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United States v. Miller

United States District Court, D. Maryland

September 24, 2014

UNITED STATES OF AMERICA,
v.
LYNDON FACISCO MILLER

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For Lyndon Facisco Miller, Defendant: A Eduardo Balarezo, LEAD ATTORNEY, Balarezo Law, Washington, DC; Harry Tun, Law Office of Harry Tun, Washington, DC.

For Sophia Lorraine Warmington, Defendant: Teresa Whalen, LEAD ATTORNEY, Law Office of Teresa Whalen, Silver Spring, MD.

For USA, Plaintiff: Christopher J Romano, LEAD ATTORNEY, Rod J Rosenstein, Office of the United States Attorney, Baltimore, MD.

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MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge.

On June 26, 2013, a federal grand jury returned a seven-count indictment against

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Lyndon Facisco Miller and Sophia Lorraine Warmington (ECF 12), charging them with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, five hundred grams or more of cocaine, and twenty-eight grams or more of cocaine base (i.e., crack cocaine), all in violation of 21 U.S.C. § § 841(a)(1) and 846 (Count One). Count Two charges that on June 22, 2013, defendants possessed with intent to distribute one hundred grams or more of heroin, five hundred grams or more of cocaine, and twenty-eight grams or more of cocaine base. In Count Three, Miller is charged with distribution of heroin on May 21, 2013. In Count Four, Miller is charged with distribution of heroin on May 28, 2013. Both defendants are charged in Count Five with distribution of 100 grams or more of a substance or mixture containing heroin on June 20, 2013. Count Six charges Miller with possession of a loaded firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Finally, Count Seven charges Miller with being a felon in possession of a loaded firearm, in violation of 18 U.S.C. § 922(c)(1).

Warmington pled guilty to Count One on February 10, 2014, and awaits sentencing. Miller filed several pretrial motions.[1] The following defense motions are pending: (1) Motion to Suppress Evidence Obtained By Electronic Surveillance and Intterception [sic] (ECF 74); (2) Motion to Suppress Evidence Obtained by or Derived from GPS Installation Monitoring (ECF 75); (3) Motion to Suppress Tangible Evidence (ECF 76); (4) Motion to Amend/Correct Motion to Suppress Obtained by Electronic Surveillance and Interception (ECF 77)[2]; (5) Motion to Suppress Tangible (ECF 93); (6) Motion to Amend Motion [to] Suppress Tangible Evidence (ECF 94); (7) Motion to Suppress Wiretap Evidence (ECF 95-2); (8) Motion for Extension of Time to File Motion for Leave to File Late Motions (ECF 95); (9) Defendant's Motion for Leave to Late File Motions (ECF 99).[3] And, on September 22, 2014, defense counsel belatedly filed a " Supplemental Motion To Suppress Wiretap Evidence." ECF 117. The government's responses are found at ECF 78, ECF 98, ECF 111, and ECF 113. Both sides have also submitted multiple exhibits.

The court held a motion hearing on July 28, 2014. As to certain motions or portions of them, the defense submitted on its filings. Testimony was presented with respect to the arrest of the defendant on June 24, 2013, the search of the rental car that defendant was operating at the time of his arrest, as well as statements allegedly made by Miller after his arrest. Due to the filings by defense counsel on the eve of the motions hearing, the court allowed the government to submit a post-hearing supplemental response, and to call additional witnesses at a second hearing, to be held on October 3, 2014. Moreover, the government has not yet had an opportunity to

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respond to ECF 117, the wiretap motion that pertains to the following telephone lines: (251) 421-4575; (443) 252-1294; (724) 255-8960; and (302) 388-8195. Therefore, this Memorandum Opinion addresses only those motions that are ripe for disposition.[4]

1. Motion to Suppress Evidence Obtained by Electronic Surveillance and Interception (ECF 74, ECF 95-2).

On May 6, 2013, Joseph Cassilly, State's Attorney for Harford County, Maryland, submitted an ex-parte application for a wiretap order, supported by a 48-page affidavit executed by Detectives Aaron Penman and Thomas Gregory of the Harford County Sheriff's Office and Maryland State Police Detective Neil Miranda. See " Wiretap Affidavit," ECF 78-3. On the same date, the Honorable Angela Eaves, Associate Judge of the Circuit Court for Harford County, signed an ex parte order authorizing interception of cellular telephone number (443) 545-4592 " and any telephone lines utilized" by Miller. Order of May 6, 2013, ECF 78-4. On June 4, 2013 and June 5, 2013, Judge Eaves signed ex parte orders related to additional telephones utilized by defendant.[5] All of the applications and orders were submitted pursuant to Md. Code, § 10-408 of the Courts & Judicial Proceedings Article (" C.J." ).

In ECF 74, Miller contends that the wiretap orders issued by Judge Eaves violated 18 U.S.C. § 2516, § 2518(1)(c), § 2518(5), and § § 2518(3)(a) and (b). ECF 74 at 4, 6, 9, 10. Therefore, he contends that he is entitled to suppression under 18 U.S.C. § 2518(10)(a). Id. at 11. Moreover, Miller contends that the wiretap orders constituted general warrants, in violation of the Fourth Amendment to the United States Constitution.

