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United States v. Silas

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

December 18, 2017

UNITED STATES OF AMERICA
v.
JAMES SILAS

          MEMORANDUM

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE

         Defendant James Silas filed a motion to suppress all evidence obtained as a result of a wiretap authorized by this Court (Doc. 145), a motion to suppress all evidence derived from the seizure of Defendant's cell phone (Doc. 147), and a motion to suppress a photographic identification of Defendant (Doc. 151). These motions to suppress were referred to United States Magistrate Judge Christopher H. Steger for a report and recommendation pursuant to 28 U.S.C. § 636(b). Judge Steger filed a Report and Recommendation on August 24, 2017 (“R&R 1”) as to the suppression of the photographic identification and the seizure of the cell phone. (Doc. 246.) Judge Steger filed a second Report and Recommendation on August 28, 2017 (“R&R 2” and collectively, the “R&Rs”) as to the intercepted wire communications. (Doc. 247.) In each, Judge Steger recommended the denial of Defendant's respective motions to suppress.[1] (Docs. 246 and 247.) Defendant objected to R&R 1 on September 7, 2017 (Doc. 249) and to R&R 2 on September 11, 2017 (Doc. 250). The Court has reviewed the record and the audio recording of the suppression hearing on these matters. For the reasons that follow, the Court will ACCEPT and ADOPT the R&Rs (Docs. 246, 247) and DENY Defendant's motions to suppress (Doc. 145, 147, 151).

         I. BACKGROUND

         A. Interception of Wire Communications

         Between January 2015 and September 2016, Hamilton County law enforcement and Drug Enforcement Administration (“DEA”) agents investigated a heroin trafficking operation in the Chattanooga, Tennessee area. Spearheading this operation was a group referred to as the “Eberhardt Organization.” (Doc. 146-2.) As an alleged member of this group, Defendant James Silas was charged alongside Marlon Eberhardt, Jovani Robinson, Heather Robinson, and others with conspiring to distribute heroin in the Eastern District of Tennessee and elsewhere. (Doc. 1.)

         On June 14, 2016, Michael Thompson (“Detective Thompson”), a detective with the Hamilton County Sheriff's Office and a Task Force Officer with the DEA, prepared an application for an order authorizing the interception of wire and electronic communications (the “Application”). (Doc. 146-1.) Detective Thompson supplemented the Application with an eighty-seven page affidavit (the “Affidavit”). (Doc. 146-2.) The Application sought authorization to intercept wire and electronic communications to and from a cell phone belonging to Heather Robinson, a codefendant in the alleged conspiracy.

         The content of the Application was derived from a number of sources. One such source was a group of individuals identified as Cooperating Sources 1, 2, and 3 (“CS-1, CS-2, and CS-3”, respectively). CS-1 informed law enforcement that Eberhardt was a large-scale heroin distributor in east Tennessee with suppliers in Chicago, Nashville, and Atlanta. (Doc. 146-2.) CS-1 noted that Heather and Jovani Robinson worked as distributors for Eberhardt and that CS-1 had accompanied them on multiple heroin purchases. CS-2 informed law enforcement that he or she had rented roughly fifteen vehicles for members of the Eberhardt Organization that were used as part of the drug trafficking operation. (Id.) CS-2 also engaged in at least three controlled purchases of heroin from Heather Robinson. (Id.) CS-3 self-identified as a regular customer of both Eberhardt and the Robinsons and twice completed controlled heroin purchases from Eberhardt in April 2016. (Id.)

         Details of physical surveillance, interviews with Eberhardt Organization customers, vehicle tracking devices, and pen registers further supplemented the Application. In December 2015 and January 2016, Hamilton County detectives reviewed phone calls between Hamilton County Jail inmates and Heather Robinson in which coded references were made to stash houses and drug transactions. (Id.) Law enforcement gathered information from interviews with Heather Robinson's known heroin customers, controlled phone calls, and vehicle tracking devices. (Id.) In addition, pen registers were activated on two cell phones owned by Heather Robinson (“Target Telephone 1” and “Target Telephone 2”). The pen registers identified twenty-one different telephone numbers regularly contacted by both Target Telephone 1 and Target Telephone 2.

