State of Tennessee v. Jeffrey Kristopher King and Kasey Lynn King , 437 S.W.3d 856 ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 19, 2013 Session
STATE OF TENNESSEE V. JEFFREY KRISTOPHER KING1
and KASEY LYNN KING
Appeal from the Circuit Court for Rutherford County
and from the Criminal Courts for Davidson and Sumner Counties
Nos. F-63586D, 2010-C-2083, 638-2010
Don R. Ash, Judge, Cheryl Blackburn, Judge, and Dee David Gay, Judge
No. M2012-00201-CCA-R3-CD - Filed September 24, 2013
Jeffrey King (“Defendant J. King”) entered conditional guilty pleas in Rutherford County to
one count of conspiracy to sell over seventy pounds of marijuana and one count of possessing
over seventy pounds of marijuana; to several counts of felony marijuana offenses and several
counts of money-laundering offenses in Davidson County; and to several counts of felony
marijuana offenses, several counts of money-laundering offenses, and one count of a felony
firearm offense in Sumner County. Kasey King (“Defendant K. King”) (collectively “the
Defendants”) entered conditional guilty pleas in Davidson County to two counts of felony
marijuana offenses and two counts of money-laundering offenses; and to one count of a
felony firearm offense and two counts of felony marijuana offenses in Sumner County.
These conditional guilty pleas were entered after the trial courts denied the Defendants’
motions to suppress evidence gleaned from wiretaps on several telephones. Each of the
Defendants reserved certified questions of law regarding the legality of the wiretaps and
timely appealed. This Court ordered that the appeals be consolidated. We now consider the
Defendants’ certified questions of law and hold that the trial courts did not err in denying the
Defendants’ motions to suppress. Accordingly, the Defendants are entitled to no relief from
their pleas of guilt. Therefore, we affirm the trial courts’ judgments and the Defendants’
convictions.
Tenn. R. App. P. 3 Appeals as of Right; Judgments
of the Circuit and Criminal Courts Affirmed
1
The indictments in these cases spell the first defendant’s first name “Jeffrey.” It is spelled “Jeffery”
elsewhere in the record.
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.
Kimberly S. Hodde, Nashville, Tennessee, for the appellant, Jeffrey Kristopher King.
Jeremy Parham, Nashville, Tennessee, for the appellant, Kasey Lynn King.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; William Whitesell (Rutherford County), Victor S. Johnson III (Davidson County),
and L. Ray Whitley (Sumner County), District Attorneys General; and John C. Zimmermann,
Senior Assistant District Attorney General; for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On October 7, 2008, Phillip L. Taylor, state investigator for the 20th Judicial District
Drug Task Force of Nashville, Davidson County, Tennessee, filed in the Criminal Court for
Davidson County, Tennessee, an Application for Interception of Wire and Electronic
Communications for the interception of communications through telephone line (615) 517-
7591 “used by Bruce Dady” (“the First Dady Application” and “the First Dady Number”).
The First Dady Application is 59 pages long and consists of 271 numbered paragraphs
containing the sworn averments of Officer Taylor. The identified “concern” of the First
Dady Application was “the delivery, sale, or possession with intent to sell or deliver, 700
pounds or more of any substance containing marijuana, and conspiracy to commit the same”
(“the Target Crimes”). The First Dady Application identified the following individuals as
participants in the Target Crimes: Vernon E. Lockhart, Bruce A. Dady, the Defendants,
Michael R. Hutchison, Matthew E. Hutchison, Brandon C. Barnes, James H. Barnes, Tony
Q. Ferrer, Donald W. Ellis, Cheyenne D. Davis, Kelvin S. Lockhart, and Talva Antoinnette
Lockhart (collectively, “the Target Subjects”). Officer Taylor averred in the First Dady
Application that the targeted phone number was “subscribed to by Marcia Dady” but was
“believed to be used primarily by Bruce Dady.”
Also on October 7, 2008, Officer Taylor filed in the Criminal Court for Davidson
County, Tennessee, an Application for Interception of Wire and Electronic Communications
for the interception of communications through telephone line (615) 714-5541 “subscribed
to by Cassie T. Roark” but “believed to be used primarily by Jeffery King” (“the King
Application”). The King Application is 60 pages long, consists of 275 numbered paragraphs,
and is substantially similar to the First Dady Application.
2
Also on October 7, 2008, Officer Taylor filed in the Criminal Court for Davidson
County, Tennessee, an Application for Interception of Wire and Electronic Communications
for the interception of communications through telephone line (615) 289-5116 “subscribed
to by Julie Draper” but “believed to be used by Vernon Lockhart” (“the Lockhart
Application”). The Lockhart Application is 61 pages long, consists of 280 numbered
paragraphs, and is substantially similar to the First Dady Application and the King
Application.
On October 7, 2008, the Criminal Court for Davidson County, the Hon. Mark
Fishburn (“the Issuing Court”), granted the First Dady Application, the King Application,
and the Lockhart Application and issued as to each Application an Order Authorizing the
Interception of Wire and Electronic Communications, a ten-page document. Each Order
contains the following findings:
4. There is probable cause to believe that [the Target Subjects] have
committed, and will continue to commit, the offenses of delivery, sale, or
possession with intent to sell or deliver, 700 pounds or more of any substance
containing marijuana, and conspiracy to commit same.
[As to the First Dady Application:] 5. There is probable cause to believe
that the telephone assigned phone number (615) 517-7591, a telephone service
provided by Verizon Wireless, . . . subscribed to by Marcia Dady, 342 Forrest
Valley Drive, Nashville, Tennessee, believed to be used by Bruce Dady, Target
Subject, in connection with the commission of the above described offense
[sic].
[As to the King Application:] 5. There is probable cause to believe that
the telephone assigned phone number (615) 714-5541, a telephone service
provided by Verizon Wireless, . . . subscribed to by Cassie T. Roark at 1636
Stokley Lane, Old Hickory, Tennessee, believed to be used by Jeffery King,
Target Subject, in connection with the commission of the above described
offense [sic].
[As to the Lockhart Application:] 5. There is probable cause to believe
that the telephone assigned phone number (615) 289-5116, a telephone service
provided by Verizon Wireless, . . . subscribed to by Julie Draper, 5225 Rustic
Way, Old Hickory, Tennessee, believed to be used by Vernon Lockhart, Target
3
Subject, in connection with the commission of the above described offense
[sic].2
6. There is probable cause to believe that the communications to be
intercepted will concern the telephone numbers associated with the Target
Subjects, and the dates, times, and places for commission of the
aforementioned offense when the Target Subjects communicate with their co-
conspirators, associates and other participants in the conspiracy, thereby
identifying the co-conspirators and others as yet unknown. In addition, these
communications are expected to constitute admissible evidence of the above
described offense.
7. It has been established adequately that normal investigative
procedures have been tried and have failed, reasonably appear to be unlikely
to succeed if tried, or are too dangerous to employ.
On October 10, 2008, Officer Taylor filed with the Issuing Court an Application for
Interception of Wire and Electronic Communications for the interception of wire
communications through telephone line (615) 584-6075 “used by Bruce Dady” (“the Second
Dady Application”) (collectively with the three applications filed on October 7, 2008, “the
Initial Applications”). The Second Dady Application was in large part duplicative of the
First Dady Application but provided that the telephone was “subscribed to by Terry Frazier,
1455 Dickerson Bay Drive, Gallatin, Tennessee, believed to be used by Bruce Dady.”
On October 10, 2008, the Issuing Court entered an Order Authorizing the Interception
of Wire and Electronic Communications on the Second Dady Application. The Order
includes the following findings:
4. There is probable cause to believe that [the Target Subjects] have
committed, and will continue to commit the offenses of delivery, sale, or
possession with intent to sell or deliver, 700 pounds or more of any substance
containing marijuana, and conspiracy to commit same.
5. There is probable cause to believe that the telephone assigned phone
number (615) 584-6075, a telephone service provided by A T & T Wireless
Services, . . . subscribed to by Terry Frazier, 1455 Dickerson Bay Drive,
2
We note that the Orders do not contain a verb signifying the relationship between the referenced
telephone and the “connection with the commission of” the offense.
4
Gallatin, Tennessee, believed to be used by Bruce Dady, Target Subject, in
connection with the commission of the above described offense [sic].
6. There is probable cause to believe that the communications to be
intercepted will concern the telephone numbers associated with the Target
Subjects, and the dates, times and places for commission of the
aforementioned offense when the Target Subjects communicate with their co-
conspirators, associates and other participants in the conspiracy, thereby
identifying the co-conspirators and others as yet unknown. In addition, these
communications are expected to constitute admissible evidence of the above
described offense.
7. It has been established adequately that normal investigative
procedures have been tried and failed, reasonably appear to be unlikely to
succeed if tried, or are too dangerous to employ.
Applications for additional wiretaps and for extensions of the wiretaps previously
authorized ensued over the period from October 10, 2008 through late March 2009. The
Issuing Court granted all of the State’s applications, resulting in the electronic surveillance
of a total of twenty-three telephones. The involved phone numbers were monitored for
several months for evidence related to the Target Crimes.
In 2009, the Defendants were indicted in several Middle Tennessee counties on
multiple charges including drug and money-laundering offenses.3 In the Sumner County and
Davidson County cases, the Defendants each filed a motion to suppress the evidence gleaned
from the wiretaps. Defendant J. King also filed a motion to suppress the evidence gleaned
from the wiretaps in the Rutherford County case. Each of the trial courts held an evidentiary
hearing and subsequently issued orders denying the Defendants’ motions.
Thereafter, Defendant J. King entered conditional guilty pleas in Rutherford,
Davidson, and Sumner Counties, as follows:
Rutherford County: One count of conspiracy to sell over seventy pounds of
marijuana, a Class B felony, with a sentence of twenty years in the Tennessee
Department of Correction (“TDOC”), and one count of possession with intent
3
In its order denying the Defendants’ motions to suppress, the Sumner County trial court noted that
the results of the investigation resulted in the arrest of thirty-nine defendants in five Middle Tennessee
counties.
