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United States v. Brown

United States District Court, E.D. Tennessee, Winchester

October 24, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL O. BROWN, Defendant.

REPORT & RECOMMENDATION

SUSAN K. LEE, Magistrate Judge.

Before the Court is the Motion to Suppress the Fruit of the Wiretap Dated April 5, 2012 and Request for Evidentiary Hearing [Doc. 512] filed by Defendant Michael O. Brown ("Defendant"). The motion was referred for a report and recommendation pursuant to 28 U.S.C. ยง 636(b) [Doc. 521]. Plaintiff United States of America ("the government") has filed a response in opposition [Doc. 523]. Defendant did not file a reply brief and the motion is now ripe. After considering the four corners of the wiretap application, including the "Authorization for Interception Order Application" dated April 3, 2012 [Doc. 523-1] ("Authorization") and the "Affidavit in Support of Application" signed by Task Force Officer Daniel Warren on April 5, 2012 ("Affidavit") [Doc. 526-1], [1] and the parties' arguments, I RECOMMEND that Defendant's motion be DENIED.

I. BACKGROUND

The issue at hand centers on a wiretap issued by United States District Judge Harry S. Mattice for interception of a telephone used by co-defendant Calvin Fontaine Hadley [Doc. 526-1]. Defendant states he was a party to communication intercepted by law enforcement on April 9. 2012 and April 20, 2012. Defendant argues for suppression of all evidence claiming the Affidavit failed to meet the applicable "necessity" requirements and the wiretap application was not properly authorized.

The "Authorization for Interception Order Application" dated April 3, 2012 [Doc. 523-1] ("Authorization"), is signed as follows:

The record reflects the Authorization was Exhibit 1 to the wiretap application and the Affidavit was Exhibit 2 to the application presented to Judge Mattice in connection with the order he entered authorizing the wiretap at issue in Defendant's motion [Doc. 531].

II. ANALYSIS

A. Hearing

Preliminarily, I will address Defendant's "request" for a hearing in connection with this motion. In his motion, Defendant did not explain in any way why such a hearing would be necessary or why he was requesting a hearing. Local Rule 7.1(b) requires all briefs to include "a concise statement of the factual and legal grounds which justify the ruling sought by the Court." E.D. Tenn. L.R. 7.1(b); see also Fed.R.Civ.P. 7(b) (requiring motions to "state with particularity the grounds for seeking the order"). Arguments not raised and supported in more than a perfunctory manner are deemed waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (noting that conclusory claims of error without further argument or authority are considered waived). Defendant does not provide any legal grounds, argument, or citation to any authority, case, or rule in support of his request for a hearing.

If Defendant is seeking a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), commonly referred to as a Franks hearing, then Defendant must make a dual showing, which he utterly failed to make. First, the defendant must "make[ ] 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...." Id. at 155-56. Second, the offending information must be "necessary to the finding of probable cause;" if the offending information is excluded and probable cause still remains, a Franks hearing is not required. Id. at 156. Defendant has not submitted declarations or other proof to contradict the information included in the Affidavit and Authorization used to obtain the wiretap or made any offer of proof.

As Defendant neither specifically requested a Franks hearing, nor cited to Franks or any other case law supporting his position that a hearing should be held, I cannot determine a valid reason why a hearing would be proper when the issue of authorization and necessity should be determined from the four corners of the Authorization and Affidavit submitted in connection with the wiretap application. See United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009) (stating that court's review is "limited to examining the information contained in the four corners of the affidavit").

Therefore, Defendant's request for a hearing is DENIED.

B. Affidavit

Defendant claims the Affidavit does not sufficiently demonstrate the officers exhausted conventional alternatives to a wiretap and, thus, there is no showing of necessity for the wiretap. Defendant cites to a single case, United States v. Rice, 478 F.3d 704 (6th Cir. 2007), but only for the proposition that the remedy for failing to meet the necessity requirements of Title III and the Fourth Amendment is suppression. It appears Defendant's argument is summed up by his statement that "[i]n paragraphs 29-42, the affiant fails to state ...


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