In ECF 95-2, defendant relies on C.J. § 10-408(c)(3) for the contention that Judge Eaves was only permitted to authorize the interception of electronic communications so long as the communications were " ' received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception ... .'" Id. at 1-2 (quoting C.J. § 10-408(c)(3)) (emphasis added by defendant). Miller asserts that the Harford County Task Force unlawfully intercepted calls between defendant and Heberto Ortiz-Gutierrez, who lived in Pennsylvania, while the two were in Pennsylvania. But, Miller maintains that only those communications occurring within the State of Maryland could be lawfully seized under Judge Eaves's Order.

I will address each of Miller's contentions in turn.

C.J. § 10-408(c) permits a Maryland judge to enter an ex parte order authorizing the interception of " wire, oral, or electronic communications . . . sent by a communication device anywhere within the State." The Maryland Court of Appeals has construed portions of the Maryland statute to be in pari materia with Title III of the Omnibus Crime Control and Safe

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Streets Act of 1968, codified at 18 U.S.C. § 2510 et seq. See Davis v. State, 426 Md. 211, 214, 43 A.3d 1044, 1045-46 (2012). Therefore, in analyzing defendant's contentions, I will refer to both Maryland law and federal statutory law, as they are quite similar with respect to electronic surveillance.

As noted, Miller advances several arguments challenging the legality of the wiretap. He contends that the ex parte orders were based on affidavits that lacked probable cause; that the monitoring agents failed to properly minimize calls; that the investigators failed to exhaust other less intrusive investigative procedures; that the wiretap orders constituted general warrants; and that the Harford County Task Force unlawfully intercepted calls between defendant and Mr. Gutierrez when both were in Pennsylvania, and thus the interception was outside the jurisdiction of the State of Maryland. See ECF 74; 95-2.

Under Maryland law, before authorizing interception of wire or electronic communications, a Maryland circuit court judge must find the following, in accordance with C.J. § 10-408(c), which states, in part:

(c) Issuance of order. -- Upon the application the judge may enter an ex parte order . . . authorizing interception of wire, oral, or electronic communications within the territorial jurisdiction permitted . . . if the judge determines on the basis of the facts submitted by the applicant that:
(i) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [C.J.] § 10-406 of this subtitle;
(ii) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
(iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(iv) There is probable cause for belief:
1. That the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense ... .

These Maryland statutory requirements are consistent with those articulated in 18 U.S.C. § 2518(3). Accordingly, I look to federal cases for guidance.

In United States v. Clerkley, 556 F.2d 709, 716 (4th Cir. 1977), cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978), a gambling case that involved electronic surveillance, the Fourth Circuit said:

In analyzing a given case, the federal courts have considered three principal factors: (1) the nature and scope of the alleged criminal enterprise; (2) the government's reasonable expectation as to the content of, and parties to, the conversations; and (3) the degree of judicial supervision while the wiretap order is being executed.

In my view, and as discussed, infra, these factors weigh in favor of the government.

The standard of probable cause for the issuance of a wiretap order is akin to the probable cause standard that governs an ordinary search warrant. See United States v. Biaggi, 853 F.2d 89, 95 (2d Cir. 1988); United States v. Talbert, 706 F.2d 464, 467 (4th Cir. 1983). Therefore, an applicant need only establish " a fair probability" that communications concerning

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the offense will be obtained, based upon the totality of the circumstances. See United States v. DePew, 932 F.2d 324, 327 (4th Cir. 1991); see also United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988) (" It is sufficient that the information in the affidavit, when assessed in its totality, was sufficient to support a reasonable belief that evidence of criminality by the subject of surveillance would be obtained." ). " Applications for electronic surveillance orders, like search warrants, are to be read 'in a common sense and realistic fashion.'" United States v. Errera, 616 F.Supp. 1145, 1149 (D. Md. 1985) (citation omitted).

The Wiretap Affidavit contains detailed information pertaining to the involvement of Lyndon Miller in narcotics distribution. ECF 78-3. It describes information pertaining to defendant's drug trafficking " from three separate proven reliable confidential informants and two confidential sources." ECF 78-3 at 11. The affiants also recount controlled drug purchases made by an informant from Miller. Id. at 10. A drug exchange is described in detail on page 16. And, beginning on page 16, and continuing through page 18, the affiants describe defendant's " long history of renting vehicles," id. at 17, and aver that drug dealers " commonly use rental cars to distribute drugs," for the reasons explained in the affidavit. Id.

The Wiretap Affidavit contains other substantial information, such as an investigation of defendant's financial status. The investigation revealed no reported Maryland wage history for Miller, suggesting that he had an illegitimate source of income. ECF 78-3 at 39. In addition, the affidavit identified a variety of telephone numbers linked to Miller.

Generally, the burden is on defendant to show illegality in connection with the issuance of the wiretap order. United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Moreover, " [g]reat deference is normally paid" to the determination of the issuing judge, who is " in the best position to determine if probable cause has been established in light of the circumstances as they appear at the time." DePew, ...


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