United States v. Brewer , 204 F. App'x 205 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARVEY BREWER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-04-
215)
Submitted: October 6, 2006 Decided: November 3, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Christopher J. Romano, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harvey Brewer appeals his conviction and 121-month
sentence imposed following a guilty plea for conspiracy to
distribute and possess with intent to distribute one kilogram or
more of a quantity of a mixture substance containing a detectable
amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(2000). After thoroughly reviewing the record, we affirm.
In 1999, members of the Drug Enforcement Administration
("DEA"), in cooperation with the Baltimore City Police Department,
investigated alleged drug trafficking in Baltimore City, Maryland,
which revealed that Brewer and others, including Troy Crawley,
conspired to distribute and possess with the intent to distribute
heroin. As part of its investigation, the DEA sought authorization
to intercept wire communications on a cellular phone used by
Crawley, and electronic and wire communications on a pager and
cellular phones used by Brewer. Brewer contends the district court
erred in denying his motion to suppress evidence derived from the
interception of wire and electronic communications because the
affidavits in support of the wire and electronic surveillance (1)
did not establish probable cause; (2) were based on probable cause
that was stale; and (3) failed to comply with the "exhaustion"
provisions of 18 U.S.C. § 2518(1)(c) (2000). Brewer further argues
that the district court’s assessment that the Government
- 2 -
established “super probable cause" did not satisfy the probable
cause assessment required by 18 U.S.C. §§ 2510-20 (2000).
We review the district court’s factual findings
underlying a motion to suppress ruling for clear error, and the
district court's legal determinations de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d
263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005). When a
suppression motion has been denied, the evidence is reviewed in the
light most favorable to the Government. United States v. Grossman,
400 F.3d 212, 216 (4th Cir. 2005).
Brewer first argues there was no probable cause to obtain
a wiretap to achieve the objectives set forth in the affidavits.
18 U.S.C. § 2518(3)(b) (2000) permits a district court to enter an
order authorizing a wiretap if “there is probable cause for belief
that particular communications concerning that offense will be
obtained through such interception.” In applying for such an order
it is not necessary for the applicant to prove beyond a reasonable
doubt that communications concerning the offense will be obtained,
but only that there is a fair probability thereof. United States
v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988). The issuing judge is
in the best position to determine if probable cause has been
established in light of the circumstances as they appear at the
time. United States v. Depew, 932 F.2d 324, 327 (4th Cir. 1991).
- 3 -
Probable cause is judged by an analysis of the totality
of the circumstances, see Illinois v. Gates, 462 U.S. 213, 230
(1983), which are weighed “not in terms of library analysis by
scholars, but as understood by those versed in the field of law
enforcement,” id. at 232. Furthermore, the “fact that an innocent
explanation may be consistent with the facts alleged,” does not
necessarily negate probable cause. United States v. Fama, 758 F.2d
834, 838 (2d Cir. 1985). In United States v. Leavis, 853 F.2d 215,
221 (4th Cir. 1988), we held that the showing of need is tested in
a practical and common sense fashion and not in an overly
restrictive manner that would unduly hamper the investigative
powers of law enforcement agents. The applications in the present
case met this standard and the motion to suppress was properly
denied.
Turning to the exhaustion requirement, under
§ 2518(1)(c), a wiretap application must contain “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.” The
burden upon the government “to show the inadequacy of normal
investigative techniques is not great, and the adequacy of such a
showing is ‘to be tested in a practical and common sense fashion.’”
United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994) (quoting
United States v. Clerkley, 556 F.2d 709, 714 (4th Cir. 1977)).
- 4 -
The affidavits in this case presented extensive detail
regarding various investigative techniques that had been tried, and
the reason for their failure, as well as those that were not
possible in light of the investigative goals. These included: use
of an informant, material from a prior search warrant and other
investigative data, physical surveillance, toll record and pen
register analysis, use of the grand jury, undercover investigation,
and other subscriber information. The affidavits explained that
through these procedures, law enforcement authorities had been able
to gather a limited amount of evidence concerning the organization
but could not determine the identities of other co-conspirators and
sources. For example, it was only through the use of electronic
surveillance that Brewer’s identity became known to law
enforcement.
