# Petition for Writ of Certiorari — Thompson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1075

## Text

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No.

IN THE SUPREME COURT OF THE UNITED STATES

November Term, 1991

UNITED STATES OF AMERICA,
RESPONDENT,
versus
BYRON LESTER THOMPSON,

PETITIONER.

On Petition for a Writ of Certiorari
To the United States Court
Of Appeals For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

COUNSEL OF RECORD:

W. GASTON FAIREY, ESQUIRE
FAIREY & PARISE, P., A.

Post Office Box 8443

Columbia, South Carolina 29202
(803) 252-7606

ATTORNEY FOR THE PETITIONER.

QUESTIONS PRESENTED
Should improperly obtained pen
register evidence be subject to the
exclusionary rule where it is used to
establish probable cause for the issuance

of the Title III wiretap order?

TABLE OF CONTENTS

QUESTIONS PRESENTED .... .
TABLE OF CONTENTS ..... .
TABLE OF AUTHORITIES ... .
CITATIONS TO OPINION BELOW.
JURISDICTION ....-.-o« ~»
CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ... .
STATEMENT OF THE CASE... .
REASONS FOR GRANTING THE WRIT
CONCLUSION ....+.-+«-o-«.« e

APPENDIX ee ee aa ee

ii

PAGE

iii

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TABLE OF AUTHORITIES

PAGE
Smith v. Maryland, 442 U.S. 735
(1979) . . . > . _ > > bel . 7 . > 9

United States v. Thompson, No. CR489-59
a ae epee ee 2.

United States v. Thompson, 936 F.2d
1249 (11th Cir. 1991) . 2-8 oe 2,6,

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iii

No.

IN THE SUPREME COURT OF THE UNITED STATES
November Term, 1991

&

“\ UNITED STATES OF AMERICA,

RESPONDENT,
versus

BYRON LESTER THOMPSON,

PETITIONER.

On Petsition for Writ of Certiorari
To the United States Court
Of Appeals For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Byron L.
Thompson, prays that a Writ of Certiorari
be issued to review the judgment of the
United States Court of Appeals for the
Eleventh Circuit in this case.

CITATIONS TO OPINION BELOW

The opinions relevant to this

case are reported in United States v.

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Thompson, No. CR489-59 (S.D. Ga. 1989),
aff'd, United States v. Thompson, 936 F.2d
1249 (11th Cir. 1991). (See Appendix A.,
pp. 1-3).

JURISDICTION

The United States Court of
Appeals for the Eleventh Circuit entered
its judgment on September 3, 1991. The
Petitioner did not seek a rehearing in
that Court. He invokes this Court's
jurisdiction, pursuant to 28 U.S.C. §§41,
1291, and 1294(1) and Rule 4 of the
Federal Rules of Criminal Procedure.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED
The pertinent provisions and
statutes are Chapter 119 of Title 18 U.S.
Code (Title III), §§2510-2520 (wiretap
statute) and §§3121-3127 (pen register

statute).

STATEMENT OF THE CASE

The Petitioner, Byron L.
Thompson, (hereinafter Thompson) , was
indicted by the Federal Grand Jury of the
Southern District of Georgia and charged,
along with twenty-nine’ others, with
operating a drug conspiracy out of
Savannah, Georgia. In pre-trial motion
hearings, Thompson challenged the validity
of a Title III wiretap issued by the
District Court on August 1, 1989. The
magistrate issued a pen register order on
June 28, 1989, and a wiretap order was
issued by the District Court in August of
1989. Although the applicant for the pen
register was set forth as Joseph D.
Newman, Assistant United States Attorney
(AUSA), the application was signed by AUSA

Kathy M. Aldridge “for Joseph D. Newman."

Thompson challenged this procedure as
violative of 18 U.S.C. §3122 (1988) and
asked the Court to suppress the wire tap
issued as a result of evidence obtained
from the pen register.

The District Court’ rejected
Thompson's arguments as to the invalidity
of the issuance of the pen register and
subsequent wire tap. The Court found Ms.
Aldridge was an “applicant" within the
meaning of 18 U.S.C. §3122 (1988) "despite
the manner in which [she} signed the
application." (Appendix C., p. (16) -
Magistrate's Report and Recommendation,
No. CR 489-59 (S.D. Ga. 1989)).
Additionally, the District Court found
that even if Ms. Aldridge were not a
proper applicant for the order, the
"exclusionary rule in this case would be

inappropriate since no- constitutional

=

violation occurred." (Appendix C. at p.
(18)) The District Court held that, absent
the constitutional exclusionary rule under
the Fourth Amendment, there was no
statutorily-created exclusionary rule
regarding pen registers.

