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United States v. Banks

United States District Court, D. Kansas

October 17, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT DEWAYNE BANKS (01) CHARLES FOSTER (03) PATRICIA BRIDGET FOY (04) JOHNNY LEE IVORY, III (05) MARTYE MADABUTI MADKINS, III (06) ZACHARY CARLYLE PATMON (07) OTIS DEAN PONDS (08) ANTHONY CARLYLE THOMPSON (10) WALTER BERNARD TAYLOR (12) KAREN ANTOINETTE JOHNSON (14) Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Defendants have filed motions advancing several reasons the Court should suppress wiretap evidence (Docs. 339-341, 342, 346, 349, 356, 362, 377). Codefendants have joined in these motions. The government has filed a response to these motions (Doc. 396). The Court already has ruled on some of the issues raised by these motions (Docs. 420, 421 440). The Court now considers the remaining wiretap suppression issues defendants have raised by their motions, which include: whether the wiretap applications failed to demonstrate that normal investigative techniques have been tried and failed or appear reasonably likely to fail or be too dangerous (the "necessity requirement"); whether the orders authorized an invalid "roving wiretap;" whether probable cause supported the wiretap orders; and whether Judge Platt acted as a neutral and detached magistrate when he considered and approved the wiretap applications. For the reasons set forth below, the Court denies defendants' motions to suppress wiretap evidence on these remaining grounds.

Background Investigators obtained wiretap orders in the final months of a thirteen-month investigation into a suspected narcotics-trafficking conspiracy. The investigation was a joint effort by the Kansas Bureau of Investigation, the Junction City Police Department, the Geary County Sherriff's Office, and the Riley County Police Department. Beginning in March of 2013, agents submitted applications for wiretap orders to Judge Platt, a District Court Judge for Kansas' Eighth Judicial District. Judge Platt issued eight wiretap orders under the Kansas wiretap statute, K.S.A. § 22-2514 et seq. The following list identifies the eight wiretap orders at issue, with the last four digits of the Electronic Serial Number ("ESN") assigned to each target phone in parentheses.

• Thompson Order #1 (1783) - issued March 5; expired April 4.[1]

• Banks Order #1 (6704) - issued March 5; expired April 4.[2]

• Ivory Order #1 (7176) - issued April 2; expired May 2.[3]

• Ponds Order #1 (0088) - issued April 2; expired May 2.[4]

• Thompson Order #2 (1783) - issued April 4; expired May 4.[5]

• Ivory Order #2 (7015) - issued April 12; expired May 12.[6]

• Banks Order #2 (9771) - issued April 12; expired May 12.[7]

• Thompson Order #3 (2893) - issued April 16; expired May 16.[8]

Analysis

A. Choice of Law

"Title III of the Omnibus Crime Control and Safe Streets Act, codified in 18 U.S.C. § 2510 et seq., which preempts the field of electronic surveillance regulation, allows for concurrent state regulation, subject, at the minimum, to the federal regulatory requirements." State v. Willis, 643 P.2d 1112, 1114 (Kan.Ct.App. 1982). "Although a state may adopt a wiretap statue with standards more stringent than the federal requirements, a state may not adopt more permissive standards." Id. "Accordingly, where there are at issue provisions of a state wiretap statute which conform to their counterparts in the federal act, federal case authority has precedential value at least equivalent to state case authority, if any. Hence, federal case law in this area is generally, if not universally, treated as controlling authority." Id. The Court finds the Kansas and federal statutes, as they apply to the legal issues addressed in this order, are identical.[9] Accordingly, the Court looks to federal case law to resolve defendants' motions.

B. The "Necessity" Requirement

K.S.A. § 22-2516(1)(c) requires that an application for a wiretap order must include "a full and complete statement" whether "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." Title III imposes an identical requirement under federal law. See 18 U.S.C. § 2518(1)(c). Courts refer to this provision as the "necessity" requirement. See, e.g., United States v. Verdin-Garcia, 516 F.3d 884, 889 (10th Cir. 2008). "Traditional investigative techniques include surveillance, infiltration or undercover work, questioning of participants, execution of search warrants, and the use of pen registers and trap-and-trace devices." United States v. Ramirez, 479 F.3d 1229, 1240 (10th Cir. 2007) (internal quotation omitted); United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n. 2 (10th Cir. 2002).

The necessity requirement does not mandate the police to exhaust all other investigative techniques. Verdin-Garcia, 516 F.3d at 889. Rather, courts should read the requirement in a "common sense fashion" and not "hypertechnically." Id. "The overall burden on the government is not great.'" Id. (quoting United States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007)). Although an issuing judge must find that law enforcement has made the required showing of necessity before issuing a wiretap order, see K.S.A. § 22-2516(1)(c), a defendant challenging a wiretap order bears the burden to prove the absence of necessity. Ramirez-Encarnacion, 291 ...


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