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United States v. Brasher

United States District Court, S.D. Indiana, New Albany Division

August 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRANCE BRASHER (07), Defendant.

          ENTRY ON DEFENDANT'S MOTION TO SUPPRESS

          TANYA WALTON PRATT, JUDGE United States District Court Southern District of Indiana

         This matter is before the Court on Defendant Terrance Brasher's (“Brasher”) Motion to Suppress Contents of Intercepted Oral and Wire Communications and Evidence Derived Therefrom. (Filing No. 587). Brasher is charged with violating 21 U.S.C. §§ 846, 841(a)(1), conspiracy to distribute controlled substances. He asserts that his Fourth Amendment rights were violated because the wiretap applications and affidavits submitted to advance the investigation of this case, which led to his arrest, did not contain a full and complete statement regarding the use or futility of less intrusive investigative procedures. Brasher also asserts that the supporting affidavits were “fraught with material misrepresentations or omissions.” He requests a hearing pursuant to Franks v. Delaware, 438 U.S.154 (1978), to determine whether the affidavits submitted in support of the wiretap applications contained intentional or reckless misstatements or omissions of material fact regarding the necessity of the wiretaps. For the following reasons, the Motion to Suppress is denied.

         I. BACKGROUND

         While conducting investigations of drug trafficking activities in the area of New Albany, Indiana and Louisville, Kentucky, in April, May, and June 2015, the FBI learned of a criminal drug enterprise involving numerous individuals. The investigation of the enterprise, referred to as the “Shelton Drug Trafficking Organization, ”included among other things, the use of confidential informants and controlled drug purchases. In order to advance the investigation of the criminal enterprise's scope, purpose, and participants, the FBI applied for the issuance of wiretap orders authorizing the interception of wire, oral, and electronic communications. Brasher became known to law enforcement in the course of wire and electronic interception of a cellphone (“Target Phone 2”) used by Carlos Shelton.

         On August 17, 2015, the Honorable William T. Lawrence of this District issued an order authorizing the interception of communications over an AT&T cell phone registered to Jamie R. Harris of Greenville, Indiana, and used by Donnavon Harris (“Target Phone 1”) for a period of thirty days (see 4:15-mc-003-TWP-WGH)[1]. On September 11, 2015, the undersigned issued an order authorizing the interception of communications over a Sprint cell phone registered to Carlos Shelton of Louisville, Kentucky (“Target Phone 2”) for a period of thirty days (see 4:15-mc-004-TWP-WGH).

         On October 13, 2015, the undersigned issued an order authorizing a thirty-day extension of the wiretap of Target Phone 2. On October 28, 2015, the undersigned authorized the interception of communications over an AT&T cell phone registered to Terry Martin of Louisville, Kentucky (“Target Phone 3”) for a period of thirty days, and another AT&T cell phone registered to Marc Jacobs of Louisville, Kentucky (“Target Phone 7”), also for a period of thirty days (see 4:15-mc-006-TWP-DML). On November 12, 2015, the undersigned issued another order authorizing a second thirty-day extension of the wiretap of Target Phone 2.

         With these Court Orders and extensions, the FBI conducted several wiretaps intercepting numerous wire, oral, and electronic communications. With these intercepted communications, the FBI advanced its investigation of the criminal drug trafficking enterprise, accumulated additional evidence to support its criminal case, and made several arrests.

         Based in part on the communications intercepted from the target phones, a Criminal Complaint and Affidavit were filed on December 7, 2015, naming fourteen defendants that allegedly conspired to distribute large quantities of methamphetamine and heroin. (Filing No. 1). A seven count Indictment was filed on December 15, 2015 (Filing No. 75). On May 17, 2017, a Superseding Indictment was filed narrowing the charges to one count of conspiracy to distribute controlled substances against four defendants (Filing No. 539). The final pretrial conference for this matter was held on May 24, 2017. Brasher was the sole defendant scheduled for trial by jury on June 5, 2017. On May 26, 2017, Brasher filed a 59 page Motion to Suppress. The matter is now scheduled for trial on November 13, 2017.

         II. DISCUSSION

         Brasher argues that the contents of the oral and wire interceptions and evidence derived from wiretaps of Target Phones 2, 3, and 7, and the extensions of the wiretap on Target Phone 2 should be suppressed. He asserts that the wiretap applications and affidavits do not comply with the statutory requirement of containing “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

         Brasher further asserts the applications and affidavits have numerous material misrepresentations and omissions. Specifically, he alleges that FBI task force officer, Darin J. Vaughn (“Officer Vaughn”) omitted or misrepresented information in the wiretap affidavits concerning the investigative procedures that had or had not been utilized, which misled the Court and led to the improper issuance of the wiretap Orders. Because of these shortcomings, Brasher argues, the Government failed to meet the “necessity” requirement of Section 2518(1)(c), and thus, the authorization to conduct wiretaps should not have been granted. Brasher does not challenge the probable cause for the wiretap orders or the conduct of the wiretaps. He requests a Franks hearing to determine whether the affidavits submitted in support of the wiretap applications have intentional or reckless material misrepresentations or omissions regarding the necessity of the wiretaps.

         A. There is no need for Franks hearing.

         As an initial matter, the Court finds that there is no need for an evidentiary hearing. Where the defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.” Franks v. Delaware, 438 U.S. 154, 155-156 (U.S. 1978). To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Id. The rationale of Franks also applies to intentionally or recklessly omitted material facts. See United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984).

         To support his argument that a Franks hearing is required to show that the Government intentionally or recklessly misrepresented or omitted material information in the wiretap affidavits, Brasher points to “identical” paragraphs contained in the various affidavits. He then directs the Court's attention to variations in the affidavits that, he argues, must have misled the Court. For example, he points to paragraph nine in the affidavits, which discusses the foundation for Officer Vaughn's statements in the affidavits. This paragraph notes various investigative techniques, including “covert camera surveillance.” Brasher then points to slight variations in the affidavits concerning Target Phones 1, 2, 3, and 7, as well as “video surveillance cameras” noted in the November 12, 2015 wiretap. Camera surveillance and video surveillance cameras are not discussed further in the September 11, October 13, or October 28, 2015 affidavits. He argues that the inclusion of “covert camera surveillance” in paragraph nine and “video surveillance cameras” in the November 12, 2015 wiretap must have misled the Court to believe that such techniques had been used during the entire investigation, and thus the statement is a knowingly or recklessly false statement. If such techniques actually were used during the investigation, Brasher contends their use should have been disclosed in the earlier affidavits, and failure to do so was a material omission.

         Brasher also points out that the affidavits attested to the fact that Officer Vaughn did not include each and every fact known to him concerning the investigation and only included facts that Officer Vaughn thought were necessary to establish the foundation for authorization of the wiretaps. Brasher asserts that the affidavits note that “normal investigative procedures” had been tried and failed, and other investigative procedures appeared unlikely to succeed or too dangerous. He then explains that the Ninetieth Congress envisioned, “Normal investigative procedure would include, for example, . . . general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants.” (Filing No. 587 at 32 (citation omitted).) Again, Brasher asserts that the Court must have been misled to believe that general questioning or interrogation under an immunity grant, regular ...


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