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United States v. Goddard

United States District Court, M.D. Georgia, Macon Division

March 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DELMA GODDARD, et al., Defendants.

          ORDER

          MARC T. TREADWELL UNITED STATES DISTRICT COURT

         Defendant Delma Goddard has moved to suppress evidence obtained via wiretap. Doc. 306. Goddard has also moved to convene a Franks hearing.[1] Id. For the reasons stated herein, Goddard's motion and request for a Franks hearing are DENIED.

         I. BACKGROUND

         On June 13, 2016, the Court authorized the first of three orders authorizing the Government to intercept telephone communications pursuant to an investigation into an alleged drug conspiracy. Doc. 314 at 2-3. Along with its application for the wiretap order, the Government submitted an affidavit by Harold L. Hurley, a special agent with the Drug Enforcement Administration with approximately nineteen years of combined law enforcement experience. See generally Doc. 306-2. As a result of this investigation, a grand jury indicted Goddard and 15 other defendants in a 60 count indictment on September 21, 2017.[2] Doc. 249. The Government charged Goddard with conspiracy to possess with intent to distribute cocaine base; conspiracy to distribute methamphetamine; distribution of cocaine base; distribution of methamphetamine; possession of firearms by a convicted felon; possessing firearms in furtherance of a drug trafficking crime; and distribution of heroin. Doc. 249.

         Goddard now moves to suppress the evidence obtained pursuant to the wiretap orders, arguing that the initial June 13, 2016 application did not sufficiently establish necessity for the wiretaps.[3] See generally Doc. 306. Goddard filed his initial motion on November 25, 2017. Doc. 281. But that motion failed to specifically allege insufficiencies in the wiretap application, and, therefore, on December 13, 2017, the Court ordered Goddard to file an amended motion. Doc. 302 at 1-2. Goddard then filed an amended motion on December 20, 2017 to which the Government has responded. Docs. 306; 314.

         II. NECESSITY[4]

         Goddard argues the Government's application did not establish necessity because (1) it failed to establish that investigative techniques already employed had failed and (2) it did not establish that law enforcement had exhausted all available investigative techniques. See generally Doc. 306. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Any order authorizing wire interception must be supported by a Government affidavit swearing not only to probable cause but also to the necessity for such order, shown with “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.” 18 U.S.C. § 2518(1).

         Regarding necessity, “section 2518 does not foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted; however, it does require the Government to show why alternative measures are inadequate for this particular investigation.” United States v. Perez, 661 F.3d 568, 581 (11th Cir. 2011) (quotation marks and citations omitted). “The affidavit need not . . . show a comprehensive exhaustion of all possible techniques, but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves.” United States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986).

         Goddard first argues the wiretap was not necessary because other investigative methods had not actually failed but were successful in gathering evidence against him. Doc. 306 at 11-14. Hurley acknowledges in his affidavit the Government was able to gain evidence from several investigative methods including physical surveillance, pen registers, confidential sources, consensual recordings, and tracking devices. Doc. 306-2 at 81-89. But Hurley also stated that, although they were partially successful, because of their limitations, those investigative methods would be inadequate for the goals of this particular investigation. Id.; see Perez, 661 F.3d at 581 (“The partial success of alternative investigative measures, however, does not necessarily render electronic surveillance unnecessary.”). Hurley stated the goal of the investigation was not simply to gather information regarding Goddard's criminal activities but to reveal the “full scope and nature of the criminal activities” of the target Middle Georgia-based organization and its associates. Doc. 306-2 at 78. Specifically, Hurley testified:

[I]t is your Affiant's belief that interception of wire communications is the only available technique that has a reasonable likelihood of accomplishing the objectives of this investigation, including identifying local wholesale distributors and members of their organization, determining the breadth of the Middle Georgia-based organization's operations, their method of acquisition and distribution of narcotics, specifically crack cocaine and crystal methamphetamine, the identify of their associates and co-conspirators, the nature and scope of their illegal activities, the relationship between financiers, transporters, suppliers, and distributors of the controlled substances, and the collection and distribution of monies which stem from the illegal drug activities and/or finance the illegal drug activities.

Id. at 76. In addition, in his affidavit, Hurley stated why the investigative methods used prior to the June 13, 2016 application could not achieve these goals.

         First, Hurley testified that, although it had been used with limited success, physical surveillance was unlikely to establish conclusively the roles of target subjects or identify additional co-conspirators or the manner in which they conduct their daily drug distributions and trafficking activities. Doc. 306-2 at 79-81. According to Hurley, from his experience, higher ups in drug conspiracies rarely handle drugs, drug proceeds, and firearms, making it unlikely that physical surveillance would identify or procure evidence on these individuals. Id. Moreover, he stated that, because the community in which the criminal activity took place was “tight knit, ” making outsiders readily identifiable, it was not only difficult but also dangerous for law enforcement to infiltrate the area using physical surveillance. Id. at 79-80.

         Law enforcement had also effectively used confidential sources to execute controlled buys of crack cocaine, crystal methamphetamine, and firearms, allowing agents to identify Goddard and other members of the criminal organization. Id. at 84. But Hurley testified “it is unlikely that [confidential sources] will be able to obtain the information necessary to reveal the interior workings of [the conspiracy].” Id. at 83. According to Hurley, because only a few individuals actually take part in firearms and drug transactions in an effort to protect the identify of higher ups, confidential sources, and controlled buys organized through use of confidential sources, would have limited success identifying sources and customers that conspired to possess and distribute narcotics and firearms. Id. at 84. Similarly, through the use of consensual recordings, agents gathered “valuable actionable intelligence, ” leading to controlled buys of narcotics and the identification of three co-conspirators. Id. at 85. But Hurley testified that, because consensual recordings are merely recorded conversations of undercover or confidential sources and are subject to the same limitations as those sources, they could not meet the objectives of this investigation. Id. at 85-86.

         The investigation also used pen registers and tracking devices but with limited success. Id. at 81-82; 88. According to Hurley, drug trafficking organizations easily thwart the usefulness of pen registers by using telephones or cell phones with either no subscriber information or false information, and, therefore, pen registers do not provide sufficient information about either individuals or larger organizations. Id. at 81-82. Meanwhile, investigators attempted to use tracking devices on two target vehicles but both devices were found and removed. Id. at 88. And finally, Hurley testified that agents ...


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