The affidavits also explained that such techniques as
introducing undercover agents, employing physical surveillance, and
search warrants would not be successful in disclosing the nature of
the conspiracy and those involved. Because the application and
affidavit provided specific factual information as to how certain
investigative methods had been employed with limited success and
how others were unlikely to succeed, we find the Government
provided sufficient facts from which the issuing court could
reasonably have concluded a wiretap was necessary. Thus, we find
- 5 -
the district court did not err in denying Brewer’s motion based on
exhaustion.
Brewer next argues that the information set forth in the
affidavits in support of the wiretaps was stale. He claims that
the investigation came to a “standstill” in August 2003 and almost
five months elapsed from August 2003 until January 2004, during
which time there was no indication that agents obtained any new
information as to Crawley’s activities. As this court has made
clear, “[t]he vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit.” United States
v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984); see also United
States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (staleness not
measured “solely by counting the days on a calendar”). “Rather, we
must look to all the facts and circumstances of the case, including
the nature of the unlawful activity alleged, the length of the
activity, and the nature of the property to be seized.” McCall,
740 F.2d at 1336.
Even the most cursory read of the affidavits does not
support Brewer’s contention. The affidavits establish that the
investigation was ongoing and information and evidence was being
obtained by the investigators in support of probable cause to seek
the wiretaps. Here, Brewer was under investigation for drug
trafficking--not “mere isolated violation[s]” of the law, but
- 6 -
criminal activities of “a protracted and continuous nature.”
United States v. Farmer, 370 F.3d 435, 439 (4th Cir.), cert.
denied, 543 U.S. 1022 (2004) (citation omitted). The ongoing
nature of the drug trafficking operation rendered the recency of
the information in the affidavit less crucial, and “suggest[ed]
that probable cause [was] not diminished solely by the passage of
time.” Id.; see also United States v. Alvarez, 358 F.3d 1194, 1203
(9th Cir.), cert. denied, Valenzuela v. United States, 543 U.S. 887(2004) (long-term drug trafficking operation) (other citations
omitted). Brewer’s argument is unavailing.
Finally, Brewer complains that the district court
erroneously denied his motion to suppress by referring to the
Government’s demonstration of what was characterized as "super
probable cause." Contrary to Brewer’s allegations, the district
court's remarks at the suppression hearing demonstrated a full
awareness of the relevant statutory standards for the judicial
authorization of wire and electronic surveillance.
Even if Brewer is correct that the affidavits did not set
forth adequate probable cause, or that the exhaustion requirements
of 18 U.S.C. § 2518(1)(c) had not been met, the affiants were
entitled to rely on the facially valid wiretap orders pursuant to
the good faith exception of United States v. Leon, 468 U.S. 897(1984). See United States v. Moore, 41 F.3d 370, 376 (8th Cir.
1994) (good faith doctrine required that suppression of wiretap
- 7 -
evidence be denied, despite defect in order allowing electronic
surveillance); United States v. Malekzadeh, 855 F.2d 1492, 1497
(11th Cir. 1988) (Leon applied to wiretap affidavit that was devoid
of deliberately false or recklessly false information); United
States v. Baranek, 903 F.2d 1068, 1071-72 (6th Cir. 1990)
(recognizing that Congress intended federal wiretap law to
incorporate Fourth Amendment evidence suppression doctrines).
Accordingly, we affirm Brewer’s conviction and sentence.
We further grant Brewer’s motion to file a pro se supplemental
brief but deny Brewer’s motion to compel the Government’s response
to his pro se supplemental brief and deny counsel’s motion to
withdraw representation. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 8 -