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United States v. Bloomer

United States District Court, D. Maryland

December 22, 2017

UNITED STATES OF AMERICA
v.
PHILLIP WAYNE BLOOMER, et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         On June 28, 2017, a federal grand jury returned an indictment against Phillip Wayne Bloomer, Jr. (“Bloomer”), Von Lamarr Walker (“Walker”), and Efrem Rahsaan Jones (“Jones”), charging all three Defendants with conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. § 846, and charging Defendant Walker with possession with the intent to distribute one-hundred (100) grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 28.) Currently pending before this Court are Defendant Walker and Defendant Bloomer's Motions to Suppress evidence obtained directly and indirectly through electronic surveillance. (ECF Nos. 62, 73.) The parties' submissions have been reviewed, and this Court held a hearing on the motions on December 18, 2017. (ECF No. 95.) For the following reasons, Defendant Walker and Defendant Bloomer's Motions to Suppress (ECF Nos. 62, 73) are DENIED.

         BACKGROUND

         On April 14, 2017, the Honorable J. Frederick Motz of this Court approved an application submitted by the Government for a wiretap of Defendant Walker's cellphone. (ECF No. 66-3.) The application for the wiretap was supported by a sixty-three page affidavit executed by a Task Force Officer with the Drug Enforcement Administration. (ECF Nos. 66-1, 66-2.) The application stated that there was probable cause to believe both that the “Target Suspects, ” including Defendants Walker and Jones, were committing and would continue to commit various controlled-substance offenses, and that particular communications concerning those offenses would be obtained through the interception of wire and electronic communications. (ECF No. 66-1.) Around one month later, on May 10, 2017, the Government submitted an additional wiretap application seeking to authorize a wiretap of a replacement phone Walker acquired and also a wiretap of Bloomer's cellphone. (ECF No. 66-4.) On that same day, Judge Motz authorized the interception of these cellphones. (ECF No. 66-6.) Around June 2, 2017, Defendant Bloomer also acquired a new, replacement phone, and therefore another application was made for a wiretap of Defendant Bloomer's new cellphone, which Judge Motz ordered. (ECF Nos. 66-10, 66-12.) In addition, on June 8, 2017, Judge Motz authorized an extension of the wiretap on Walker's second phone. (ECF No. 66-9.) On June 28, 2017, a federal grand jury returned an indictment against Defendants Bloomer and Walker, and another alleged co-conspirator, Defendant Jones. (ECF No. 28.)

         On August 18, 2017, Defendant Walker filed a Motion to Suppress evidence obtained directly and indirectly through the wiretap surveillance. (ECF No. 62.) The Government filed a Response on September 18, 2017. (ECF No. 66.) Defendant Bloomer subsequently filed a similar Motion to Suppress. (ECF No. 73.) Both Defendants challenge the wiretaps on the grounds that they did not meet certain procedural requirements set forth in 18 U.S.C. § 2518.[1] On December 18, 2017, this Court held a hearing on the Motions. (ECF No. 95.) This Court addresses Defendants' arguments in turn below.[2]

         ANALYSIS

         I. Probable Cause

         Before authorizing the interception of a wire communication, a judge must determine that there is probable cause to believe that: an individual is committing, has committed, or is about to commit a particular offense, a particular communication concerning that offense will be obtained through the interception, and facilities from which the wire communication are to be intercepted are being used, or are about to be used, in connection with the offense. 18 U.S.C. § 2518(3). The standard of probable cause for issuing a wiretap order is akin to the probable cause standard that governs an ordinary search warrant. United States v. Miller, 50 F.Supp.3d 717, 724 (D. Md. 2014) (citations omitted). Therefore, an applicant need only establish a “fair probability” that under the totality of the circumstances, communications concerning the offense will be obtained through the wiretap. Id. (citing United States v. DePhew, 932 F.3d 324, 327 (4th Cir. 1991)). Importantly, “[a] reviewing court is not to substitute its judgment as to probable cause, but need only determine whether there was a substantial basis for the issuing court's determination of probable cause.” United States v. Fauntleroy, 800 F.Supp.2d 676, 681 (D. Md. 2011) (citing Illinois v. Gates, 462 U.S. 213, 239-39, 103 S.Ct. 2317 (1983)). Accordingly, “great deference” is normally given to the issuing judge's determination, given that he or she is “in the best position to determine if probable cause has been established in light of the circumstances as they appear at the time.” DePhew, 932 F.3d at 327; Miller, 50 F.Supp.3d at 725.

