The opinion of the court was delivered by: WEINFELD
These are a series of motions by various defendants named in a single count indictment filed September 15, 1983, charging them and others with conspiracy to distribute and to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 846 (1982). The charge centers principally about the defendant Ella Shipp and her alleged large scale illegal drug distribution activities in Cleveland, Ohio and New York City, in concert with other defendants during the period from on or about January 1982 through mid-September 1983.
On September 7, 1983, shortly before the return of the indictment, a complaint was filed accompanied by an extensive affidavit of Special Agent Michael E. Mott of the New York FBI office submitted for the limited purpose of establishing probable cause for the issuance of warrants to search described premises and warrants to arrest named defendants. The affidavit recites details of the activities of named defendants based in part upon information derived from previously authorized wiretap orders. The affidavit is virtually a bill of particulars of each defendant's purported conduct during the course of the alleged conspiracy. In substance, it charges that in New York City Ella Shipp was assisted by her husband, defendant McAvoy Joseph Shipp ("Mac Shipp"), who introduced her to a heroin source in September, 1981, and thereafter distributed narcotics, by her son, defendant Marty Frierson ("Frierson"), who distributed and stored narcotics and collected the proceeds from drug sales, by defendants Wilfred C. Burch, Sr. ("Burch"), Viola Reid ("Reid"), Gloria Cannon ("Cannon"), and Paul Beranbaum ("Beranbaum"), who distributed narcotics obtained in New York, and by defendant Vivian Elaine Rodriguez ("Rodriguez"), who was one of Ella Shipp's principal suppliers of cocaine.
The complaint further alleges that, in Cleveland, Ella Shipp's chief aide was one "Tippy," now known to be Ella Shipp's sister, defendant Margaret Wilkinson ("Wilkinson"), and that defendants Charles Byers ("Byers"), Walter Lee Hill ("Hill"), Fred Stitmon ("Stitmon"), and Leola Moreland ("Moreland") assisted in transporting drugs from New York to Cleveland and in their later distribution.
Defendants Mac Shipp, Ella Shipp, Stitmon, Burch and Moreland move to suppress items of evidence obtained as a result of the telephone surveillance orders, and search and arrest warrants allegedly issued in violation of the United States Constitution and federal statutes. A number of defendants also move to dismiss the indictment and for severance on grounds of misjoinder and prejudicial spillover; also they seek extensive pretrial discovery of material claimed to be necessary to defend against the charge.
MOTIONS TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO COURT-ORDERED WIRETAPS
On October 20, 1982, Judge David N. Edelstein of this Court authorized the wiretap of Ella Shipp's telephone at her New York City apartment. Pursuant to this order, which was based upon detailed information sworn to by FBI Agent Mott, the government recorded various telephone conversations which it contends indicate ongoing conspiratorial conduct in the distribution of narcotics in the New York and Cleveland areas. The wiretap was terminated on November 19, 1982. On December 6, 1982, Judge Robert L. Carter granted an extension of the prior wiretap order and subsequent monitoring yielded alleged additional incriminating conversations involving Shipp or one or more of the other defendants.
Defendant Moreland, joined by other defendants, seeks to suppress all conversations that were intercepted and any evidence derived therefrom upon the ground that there was no probable cause for the issuance of either wiretap order as required by 18 U.S.C. § 2518(3).
It is urged that the information relied upon to establish probable cause was stale, that Ella Shipp's use of the telephone to make drug sales was not sufficiently described to justify a belief that information concerning the specified offenses would be obtained by a wiretap, and that pen registers
showing links between the Shipp telephone and those of individuals associated with large scale narcotics operations were inconclusive. Defendant Stitmon challenges the probable cause finding on the basis that there was no probable cause to believe that he was involved with Ella Shipp's organization; Stitmon also asserts that the affidavit supporting the application for a wiretap order contained material, false information, and that, if the order is not invalid outright, he is at least entitled to an evidentiary hearing. Moreland also attacks the probable cause findings underpinning the order extending the wiretap.
Under the federal wiretap statute, the provisions of which are contained in Title III of the Omnibus Crime Control and Safe Streets Acts of 1968, as amended,
before a wiretap order may issue, a judicial officer of competent jurisdiction must find, on the basis of the application, that:
. . . there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in [18 U.S.C. § 2516 (1982)];
. . . there is probable cause for belief that particular communications concerning that offense will be obtained through such interception [sought in the application];
[and] there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
In determining probable cause under this statute the same standard is applied as in determining whether probable cause exists to issue search or arrest warrants.
The standard in reviewing a previous determination of probable cause for the issuance of a warrant by a judicial officer is "only a probability, and not a prima facie showing of criminal activity."
Moreland's first argument, that the information relied upon was stale, is refuted by the facts and numerous decisions addressing similar arguments in situations involving ongoing criminal activity. Specifically, Moreland asserts that between September 20, 1982 and the issuance of the wiretap order on October 20, 1982, the information submitted to Judge Edelstein "failed to provide a factual predicate" for a finding of probable cause. Entirely apart from the fact that Judge Edelstein's finding is entitled to substantial deference,
the contention is without substance; it disregards the factual allegations of Agent Mott's affidavit. Most pointedly, the affidavit attests that on October 11, 1982, nine days before issuance of the wiretap order, Ella Shipp told "Source A" that defendant Byers would be handling heroin distribution in Cleveland for her organization. At this time Ella Shipp also offered to sell Source A "a couple of kilos" of cocaine. Moreover, even assuming, contrary to the affirmations of Agent Mott, that nothing indicating probable cause occurred in the month prior to the wiretap order, our Court of Appeals has held that "[w]here the supporting affidavits present a picture of continuing conduct or an ongoing activity, as contrasted with isolated instances of illegal acts, the passage of time between the last described act and the presentation of the application become less significant."