5
to sell or deliver over seventy pounds of marijuana, a Class B felony, with a
consecutive sentence of twenty years’ incarceration.4
Davidson County: One count of conspiracy to sell over three hundred pounds
of marijuana, a Class A felony, with a sentence of forty years in the TDOC;
two counts of conspiracy to commit money-laundering, a Class B felony, with
each count carrying a concurrent sentence of twenty years’ incarceration; two
counts of money-laundering, Class B felonies, with each count carrying a
concurrent sentence of twenty-years’ incarceration; one count of the delivery
of over seventy pounds of marijuana, a Class B felony, with a concurrent
sentence of twenty years’ incarceration; one count of the delivery of over ten
pounds of marijuana, a Class D felony, with a concurrent sentence of eight
years’ incarceration; one count of the possession with intent to sell over ten
pounds of marijuana, a Class D felony, with a concurrent sentence of eight
years’ incarceration; and one count of possession with intent to sell over three
hundred pounds of marijuana, a Class A felony, with a concurrent sentence of
forty years’ incarceration.5
Sumner County: One count of conspiracy to possess over seventy pounds of
marijuana, a Class B felony, with a sentence of twenty years in the TDOC;
three counts of the delivery of over ten pounds of marijuana, a Class D felony,
with concurrent sentences of six years’ incarceration for each offense; one
count of the possession of over seventy pounds of marijuana, a Class B felony,
with a consecutive sentence of twenty years in the TDOC; one count of
possessing a firearm during the commission of a felony, a Class E felony, with
a concurrent sentence of two years’ incarceration; and seven counts of money-
laundering, a Class B felony, each with a concurrent sentence of twenty years’
incarceration.6
Defendant K. King entered conditional guilty pleas to the following offenses:
Davidson County: One count of conspiracy to sell over three hundred pounds
of marijuana, a Class A felony, with a sentence of fifteen years in the TDOC;
one count of the delivery of over seventy pounds of marijuana, a Class B
4
Defendant J. King was sentenced as a Range II offender for these offenses.
5
Defendant J. King was sentenced as a Range II offender for these offenses.
6
Defendant J. King was sentenced as a Range II offender for these offenses.
6
felony, with a concurrent sentence of twelve years’ incarceration; and two
counts of money laundering, a Class B felony, each with a concurrent sentence
of twelve years’ incarceration.7
Sumner County: One count of conspiracy to possess over seventy pounds of
marijuana, a Class B felony, with a sentence of twelve years in the TDOC; one
count of possessing a firearm during the commission of a felony, a Class E
felony, with a consecutive sentence of one year in the TDOC; and one count
of possessing over one-half ounce of marijuana for resale, with a consecutive
sentence of two years in the TDOC.8
In conjunction with each plea, the Defendants each reserved the following certified questions
of law:9
In the trial court, the Defendant moved to suppress the fruits of electronic
surveillance on numerous grounds: (1) that the initial wiretap Applications
lacked probable cause to justify interception in violation of T.C.A. §§ 40-6-
304(c) and 40-6-305, specifically including the Applications’ failure to
demonstrate the statutorily required nexus between the phone to be intercepted
and the alleged illegal activity sought to be intercepted; (2) that the initial
Applications failed to demonstrate a constitutionally sufficient requisite
necessity for the use of electronic surveillance pursuant to T.C.A. § 40-6-
304(a)(3) and 18 U.S.C. § 2518(1)(c); (3) that all subsequent wiretaps were the
fruits of the prior illegal wiretap interceptions and therefore, were fruits of the
poisonous tree; (4) that the notarized but unsigned affidavit requesting a
second extension of the wiretap for telephone number (615) 584-6075 was
statutorily deficient to support interception; (5) that, in addition to being a fruit
of the prior illegal interceptions, the subsequent interception of telephone
(615) 653-2294 lacked probable cause to justify interception in violation of
T.C.A. §§ 40-6-304(c) and 40-6-305 because they [sic] failed to make a
sufficient link between the phone and suspected criminal activity or the targets
of the investigation; (6) that, in addition to being a fruit of the prior illegal
interceptions, the subsequent interception of telephone (615) 818-2839 lacked
probable cause to justify interception in violation of T.C.A. §§ 40-6-304(c)
7
Defendant K. King was sentenced as a Range I offender for these offenses.
8
Defendant K. King was sentenced as a Range I offender for these offenses.
9
See Tenn. R. Crim. P. 37(b)(2).
7
and 40-6-305 because they [sic] failed to make a sufficient link between the
phone and suspected criminal activity or the targets of the investigation; (7)
that the Applications for extensions of the wiretaps failed to articulate a
statutorily sanctioned purpose justifying continuing interception; (8) that the
issuing Court neglected its duty as a neutral and detached magistrate and acted
as an impermissible rubber stamp for law enforcement; and, (9) that the
Applications contain omissions and material misstatements that undercut any
showing of requisite necessity for the wiretaps.
The Defendants timely appealed from their convictions,10 and this Court ordered that
the appeals from the judgments of conviction entered in the Rutherford County, Davidson
County, and Sumner County prosecutions be consolidated. We now consider the certified
questions of law reserved by the Defendants relating to the legality of the wiretaps, and the
trial courts’ denial of their motions to suppress.
Standard of Review
We will uphold a trial court’s findings of fact at a suppression hearing unless the
evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
“Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” Id. “We afford to the party prevailing in the trial court the strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). We review, however, a trial
court’s application of the law to the facts under a de novo standard of review. State v.
Williams, 185 S.W.3d 311, 315 (Tenn. 2006).
In the context of these cases, in which we are reviewing the trial courts’ review of the
Issuing Court’s orders permitting the wiretaps, we must decide whether the trial courts erred
in concluding that the Issuing Court had a “substantial basis” for finding probable cause. See
State v. Moore, 309 S.W.3d 512, 523 (Tenn. Crim. App. 2009), perm. app. denied (Tenn.
Feb. 22, 2010); see also Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984) (holding that
a reviewing court is not to conduct “a de novo probable-cause determination” but instead
merely is to decide “whether the evidence viewed as a whole provided a ‘substantial basis’
for the Magistrate’s finding of probable cause”). “A showing of probable cause requires,
generally, reasonable grounds for suspicion, supported by circumstances indicative of an
10
As the State points out in its brief, Defendant J. King filed his notice of appeal from the judgments
of the Rutherford County trial court two days late. We have nevertheless chosen to consider Defendant J.
King’s appeal from his Rutherford County judgments of conviction. See Tenn. R. App. P. 4(a).
8
illegal act.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). Moreover, “‘in passing
on the validity of a warrant, the reviewing court may consider only the information brought
to the magistrate’s attention.’” Moore, 309 S.W.3d at 523 (quoting State v. Jacumin, 778
S.W.2d 430, 432 (Tenn. 1989)). “‘In reviewing the validity of an electronic surveillance
order, we will accord “great deference” to the determination of the issuing judge.’” Id.
(quoting United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000)). “‘[T]he fact that a
later trial judge or reviewing court may feel that a different conclusion was appropriate does
not require, nor even authorize, the suppression of evidence gained through such a warrant.’”
Corrado, 227 F.3d at 539 (quoting United States v. Alfano, 838 F.2d 158, 162 (6th Cir.
1988)).
Analysis
Tennessee Code Annotated Section 40-6-304
To assist in our resolution of this matter, we deem it helpful first to review the
statutory basis for the electronic surveillance that was conducted in these cases.
Tennessee Code Annotated section 40-6-304 provides, in pertinent part, as follows:
(a) Each application for an order authorizing the interception of a wire,
oral or electronic communication shall be made in writing upon oath or
affirmation to a judge of competent jurisdiction in the district where the
interception of a wire, oral or electronic communication is to occur, or in any
district where jurisdiction exists to prosecute the underlying offense to support
an intercept order under § 40-6-305. The application shall state the
investigative or law enforcement officer’s authority to make the application
and shall include the following information:
(1) Identity of the investigative or law enforcement officer making the
application, and the district attorney general authorizing the application;
(2) A full and complete statement of the facts and circumstances relied
upon by the applicant to justify the applicant’s belief that an order should be
issued, including:
(A) Details as to the particular offense that has been, is being, or is
about to be committed;
9
(B) A particular description of the nature and location of the facilities
from which or the place where the communication is to be intercepted;
(C) A particular description of the type of communications sought to be
intercepted; and
(D) The identity of all persons, if known, committing the offense and
whose communications are to be or may be intercepted;
(3) A full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous;
....
(c) Upon an application the judge may enter an ex parte order, as
requested or as modified, authorizing interception of wire, oral or electronic
communications within the district in which the judge is sitting, and outside
that district but within the state of Tennessee in the case of a mobile
interception device, if the judge determines on the basis of the facts submitted
by the applicant that:
(1) There is probable cause for belief that an individual is committing,
has committed, or is about to commit a particular offense enumerated in § 40-
6-305;11
(2) There is probable cause for belief that particular communications
concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(4) There is probable cause for belief that the facilities from which, or
the place where, the wire, oral or electronic communications are to be
11
Tennessee Code Annotated section 40-6-305 includes “[t]he commission of a violation of § 39-17-
417(j).” Tenn. Code Ann. § 40-6-305(3) (2006). Tennessee Code Annotated section 39-17-417(j), which
was in effect at the time of the relevant offense, includes the sale, delivery, and possession with intent to sell
or deliver at least 700 pounds of marijuana, and conspiracy to commit same. Id. § 39-17-417(j)(13)(B)
(Supp. 2008).
10
intercepted are being used, or about to be used, in connection with the
commission of the offense, or are leased to, listed in the name of, or commonly
used by the person.12
(d)(1) Each order authorizing the interception of any wire, oral or
electronic communication under this part . . . shall specify:
(A) The identity of all persons, if known, whose communications are
to be or may be intercepted;
(B) The nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted;
(C) A particular description of the type of communication sought to be
intercepted, and a statement of the particular offense to which it relates;
(D) The identity of the agency authorized to intercept the
communications, and the identity of the person authorizing the application; and
(E) The period of time during which the interception is authorized,
including a statement as to whether or not the interception shall automatically
terminate when the described communication has been first obtained.
....
(e) No order entered under this section may authorize or approve the
interception of any wire, oral or electronic communication for any period
longer than is necessary to achieve the objective of the authorization, nor in
any event longer than thirty (30) days. . . . Extensions of an order may be
granted, but only upon application for an extension make in accordance with
subsection (a) and the court making the findings required by subsection (c).
Tenn. Code Ann. § 40-6-304 (2006) (“the Wiretap Statute”). Our research reveals only a few
decisions from Tennessee’s appellate courts construing this statute. However, because the
12
“[T]he person” is the “individual” referred to in subpart (1) who “is committing, has committed,
or is about to commit a particular offense enumerated in § 40-6-305.” See United States v. Dadanovic,
Criminal No. 09-63-ART, 2010 WL 3620251, at *9 (E.D. Ky. Sept. 10, 2010). In each of the Initial
Applications, the identified Target Subjects included the individual believed to be using the phone sought
to be intercepted, i.e., Dady, King, and Lockhart.
11
Wiretap Statute is virtually identical to its federal counterpart,13 codified at 18 United States
Code section 2518, the decisions of federal courts offer significant guidance. See Moore,
309 S.W.3d at 525; see also State v. Munn, 56 S.W.3d 486, 497 (Tenn. 2001).
We turn now to our analysis of the certified questions of law presented in these
consolidated appeals.
Nexus
The Defendants contend that the Initial Applications did not establish probable cause
to believe that the telephones sought to be tapped were “being used, or [were] about to be
used, in connection with the commission of” the Target Crimes. Tenn. Code Ann. § 40-6-
304(c)(4).14 Accordingly, they argue, the Issuing Court erred in ordering the wiretaps, and
the trial courts erred in denying the Defendants’ motions to suppress. The State disagrees.