Following the denial of
Thompson's motion on wiretap evidence, he
entered into a plea agreement with the
United States government and pleaded
guilty to counts two and three of the
indictment. As part of the plea
agreement, Thompson reserved his right to
appeal the District Court's determination
of the propriety cf the pen register and
wire tap orders and to withdraw his guilty
plea if the District Court was reversed.
Subsequent to his guilty plea and pre-
sentence report, Thompson was sentenced by

the District Court to 293 months

incarceration. Thompson is presently in
the custody of the United States Bureau of
Prisons.

The Court of Appeals for the
Eleventh Circuit assumed that the
procedure used by the District Court
constituted "a technical violation of the

[Pen Register] Act." U. S. v. Thompson,

936 F.2d 1249, 1250 (11th Cir. 1991). The
Court of Appeals reasoned that where the
magistrate could not remember the specific
circumstances of the seticdeton, where it
was uncertain that the substitute attorney
had knowledge of the case, and where the
application did not meet the statutory
requirements, the Act had been violated.
"In the absence of explicit recollection
by the magistrate judge or testimony from
the signing attorney about any assurances

she made to the court, we have serious

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reservations about the accuracy of the

holding." Thompson, 936 F.2d at 1250.

The Court of Appeals held that
even if the pen register order was
improperly issued under the _ statute,
Thompson would still not be entitled to
suppress the information obtained by the
government through the pen register. The
Court of Appeals refused to exclude the
evidence for two reasons. First, since
there was no constitutional requirement
for a warrant prior to obtaining a pen
register, non-compliance with 18 U.S.C.
§3122 would not be under a judicially-
created exclusionary rule. Second,
because Congress did not specifically
include an exclusionary rule under the pen
register statute, as it did in the wire
tap legislation at 18 U.S.C. §§2515 and

2518(10) (a) (1988), Congress did not

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intend for that statutory exclusion to
apply to pen registers. The Court of
Appeals noted — violators of the
provisions of the statute regarding pen
registers incur fines and _ possible
imprisonment. The Court reasoned that if
Congress intended an additional
exclusionary penalty to apply, it would
have placed it within this’ section.
Thompson, 936 F.2d 1252.

The Court entered its judgment
September 3, 1991. The basis for federal

jurisdiction is 28 U.S.C. §1254.

REASONS FOR GRANTING THE WRIT

This case involves a novel
issue of law which has not previously been
decided by this Court, but which should be
resolved. Whether evidence obtained from
an improperly issued pen register and

subsequent wire tap should be subject to

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the exclusionary rule is a crucial issue
in light of the controls imposed by
Congress in the area of electronic
surveillance.

The Court of Appeals for the
Eleventh Circuit assumed that the
procedure followed in the application and
issuance of the pen register was a
violation of the pen register statute. At
the same time the Court denied Thompson a
remedy. The Court reasoned that even if
the substitute attorney were not a proper
applicant, the exclusionary rule would be
inapplicable to the statutory violation as
the use of the pen register is not a
search under the Fourth Amendment. This
rule was based upon this Court's decision

in Smith v. Maryland, 442 U.S. 735 (1979).

An order for a pen register may

issue upon application of an attorney for

the government "in writing under oath or
equivalent affirmation." 18 U.S.C. §3122
(1988). The attorney for the government
certifies that the information likely to
be obtained by the installation of a pen
register is relevant to an _ ongoing
criminal investigation. 18 U.S.C. §3123.