         In addition, the Affidavit included a lengthy section labeled “Need for Interception” (Doc. 146-2). In it, Detective Thompson listed the six “goals and objectives” of the investigation: (1) discover the full scope and identification of key personnel in the Eberhardt Organization; (2) discover the identities and roles of all drug suppliers to the identified conspirators; (3) discover the identities of the main customers; (4) discover the stash locations for the drugs; (5) discover the management and disposition of the proceeds generated by the drug trafficking; and (6) obtain admissible evidence that demonstrates beyond a reasonable doubt that Eberhardt, Heather Robinson, and the other targeted interceptees committed the alleged violations of law. (Id.)

         Detective Thompson then discussed the investigative techniques that had been employed to date and why those techniques had been unsuccessful in meeting the above objectives. Among those discussed were: (1) physical surveillance; (2) confidential sources and cooperating sources; (3) interviews; (4) search warrants; (5) controlled purchases; (6) pen registers; (7) trash searches; (8) pole cameras; and (9) tracking devices. Detective Thompson explained the shortcomings of each[2]:

. Physical surveillance was conducted but was of limited use because suspects used counter-surveillance measures requiring law enforcement to discontinue the surveillance for fear of alerting the suspects to the fact that they were being investigated. It also did not provide conclusive evidence of the specific roles of the co-conspirators. (Id. ¶¶ 119-21.)
. Three cooperating and confidential sources were developed but were only customers of the Eberhardt Organization and could not provide information about the internal structure and activities of the organization. (Id. ¶ 132.)
. Undercover agents were not used because the Eberhardt Organization was a closed, tight knit community. Attempting to bring in an undercover agent would have aroused suspicion and been very dangerous. While law enforcement was able to recruit confidential sources through interviews, the confidential sources took the investigation as far they could. (Id. ¶¶ 138-40.)
. Search warrants were executed in the investigation, which revealed drugs, drug paraphernalia, and a firearm, but they did not reveal information about the scope, structure, and overall operations of the Eberhardt Organization. One subject of a search (Quintus Broadnax) refused to speak with law enforcement at all, while another (Kadie England) refused to provide any information about Eberhardt's drug activities.
. Five controlled purchases were made from Heather Robinson and Eberhardt, but these purchases did not and could not reveal the full scope and structure of the Eberhardt Organization, including its out-of-state suppliers.
. Pen register and trap and trace information was used and helped verify frequent telephone communication between numbers, but they did not and could not identify who was making the calls or reveal the substance of the conversations.
. Trash pulls were utilized and did lead to the discovery of a piece of mail addressed to Eberhardt at a certain address, but trash pulls produced little evidence of value and were difficult to conduct without being discovered. (Id. ¶ 153).
. Law enforcement also used pole cameras to observe traffic to and from Heather and Jovani Robinson's house. The cameras were useful in identifying some of the target interceptees and appeared to record some hand-to-hand drug transactions, but the footage had no sound, thereby limiting its usefulness. Pole cameras also could not capture activity inside cars or the residence.
. Three tracking devices were placed on vehicles rented by CS-2 for Heather Robinson. The devices were useful in locating Heather Robinson and in assisting with surveillance, but they could not identify persons being met or the activity taking place. Further, the batteries in the devices had to be changed frequently, members of the Eberhardt Organization frequently changed vehicles, and the vehicles could not be monitored on private property.
. Mail covers were not used because there was no indication the Eberhardt Organization was using the mail to conduct its drug trafficking business.
. A previous wiretap was issued by a United States District Judge in Maine in June 2010 and used to intercept the wire and electronic communications of Veronica Grady. Heather Robinson was intercepted pursuant to this wiretap; however, the interception ...

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