The Rutherford County trial court found that “the relevant wiretap applications
contained sufficient information to support Judge Fishburn’s finding of probable cause that
targets were committing, had committed, or were about to commit a crime included in Tenn.
Code Ann. § 39-17-417(j)(13)” and that the Issuing Court “had a substantial basis to believe
that [Defendant J. King] was using these phones [sic] in furtherance of his criminal
operation.”
13
See Frierson v. Goetz, 99 Fed. Appx. 649, 652 (6th Cir. 2004) (“The Tennessee Wiretap Law,
Tenn. Code Ann. §§ 40-6-301 et seq., parallels the Federal Wiretap Law in prohibiting the unauthorized
interception and disclosure of oral communications and in requiring certain procedures to obtain an order.”);
United States v. Kelley, 596 F. Supp. 2d 1132, 1137, 1141 (E.D. Tenn. 2009) (recognizing that the Tennessee
and federal wiretap statutes are “identical”).
14
Although the first of the Defendants’ certified questions refers specifically only to “the statutorily
required nexus between the phone to be intercepted and the alleged illegal activity sought to be intercepted,”
the Defendants clarify in their reply brief that the “heart” of their probable cause challenge is that “[t]he State
never conducted consensually monitored and recorded calls to any of the target telephones to discuss any
target offense or criminal conduct.” That is, the Defendants contend that the State failed to satisfy the nexus
requirement set forth in subsection (c)(4) of the Wiretap Statute, which requires probable cause to believe
that the targeted telephone is “being used, or [is] about to be used, in connection with the commission of the
offense.” Tenn. Code Ann. § 40-6-304(c)(4). As our supreme court has emphasized, “[n]o issue beyond the
scope of the certified question will be considered.” State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988); see
also State v. Day, 263 S.W.3d 891, 899-900 (Tenn. 2008) (limiting its consideration to the “narrow issue”
presented explicitly in the certified question and emphasizing “[o]nce again . . . the importance of clearly
identifying the scope and limits of an issue intended to be preserved by a certified question”). Therefore, we
decline to address any potential contention that there was no “probable cause for belief that particular
communications concerning [the] offense will be obtained through the interception.” Tenn. Code Ann. § 40-
6-304(c)(2).
12
The Sumner County trial court rejected the Defendants’ argument that subsection
(c)(4) required probable cause to believe that the targeted telephone number was being used
to commit the Target Crimes and, instead, focused on the alternative probable cause
requirement, that there be probable cause to believe that the targeted telephone number was
“leased to, listed in the name of, or commonly used by” the targeted person. Tenn. Code
Ann. § 40-6-304(c)(4). Cf. United States v. Dadanovic, Criminal No. 09-63-ART, 2010 WL
3620251, at *9 (E.D. Ky. Sept. 10, 2010) (recognizing that the federal counterpart to this
provision “is satisfied either if 1) the phone is being used by someone in connection with the
offense or 2) it is commonly used by an individual who ‘is committing, has committed, or
is about to commit a particular offense’”) (citing 18 U.S.C. § 2518(3)(d)) (emphases added).
The Sumner County trial court ruled that “[t]he Applications clearly show that the original
Application’s phones were listed in the name of the Targets’ wives, and the Pen Registers
showed that these phones were being used by the targets in communication with the other
conspirators.”
The Davidson County trial court, like the Rutherford County trial court, ruled that the
Applications sufficiently established probable cause to believe that the targeted telephones
were being used to commit the Target Crimes:
The information in the Applications provided the issuing judge a substantial
basis to find probable cause that interception of the target phones would
provide evidence of the conspiracy. As [indicated by pen register statistics],
target suspects made a high volume of calls to other suspected co-conspirators
between the July-September 2008 time period [covered by the pen register].
For example: the Application for Lockhart’s telephone cited that there were
401 calls between Lockhart and Jeffrey King and 480 calls between Lockhart
and [Cheyenne] Davis within the three-month period; the Application for
Jeffrey King’s phone cited 336 calls between Jeffrey King and Kasey King and
178 calls between Jeffrey King and Dady for that same period. . . . The Sixth
Circuit, among other federal courts, has concluded that where “there is a
recurring pattern of multiple connections among the phone calls, between and
among recognized members of the conspiracy . . . [it] adds to the evidence
amounting to ‘a fair probability’ that interception of further calls would reveal
evidence of a crime.” United States v. Alfano, 838 F.2d 158, 162 (6th Cir.
1988) (reversed District Court’s decision granting suppression motion), cert.
denied 109 U.S. 65.
Accordingly, the Court finds that each [of] the initial four applications
speak for themselves and the four corners of the initial four applications
provide probable cause for the interception.
13
As the Defendants apparently do, we construe the Davidson County trial court’s finding that
the Initial Applications were sufficient on which to “find probable cause that interception of
the target phones would provide evidence of the conspiracy,” the probable cause requirement
set forth in (c)(2), as including a finding that the target phones were being used to commit
the conspiracy, one of the probable cause requirements set forth in (c)(4).
The Defendants contend that the Davidson County trial court misconstrued Alfano and
that the Initial Applications do not establish probable cause to believe that the targeted
telephones were being used to commit the Target Crimes. We deem it unnecessary to
address this issue, however, because we agree with the Sumner County trial court that the
Initial Applications established probable cause to believe that each of the targeted telephones
was “leased to, listed in the name of, or commonly used by the person” targeted, i.e. Bruce
Dady, Defendant J. King, or Vernon Lockhart, respectively.
The Defendants also attack the Sumner County trial court’s conclusion, asserting that
it “did not cite any federal case law on the nexus issue in determining this matter of first
impression” and that the trial court’s “interpretation of the probable cause telephone nexus
requirement (or lack thereof) is patently incorrect and must be reversed.” It appears from our
review, however, that the Sumner County trial court did not cite any federal case law
because, as pointed out by the Defendants, the United States Department of Justice has set
forth in its United States Attorneys’ Manual the following policy regarding affidavits in
support of applications in federal court for electronic surveillance:
[The affidavit] must establish probable cause that the named subjects are using
the targeted facility15 or location to commit the stated offenses. Any
background information needed to understand fully the instant investigation
should be set forth briefly at the beginning of this section. The focus,
however, should be on recent and current criminal activity by the subjects,
with an emphasis on their use of the target facility or location. This is
generally accomplished through information from a confidential informant,
cooperating witness, or undercover agent, combined with pen register or
telephone toll information for the target phone or physical surveillance of the
target premises. Criminal Division policy requires that the affidavit
demonstrate criminal use of the target facility or premises within six months
from the date of Department approval. For wire communications, where
probable cause is demonstrated by consensually recorded calls or calls
15
The “facility” in this context is the telephone sought to be monitored. See James G. Carr &
Patricia L. Bellia, Law of Electronic Surveillance § 4:25 (Feb. 2013) (citing United States v. Tavarez, 40
F.3d 1136, 1139 (10th Cir. 1994) (construing Oklahoma statute)).
14
intercepted over another wiretap, the affidavit should include some direct
quotes of the calls, with appropriate characterization. Criminal Division policy
dictates that . . . pen register or telephone toll information for the target
telephone, or physical surveillance of the targeted premises, standing alone, is
generally insufficient to establish probable cause. Generally, probable cause
to establish criminal use of the facilities or premises requires independent
evidence of use of the facilities or premises in addition to pen register or
surveillance information, often in the form of informant or undercover
information. It is preferable that all informants used in the affidavit to
establish probable cause be qualified according to the “Aguilar-Spinelli”
standards (Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States,
393 U.S. 410 (1969)), rather than those set forth in the Supreme Court decision
of Illinois v. Gates, 463 U.S. 1237 (1983). Under some circumstances,
criminal use of the target facility within six months of Department approval
may be established in the absence of consensually recorded communications
or prior interceptions when use of the phone may be tied to a significant event,
such as a narcotics transaction or a seizure, through phone records. In addition
to criminal use within six months, the affidavit must also show recent use of
the facility or premises within 21 days from the date on which the Department
authorizes the filing of the application. For wire and electronic
communications, the affidavit must contain records showing contact between
the facility and at least one other criminally relevant facility that demonstrates
necessity for the wiretap within 21 days of Department approval. The affidavit
must clearly and specifically demonstrate how the other facility is criminally
relevant and state the date range for the contacts and the date of the most
recent contact. The date range for all pen register/phone records data must be
updated to within 10 days of submission to OEO. For extension requests, the
affidavit should include some direct quotes of wire communications (and/or
electronic communications, if applicable), with appropriate characterization,
including one from within seven days of Department approval, or an
explanation of the failure to obtain such results and the continued need to
conduct interceptions. . . . (updated October 2012).
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00029.htm (last
viewed on July 19, 2013) (footnote added). See also David Kris & Douglas Wilson, National
Security Investigations and Prosecutions, § 11.6 n.17 (Database updated June 2013) (noting
that, “[a]s the government explained in its supplemental brief to the Foreign Intelligence
Surveillance Court of Review in 2002, ‘[f]or prudential reasons, the Department in practice
is often cautious about using the “listed, leased, or commonly used” provision of [the federal
15
wiretap statute] absent evidence that the facility is in fact being used in connection with the
predicate offense.’”) (citation omitted).
Given the Department of Justice’s policy, it is no surprise that the Sumner County trial
court did not cite any federal case law in support of its conclusion that probable cause had
been established on the alternative ground that the targeted telephone had been commonly
used by the targeted person (Dady, King or Lockhart). It appears that, although the federal
wiretapping statute contains the same alternative ground as appears in Tennessee’s statute,
see 18 U.S.C. § 2518(3)(d), the Department of Justice has made a policy decision to not rely
on that ground. Therefore, apparently, the federal courts have not had occasion to consider
this alternative ground. But see Dadanovic, supra. Our research has revealed no federal
decisions holding that the alternative ground of “leased to, listed in the name of, or
commonly used by the person” is not adequate to support issuance of a surveillance order.
Nor have the Defendants cited us to any such cases.
The Department of Justice’s policy is not binding on this Court’s interpretation of
Tennessee legislation. The Tennessee Supreme Court instructs us that we “have a duty to
‘construe a statute so that no part will be inoperative.’” In re Sidney J., 313 S.W.3d 772,
775-76 (Tenn. 2010) (quoting Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn. 1975)). Were
we to require, as the Defendants insist, that every application for a wiretap include
information establishing probable cause to believe that the telephone was being used, or was
about to be used, in connection with the commission of the relevant offense, we would be
rendering the alternative ground superfluous. This we decline to do. Accordingly, we turn
to each of the Initial Applications to consider whether there was a substantial basis for the
Issuing Court to find probable cause that the targeted phone number was “leased to, listed
in the name of, or commonly used by the person” targeted.