The requirements that the
applicant for a pen register: 1) apply in
writing "under oath or equivalent
affirmation," and 2) certify that the
information likely to be obtained by the
installation cf a pen register is relevant
to an ongoing criminal investigation,
express: the clear intent of Congress to
impose controls on the issuance of orders
for pen registers and to place the
issuance of pen register orders under the
authority of the Court. 18 U.S.C. §§3122

(a)(1), 3122(b)(2) (1988). Here, the

10

information obtained from the improperly
issued pen register was used to establish
probable cause to secure a Title III
wiretap. Title III (18 U.S.C. §§2515 and
2518(10) (a) ) excludes evidence from
wiretaps obtained in violation of the
statute. The chain of actions leads to
the conclusion that if the pen register
was based on an improper application, then
the order for the wiretap must necessarily
also be improper. The next logical link
in the chain is to exclude the evidence
improperly received to remedy violations
of the congressional mandate. To deny a
remedy for the improper issuance of a pen
register is to render the safeguards
incorporated by Congress into the 1986 Pen
Register Act meaningless.

Although the statute imposes

fines and imprisonment for knowing

11

violations of the Act, these remedies are
not applicable to cases, as here, in which
an order is, obtained for the pen register.
18 U.S.C. §§3124(e) and 3121(a) (1988).
The fundamental unfairness of this
situation does not square with the intent
of Congress, manifest in the provisions of
the 1986 Pen Register Act, to safeguard
citizens from the improper issuance of pen
register orders. Congress intended that
the Government’ strictly comply with
federal laws relating to electronic
surveillance. The ruling below makes it
clear that this congressional mandate is
hollow. A necessary remedy to assure
compliance with the law is to disallow
evidence obtained as a result of the
,improper pen register order to be used as
the basis for a Title III wiretap order.

Without such remedy, the safeguards

12

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incorporated by Congress into the 1986 Pen

Register Act are meaningless.

CONCLUSION

Thé judgment below fails to
provide a remedy for an improperly issued
pen register and allows the illegal order
to be used for issuance of a Title III
wiretap order. The case involves
substantial and important issues. not
previously addressed by this Court but
which should be settled. The Petition for
Writ of Certiorari should, therefore, be
granted.

RESPECTFULLY SUBMITTED, this the
27 aay of November, 1991.

FAIREY & PARISE, P. A.

Cs oe
W. GASTON FAIREY —a_

Post Office Box 8443
Columbia, South Carolina 29202
(803) 252-7606

Attorney for the Petitioner.

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PENDIX

Order and Judgment, U.S. v.
Thompson, No. CR489-59
(3.0. Ge. S900) 3 so *

Order, dated 6/28/90, CR489-59
Magistrate's Report and

Recommendation, No. CR489-59
(S.D. Ga. 1989)

14

(1).
(4)

(6)

APPENDIX A.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

UNITED STATES OF AMERICA )
vs CR489-59
BYRON LESTER THOMPSON
D) The judgment of this court in
the shove entitled action having been
"ecyy
AFFIRMED;
IT IS HEREBY ORDERED that the
judgment of the Eleventh Circuit, U. S.
Court of Appeals, is made the judgment of
this Court.
This 3rd day of September, 1991.
B. AVANT EDENFIELD

CHIEF JUDGE, U. S. DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

(1)

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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 90-8343
D. C. DOCKET NO. CR489-59-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON LESTER THOMPSON,

Defendant~Appellant.

Appeal from the United States District
Court for the Southern District
of Georgia

Before KRAVITCH and COX, Circuit Judges,
and RONEY, Senior Circuit Judge.

JUDGMENT c.

This cause came to be heard on

the transcript of the record from the

United States District Court for the

Southern District of Georgia, and was
argued by counsel;

ON CONSIDERATION WHEREOF, it is

(2)

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now hereby ordered and adjudged by this
Court that the judgment of convictions: of
the said District Court in this cause be
and the same is hereby AFFIRMED.

Entered: July 30, 1991
For the Court: Miguel J. Cortez, Clerk

By: Karleen McNoble, Deputy Clerk

ISSUED AS MANDATE: AUGUST 22, 1991

(3)

APPENDIX B.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA ) NO.: CR489-59
Vv.
BYRON LESTER THOMPSON,

et al.,
DEFENDANT.

THIS MATTER comes’ before the
Court pursuant to the Order, dated and
entered on March 11, 1990, (a copy of
which is attached hereto and made a part
hereof), regarding allowance of Defendant
Thompson's Objections to the Magistrate's
Report, filed on November 29, 1989.

WHEREFORE, after careful review
of the file, the Court concurs with the
Magistrate's Report and Recommendation, to
which objections have been filed by
Defendant. Accordingly, the Report and

(4)

Recommendation of the Magistrate is
adopted as the opinion of the Court and
the Defendant's Motion to Suppress is
hereby DENIED.

