the 4794 Phone
96
Defendant Smith’s Franks related arguments will be discussed in a separate order.
50
Line, where there is information that differs from that of the previous affidavits. For
instance, the 4794 Affidavit provides a criminal background of Dukes, which included
drug charges. The telephone conversations established that Defendants and the
unknown male were part of the Organization that had been under investigation for a
much longer time period. After considering the affidavit in a flexible and practical
manner, and considering the totality of the circumstances and the authority previously
discussed, the Court finds that probable cause was set forth in the 4794 affidavit.
Regarding suppression on the grounds that the State failed meet the necessity
requirement of 11 Del. C. § 2407(a)(3), for the same reasons discussed supra for the
4735, 4038, 8851 and 4266 Affidavits, as well as those discussed supra regarding the
7892 Affidavit, this Court is convinced that the necessity for interception has been
sufficiently provided by Affiant Vernon. In addition, the 4794 Affidavit states that law
enforcement were unsure of where Dukes was actually residing, so conducting trash
pulls was not possible. It logically follows that physical surveillance would also be
unlikely if the suspect cannot be physically located. Furthermore, the affidavit
discussed how GPS tracking has been successfully installed on K.A.McDonald’s
vehicle. However, although law enforcement had observed Dukes operating two
separate vehicles, the Mercedes and Oldsmobile, it was unknown to them at the time
if he had regular access to the vehicles, therefore GPS tracking of Dukes would not
likely result in valuable information.
The Affidavit further states that surveillance had observed Williams operating
a blue 2006 Audi A8, and a GPS order would be drafted. This evidences that
investigation was still ongoing and that a wiretap was not the initial stage of the
investigation. For these reasons, this Court finds that Affiant Vernon provided a full and
complete statement of necessity. Defendants’ motions to suppress any evidence
51
derived from the 4794 applications and affidavits are DENIED.
C. The Court does not find the geographic argument raised by Defendants
convincing; therefore, suppression pursuant to 11 Del C. § 2407(c)(3) is DENIED.
The final issue examined in this Opinion is a geographical issue raised regarding
the interpretation of 11 Del. C. § 2407(c)(3). Certain Defendants raise the issue as to
whether Section 2407 allows for the interception of a cellular communication when that
communication is intercepted in the State, but has neither been sent nor received by a
portable communication device that is located in the State.
The statute’s language being challenged states that an order "may authorize the
interception of communications sent or received by a mobile telephone anywhere within
the State so as to permit the interception of the communications regardless of whether
the mobile telephone is physically located within the jurisdiction of the court in which
the application was filed at the time of the interception."97 Defendants Felton and
White argue that the wiretap applications requested interceptions without geographical
limitation. Defendants argue that such a broad order violates 11 Del. C. § 2407(c)(3),
and that law enforcement should only be permitted to intercept communications that
were sent from or received from within the State of Delaware.
The Superior Court has previously considered this particular issue and has held
that “the consideration of legislative intent, the consequences of different particular
constructions of the statute, and abundant persuasive case law lead this Court to adopt
the same federal gloss that has been adopted by so many other courts.98 Namely, the
Superior Court held that an otherwise valid wiretap warrant may authorize the
97
11 Del. C. § 2407(c)(3).
98
State v. Brinkley, 132 A.3d 839, 851 (Del. Super. 2016).
52
interception of signals within the State, regardless of the location of the phones.99 This
Court finds the Brinkley Court’s interpretation to be reasonable and persuasive and
applies it here. Moreover, in this instance, no Defendant has alleged with specificity
what communications, if any, were intercepted while a caller or recipient was out of
State. Therefore, Defendants’ motions to suppress on the grounds that the intercepted
communications were outside of Delaware’s territorial jurisdiction is DENIED.
IV. CONCLUSION
For the foregoing reasons, after a four corners review of the respective affidavits,
the Court finds the intercepted communications of 7982, 4266, 8851, 4038, 4375, 4794
were lawfully acquired and the various motions of the captioned Defendants to
suppress evidence obtained as a result of these intercepted communications are
DENIED.
IT IS SO ORDERED
/s/Jeffrey J Clark
99
Brinkley, 132 A.3d at 97.
53