The First Dady Application
With regard to Dady, Officer Taylor averred in the First Dady Application that he
believed phone number (615) 517-7591 was “subscribed to by Marcia Dady, 342 Forrest
Valley Drive, Nashville, Tennessee,” but was “used primarily by Bruce Dady,” who was
indicated as having the same address as Marcia Dady. While we disagree with the Sumner
County trial court that the First Dady Application provided that Marcia Dady was Dady’s
wife, her status as his spouse was not necessary for the Issuing Court to conclude that there
was a substantial basis for finding probable cause to believe that Dady “commonly used” the
telephone. While the specific relationship between Marcia Dady and Bruce Dady is unclear,
the First Dady Application indicated clearly that both individuals resided at the same address.
16
The First Dady Application also averred that Dady received a sentence in federal court
in 2001 after pleading guilty “to his participation in a drug organization distributing multiple
kilograms of cocaine.” Additionally, the First Dady Application reflected that a confidential
source identified as “CS-6” was personally acquainted with Dady and Matthew Hutchison,
a person identified in the First Dady Application as a participant in the Target Crimes. CS-6
learned through this acquaintance “that Dady gets large quantities of marijuana from either,
Jeffery King, Kasey King, or Vernon Lockhart, depending on who has marijuana to sell.”
Moreover, “around Memorial Day weekend (2008),” CS-6 “overheard Dady joking with
Hutchison that Hutchison sold 36 pounds of marijuana that day.” CS-6 also reported having
purchased marijuana from Hutchison before and that, while Dady was present, CS-6 paid
Hutchison and Hutchison paid Dady.
In addition to this information about Dady’s drug-dealing activities, the pen register
statistics gathered on the First Dady Number during the period July 17, 2008, through
September 25, 2008, and set forth in the First Dady Application, indicated that there were
221 calls to/from number 712-0267 subscribed to and used by Michael Hutchison, another
person identified in the First Dady Application as a person involved in the Target Crimes;
94 calls to/from number 485-8534 subscribed to and used by Matthew Hutchison; 11 calls
to/from number 859-6426 subscribed to by Ashley Garris and used by Defendant K. King
“(home no.)”; 182 calls to/from number 714-5541 subscribed to by Cassie Roark and used
by Defendant J. King; and 88 calls to/from number 478-8355 subscribed to by Ashley Garris
and used by Defendant K. King, “cell.” This pen register information established that the
phone subscribed to by Marcia Dady was used to make almost 600 phone calls over the
course of approximately ten weeks to other persons suspected of participating in the Target
Crimes, including 94 calls to the phone number subscribed to and used by Matthew
Hutchison. As set forth above, the First Dady Application included averments that Dady was
involved in drug-trafficking with Matthew Hutchison. Marcia Dady was not listed in any of
the Initial Applications as a person suspected of participating in the Target Crimes.
On the basis of these averments contained in the First Dady Application, we hold that
the First Dady Application set forth a substantial basis from which the Issuing Court could
find probable cause to believe that Dady was the person making these telephone calls, not
Marcia Dady. Accordingly, we hold that the First Dady Application established probable
17
cause to believe that Dady “commonly used” the intercepted telephone.16 Thus, the
Defendants are entitled to no relief on this issue.
The King Application
The King Application targeted telephone number (615) 714-5541, averred to be
subscribed to by Cassie T. Roark but used primarily by Defendant J. King. The King
Application also averred that a confidential source “learned that Jeffery King had purchased
a beauty shop in downtown Nashville for his wife” and that,
[a]ccording to the records of the County Clerk for Metropolitan
Nashville Davidson County, a March 8, 2005 business license for Eye Candy
at 1201 Villa Place Suite 103, lists the owners of Eye Candy, a beauty shop
business, as Cassie Roark and Judy Randall. On February 19, 2004, Cassie T.
Roark at 1636 Stokley Lane, Old Hickory, Tennessee (Jeffery King’s home
address) registered a 2002 Cadillac Escalade in her name. According to the
records of the Tennessee Department of Safety, Cassie T. King with an address
of 1636 Stokley Lane, Old Hickory, Tennessee holds Tennessee driver license
number 081875821. From this, I believe Cassie Roark is Jeffery King’s wife,
Cassie T. King. This corroborates CS-4’s statement about Jeffery King
purchasing his wife a beauty shop in Nashville.
In addition to this information, the King Application averred that an investigator with
the 18th Judicial District Drug Task Force had purchased approximately 2,860 pounds of
marijuana from a confidential source identified as “CS-3.” CS-3 reported that his supplier
was David Hooks and that Hooks obtained the marijuana from Brandon Barnes, a person
identified in the King Application as involved in the Target Crimes. Another confidential
informant identified as “CS-5” “contacted law enforcement because CS-5 believed that
Jeffery King was going to murder CS-5.” CS-5 reported that an acquaintance had stolen
marijuana from Donald Ellis’ home. Donald Ellis was also identified as a person involved
in the Target Crimes. According to CS-5, Ellis stored marijuana “for Jeffery King and his
organization.” CS-5 knew both Ellis and Defendant J. King. Ellis told CS-5 that he was paid
seven dollars per pound for storing marijuana for Defendant J. King. Defendant J. King
blamed CS-5 for the theft. CS-5 told investigators that Ellis’ phone number was 330-4961.
16
We recognize that the Issuing Court did not make a specific finding that Dady “commonly used”
the telephone associated with the First Dady Number. We, nevertheless, may uphold the validity of the Order
granting the wiretap on this alternative basis for a finding of probable cause. See, e.g., State v. Stevens, 989
S.W.2d 290, 295 (Tenn. 1999) (although trial court granted search warrant based on erroneous probable
cause analysis, alternative grounds of probable cause were sufficient to support warrant).
18
Additional investigation revealed that Ellis was the subscriber for phone number 330-4961.
Another confidential informant identified as CS-6 told an investigator
that on June 18, 2008, CS-6 talked to Matthew Hutchison. CS-6 said
Hutchison said a shipment was expected to arrive and he (Hutchison) and
Bruce Dady were waiting to hear from “the brothers.” CS-6 understood this
to be a reference to Jeffery King and Kasey King. CS-6 gave Investigator
Hardin the telephone number 485-8534 as a contact number for Matthew
Hutchison.
The King Application also indicated that Defendant J. King and Lockhart were
stopped by Immigration and Customs Enforcement agents in North Carolina as they re-
entered the United States from the Bahamas. “Lockhart and King told the agents they had
been to the Bahamas to purchase property.”
Finally, pen register statistics collected during the period July 17, 2008, through
September 25, 2008, and included in the King Application, reflected that the targeted
telephone was used in 417 calls to/from number 289-5116 subscribed to by Julie Draper and
used by Vernon Lockhart; 300 calls to/from number 478-8355 subscribed to by Ashley Garris
and used by Defendant K. King; 178 calls to/from number 517-7591 subscribed to by Marcia
Dady and used by Bruce Dady; 114 calls to/from number 887-3801 subscribed to and used
by Brandon Barnes; 14 calls to/from number 294-1455 subscribed to and used by Cheyenne
Davis, another person identified as involved in the Target Crimes; 14 calls to/from number
330-4961 subscribed to and used by Donald Ellis; 53 calls to/from number 364-6708
subscribed to and used by Jason Walker, another person identified as involved in the Target
Crimes; 36 calls to/from number 859-6426 subscribed to by Ashley Garris and used by
Defendant K. King “(home no.)”; 14 calls to/from “2 Bahamas numbers”; and 1 call to/from
number 011-52-165-62763720 “Mexico telephone.” Thus, the targeted phone was used to
make many calls to/from persons identified as participants with Defendant J. King in drug
dealing.
We agree with the Sumner County trial court that the King Application provided
sufficient information from which to draw the conclusion that the targeted phone number was
subscribed to by Defendant J. King’s wife, Cassie Roark or Cassie King. We also hold that
the King Application set forth a substantial basis from which the Issuing Court could find
probable cause to believe that Defendant J. King was the person making these telephone
calls, not his wife. Accordingly, we hold that the King Application established probable
cause to believe that Defendant J. King “commonly used” the targeted telephone and that the
Defendants are entitled to no relief on this basis.
19
The Lockhart Application
The Lockhart Application averred that the targeted telephone was subscribed to by
Julie Draper, whose address was listed as 5225 Rustic Way, Old Hickory, Tennessee. The
Lockhart Application further averred that records at the Tennessee Secretary of State’s office
indicated that Lockhart signed the incorporation documents for VEL Properties, located at
5225 Rustic Way, Old Hickory, Tennessee (the subscriber Julie Draper’s address) and that
Lockhart also signed the incorporation documents for VEL Trucking and Excavation, also
located at 5225 Rustic Way, Old Hickory, Tennessee. The Lockhart Application further
averred that Lockhart provided the targeted telephone number as his work number to Tucson
Electric and Power. Finally, pen register statistics collected on the targeted telephone during
the period July 17, 2008, through September 25, 2008, indicated that the targeted telephone
was used in 480 calls to/from number 294-1455 subscribed to and used by Cheyenne Davis;
401 calls to/from number 714-5541 subscribed to by Cassie Roark and used by Defendant
J. King; 38 calls to/from number 517-7591 subscribed to by Marcia Dady and used by Bruce
Dady; 3 calls to/from number 887-3801 subscribed to and used by Brandon Barnes; and 61
calls to/from “16 Bahamas numbers.”
This information, particularly Lockhart’s reference to the targeted telephone as his
work number, provided the Issuing Court with a substantial basis from which to find
probable cause to believe that Lockhart “commonly used” the targeted telephone.
Accordingly, the Defendants are entitled to no relief on this issue.
The Second Dady Application
In the Second Dady Application, which sought a wiretap of phone number (615) 584-
6075, Officer Taylor averred the following:
21. The court ordered wiretap of [the First Dady Number] was
activated on October 9, 2008. At 3:25 p.m. Dady called Verizon Wireless and
had the service for that telephone terminated immediately. He told the Verizon
Wireless customer service representative that he had other telephones and no
longer needed this telephone.
22. The court ordered interception of Jeffery King’s telephone was also
activated on October 9, 2008. At 11:24 a.m. an outgoing call was intercepted
from the Target Telephone, 584-6075. The call was between Bruce Dady
using the Target Telephone and Jeffery King. The conversation was small talk
unrelated to drugs.
20
23. At 1:57 p.m. on October 10, 2008, an incoming call was intercepted
on Jeffery King’s telephone, from 584-6075. The call was from Bruce Dady.
Dady was asking to borrow a $1,000 from King to put down on a piece of real
estate.
24. At 7:48 p.m. on October 10, 2008, an incoming call was intercepted
on Jeffery King’s telephone, from 584-6075. The call was between Dady and
King. They discussed King’s pending divorce.
25. Based on the above facts and circumstances, I believe that Dady
has begun using the 584-6075 telephone as a replacement for the terminated
517-7591 telephone. Investigators anticipate that Dady’s use of 584-6075 will
have the same call pattern as that presented in the Application for the
interception of 517-7591, which is incorporated by reference in this
Application.
