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United States v. Wilford

United States District Court, Fourth Circuit

June 7, 2013




In April 2011, law enforcement agents in Maryland seized cocaine that had an estimated street value of more than $13 million dollars. That seizure, as well as other evidence obtained during a joint State and federal investigation, led to a federal indictment of six members of a drug-trafficking organization operating in the Baltimore area (the "Organization" or "Hayes DTO") (ECF 1).[1] In particular, on May 5, 2011, defendant Richard Anthony Wilford, along with co-defendants Lawrence Lee Hayes, Jr., Bryan Eammon Williams, George Lamar Plunkett, Mark Anthony Hawkins, and Robert Nyakana, were charged in federal court with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846.[2]

According to the Government, Hayes was "the leader" of the Hayes DTO. Government's Opposition to Wilford's Motion to Suppress (ECF 165), at 2. Wilford was allegedly "a source of supply for the Hayes DTO, providing the organization with kilogram quantities of cocaine." Id. Williams was also "a source of supply for the Hayes DTO, " while Plunkett and Hawkins served as "lieutenants." Id. Nyakana was "a transporter of narcotics from California to the Baltimore, Maryland area." Id.

Now pending is Wilford's "Supplemental and Consolidated Motion to Suppress Tangible and Derivative Evidence" ("Motion to Suppress") (ECF 160), challenging evidence derived from the surveillance conducted by law enforcement officers by means of Global Positioning System ("GPS") tracking devices and court-authorized "pinging" of cellular phones. See ECF 160.[3] Relying on the Supreme Court's recent decision in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945 (2012), Wilford maintains that the warrantless use of GPS tracking technology violated his Fourth Amendment rights. Additionally, Wilford asserts that, despite court authorization obtained under Maryland's pen register and trap and trace statute, Md. Code (2006 Repl. Vol., 2012 Supp.), Cts. & Jud. Proc. ("C.J.") §§ 10-4B-01, et seq., the pinging of his cellular phone was not authorized by the statute, and was conducted in violation of Maryland law and the Fourth Amendment. Thus, according to Wilford, evidence derived from the use of GPS and pinging must be suppressed under the Fourth Amendment's exclusionary rule.

Wilford also requested a hearing, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the veracity of an application dated November 18, 2010, submitted to a Maryland State judge for an order authorizing pinging of Wilford's cell phone[4]; an application for a search and seizure warrant, dated May 10, 2011, submitted to a Maryland State judge, and used to recover physical evidence from multiple locations associated with Wilford and the Hayes DTO[5]; and an application for a wiretap order, dated April 1, 2011, as to Wilford's cell phone, which was not provided. According to Wilford, these applications contained deliberately false and misleading statements, and thus evidence derived from them should be suppressed.

In addition, Wilford filed a "Motion for Disclosure of Relevant Evidence and Request for Immediate Hearing" ("Disclosure Motion") (ECF 165). In the Disclosure Motion, Wilford seeks, inter alia, internal memoranda circulated by "various law enforcement agencies" pertaining to GPS tracking, in light of the decision in August 2010 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). According to Wilford, this information is pertinent to his Motion to Suppress.[6]

The Government opposes Wilford's Motion to Suppress ("Opposition" or "Opp., " ECF 165).[7] With respect to GPS tracking, the Government relies, inter alia, on the good faith exception to the exclusionary rule, claiming that its use of the GPS devices took place prior to the Supreme Court's decision in Jones and, at the relevant time, it was in compliance with what was then settled law. Further, the Government disputes Wilford's argument that cell phone pinging violates Maryland law and the Fourth Amendment, and maintains that, in any event, the pinging orders comported with the Fourth Amendment's warrant requirement. The Government vehemently opposed Wilford's request for a Franks hearing, insisting that any allegedly false or misleading statements were the result of negligence, rather than recklessness or a deliberate intent to mislead. As to the Disclosure Motion, the Government responds that Wilford is not entitled to the production of internal law enforcement memoranda under Fed. R. Crim. P. 16. It also argues that such material is not relevant to the issues raised by the Motion to Suppress. See Government's Response to Defendant's Motion for Disclosure of Relevant Evidence ("Disclosure Opp., " ECF 173).

