from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:14-cr-00090-1-Aleta Arthur
Trauger, District Judge.
M. PARRISH, NASHVILLE, TENNESSEE, FOR APPELLANT.
VINCENT, UNITED STATES ATTORNEY'S OFFICE, NASHVILLE,
TENNESSEE, FOR APPELLEE.
Before: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
M. BATCHELDER, Circuit Judge.
defendant appeals the denial of his motions to suppress
evidence obtained from government wiretaps, claiming that the
wiretaps were not properly authorized. He claims that the
affidavit for the wiretap application did not demonstrate the
necessity of the wiretap and that it materially
misrepresented some facts and omitted others, necessitating a
Franks hearing. He also claims that the government
improperly used one application for two wiretap orders, did
not seal the wiretap recordings as "immediately" as
the statute requires or explain its failure to do so, and did
not prove that certain undercover informants consented
voluntarily to the recordings of their communications on the
wiretaps. We affirm.
March 31, 2014, the government obtained a 30-day electronic
surveillance order authorizing the wiretapping of cellphones
identified as "Target Telephone 1" (TT1) used by
Eric Williams, and TT2 used by defendant-appellant Jamal
Cooper. The government submitted a single application and the
court issued a single wiretap order to cover both phones.
government intercepted Cooper's calls using TT2 for the
next two weeks, including a call on Saturday evening, April
12. Cooper made no more calls on TT2 and the government
confirmed this through a confidential informant on Monday,
April 14, when it ended its TT2 surveillance. On Wednesday,
April 16, the government provided the disc containing the TT2
wiretap recordings to the district court for the court to
seal. The government did not intercept any conversations from
TT1 because Williams had stopped using it prior to March 31,
the government charged Cooper with drug trafficking, he moved
to suppress the evidence gathered directly or derivatively
from the TT2 wiretap (and all subsequent wiretap recordings
as fruits of the TT2 wiretap). Cooper accused the government
of violating both the Fourth Amendment and 18 U.S.C. §
2518(1)(c), claiming that the TT2 application did not
establish the necessity for the wiretap. Cooper also accused
the government of violating § 2518(8)(a) because, Cooper
argued, it did not seal the TT2 recording
"immediately" as required by the statute. The
district court denied the motion without a hearing, relying
on the affidavit accompanying the wiretap application and
record evidence. United States v. Cooper, No.
3:14-cr-00090, 2015 WL 236271 (M.D. Tenn. Jan. 16, 2015).
Cooper moved again to suppress the evidence from the TT2
wiretap, requesting a hearing under Franks v.
Delaware, 438 U.S. 154 (1978), based on his claim that
the TT2 application's supporting affidavit was flawed by
material misrepresentations and omissions. Cooper also
claimed that the government violated § 2518(1)(c)
"by offering generalized statements concerning two or
more potential targets in its application for permission to
use wiretaps" and "surreptitiously recorded
conversations allegedly between Jamal Cooper and various
confidential informants . . . without either parties'
[sic] consent." The district court denied the motion.
Cooper entered a guilty plea pursuant to a negotiated plea
agreement in which he reserved the right to appeal the
denials of his suppression motions. The district court
accepted the plea ...