Thus, the Second Dady Application included specific instances of Dady using the targeted
phone. We hold that the Second Dady Application provided the Issuing Court with a
substantial basis from which to find probable cause to believe that Dady “commonly used”
the targeted telephone. The Defendants are entitled to no relief on this basis.17
In sum, the Defendants are entitled to no relief on the basis of their first certified
question.
Requisite Necessity
The Defendants next contend that the Initial Applications “failed to demonstrate a
constitutionally sufficient requisite necessity for the use of electronic surveillance pursuant
to T.C.A. § 40-6-304(a)(3).” As set forth above, the Wiretap Statute requires that an
application for a wiretap include “[a] full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous.” Tenn. Code Ann. § 40-6-304(a)(3). The
Wiretap Statute also requires the issuing judge to determine 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.” Id. § 40-6-304(c)(3).
17
As a result of this conclusion, we need not address whether the Initial Applications established
probable cause to believe that the targeted phones were being used, or were about to be used, in connection
with the commission of the targeted offenses.
21
As this Court previously has recognized, this provision is “‘simply designed to assure
that wiretapping is not resorted to in situations where traditional investigative techniques
would suffice to expose the crime.’” Moore, 309 S.W.3d at 525 (quoting United States v.
Kahn, 415 U.S. 143, 153 n.12 (1974)). Accordingly, this Court has observed that “[l]aw
enforcement is not required to ‘exhaust every conceivable non-wiretap investigative
technique,’” and that “‘[a]ll that is required is that the investigators give serious consideration
to the non-wiretap techniques prior to applying for wiretap authority and that the court be
informed of the reasons for the investigators’ belief that such non-wiretap techniques have
been or will likely be inadequate.’” Id. (quoting United States v. Lambert, 771 F.2d 83, 91
(6th Cir. 1985)); see also Corrado, 227 F.3d at 539 (“This court has clarified that the purpose
of the necessity requirement ‘is not 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.’”)
(quoting United States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977)). However, while a
wiretap need not be used as a last resort,
a purely conclusory affidavit unrelated to the instant case and not showing any
factual relations to the circumstances at hand would be . . . an inadequate
compliance with the statute. . . . [Rather,] the mere fact that the affidavit . . .
rested in part on statements that would be equally applicable to almost any
[similar] case does not render the affidavit insufficient. What is required in
addition, however, is information about particular facts of the case at hand
which would indicate that wiretaps are not being routinely employed as the
initial step in criminal investigation.
Moore, 309 S.W.3d at 526 (quoting Landmesser, 553 F.2d at 20) (internal quotation marks
and citation omitted).
In the First Dady Application, the King Application, and the Lockhart Application,
Officer Taylor set forth the following:
[]. There are multiple Target Subjects and multiple Target Telephones
involved in this investigation. The focus of the investigation is not one
particular Target Subject, but the prosecution and dismantling of the entire
operation. Therefore, I am including the same information about attempts to
use alternative investigative techniques and/or reasons why alternative
investigative techniques will not work in these applications simultaneously
presented to the Court. The successful investigation of one of the Target
Subjects would likely not lead to the prosecution of the other
conspirators/Target Subjects. Additionally, while some of the investigative
22
techniques may result in a certain amount of success on one Target, the
successes may be detrimental to the focus of the operation by alerting the other
conspirators/Target Subjects to the existence of this major investigation.
Officer Taylor then proceeded to explain why various forms of traditional investigative
techniques would not be successful in “dismantling the entire operation.” 18
As to physical surveillance, Officer Taylor explained that this investigative technique
would “only provide evidence of an apparent delivery or pickup of a shipment of drugs” and
that “[e]ven under the best of circumstances, surveillance will not disclose the full extent of
a drug trafficking organization.” He also asserted that the “law enforcement agencies
involved in this investigation have limited manpower resources” and that, even if physical
surveillance “were a viable option to successfully investigate a drug trafficking operation,
deciding who to watch, when to watch them, where to watch them, and how long to watch
them, would be extremely difficult if not impossible.” He also explained, explicitly, why the
residences where nine of the targeted subjects were suspected of living would be very
difficult locations at which to conduct surveillance because of the risk of discovery. Officer
Taylor explained that surveillance cameras were expensive and, absent inside information,
impractical and of limited benefit.
As to using confidential sources, Officer Taylor averred that his “experience [had]
taught [him] that even sources close to a targeted drug trafficker do not know the full extent
and details of the operation.” A second problem using confidential sources, Officer Taylor
explained, “is being able to communicate with the confidential source while the activities are
taking place.” Thus, the only information gleaned would be after-the-fact and of limited use
in dismantling the entire operation. Finally, Officer Taylor explained that targets will not
deal with a confidential source known by the targets to have been arrested. Officer Taylor
referred to two specific incidents involving CS-3 and Paul Hamer and their interactions with
Defendant J. King and target John Butler:
[]. The statements of CS-3 about running in to Jeffery King at Toys R
Us and Jeffery King accused CS-3 of “ratting” on Hook, confirms my
statements that a confidential source who has been arrested is not trusted by
the other conspirators. In most cases they will not deal with or even talk to an
associate who has been arrested.
18
The Second Dady Application incorporated by reference the requisite necessity section contained
in the First Dady Application.
23
[]. Further proof of this, is Paul Hamer’s statement to investigators that
approximately six months after the seizure of 800 pounds of marijuana from
Hamer, he went to John Butler’s home. According to Hamer, Butler refused
to acknowledge Hamer was present.
Officer Taylor also explained why using confidential sources to purchase large
amounts of marijuana from Dady was not feasible and would put the larger investigation at
risk:
[]. As stated in the above paragraphs, CS-1 is cooperating with
investigators in an effort to obtain favorable treatment on charges arising from
the seizure of 724 pounds of marijuana on October 26, 2006. The seizure is
unrelated to the organization that is the target of this wiretap investigation.
CS-1 has recently spoken with Bruce Dady. Dady offered to sell CS-1 large
quantities of marijuana. CS-1 initially declined the offer. CS-1 told
investigators about the offer.
[]. CS-1 told investigators that he could purchase as much as 200 or
300 pounds of marijuana but could not purchase less than 20 pounds. After
discussing the situation with other investigators, it was agreed that it would be
detrimental to the investigation to arrest Dady with 200 or 300 pounds of
marijuana. It is feared that the arrest of Dady would cause the other Target
Subjects to change their telephone numbers and/or change the way they buy,
transport, store and sell the marijuana for fear Dady would cooperate with law
enforcement.
[]. The cost for 200 pounds of marijuana ($110,000 to $130,000)
makes buying the marijuana, without making an arrest, financially impossible.
While arresting Dady selling 200 pounds of marijuana would be significant
evidence with which to prosecute Dady, there would be little or no evidence
to connect any of the other Target Subjects to the seizure.
[]. CS-1 stated that he can not buy from any of the other primary Target
Subjects, particularly Vernon Lockhart, Jeffery King and Kasey King.
[]. At this time, investigators intend to use CS-1 as an undercover
operative after the activation of the requested wiretaps. Being able to intercept
the communications of Bruce Dady while CS-1 negotiates the purchase of a
quantity of marijuana, may provide investigators with valuable information
24
about who Dady gets the marijuana from, where the marijuana is being stored,
who else is involved in facilitating the sale, and where the proceeds are taken.
[]. As stated in the probable cause section above, CS-6 made recorded
calls to Matthew Hutchison in an attempt to purchase marijuana. At that time
Hutchison said they were waiting to hear from “the brothers.” Investigators
believe that using CS-6 to make a purchase of marijuana from Hutchison will
not accomplish the goals of the investigation of this marijuana distribution
operation.
[]. Because of financial constraints, CS-6 will not be able to purchase
more than 10 or 20 pounds of marijuana from Hutchison. As with the
possibility of CS-1 purchasing marijuana from Dady, CS-6’s purchase of 10
or 20 pounds of marijuana from Hutchison would not accomplish the goals of
this investigation. Buying marijuana from Hutchison would not provide
evidence that could be used to prosecute the other members of this
organization, especially the heads of the organization, Jeffery King, Kasey
King, Vernon Lockhart, and others.
Officer Taylor explained that infiltration by undercover officers encountered the same
problems with the use of confidential sources and, further, was “too dangerous to employ.”
As to “general questioning,” Officer Taylor set forth the following:
[]. General questioning of co-conspirators and associates, without
pending criminal charges, of the Target Subjects was considered but not
attempted because those individuals who are knowledgeable of the subject’s
criminal activities are generally participants in the criminal acts and are
unwilling to provide information to investigative officers. Attempts at such
general questioning would likely be communicated to the Target Subjects
thereby compromising the investigation and possibly resulting in destruction
and concealment of documents, contraband, and other evidence.
[]. As an example, in the Stephen Ezell wiretap investigation conducted
in November and December 2007, after his arrest, Ezell gave a proffer
statement to investigators about other members of his drug conspiracy. After
the proffer, Ezell went back to his jail cell and told other prisoners about the
investigation and identified the other targets of the investigation. Reviewed
jail calls revealed that word was spreading about who the remaining targets of
25
the investigation were, as well as some of the information investigators already
have about the other targets of the investigation.
Officer Taylor also explained that search warrants would not provide sufficient
evidence, in part because investigators did not know where drugs could be seized. Execution
of a search warrant would also serve to alert the Target Subjects to the investigation.
Each of the trial courts concluded that the Initial Applications satisfied the requisite
necessity prong of the Wiretap Statute. The Rutherford County trial court noted specifically
that “[t]he fact this investigation had six (6) Confidential Sources giving information, which
was verified in the investigation, shows the wiretaps were not the initial step in the criminal
investigation.” Significantly, the Davidson County trial court’s order denying the
Defendants’ motions to suppress includes the following:
[T]he portion of the Application titled “Consideration of Alternative
Investigative Procedures” mirrors the same titled portions in the Moore
applications, which were considered by this Court during the pre-trial motions,
and ultimately found by the Tennessee Court of Criminal Appeals to contain
sufficient “statement[s] as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous” in compliance with T.C.A. § 40-6-
304(a)(3).
Accordingly, this court finds that the State has met its burden in
showing the necessity of the wire surveillance in that it demonstrated that other
methods of investigation failed or appear unlikely to succeed if tried in the
initial four Applications that provided the bases for the [succeeding]
Applications, all of which contained additional information about necessity as
the investigation progressed.
Although we do not have before us the applications considered by this Court in Moore, the
Defendants do not challenge the Davidson County trial court’s comparison.19 Accordingly,
19
The Davidson County trial court also noted in its order denying the Defendants’ motions to
suppress that “Officer Taylor testified that the wording used in the wiretap applications at issue in this case
are very similar to the wiretap applications that were reviewed on appeal in State v. Moore.”