I held a motions hearing on January 25, 2013, and March 8, 2013, at which the parties presented evidence and argument. The parties also filed supplemental briefs as to the scope of Maryland's pen register and trap and trace statute, C.J. §§ 10-4B-01, et seq., and the issues raised under Franks v. Delaware . See Memorandum to Counsel, Jan. 28, 2013 (ECF 175); Defendant's Response to Issues Raised by the Court ("Wilford Supp. Memo, " ECF 180); Government's Supplemental Briefing ("Gov't Supp. Memo, " ECF 181). For the reasons that follow, I will grant, in part, and deny, in part, Wilford's Disclosure Motion. And, I will deny Wilford's Motion to Suppress, without prejudice to his right to renew his argument as to the inapplicability of the good faith defense, pending possible Government disclosures, as discussed infra.

I. Factual Background[8]

In August 2010, the Drug Enforcement Administration ("DEA"), the Baltimore City Police Department ("BPD"), the Baltimore County Police Department, the Maryland Transportation Authority Police, and the Internal Revenue Service ("IRS") began a joint investigation of the Hayes DTO, based on information obtained from two confidential sources ("CS1" and "CS2"). Opp. at 4-5. Law enforcement agents learned that Hayes and the Hayes DTO were involved in the distribution of cocaine in the Baltimore metropolitan area. See id. The investigation was run as a "DEA Task Force" matter.

DEA Agent Mark Lester served as the lead investigator of the DEA Task Force. DEA Agent Todd Edwards and BPD Officer Glenn Hester were his co-case agents. DEA Agent Mara Hewitt was also involved. An Assistant State's Attorney for Baltimore City, La Rai Everett, was the lead State prosecutor with respect to the investigation. During the investigation, all applications for warrants, pinging orders, and wiretaps were submitted to Maryland State court judges. Id. at 4. In 2011, a decision was made to prosecute certain members of the Hayes DTO in federal court. See id.

A. Location Technology

1. GPS Tracking Devices

During the investigation, four "slap on" GPS tracking devices, which did not require permanent installation, were placed on twelve different vehicles, as set forth below, Opp. at 2-3[9]:

• A Nissan registered to and utilized by Hayes;
• A Range Rover registered to Deneen Bolden and utilized by Hayes;
• A Honda Crosstour registered to and utilized by Wilford;
• A Jeep registered to BLOW IT OFF POWER WASHING and utilized by Hawkins;
• An Acura 2 registered to Donna Lee Oneal and utilized by Hayes and Antoine Lamont Goodson;
• A Honda Crosstour registered to and utilized by Hayes;
• A Jeep Liberty registered to Arki Lamar Reid-Labrousse and utilized by Plunkett;
• A Volvo sport utility vehicle registered to Arki Lamar Reid-Labrousse and utilized by Plunkett;
• An Acura 4S registered to and utilized by Hayes;
• A Honda registered to and utilized by Plunkett;
• An Oldsmobile minivan registered to BLOW IT OFF POWER WASHING and utilized by Hawkins and Wilford;
• A Honda Crosstour registered to Robin Michelle Douglas and utilized by Hayes.

Agent Lester testified at the hearing on January 25, 2013, as to the GPS devices used during the investigation. The GPS devices, which were battery powered, communicated location information through a wireless connection. The agent explained generally that the GPS device is triggered by the movement of the vehicle. A DEA agent could obtain the real-time location of the GPS while a vehicle is moving, and location data could also be accessed at a later time through a DEA computer application. An icon representing the vehicle could be displayed through a computer mapping program, along with the approximate street address of its location. However, the GPS devices could not identify the driver of the car. Thus, GPS devices served as aids to obtain visual surveillance, but did not substitute for such surveillance.