AND IT IS SO ORDERED, this the
28th day of June, 1990, in Savannah,
Georgia.

B. AVANT EDENFIELD, JUDGE

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

(5)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA, )

Plaintiff,

Ve Case No. CR489-59

BYRON LESTER THOMPSON,
et al.,
Defendants.

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REPORT AND RECOMMENDATION

Defendant Byron Thompson has
moved the Court to suppress’ certain
evidence obtained by the government by
electronic surveillance of defendant's
cellular phone, (404) 626-2032. In his
motion to suppress the wiretap evidence,
defendant contends that probable cause for
the issuance of the wiretap order was
based upon unlawful evidence, that the
wiretap was issued without probable cause
to believe that the defendant in fact used

the cellular phone, and that federal

(6)

agents failed to minimize the interception
cf nonrelevant conversations. After
carefully considering the evidence, the
statutory provisions, and the case law, I
find that the defendant's motion is
without merit and should be denied.

BACKGROUND

On August 1, 1989, Assistant
United States Attorney Joseph D. Newman,
after obtaining the necessary
authorization from the Assistant Attorney
General in charge of the Criminal
Division, applied for an order from this
Court authorizing the interception of wire
communications associated with cellular
telephone number (404) 626-2032. In the
application and accompanying affidavit by
DEA Special Agent Darrell R. Snider, the
government set forth its probable cause

basis for believing that the subject

(7)

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telephone was being used in connection
with an on-going conspiracy to possess and
distribute cocaine and crack cocaine in
the Savannah, Georgia area. The agent's
affidavit set forth in elaborate detail
the government's factual basis for
believing that Yves "Lucky" Pierre, Byron
Lester Thompson, Anthony Jackson, Julie
Kennedy, Byron Sanders, Mark Williams,
Lawson Huff, Reginald Wall, Eugene Moore,
and other unidentified individuals were
members of a large cocaine distribution
organization headed by Pierre in Miami and
by Thompson in Savannah. The affidavit
reflected that the probable cause showing
was based upon information furnished by
confidential informants, intelligence
information: from various law enforcement
agencies, telephone billing and toll

records, information obtained through pen

(8)

registers authorized by this Court, and
information obtained pursuant to a
judicially authorized wiretap of cellular
telephone number (912) 658-2724.!

After considering the
government's application and the affidavit
of the DEA case agent, on August 1, 1989,
Chief Judge Anthony A. Alaimo of this
Court entered an Order authorizing the
interception of wire communications over
cellular telephone number (404) 626-2032,
subscribed to by Leroy Stanley. During
the 22-day period of the wire tap, the

government intercepted a total of 584

' The initial wiretap in this case was
conducted pursuant to an order entered by
Judge Edenfield of this Court on July 5,
1989. The wiretap order authorized the
intetception of communications over a
cellular telephone subscribed to by Alissa
Hamilton and frequently used by Anthony
Jackson in connection with the criminal
conspiracy. The wiretap was terminated on
July 28, 1989.

(9)

calls, 51 of which were minimized. The
wiretap was terminated on August 21, 1989,
whereupon the original tapes and logs were
delivered to the Court and placed under
seal.

DISCUSSION

= Was The Wiretap Based Upon Evidence
Obtained From An Unlawful Pen Register?

The defendant first contends

that the government's showing of probable
cause for an order authorizing the wiretap
of cellular telephone (404) 626-2032 was
based upon evidence obtained pursuant to
the unlawful use of a pen register device
on the subject phone. The defendant
concedes that on June 28, 1989, the
undersigned judicial officer entered an ex
parte Order authorizing the installation
and use of the pen register device. The

defendant- points out, however, that the

(10)

pen register order was issued pursuant to
an application which listed Assistant
United States Attorney (AUSA) Joseph D.
Newman as the applicant but which was in
fact signed by AUSA Kathy M. Aldridge "for
Joseph D. Newman." The defendant argues
that since no provision of the pen

register statute authorizes one government

‘
attotney to sign for another, the pen

regigter Order should not have issued and
the eVidence obtained pursuant to that pen
register should not have been used to
establish probable cause for the issuance
of the second Title III wiretap.