26
we accept as accurate the Davidson County trial court’s finding that the two sets of
applications “mirror” each other in addressing the requisite necessity prong.20
In Moore, this Court considered three applications for wiretaps submitted in
conjunction with an investigation into drug trafficking. The defendant entered guilty pleas
to several drug offenses and reserved certified questions of law, including whether the
applications “failed to demonstrate the necessity of electronic surveillance as required by
Tennessee Code Annotated section 40-6-304(a)(3).” Id. at 516. In analyzing this issue, this
Court first noted that the applications contained “an extensive necessity section discussing
the unfeasibility of further physical surveillance, use of [confidential informants], infiltration
by undercover officers, general questioning, search warrants, and review and analysis of
telephone records.” Id. at 526 (footnote omitted). We then noted the applications’ references
to particular difficulties that law enforcement had encountered during the investigation,
including a traffic stop of one of the targets and his resulting conclusion that he was being
followed; the confidential informants’ limited knowledge about all of the involved customers
and suppliers; a target’s wariness around one of the confidential informants because the
target was aware of the informant’s pending criminal charges; and the failure of the
investigation to discover information about specific drug activity at suspect locations.
Accordingly, we concluded that the specific application at issue, which targeted the
defendant’s phone, “set[] out, in detail, both general information about the difficulties
involved in investigating a large drug trafficking organization and ‘particular facts of the case
at hand which would indicate that wiretaps are not being routinely employed as the initial
step in criminal investigation.’” Id. at 527 (quoting Landmesser, 553 F.2d at 20) (internal
quotation marks omitted). Rejecting the defendant’s contention that the application failed
to satisfy the requisite necessity prong, we held as follows:
Once his involvement became known [through previous wiretaps of
others’ phones], the police did not attempt to investigate the Defendant using
20
We emphasize that we do not understand the Davidson County trial court’s use of the term
“mirror” to mean that the applications at issue in this case are identical to the Moore applications. As set
forth above, the instant applications contained detailed explanations about why wiretaps were necessary,
including references to specific facts unique to the instant investigation. Therefore, the Defendants’ reliance
on United States v. Blackmon, 273 F.3d 1204 (9th Cir. 2001), and United States v. Carneiro, 861 F.2d 1171(9th Cir. 1988), is misplaced. In those two Ninth Circuit cases, the applications’ requisite necessity sections
were “cut and pasted” from previous applications. The record before us demonstrates that Officer Taylor
did not simply duplicate the Moore applications in preparing the requisite necessity sections of the instant
applications. Rather, it appears that he followed the same detailed format. Indeed, the Davidson County
trial court specifically noted that “Officer Taylor testified that the wording used in the wiretap applications
at issue in this case were very similar to the wiretap applications that were reviewed on appeal in State v.
Moore.”
27
any alternative techniques. Wiretaps were not employed as the initial step in
the police’s investigation of the Defendant’s drug-trafficking organization,
however, nor do we have any evidence that the police employed them
“routinely,” as forbidden by Giordano.
The Defendant notes, correctly, that the police “took . . . no substantive
investigative action other than wiretapping . . . .” He also contends that “after
the first wiretap . . . [the police] made no good faith effort to augment [ ]
requisite necessity.” The Wiretap Act, however, does not require the police to
do so, provided they explain “why [other investigative techniques] reasonably
appear to be unlikely to succeed of tried or to be too dangerous.” See Tenn.
Code Ann. § 40-6-304(a)(3). In our view, again, the information contained in
previous wiretap applications and properly incorporated by reference into the
507-5291 application [to tap the Defendant’s phone] retains its relevance and
applicability due to the Defendant’s suspected membership in David Moore
and Brown’s drug-trafficking organization.
Finally, the Defendant contends that the wiretap of his phone lacked
necessity because previous wiretaps and resulting surveillance revealed a
transfer of one kilogram of cocaine from the Defendant to David Moore, who
in turn delivered it to Brown. A description of this incident appears in the
probable cause section of the 507-5291 application. The Defendant argues that
the police, in declining to arrest David Moore, Brown, and the Defendant,
deliberately avoided alternate investigative techniques, such as immediate
arrest, for the purpose of “stockpiling tape for use in prosecution.” As stated
by the [wiretap] orders in this case, however, the investigation had as its
objective not merely the discovery of some criminal activity by Brown, David
Moore, and the Defendant, but, among other things, “[t]he nature, extent, and
method of operation” of the suspects’ drug-trafficking business and the
“identities and roles of . . . co-conspirators.” Officer Taylor’s applications
substantiated his belief that such an immediate arrest would have jeopardized
the discovery of further information about the Defendant’s drug-trafficking
organization. The State has thus demonstrated the requisite necessity for the
achievement of the applications’s stated goals, as borne out by the later arrest
of the Defendant along with his previously unknown suppliers Mejia and
Lemus. This issue is without merit.
Id. at 528.
28
We hold that the Initial Applications satisfied the requisite necessity prong as that
prong was elucidated in Moore. As Officer Taylor did in Moore, he explained in the Initial
Applications the shortcomings of traditional investigative techniques if applied to the
investigation of this major drug-trafficking organization, including specific facts and specific
examples. The Initial Applications also indicated that investigators did not seek the wiretaps
at the commencement of the investigation into the drug-trafficking conspiracy/organization,
but that they first tried alternative investigative methods and found they would not meet the
target goals of the investigation. See United States v. Kelley, 596 F. Supp. 2d 1132, 1147
(E.D. Tenn. 2009). Although the Defendants complain on appeal that the Initial
Applications do not satisfy the “requisite necessity” requirement because they contain merely
conclusory statements by Officer Taylor based solely on his past experience rather than
actual, failed efforts to utilize other investigative techniques in the instant cases, our close
review of the Initial Applications, including but not limited to the averments set forth above,
convinces us otherwise.
The Defendants also assert that, contrary to Officer Taylor’s statements, law
enforcement had a ready, willing and able insider in Dady if they had but arranged a buy
from him, arrested him, and used him as a cooperating insider. The Defendants point to
Dady’s prior cooperation in a federal prosecution as indicative of his potential use to the
investigation in the instant case. However, the excerpts set forth above explain that this
technique was considered, but rejected, and the reasons for opting out of this approach were
explained. The Defendants also complain about “the State’s failure to fully exploit the
potential use of CS-1 and CS-6 . . . to make buys.” As the federal courts have made clear,
however,
courts will not invalidate a wiretap order simply because defense lawyers are
able to suggest post factum some investigative technique that might have been
used and was not. It is enough if the affidavit explains the prospective or
retrospective failure of several investigative techniques that reasonably suggest
themselves.
United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978); see also United States v. Carrillo,
123 F. Supp. 2d 1223, 1245 (D. Colo. 2000) (“After-the-fact suggestions by defense attorneys
as to how an investigation might have been handled are entitled to little weight in the
analysis”). The Defendants are entitled to no relief on this basis.
29
Officer Taylor’s Failure to Include Information
About Dady’s Prior Cooperation
In a related issue, the Defendants contend in their final certified question that the
Initial Applications “contain omissions and material misstatements that undercut any
showing of requisite necessity for the wiretaps.” The thrust of the Defendants’ contention
is that Officer Taylor failed to inform the Issuing Court about Dady’s previous cooperation
in a federal drug-trafficking prosecution, and that he thereby misrepresented the potential
efficacy of using Dady as an undercover asset so as to strengthen Officer Taylor’s claim that
such a traditional investigative technique would not be successful and that the requested
wiretaps were necessary. Specifically, the Defendants point to the following averments made
by Officer Taylor in the First Dady Application, the King Application, and the Lockhart
Application:
[]. CS-4 is correct in his statement about Bruce Dady being arrested in
a cocaine conspiracy with “TI” or “TIP.” I was involved in that investigation
and TIP was Totally Independent Productions that belonged to Tim Booker
and Terrell McMurray. Bruce Dady was getting kilograms of cocaine from
Booker and McMurray. Dady eventually pled guilty and was sentenced on
June 16, 2001 to 25 months in the Federal Department of Corrections.
and
After discussing the situation with other investigators, it was agreed that it
would be detrimental to the investigation to arrest Dady with 200 or 300
pounds of marijuana. It is feared that the arrest of Dady would cause the other
Target Subjects to change their telephone numbers and/or change the way they
buy, transport, store and sell the marijuana for fear Dady would cooperate with
law enforcement.
The Defendants argue that Officer Taylor “failed to report complete and accurate
information about Dady’s 2001 drug conviction,” specifically, the extent to which Dady
cooperated with law enforcement. The Defendants posit that, had Officer Taylor been fully
forthcoming with accurate information about Dady’s significant cooperation in his federal
prosecution, the Initial Applications would not have satisfied the “requisite necessity” prong.
Accordingly, the Defendants claim that Officer Dady misrepresented the facts to the Issuing
Court.
30
The Defendants make this argument because our supreme court has made clear that
“a fraudulent misrepresentation of a material fact will invalidate a search warrant,” State v.
Little, 560 S.W.2d 403, 406 (Tenn. 1978) (citations omitted), and that
there are two circumstances that authorize the impeachment of an affidavit
sufficient on its face, (1) a false statement made with intent to deceive the
Court, whether material or immaterial to the issue of probable cause, and (2)
a false statement, essential to the establishment of probable cause, recklessly
made. Recklessness may be established by showing that a statement was false
when made and that [the] affiant did not have reasonable grounds for believing
it, at that time.
Id. at 407; see also Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding that Fourth
Amendment requires exclusion of evidence obtained pursuant to warrant issued on probable
cause based on false statements made knowingly and intentionally or with reckless disregard
for the truth).
Each of the trial courts held an evidentiary hearing at which Officer Taylor testified,
in large part about the extent of his knowledge about Dady and the federal prosecution of
Dady, in which Officer Taylor had participated. We will summarize here, chronologically,
the relevant testimony adduced in each court and the trial courts’ rulings.
Sumner County
Officer Taylor acknowledged that he was involved in the federal investigation of
Bruce Dady that resulted in Dady’s 2001 conviction in federal court. The investigation was
“coordinated nationwide with California and Ohio and several other states.” Officer Taylor
was involved in “the Middle Tennessee portion of this investigation.” As a result of
wiretaps, Officer Taylor “intercepted” Dady. Thereafter, “[t]he decision was made to go to
Bruce Dady prior to any indictment and try to get him to cooperate and see if he could do
anything over and above what [they] had already accomplished with the wiretaps.” Officer
Taylor and another agent interviewed Dady and advised him that they had “proffer statements
implicating him and six kilos of cocaine. And that if he wanted to help himself now would
be the time to do it before there was an indictment and he was in jail and wasn’t able to do
anything proactive.” Officer Taylor testified that Dady told them that he “hadn’t done
anything in years” and that he wanted to talk to his lawyer. A short time later, Officer Taylor
was contacted by Dady’s lawyer and they arranged a meeting. At the meeting, “the only
thing [Dady] would tell [them] is what [they] already knew.” Officer Taylor concluded the
meeting after telling Dady’s lawyer that the information Dady was offering was
unacceptable.