According to Agent Lester, a GPS device was placed on Wilford's Honda Crosstour between November 17, 2010, and December 8, 2010, and between December 12, 2010 and April 16, 2011. Between January 18, 2011 and May 19, 2011, a GPS device was also placed on the Oldsmobile minivan registered to BLOW IT OFF POWER WASHING. The Government claims, and Agent Lester confirmed: "All of the GPS devices were placed on vehicles while they were parked on public streets, driveways accessible from the street, or public parking lots." Opp. at 4. However, as discussed more fully, infra, no search warrants were obtained for the use of GPS tracking devices.

GPS data was not transmitted every day. According to the testimony of a defense witness, Joshua Brown, of GLS Litigation Services, [10] the GPS data indicated that the location of Wilford's Crosstour was transmitted 4, 022 times, on 78 days, and the location of the minivan was transmitted 7, 326 times, on 68 days.

2. Cell Phone Pinging

During the investigation, DEA agents submitted numerous applications to the Circuit Court for Baltimore City, each under oath, for an order to authorize the pinging of Wilford's cellular phone, pursuant to C.J. § 10-4B-03. Each order was valid for sixty days. Three applications are relevant here.

The first application is the subject of defendant's Franks challenge, discussed infra. It was submitted by DEA Agent Mara Hewitt on November 18, 2010. See Nov. 18 Pinging App. at 1. Judge Pamela White of the Circuit Court for Baltimore City found "that probable cause exists based upon the information supplied in this application, that the said individual is using the above captioned cell phone for criminal activity and that the application will lead to evidence of the crime(s) under investigation." Id. at 11. Therefore, she approved the application, on the same date. Id. Agent Lester filed the Second Application, which was approved by Baltimore City Circuit Court Judge Barry Williams on January 19, 2011, upon his finding of probable cause. See Opp. Exh. 3. Agent Lester also filed the third application, which was approved by Baltimore City Circuit Court Judge Timothy Doory on April 29, 2010, upon his finding of probable cause. See Opp. Exh. 4.

No testimony was offered at the motions hearing as to the precise technology used to obtain cellular phone location information. But, the manner in which cell phones transmit their location has been the subject of discussion in the literature and is generally known:

Cellular telephones send their communications by radio waves to cell sites- transmitting stations in stand-alone towers or on other buildings-that are strategically placed throughout the provider's service area. As a cell phone (and its user) moves from place to place, the cell phone's signal shifts from tower to tower to achieve the best signal. In order to determine which tower to use, the cell phone regularly communicates with nearby towers to test the available signals. When a user places or receives a call on his cell phone, the phone's radio transmitter must communicate with nearby cell towers so that the appropriate one (or ones) may handle the call.

Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L. Rev. 681, 702-703 (2011) (footnotes omitted). Thus, a cell phone will transmit its location information to nearby cell towers "[w]hen the government calls the target's cell phone." Id. at 703. Moreover, because a cell phone regularly communicates with cell towers to test signal capacity, data may be received from a service provider, even without calling. The applications appear to be worded broadly enough to encompass either practice.

According to the evidence, when a cellular phone was turned on, a ping occurred every fifteen minutes, with the service provider for the cellular phone sending an e-mail to law enforcement with latitudinal and longitudinal coordinates. These coordinates could locate a phone within a radius of 3 to 5, 000 meters. As with GPS data, Agent Lester testified that pinging was an aid for, but not a replacement for, visual surveillance.

At the hearing on January 25, 2013, defense witness Joshua Brown displayed a digital map of Baltimore, overlaid with color-coded circles representing each GPS and pinging data point based on data disclosed by the Government in discovery. According to Brown, each data point included locational coordinates, along with the date and time. The radius of each circle purported to represent the relative precision with which law enforcement agents could locate Wilford's phone or vehicle. In other words, a large circle indicated a rough estimate, while a small circle indicated a very precise estimate. The majority of data points appeared to reveal Wilford's location in a public space. On several occasions, however, the data appeared to indicate Wilford's presence in or around a private location.