In 1979 the Supreme Court held
that the government's installation and use
of a pen register device to record numbers
dialed from a suspect's telephone is not a
“search within the meaning of the Fourth

Amendment." Smith v. Maryland, 442 U.S.

(11)

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735 (1979). Hence, the Court concluded
that there is no constitutional
requirement .that the government obtain a
warrant before utilizing a pen register
device. In 1986, however, Congress
enacted the Electronic Communications
Privacy Act, 18 U.S.C. §3121 et seq.,
which imposes a general prohibition on the
use of pen registers or trap and trace
devices without a court order. 18 U.S.C.
§3121(a). Under §3122(a) of Title 18,
"fajn attorney for the Government may make
application" for a court order authorizing
the use of a pen. register. The
application shall be "in writing under
oath or equivalent affirmation...." Id.
The application shall contain, inter alia,
"a certification by the applicant that the
information likely to be obtained [through

the pen register] is relevant to an

(12)

ongoing criminal investigation" being
conducted by the designated law
enforcement agency. 18 U.S.C. §3122(b).
Upon review of such an application, a
court “shall” enter an ex parte order
authorizing the pen register if the court
finds that the government attorney has in
fact made the proper certification. 18

U.S.C. §3123(a). As the legislative

history reflects, §3123 (a) “does not
envision an independent judicial review of
whether the application meets the
relevance standard, rather the Court needs
only to review the completeness of the
certification submitted." S. Rep. No.
541, 99th Cong., 2d Sess. 1, 47 (1986),

reprinted in 1986 U. S. Code Cong. & Ad.

News 3555, 3601. >
On June 28, 1989, the Court was

presented with an application for the

(13)

installation and use of a pen register
device on cellular telephone number (404)
626-2032. Although the “applicant" was
listed as AUSA Joseph D. Newman, the
application was actually presented by AUSA
Kathy M. Aldridge, who works in the same
office as Mr. Newman. Generally, the
Assistant United States Attorney seeking a
pen register authorization presents the
ene teliebin in person; from time to time,
however, the Court has permitted another
Assistant to submit the application where
the person named as "“applicant" is
unavailable. In all such cases, it is the
practice of the undersigned judicial
officer to inquire whether the AUSA
presenting the application is familiar
with the general background of the
criminal investigation and can assure the

Court as to the accuracy of the

(14)

certification set forth in the
application. The very -purpose of having
the AUSA swear to the truthfulness of the
application is to ensure that whoever
presents the application is in fact a
proper “applicant" within the meaning of
the pen register statute. In any case,
the Court would decline to enter an Order
authorizing a pen register if the AUSA who
presents the application is unable to
certify personally that the pen register
is likely to result in information
relevant to an ongoing criminal
investigation. Although I have no
specific recollection of the presentation
of this particular application for a pen
register, I find that the Court's standard
procedure was employed in this case.

In this case, AUSA Kathy M.

Aldridge signed the application "for

(15)

Joseph D. Newman." The defendant is
entirely correct that it cannot be said
from the face of the application that Ms.
Aldridge is in fact an "applicant" who is
signing the form "under penalty of
perjury" (as stated in the final paragraph
of the application).? I find, however,
that despite the manner in which Ms.
Aldridge signed the application, she was
in fact an “applicant" within the meaning
of 18 U.S.C. §3122. Before issuing the
pen register Order, the Court required Ms.
Aldridge to attest to the truthfulness of
the certification set forth in the
application that she was presenting. I
find that this procedure satisfies the

"oath or equivalent affirmation"

? Obviously, Ms. Aldridge could not
expose Mr. Newman to the penalty of
perjury by signing an application on his
behalf.

(16)

requirement of §3122(a). See United

States v. Florea, 541 F.2d 568 (6th Cir.
1976), cert. denied, 430 U.S. 945 (1977)
(FBI agent's failure to sign affidavit in
support of wiretap applicaticn did not
require suppression where judge based
order on agent's sworn statements made in

his presence).

Even assuming the Court were to
conclude that Ms. Aldridge never became a
proper applicant for an Order authorizing
the use and installation of a pen
register, the defendant is not entitled to
the suppression of the information which
the government obtained through the use of
the pen register. As noted earlier, the
use of a pen register device does not
result in a "search" for purposes of the
Fourth Amendment, and therefore there is

no constitutional requirement that a

(17)

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warrant be obtained prior to the
installation of such a device.
Accordingly, the government's
noncompliance with the provisions of §3122
in obtaining an order authorizing the
installation of a pen register would not
require or justify the invocation of the
judicially created "exclusionary rule" for
remedying Fourth Amendment violations.