Contained in the twenty-four pages of Agent Mott's allegations supporting probable cause are numerous facts from which a conclusion of ongoing criminal activity, emanating from the Shipp apartment in New York, could readily be drawn. As early as June 15, 1982, Ella Shipp had told undercover agents of her $2000 per month rental apartment in New York, her distribution of heroin purchased in New York, and her $2000 per month phone bills arising from her drug business. On July 1, 1982, Shipp provided FBI Agent Theodore J. Domine, Jr. ("Domine"), who in an undercover capacity had purchased heroin from Ella Shipp in Cleveland, with the telephone number at her New York apartment. The clear intent and purpose was to discuss and negotiate illicit drug transactions. During July, August, and September, Agent Domine had no fewer than nine drug-related conversations with Ella Shipp involving the telephone in her New York apartment.
Agent Domine and Agent John E. Bell, Jr., had personally visited the Shipp apartment on July 21, 1982, and while there were told by Mac Shipp that "his cocaine supplier would soon be there." On this occasion Ella Shipp told the agents that she sold her heroin for $250,000 a kilogram and made $50,000 on each sale.
In the light of these allegations it borders on the absurd to contend that the information relied upon by Judge Edelstein was stale. Rather, they support the charge of extensive, ongoing criminal activity. These same allegations repel Moreland's second argument that there was an absence of probable cause to believe that Ella Shipp dealt in narcotics over her New York telephone.
Moreland's third argument, that the pen registers linking the Shipp telephone to those of known narcotics organizations provides no basis for inferring probable cause, since there was no evidence that those calls were related to drug transactions, is superficial and unrealistic. It is recognized that the "use of pen registers, which do not identify the participants to a telephone conversation, . . . would be unlikely to uncover [one's] partners in crime."
However, a steady flow of communications between the tapped wire and others may serve as a link in the chain of evidence to support the charge of ongoing criminal activity.
And even if the pen register connections between the Shipp telephone and known narcotics dealers were "merely conclusory[,] . . . [n]onetheless . . . there was specific informant information bolstered by independent investigations of law enforcement personnel,"
including the nine drug-related conversations over the Shipp telephone, that give powerful support to Judge Edelstein's finding of probable cause. Agent Mott's detailed and informative affidavit could hardly be described as "a stringing together of what appear to be vague and unsupported rumors, suspicions, and bare conclusions of others."
Agents Mott, Domine, and Bell are fulltime law enforcement officers and their observations "are plainly a reliable basis for a warrant applied for by one of their number. . . ."
Stitmon's claim that there was no basis for believing evidence of his involvement in the Shipp organization would be uncovered by a wiretap is without substance. The argument misstates the requirements of probable cause. "Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."
There is no requirement that probable cause be established with respect to every defendant ultimately indicated.
Stitmon also claims that the affidavit supporting the wiretap application contained material, false statements and that he is at least entitled to a hearing under Franks v. Delaware.
He argues that at most the tapes reveal he was offered drugs by Ella Shipp; this, Stitmon claims, implies that the informant -- Source A -- falsely told Agent Domine that in January, 1982, Stitmon was involved in heroin trafficking with Ella Shipp; he claims, further, that this allegation, included in the Mott affidavit, was material to granting the wiretap order.
Under Franks, a hearing to contest an affidavit supporting a wiretap order is necessary only "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause."
Stitmon has not made the required showing. First, Stitmon's claim that the tapes show no "involvement" with the Shipp organization is not borne out by the record.
Second, even if the tapes were construed to indicate a lack of involvement, as Stitmon suggests, there is no necessary factual misstatement. Simply because Stitmon made no incriminating comments in conversations with Ella Shipp in early November, 1982, is hardly substantial evidence that he was not a member of her organization in January, 1982. An act innocent on its face may nevertheless be in furtherance of a conspiracy, in which event it is an overt act that is an element of the crime of conspiracy.
Third, even if the January statement were false, Stitmon presents no specific evidence that the affiant agent knew it was false or recklessly disregarded information indicating its falsity. Finally, Stitmon's culpability was not necessary to a finding of probable cause. As Agent Mott's recitation of Agent Domine's conversations and transactions with Ella Shipp indicate, there was overwhelming evidence independent of the informant's statement about Stitmon to support the wiretap order.
Moreland's further claim that the wiretap extension was granted without probable cause is also without merit. Although the wiretap statute requires that each extension must be supported by independent findings of probable cause,
there is no requirement, as Moreland suggests, that the fruits of the initial wiretap must be the sole basis for findings of probable cause required by the extension provisions.Indeed, if anything, the conversations intercepted pursuant to the first wiretap order confirm the existence of an ongoing criminal enterprise operating from Shipp's New York apartment and elsewhere. Agent Mott's affidavit in support of the extension lists twenty-seven conversations recorded under the first wiretap order. These conversations almost uniformly refer to business deals concerning an unnamed "product." Large amounts of money are discussed, and, as Agent Mott explained, code phrases used in the drug trade were frequently employed. ...