B. Investigation of the Hayes DTO as it pertained to Wilford

On October 8, 2010, through a "slap on" GPS tracking device on Hayes's Nissan, Hayes was located in the vicinity of the 3600 and 3700 blocks of Wabash Avenue in Baltimore. Opp. at 5. Following instructions from law enforcement agents, CS2 observed Hayes at a barber-shop at 3739 Wabash Avenue, and witnessed Hayes and Plunkett exchange a plastic bag believed to contain money. Id. On the same day, based on the GPS device placed on Hayes's Nissan, DEA Agents Lester and Edwards followed Hayes to 30th and St. Paul streets in Baltimore City, where they observed Hayes interact with an unknown individual, later identified as Wilford, who was driving a Ford F-150 pickup truck. See id. Agents saw Wilford give a large cardboard box to Hayes and, shortly afterwards, saw Hayes take it to the Belvedere Towers Apartments at 1190 Northern Parkway in Baltimore (the "Belvedere"), a suspected stash house, where they had seen Hayes several times before. Id. The agents also determined that the F-150 was registered to Wilford.

On October 18, 2010, CS2 informed law enforcement agents that Wilford was dealing narcotics with Hayes, and that Wilford was driving a Mercedes Benz that cost approximately $150, 000. Opp. at 6. A search of Wilford's criminal record revealed two prior federal felony drug convictions. Id.

On October 22, 2010, Agents Lester and Edwards again located Hayes through the GPS device on his vehicle. Id. at 6. They observed him in an encounter with Wilford at 30th and St. Paul streets. See id. They watched Wilford and Hayes walk around the block for approximately an hour before leaving in Hayes's vehicle. Id. While Hayes and Wilford were gone, Agent Lester took photographs of the interior and exterior of the F-150. When the two men returned, Wilford was seen exiting Hayes's vehicle with a backpack that appeared full, while Hayes removed a large cardboard box from Wilford's truck, similar in size to the box exchanged on October 8, 2010. Id. Anticipating Hayes's next move, Agent Edwards proceeded to the Belvedere, where he observed Hayes bring the box into the building. See id.

Based on a review of land records, law enforcement agents determined that in 2007 Wilford purchased a large house in Cecil County, Maryland for about $540, 000, and refinanced it in March 2007 for $637, 000. Id. at 5-6. Yet, Wilford's Maryland tax returns revealed that in 2006 he only earned approximately $21, 855. Id. at 6. Agents also learned that Wilford owned a dump truck company named "R.A.W. ENTERPRISES, " located at 2512 Erick Street in Baltimore. Id. Because "B'MORES DUMPING, " a dump truck company allegedly owned by Michael Smooth, also operated out of 2512 Erick Street, agents suspected that Wilford was involved with Smooth in operating B'MORES DUMPING. See id.

On November 4, 2010, utilizing a GPS device planted on a vehicle owned by Antoine Goodson (a suspected member of the Hayes DTO), law enforcement agents located and observed Plunkett at a residence at 301 W. 27th Street in Baltimore. Id. at 6. That is the address listed on Hayes's Maryland driver's license. Id. at 7. During surveillance, agents observed Plunkett purchase several rolls of paper towels at a nearby 7-11 and take them to the residence. Id. According to Agent Lester and Officer Hester, the affiants on the Warrant Application, paper towels are often used by persons converting powder cocaine into crack cocaine. Id.; Warrant App. at 25. Agent Lester and Officer Hester believed that the residence was used to convert powder cocaine into crack cocaine. Opp. at 7; Warrant App. at 25.

On November 17, 2010, Agents Lester and Edwards removed a GPS device they had placed on Hayes's Land Rover and placed it on a Honda Crosstour registered to Wilford, which they had seen Wilford driving. Opp. at 7. At the time, the Crosstour was parked outside Hayes's residence at 1020 Park Avenue in Baltimore. Id. That GPS device was removed from the Crosstour on December 8, 2010, while it was at a Honda dealership for repairs. Id.