See Stone v. Powell, 428 U.S. 465, 482,

486 (1976); United States v. Comstock, 805

F.2d 1194, 1207-08 (5th Cir. 1986)
(judicially created exclusionary rule is
applicable only to constitutional
violations). Application of such an
exclusionary rule in this case would be
inappropriate since no- constitutional

violation occurred.’

3 Even if the Fourth Amendment

applied, it is questionable whether
suppression would be warranted in view of

(18)

Perhaps anticipating this point,
the defendant suggest that the statutory
exclusionary rule set forth in Title III
of the Omnibus Crime Control and Safe
Streets Act of 1968 -- the federal wiretap
law -- requires the suppression of
evidence obtained pursuant to a= pen
register order which was based on a
defective application. The Supreme Court

has held that "(bjoth the language of the

the Supreme Court's decision in United
States v. Leon, 468 U.S. 897 (1984). Leon
recognized a good faith exception to the
exclusionary rule where government agents
obtained evidence in objectively
reasonable reliance on a properly issued
search warrant which was later found to be
invalid for lack of probable cause. See

Massachusetts _ v. Sheppard, 468 U.S. 981

(1984); United States v. Malekzadeh, 855
F.2d 1492, 1497 (11th Cir. 1988) (applying

Leon's good faith exception to the
exclusionary rule to uphold a Title III
wiretap). Leon would apply with
compelling force in this case since the
agents reasonably relied on a pen register
order which was arguably invalid only
because the application was not properly
signed.

(19)

[wiretap] statute and its legislative
history establish beyond any doubt that
pen registers are not governed by Title

III." United States v. New York Telephone

Co., 434 U.S. 159, 166 (1977). "It is
clear that Congress did not view pen
registers as posing a threat to privacy of
the same dimension as the irterception of
oral communications and did not intend to
impose Title III restrictions upon their
use." Id. at 168. Undaunted by this
precedent, the defendant suggests that
since the definitional section of the more
recently enacted pen register statute
refers to the wiretap statute for the
definition of certain terms, 18 U.S.C.
§3127(1), it is therefore "clear" that
violations of the pen register statute are
subject to the Title III exclusionary

rule.

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It is an elemental cannon of
statutory construction "‘that the mention
of one thing implies the exclusion of

another; expressio unius est exclusio

alterius.'" United States v. Castro, 837
F.2d 441, 442 (llth Cir. 1988). While

Congress, in enacting the pen register
statute, borrowed certain definitions set
forth in §2510 of the wiretap statute, it
nowhere adopted or incorporated the
statutory exclusionary rule set forth in
an entirely different section of Title
III. 18 U.S.C. §§2515, 2518(10)(a). By
clear implication, therefore, Congress
never meant to apply the Title III
exclusionary rule to violations of the pen

register statute.‘ While the expressio

4 Further evidence of this intent is
seen in 18 U.S.C. §3121(c), which provides
that the knowing use of a pen register
without a court order shall result in a
fine or imprisonment up to one year. Had

(21)

unius principle must yield to persuasive
evidence of contrary legislative intent,
Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11, 19-24 (1979); Castro,
837 F.2d at 443, there is no indication in
the legislative history of the pen
register statute that Conaress meant to
ineeveerete into that statute the
exclusionary rule which it had fashioned
for violations of Title III. It appears,
therefore, that there is neither a
constitutional nor a statutory basis for

excluding the evidence which the

government obtained pursuant to the pen

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register authorized by this Court's Order
of June 28, 1989.
In a related area, numerous

cases from this circuit and the new fifth

Congress chosen to adopt the additional
"exclusionary" penalty set forth in Title
III, it could certainly have done so.