         The sixty-three page affidavit supporting the first order authorizing the interception of Defendant Walker's phone on April 14, 2017 outlined that: (1) law enforcement had previously seized narcotics from Walker during a traffic stop; (2) a confidential source conducted two controlled purchases of heroin from Walker in March and April of 2017; and (3) law enforcement had received information from confidential sources corroborating that Walker was dealing drugs. During the motions hearing, defense counsel argued that the confidential source who made the controlled purchases from Walker was deactivated after investigators learned that he/she was engaging in unauthorized illegal drug transactions. (ECF No. 66-11 at ¶ 40.) However, the investigators learned the facts justifying the deactivation on May 11, 2017, over three weeks after the Government applied for the wiretap of Defendant Walker's first phone.[3] Accordingly, this information was not available either to the affiant or Judge Motz at the time Judge Motz determined that there was probable cause for the wiretaps. Second, the reason the confidential source was deactivated, for engaging in unauthorized drug transactions, was not the type of behavior that altered the affiant's opinion that he/she provided reliable information about Defendant Walker and Bloomer's drug activities. (Id. at ¶ 41). Third, there were independent observations of this informant's meetings with Defendant Walker, and the affiant also relied on two other sources of information. (ECF No. 66-2 at ¶¶ 22-48.)

         Once law enforcement obtained the order authorizing the first wiretap, agents began monitoring Defendant Walker's phone. During the monitoring, law enforcement intercepted calls between Defendants Walker and Bloomer. Agents monitoring the conversations interpreted the two Defendants' “coded language” as discussing drug transactions.[4] In addition, law enforcement conducted a controlled purchase from Bloomer and received confirmation from confidential sources that Bloomer was dealing drugs. Further, by previously issued cellphone warrants, law enforcement tracked Bloomer regularly travel from Hagerstown to New York for a brief time, then to an apartment in Pennsylvania, and then back to Hagerstown. For many of the trips, Defendant Bloomer stopped at a storage unit in Hagerstown, and law enforcement also observed an individual who looked like Bloomer at an apartment complex in Greencastle, Pennsylvania, which the agent believed to be Bloomer's stash house. The Government subsequently applied for the wiretap of Defendant Bloomer's phone on May 10, 2017.[5]

         The two remaining applications and subsequent wiretap orders were for phones Defendant Walker and Bloomer acquired as replacements for their previous ones. The affiant, relying on his experience, knew that acquiring replacement phones and switching numbers are common tactics used to thwart wiretaps and other surveillance. (ECF No. 66 at 15; ECF No. 66-5 at ¶¶ 6, 149; ECF No. 66-1 at ¶¶ 6, 125.) For the above stated reasons, the affidavits in support of each wiretap order stated ample grounds to support Judge Motz's findings that there was probable cause that Defendants Bloomer and Walker were involved in the charged drug offenses and intercepting their phones would lead to the interception of communications concerning those offenses.

         II. Exhaustion

         Defendants Bloomer and Walker next argue that the Government did not exhaust traditional investigative methods before applying for the wiretaps. Before approving a wiretap, a judge must determine that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518 (3)(c). Although enacted to prevent wiretap procedures from being routinely employed as initial steps in investigations, “the government is not required to demonstrate that other investigatory methods have been ‘wholly unsuccessful' or that it has exhausted ‘all possible alternatives to wiretapping.'” Miller, 50 F.Supp.3d 717, 727 (D. Md. 2014) (quoting United States v. Smith, 31 F.3d 1294, 1297 (4th Cir.1994), cert. denied, 513 U.S. 1181, 115 S.Ct. 1170 (1995) (emphasis in original)); see also Id. (explaining that a wiretap does not need to be a last resort). Accordingly, the Government's burden to show the inadequacy of normal investigative techniques “is not great.” United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). “Rather, the government must present specific factual information ‘sufficient to establish that it has encountered difficulties in penetrating the criminal enterprise or in gathering evidence to the point where wiretapping becomes reasonable.'” United States v. Cunningham, 467 Fed.App'x. 219, 220 (4th Cir. 2012) (quoting Smith, 31 F.3d at 1298). In making this determination, courts may consider the affiant's knowledge, training, and experience regarding whether a particular investigative technique would have succeeded or failed. Miller, 50 F.Supp.3d at 727 (citing Smith, 31 F.3d at 1299). Finally, similar to the probable cause requirement, “[d]eference is given to the issuing judge's determination that the wiretap applications provided sufficient information to satisfy the exhaustion requirement of 18 U.S.C. § 2518(3)(c).” Id. at 728.

         Defendants present two related arguments as to how the Government failed to meet the exhaustion requirement, asserting that the traditional techniques employed by the Government were “producing unusually good results” and that the affidavits stated “lofty and overly-broad goals of the investigation to justify why only a wiretap c[ould] accomplish the [investigation's objectives.” (ECF No. 73 at 6-7.) The Government responds that this was a complex case with the goal of identifying suppliers “up the chain, ” and that the affidavits explained why more than a ...


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