Agents Lester and Edwards placed another GPS device on the Honda Crosstour on December 12, 2010, while the vehicle was parked at Baltimore Washington International - Thurgood Marshall Airport ("BWI"). Id. at 7. Pinging data had revealed that Wilford's cell phone was in California in early December 2010, and Agents Edwards and Lester speculated that Wilford may have parked a vehicle at BWI. See id. at 7-8. Agent Lester recalled that, after a "painstaking[]" three-hour visual scan of the airport parking lots, they found Wilford's vehicle.

On December 17, 2010, based on GPS devices located on the respective vehicles of Hayes and Wilford, along with the "pinging" of their cellular phones, law enforcement agents located and observed Hayes and Wilford, again at 30th and St. Paul streets. Opp. at 8. Wilford gave Hayes a large cardboard box, similar in size to the other boxes that had been exchanged. Id. The two men entered Wilford's vehicle and drove away. Id. Ten minutes later, law enforcement agents observed Wilford's vehicle at the Belvedere; they saw Hayes enter the building carrying a large cardboard box, and leave six minutes later, empty handed. Id. After Hayes entered Wilford's vehicle, Wilford drove away. Id. According to lease paperwork, Apartment 717 at the Belvedere was leased by an employee of B'MORES DUMPING. See Warrant App. at 26.

On January 19, 2011, law enforcement agents placed a GPS tracker on the Oldsmobile minivan utilized by Hawkins and Wilford and registered to BLOW IT OFF POWER WASHING. See Opp. at 8. The tracker was placed on the vehicle while it was parked on Woodbourne Avenue in Baltimore. Id.

Through GPS and pinging, Wilford was located on January 28, 2011, at a Staples store on York Road in Baltimore, and then at another Staples store on Goucher Boulevard in Towson, Maryland. See id. [11] Surveillance videos from those stores, obtained by law enforcement agents, show Wilford taking a large cardboard box into each store on January 28, 2011. Id. Agents also obtained the shipping records for the Staples on Goucher Boulevard, which indicated that Wilford had paid cash to send a 15 pound box to an address in Long Beach, California. Id. at 8-9. The sender was listed as Janice Tate, although it was determined that she did not live at the listed address. Id. The recipient was listed as Ronald Tate, and it was determined that he did not live at the specified address. Id. at 9. Rather, Alejandro Miller was the resident at the recipient's address. Id.

Miller had a connection to Pierre Bantan, a relative of Wilford's girlfriend. See id. Bantan had previously been connected with a package sent by a fictitious person in Baltimore to a fictitious person in California. Id. Law enforcement agents obtained a search warrant for the Tate box and discovered approximately $79, 650 hidden in a Magnavox VCR/DVD player. Id.

On January 31, 2011, law enforcement agents again located Wilford's Honda Crosstour at BWI airport by pinging his cellular phone, pursuant to an order issued by Baltimore City Circuit Court Judge Barry Williams on January 19, 2011. Id. Because pinging data indicated that Wilford was in California, agents again deduced that Wilford had parked his vehicle at a BWI parking lot. Id. When they located Wilford's vehicle, agents saw that it contained a bag of "motherboards, " which are the internal parts of a computer. Id. According to officers involved in the investigation, motherboards are often removed from a computer so that the "shell" can be used to transport drugs or money. Id.; see Warrant App. at 38.

On February 10, 2011, agents tracked Hayes and Plunkett, through GPS devices on their respective vehicles, to the Belvedere. Opp. at 10. With the aid of a hallway "surveillance camera" in the apartment building, [12] agents saw Hayes carry a large cardboard box into the apartment with him, and then saw Plunkett take two large boxes from the apartment to the dumpster. Id. In the dumpster outside the Belvedere, agents discovered four computer boxes; two computer shells (one of which had black paper taped over the holes, to hide the interior); a small plastic bag containing white powder residue (later determined to be cocaine); latex gloves; two empty boxes of sandwich bags; and a razor blade. Id. at 10-11.