31
Dady was subsequently indicted in federal court. Officer Taylor attended “formal
proffer sessions set up with the U. S. Attorney’s Office.” Officer Taylor described Dady’s
responses as “pretty much the same” as he had obtained at the prior meeting. Officer Taylor
testified, “It was clear that he wasn’t giving us the kind of information that we felt like that
he could give.” After the agents left the room and Dady conferred with his lawyer, the
meeting resumed, but, according to Officer Taylor, “there was never any information Mr.
Dady gave that, when I was in there, that was helpful to us, and the proffer session ended.”
Officer Taylor testified that he was not involved in Dady’s eventual sentencing in the case.
On cross-examination, Officer Taylor stated that he was first involved in a wiretap
investigation in 1999. He had since been involved in approximately 200 applications for
wiretaps or extensions thereof. Asked about the frequency with which the Task Force relied
on wiretaps for its Davidson County investigations, he answered,
I did a check. When an investigator starts an investigation and drug
task force they assign a TF number to it so they can track all the paperwork
and everything out of that investigation. From 2007, 2008, 2009, 2010, there
were like 270-something cases started and we ran four wiretaps.
He clarified that they ran the wiretaps in four cases since 2007. He also acknowledged that
he was usually the affiant for wiretap applications by the Task Force in Davidson County.
Asked about his knowledge of motions for reduction of sentence filed in federal court,
such as was filed in the federal case against Dady, Officer Taylor responded,
according to my understanding of the Middle District of the U. S. Attorney’s
office, that a [motion for reduction] is given out pretty much when somebody
comes in and tells them, hey, I’m buying dope from this guy and I’m going to
plead guilty, that they give a [motion for] reduction for that.
He denied knowing that a motion for reduction was filed “when somebody has, basically,
successfully cooperated with the government.” He also denied knowing the terms of the
“proffer letter” that the federal government offered to Dady. He also stated that he did not
attend Dady’s sentencing hearing. He did not recall how he came to learn about the federal
sentence that Dady eventually received.
Asked why they decided not to attempt a “buy and bust” from Dady in order to “flip”
him into an asset to the instant investigation against the Defendants and others, Officer
Taylor responded,
32
Well, it’s been my experience in 28 years of doing these things that
even if you arrest somebody with 300 pounds in the State system, unless they
immediately agree to go take the money back to whoever they got the 300
pounds [from] or go order up 300 pounds more from whoever they got it from,
then you’re pretty much stuck with that person and 300 pounds. If you arrest
them and they go to jail and they decide a month later they want to cooperate,
word[’]s out, nobody’s going to deal with them. Just because they sit down
and tell you, hey, I got this from Jeffrey King – state doesn’t prosecute those
cases[.]
On the basis of this proof, the Sumner County trial court ruled as follows:
This Court places great weight and gives much credibility to the
testimony of Phillip Taylor concerning his experience in wiretapping
investigations as set out in the Applications and with his personal experience
with Bruce Dady in trying to get him to cooperate in a large scale drug
investigation – an experience that revealed an attitude of non-cooperation by
Dady. The Court finds that Taylor was not aware of Dady’s later cooperation
with the FBI, and that he was not required to contact the FBI, DEA, or federal
records in making the decision about the prospect of Dady’s cooperation in
this investigation. Further, the Court finds that the statements made by Taylor
which are attacked by the Defendants were not “intentionally misleading” nor
“recklessly included” resulting in the necessity of voiding the Applications and
suppressing the evidence from the wiretaps under T.C.A. § 40-6-304(h)(1).21
Taylor’s personal experience with Dady definitely satisfied the requirement
21
Rather than analyzing whether the wiretaps were invalid under the Franks/Little framework, the
Sumner County trial court relied on the provision of Tennessee’s wiretap statute that provides as follows:
Any aggrieved person in any trial, hearing, or proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the state of Tennessee or
a political subdivision of the state 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;
(B) The order of authorization under which it was intercepted is insufficient on its
face; or
(C) The interception was not made in conformity with the order of authorization.
Tenn. Code Ann. § 40-6-304(h)(1).
33
that “[n]ormal investigative procedures . . . reasonably appear to be unlikely
to succeed.” (Emphasis supplied.)
The Sumner County trial court denied the Defendants’ motions to suppress on this basis.
Davidson County
Officer Taylor’s testimony at the Davidson County hearing was largely consistent with
his previous testimony at the Sumner County hearing. Asked about his previous involvement
with the federal investigation into Dady, and asked if he researched the results of that federal
investigation into Dady in conjunction with commencing the instant investigation, he
testified, “Yes. I found out that he had pled guilty to two kilograms – distribution of two
kilograms of cocaine and received a twenty-four-month [sic] sentence.”
On cross-examination, Officer Taylor testified that, in the federal case against Dady,
Officer Taylor was aware that Dady was originally facing a ten-year mandatory sentence.
When asked about his reaction to Dady’s eventual sentence of two years, Officer Taylor
testified, “I’ve been doing this for thirty years, and sentences don’t surprise me any more.”
He maintained that, at the time, he was not aware that Dady had provided “substantial
cooperation.”22 He added, “why [the federal prosecutor] decided to let him plead to twenty-
five months, there could have been a multitude of reasons. It really didn’t raise any red flags
for me [to assume Dady’s significant degree of cooperation] because I know what the system
is like.”
Officer Taylor also explained that the federal investigation and the instant
investigation were so different as to make not credible the Defendants’ argument that Dady’s
part in the federal investigation could have been replicated in the instant investigation:
You’re talking about two different circumstances. One, we’re going to
have to – and there again you’re talking about a legal issue. We’re going to
have to move in once we purchase [200] or 300 pounds of marijuana. We’ll
have to take him [Dady] into custody and whoever else is involved and get our
money back and go from there. Now, whether you can do that – whether we
could have done that in a covert situation where nobody would know that this
had happened other than us and Mr. Dady and whoever he was with and his
22
See 18 U.S.C. § 3553(e) (2010) (“Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect
a defendant’s substantial assistance in the investigation or prosecution of another person who has committed
an offense.”).
34
suppliers, whoever fronted the marijuana to him if it had been fronted that
expected payment and didn’t get it, whether they would have suspected
anything is probably a pretty good stretch. But in the other circumstance
where we went to him in the other [federal] case all the main targets had been
arrested. The investigation was – the covert investigation wiretap was over.
We were going out and picking up. In that case Mr. Dady, even though you
want to classify him as a major dealer and should have gotten ten years, he was
one of the minor players in that cocaine distribution operation. So we were
trying to flip him – give him an opportunity to flip ahead of time to become a
cooperating witness, not an informant as such but just a cooperating witness
against the main targets that we already had in custody. That’s a little different
circumstance than not having anything on the major targets and expecting to
take off one little guy down here in – one of the other players (indicating) and
hope he flips and is able to give you the whole organization. So you’re really
comparing two different situations of two different investigative techniques to
try and make them mesh and they just don’t.
The following colloquy ensued:
Q. But law enforcement does do controlled sale deliveries to defendants and
not arrest them and approach them later and ask for their help, correct?
A. If it can be done that way, yes. In this case it couldn’t be done that way.
Q. You’re saying it couldn’t be done this way because of the money?
A. Absolutely.
Q. And you say in other parts of the application one of the reasons it wasn’t
done is because you didn’t have the money to front that operation, correct?
A. Well, right. To purchase [200] or 300 pounds or 300 pounds or more
pounds to put him in a Class A violator, no, we don’t have that kind of money
to let walk, no.
The Davidson County trial court concluded that the Defendants had not met their
burden of demonstrating that they were entitled to relief under Franks or Little.
35
Rutherford County
During the Rutherford County hearing, Officer Taylor explained that, after the instant
motions to suppress had been filed, he reviewed the affidavit for the downward departure that
supported the imposition of the reduced sentence in Dady’s federal case. That affidavit,
together with the application for a wiretap filed by the U. S. Attorney’s office in another
investigation, revealed that Dady had provided substantial cooperation in the federal
investigation into Stephen Braswell. Officer Taylor testified that he was not aware of Dady’s
participation in the Braswell investigation at the time he prepared the Initial Applications.
The Rutherford County trial court concluded that Officer Taylor “did become aware
of Bruce Dady’s actions in a previous Federal case but not until after the [instant]
applications had already been submitted. Therefore, the Defendant’s claim of an intentional
omission of facts is without merit.” The trial court also rejected the Defendant J. King’s
claim that Officer Taylor’s statements were made recklessly and, accordingly, denied
Defendant J. King’s motion to suppress on this basis.
Analysis
In their brief to this Court, the Defendants argue as follows:
Certified court documents from Dady’s federal case tell the full story
of Dady’s historic tendencies when approached by law enforcement –
cooperate early and extensively. As public records demonstrate, Dady
cooperated immediately (pre-indictment), and his cooperation was substantial,
truthful, reliable and led to the prosecution of an additional 33 defendants in
a large drug conspiracy stemming from Texas to Tennessee (the Brassel [sic]
case).
....
Despite the public availability of all of this information and despite
Affiant Taylor’s hands-on, personal involvement in Dady’s federal case,
Taylor crafted Applications suggesting that, if law enforcement confronted
Bruce Dady, it would foil the investigation.
Affiant Taylor felt compelled to tell the issuing court about his personal
knowledge of Dady’s conviction for purposes of corroborating a confidential
source, but he omitted important information known (or reasonably known) to
him which was critical to a determination of necessity. The material omission
36
set forth herein contradicts a significant misstatement (an intentional or
reckless misstatement) about Bruce Dady in the “alternative techniques”
section of the Applications – that he would not cooperate.
(Citations omitted).
We are not persuaded. First, all three of the trial courts expressly or impliedly found
Officer Taylor’s testimony credible. We defer to these credibility determinations.
Accordingly, the Defendants have not demonstrated that they are entitled to relief under
Franks or Little. Second, the Defendants’ argument, if credited, would place a burden on law
enforcement to research all other cases in which a target was involved in an attempt to
determine the target’s past levels of cooperation with law enforcement and prosecutions. The
Defendants have cited us to no authority imposing such a burden, and we decline to adopt
any such requirement. Third, even if Officer Taylor had conducted such research, the
Defendants’ argument requires that Officer Taylor or the Issuing Court then had to draw the
conclusion that, based on Dady’s past episode of cooperation, the instant investigation should
not go forward in seeking wiretaps without first attempting to turn Dady into an undercover
asset. Again, the Defendants cite us to no authority for the proposition that an affiant cannot
establish the “requisite necessity” prong in light of a target’s past cooperation without first
trying to turn the target into an undercover asset and, thereby, potentially placing the entire
investigation at risk. Therefore, we decline to impose any such requirement.
For these reasons, the Defendants are entitled to no relief on this basis.
Fruit of the Poisonous Tree
The Defendants contend that the wiretaps resulting from the Initial Applications (“the
Initial Wiretaps”) were illegal and that, accordingly, all subsequent wiretaps, which relied
upon evidence gathered during the Initial Wiretaps, were also illegal as “fruits of the
poisonous tree.” Because we have held that the Initial Wiretaps were not illegal, the
Defendants are not entitled to relief on this basis.