Law enforcement obtained a surveillance video of Wilford on March 10, 2011, purchasing a Magnavox VHS/DVD player at a Walmart. Id. at 12; see Opp. Exh. 4 at 9.[13] On March 17, 2011, law enforcement tracked Wilford and Hawkins to the Staples store located on Goucher Boulevard in Towson by using GPS devices planted on Wilford's Crosstour and Hawkins's minivan, and by pinging Wilford's cellular phone. Opp. at 11. Wilford and Hawkins were seen packing three boxes in the Staples parking lot, similar in size and shape to the boxes seen in the surveillance videos of January 28, 2011. Id. Wilford took one of the boxes into the Staples store for shipping; he took another box to a different Staples in Towson, and the third box to an Office Depot. See id. As before, the package deposited at the Staples on Goucher Boulevard listed Janice Tate as sender and Ronald Tate as recipient. Id. A canine scan yielded a positive alert for a controlled dangerous substance. Id. at 12. Pursuant to a warrant, agents located $100, 000 in U.S. currency in the box, concealed in a Magnavox VCR/DVD player. Id. [14]

Law enforcement agents observed Wilford and Hawkins on March 30, 2011, "at a parking lot on Greenmount Avenue and Exeter Hall in Baltimore City." Id. Wilford was seen operating the Oldsmobile minivan registered to BLOW IT OFF POWER WASHING, which agents located through GPS. Id. [15] Wilford gave a box to Hawkins, who was operating a box truck. Id. Hawkins took the box, which was similar in size to the boxes previously observed, into a residence at 1500 Cliftview Avenue in Baltimore. Id.

On April 1, 2011, agents conducted surveillance of the barber-shop at 3739 Wabash Avenue in Baltimore. Id. However, neither GPS nor pinging was used to locate members of the DTO; rather, surveillance was based on the known routine of Hayes DTO members. Id. During the surveillance, agents observed Plunkett, Wilford, Hayes and another Hayes DTO member enter the barber-shop. Opp. at 12-13. Hayes and Plunkett left approximately ten minutes later. Id. at 13. About twenty minutes later, Wilford left in Hawkins's minivan. Id. Based "on a hunch" that Wilford would proceed to 1500 Cliftview Avenue, agents went to that address. Id. GPS tracking on Wilford's vehicle was used to alert law enforcement, who had already established visual surveillance of the address, that Wilford was about to arrive. Id. at 13 & n.6. Agents observed Wilford retrieve a blue shoulder bag and a red backpack from the minivan and enter the residence, using a key. Id. at 13. When Wilford returned to the van and opened the rear door, agents saw a red and white VCR box, identical to the VCR box seized previously from one of the packages that Wilford had sent to California. Id.

A few hours later, Wilford was observed interacting with the driver of a white Range Rover that had pulled in front of the residence. Id. Agents saw the driver hand Wilford a small object, which Wilford placed in his right front pants pocket. Id. After the Range Rover drove away, Wilford, Hawkins, and two other men exited 1500 Cliftview carrying backpacks and bags that they put in a silver Hyundai[16] before driving away. Id. Wilford, driving the Oldsmobile minivan, followed the Hyundai. Id.

Also on April 1, 2011, agents intercepted a phone call between Hayes and Bryan Williams, pursuant to a court order signed by a Maryland State judge authorizing the interception of communications as to Hayes's cell phone. Id. at 14; see Warrant App. at 53, 57-58. During the call, Williams told Hayes that, at the beginning of the following week, he was going to send him a "get well card, " which was understood as a code for narcotics. Opp. at 14.

On April 3, 2011, Illinois State Troopers in Clark County stopped a Penske Tractor Trailer Truck for speeding on I-70. Opp. At 14. Nyakana, the driver, consented to a search of the vehicle, and the troopers discovered approximately 136 kilograms of cocaine. Id. The drugs were to be delivered to Bryan Williams in Jessup, Maryland; Nyakana was to be paid $200, 000 for the transportation. Id. According to the Government, the wholesale value of the cocaine discovered in the trailer was estimated at $4, 060, 000, with an estimated street value of $13, 600, 000. Id. ...

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