The Issuing Court Acted as a “Rubber Stamp”
The Defendants claim that “[t]here were several times during the issuance and
supervision of these 23 wiretaps that the [I]ssuing Court acted as a rubber stamp for law
enforcement rather than as a neutral and detached enforcer of the wiretap statute and
upholder of the Constitution.” The Defendants then refer to the application for the second
extension of surveillance on the Second Dady Phone that Officer Taylor failed to sign but
that the Issuing Court granted on December 9, 2008; the application for the third extension
37
of surveillance on the Lockhart Phone that included an incorrect probable cause section but
that the Issuing Court granted on January 6, 2009 (the mistake was later corrected by Officer
Taylor); the Issuing Court’s failure to terminate a wiretap on another Dady phone after two
ten-day reports submitted after January 20, 2009, indicated that nothing productive was
occurring on the phone; the Issuing Court’s grant of a February 6, 2009, application for an
extension although “there were no calls since January 30, 2009”; and the Issuing Court’s
grant on October 27, 2008, of an application for a wiretap on a phone that was out of minutes
(collectively, “the Allegedly Invalid Applications”).
The Defendants do not explain, however, how this Court concluding that the Issuing
Court erred in granting the Allegedly Invalid Applications would be dispositive in these
cases. As our supreme court has made clear, a certified question of law “is dispositive when
the appellate court must either affirm the judgment of conviction or reverse and dismiss the
charges.” State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (internal quotation marks and
brackets omitted) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001)). “This Court is
not bound by the determination and agreement of the trial court, a defendant, and the State
that a certified question of law is dispositive of the case.” State v. Thompson, 131 S.W.3d
923, 925 (Tenn. Crim. App. 2003) (citing State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim.
App. 2000)). Rather, we “must make an independent determination that the certified
question is dispositive.” Dailey, 235 S.W.3d at 135 (citing State v. Preston, 759 S.W.2d 647,
651 (Tenn. 1988)). Moreover, this Court does not have jurisdiction to decide certified
questions that we determine to be non-dispositive. See Walton, 41 S.W.3d at 96 (citing
Preston, 759 S.W.2d at 651); State v. Guy Steven Cathey, No. M2011-00438-CCA-R3-CD,
2011 WL 6020553, at *2 (Tenn. Crim. App. Dec. 5, 2011) (citations omitted), perm. app.
denied (Tenn. Apr. 18, 2012).
When a defendant reserves a certified question regarding the evidence obtained
through an allegedly illegal search, the question is not dispositive if the State has other
evidence with which to prosecute the defendant. See, e.g., Walton, 41 S.W.3d at 96 (holding
certified question regarding the admissibility of the defendant’s incriminating statements
non-dispositive because the record contained other incriminating evidence); State v. Brown,
No. M2004-02101-CCA-R3-CD, 2005 WL 2139815, at *5 (Tenn. Crim. App. Aug. 30,
2005) (holding certified question regarding validity of search warrant non-dispositive
because the State had incriminating evidence gathered from other sources), perm. app. denied
(Tenn. Feb. 6, 2006); State v. Michael Kennedy, No. W2001-03107-CCA-R3-CD, 2003 WL
402798, at *3-4 (Tenn. Crim. App. Feb. 21, 2003) (holding validity of consent search non-
dispositive where victim could also testify to defendant’s possession of victim’s property),
perm. app. denied (Tenn. May 27, 2003). “When the record contains incriminating evidence
apart from that challenged through the certified question, the appellate court must dismiss
the appeal because the certified question is not dispositive.” Maurice Edward Carter v. State,
38
No. M2012-01843-CCA-R3-PC, 2013 WL 3023093, at *5 (Tenn. Crim. App. June 14, 2013)
(citing Dailey, 235 S.W.3d at 135-36).
In this case, it is clear that the prosecution amassed evidence against the Defendants
from sources other than those obtained through the Issuing Court’s grants of the Allegedly
Invalid Applications. For instance, the record on appeal contains a copy of an affidavit in
support of search warrant prepared by Investigator Don Hardin and presented to Sumner
County Circuit Court Judge C. L. Rogers on March 9, 2009. The affidavit contains 160
numbered paragraphs containing averments supporting the application for a search warrant
and sets out in great detail a wealth of incriminating evidence gathered from a multitude of
sources, including the following:
10. Since November 5, 2008, Dustin Ellis and Jeffrey King have talked on the
phone about getting shipments of marijuana and about money that they lost
while they were trying to get marijuana. On November 13, 2008,23 Jeffrey
King and Dustin Ellis talked about a thousand pound shipment of marijuana
coming from Mexico. Ellis told King that King and Ellis could get five
hundred pounds of the marijuana. On November 14, 2008, Ellis and King
expected that the shipment of five hundred pounds of marijuana would arrive
in Nashville. Jeffrey King, who intercepted phone calls showed was out of
town, called Billy Painter and told Painter that King needed Painter to take the
money to pay for the marijuana to Ellis.
....
12. On January 2, 2009,24 investigators learned through intercepted
conversations that Jeffrey King (m/w, dob 7/5/79) was attempting to gather
money for past Marijuana sales from his clients to pay his supplier. Jeffrey
King told Dustin Ellis (m/w, dob 5-26-75) to meet up with his brother Kasey
King (m/w, dob 4/13/77) and give him the money that he owed Jeffrey King.
....
16. On January 2, 2009, surveillance followed Brent Butler and Kasey King
to 1007 Blakewood Court in Joelton and met with Herbert Cantrell. They
unloaded the Marijuana from the truck at this residence. Jeffrey King arrived
23
This date is prior to any of the Allegedly Invalid Applications.
24
This date is prior to all but two of the Allegedly Invalid Applications.
39
at this location in his Chevy Pickup TN (917PYQ). Kasey King left 1007
Blakewood Court in his Chevy Blazer TN (646SNN).
....
18. On January 3, 2009,25 we learned through intercepted conversations that
Dustin Ellis had talked to Jeffrey King about getting a quantity of Marijuana.
Jeffrey King told Dustin Ellis that his brother would call him. Kasey King and
Dustin Ellis made arrangements to make the transaction at 91 Vandiver Street
in Madison. Kasey King owns the Bar called Just One More located at 91
Vandiver Drive in Madison.
(Footnotes added). Additionally, during the Davidson County guilty pleas, the prosecutor
included the following in his statement of the proof supporting the Defendants’ guilty pleas:
[T]he facts would show on December 15, 2008,26 the defendant Jeffrey King
directed the defendant Kasey King to deliver approximately twenty-seven
pounds of marijuana to Bruce Dady. Police intercepted pursuant to wiretap
conversations those directions. They observed – surveillance observed the
defendant Kasey King pick up the marijuana from a stash house used by the
conspiracy at 6960 Old Hickory Boulevard in Davidson County. They
followed him to 138 Hardaway Drive where the marijuana was delivered to the
co-defendant Bruce Dady.
As to Count 24 on both defendants, the facts would show on December
18th, 2008,27 the defendant Jeffrey King and Kasey King were intercepted on
wiretap conversations with their directions to make payments to a Carlos
Montoya who was in town. He was agent for the Mexican connections of
delivering drugs previously fronted. A payment of approximately [$8,000],
more or less, was made and delivered on orders of the defendant Jeffrey King
through Kasey King. Surveillance confirmed the meeting. Police officers
observed the meeting between the subjects and confirmed the – that Carlos
Montoya was here.
25
This date is prior to all but two of the Allegedly Invalid Applications.
26
This date is prior to all but one of the Allegedly Invalid Applications.
27
This date is prior to all but one of the Allegedly Invalid Applications.
40
The Defendants fail to explain how, in light of the State’s other evidence, their
convictions must be reversed and their cases dismissed were we to determine that the Issuing
Court erred in granting the Allegedly Invalid Applications. Accordingly, we hold that this
certified question is not dispositive. Therefore, we may not address it.
Unsigned Affidavit
The Defendants claim that their motions to suppress should have been granted because
“the notarized but unsigned affidavit requesting a second extension of the wiretap for
telephone number (615) 584-6075 was statutorily deficient to support interception.” For the
same reasons set forth above, we hold that this question is not dispositive. Therefore, we
may not address it.
Interception of (615) 653-2294
The Defendants claim that the interception of telephone number (615) 653-2294
should not have been ordered on November 4, 2008, because the application “lacked
probable cause to justify interception . . . because they [sic] failed to make a sufficient link
between the phone and suspected criminal activity or the targets of the investigation.”
Consequently, the Defendants assert, “all of the extensions of this wiretap and all other
phones discovered through this wiretap must be suppressed” in addition to “all other fruits
flowing from” this illegal interception. That is, the Defendants assert that some of the
evidence against them must be suppressed as a result of the allegedly illegal wiretap of this
telephone. For the reasons set forth above, we hold that this certified question is not
dispositive. Accordingly, we may not address it.
Interception of (615) 818-2839
The Defendants crafted the same certified question regarding the interception of
telephone number (615) 818-2839, which was ordered to be intercepted on January 8, 2009,
as they crafted for the interception of telephone number (615) 652-2294. Similarly, they call
for the suppression of some of the evidence against them. For the reasons set forth above,
we hold that this certified question is not dispositive. Accordingly, we may not address it.
Applications for Extensions
In their next certified question, the Defendants assert that “the Applications for
extensions of the wiretaps failed to articulate a statutorily sanctioned purpose justifying
continuing interception.” In their brief, the Defendants argue as follows:
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1. For Bruce Dady’s phone number (615) 916-9412 . . . , there are 2 ten day
reports remarking that nothing productive is happening on the phone. The
State should have terminated interception, but did not.
2. For Jeffrey King’s phone number (615) 818-2839 . . . , there were no calls
at all since January 30, 2009, yet that fact was not disclosed in the February 6,
2009 Application for a First Extension. . . . No extension should have been
sought.
3. The State did not have grounds to seek an Application for Interception of
Lockhart’s phone number (706) 500-7055 . . . since the phone was inoperable
at the time the Application was sought. A November 6, 2008 10 day report
reveals that the phone was out of minutes and had not been recently used when
the wiretap Application was filed.
The Defendants further contend that, “[i]n each of the above instances, the State should have
refrained from seeking wiretap authorization and/or should have voluntarily terminated the
interception early. The State did neither, and that conduct violated the letter and spirit of
Title III and the Wiretap and Electronic Surveillance Act of 1994.”
The Defendants fail to explain how this question is dispositive, and we hold that it is
not. Accordingly, we may not address it.
Conclusion
We have determined that the Defendants are entitled to no relief on the basis of the
certified questions reserved in their conditional guilty pleas. Accordingly, we affirm the
judgments of conviction entered against each of the Defendants by the Rutherford, Davidson,
and Sumner County trial courts.
_______________________________________
JEFFREY S. BIVINS, JUDGE
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