(22)

circuit have recognized that, absent a
clear constitutional violation,
noncompliance with the provisions of Fed.
R. Crim. P. 41 in the issuance of a search
warrant requires suppression of evidence
only where "‘(1) there was ‘prejudice' in
the sense that the search might not have
occurred or would not have been so
abrasive if the rule had been followed or
(2) there is evidence of the intentional
and deliberate disregard of a provision in
the Rule.'" United States v. Comstock,
805 F.2d 1194 (5th Cir. 1986) (issuance of
a search warrant by a state court which
was not a "court of record" as required by
Rule 41 did not require the suppression of
evidence seized in the search); United
States v. Loyd, 721 F.2d 331, 333 (11th
Cir. 1983) (magistrate's failure to

&
certify the accuracy of the transcript of

(23)

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a taped oral search warrant did not
require suppression), quoting United

States v. Stefanson, 648 F.2d 1231 (9th

Cir. 1981); United States c. Giancarli,

617 F.Supp. 551, 553-54 (S.D. Fla. 1985) /
(magistrate's failure to place affiant
under oath before issuing telephone search
warrant did not require suppression of the
evidence seized pursuant to the warrant).

See also United States v. Mendoza, 491

F.2d 534, 538-39 (5th Cir. 1974)
(upholding the validity of a search
warrant even though the affidavit had not
been signed by the proper affiant). These
cases, particularly the decisions in

Giancarli and Mendoza, involve defects at

least at [sic] serious as the alleged
deficiency in this case. Moreover, since
each of the cited cases involves the

issuance of a search warrant, thereby

(24)

implicating privacy concerns of greater
importance than those posed by the
issuance of a pen register, it would
appear that the holdings apply with more
compelling force to the present case.

In this case, the defendant has
made no allegations of prejudice, and
there is no evidence of an intentional
disregard of the statutory oath
requirement. Suppression of the evidence
obtained through the pen register is

therefore not required.

II. Was There Insufficient Probable Cause

to Link Defendant to the Subject Cellular

Phone?

Defendant next argues that the
wiretap evidence should be suppressed
because the affidavit of DEA Special Agent
Darrell Snider failed to establish

probable cause to believe that Byron

(25)

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Thompson made use of cellular telephone
number (404) 626-2032. Defendant's
counsel alleges that his review of the
taped conversations from the first wiretap
have failed to establish that Byron
Thompson was the caller (and failed to
confirm that the intercepted conversations
related to drugs or money as alleged by
the government). Defendant further
alleges that a subsequent tape of a
consensually monitored conversation
involving a government informant provides
no basis for identifying the other speaker
as Byron Thompson. Defendant also notes
that there was nothing on this tape
"directly relating" to narcotic drugs or
money .

It is well settled/that "Ta)
wiretap application need not _ provide

probable cause of criminal activity for

(26)

ae

each person named in an application, or
even every resident of the place where the
wiretap is sought." United States v.
Domme, 753 F.2d 950, 954 n. 1 (11th Cir.

1985); United States v. Doolittle, 507

F.2d 1368, 1371 (5th Cir.), aff'd e

banc,

518 F.2d 500 (1975), cert. dismissed, 423

U.S. 1008, cert. denied, 430 U.S. 905
i977) 3 United States v. Harvey, 560
F.Supp. 1040 (S.D. Fla. 1982), aff'd, 789

F.2d 1492 (11th Cir.), cert. denied, 479

U.S. 854, 855, 886 (1986). Nor is it a
prerequisite to a wiretap authorization
that the subscriber of the telephone
service be suspected of unlawful activity.

United States v. Tehfe, 722 F.2d 1114 (2d

Cir. 1983), cert. denied, 466 U.S. 904

41984). “What is required is sufficient
information so that a judge could find

probable cause to believe that’ the

(27)

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telephone in question is being used in an

"jllegal operation." United States v.

Domme, 753 F.2d at 954 n. 1 (emphasis

added); United States v. Tehfe, 722 F.2d

at 1118; United States v. Hyde, 574 F.2d

656, 862 (5th Cir. 1978).

At no point has the defendant
alleged that the wiretap affidavit fails
“te set forth probable cause evidence that
cellular phone number (404) 626-2032 was
being used in connection with suspected
violations of the federal narcotics laws.
Nor could defendant make such an argument,
for an examination of the affidavit
reveals abundant probable cause to believe
that electronic surveillance of this phone
would yield incriminating evidence. Thus,
even if defendant were correct in arguing
that the affidavit fails to set forth-

probable cause evidence that "Byron

(28)

Thompson made use of this’ cellular
telephone," the wiretap order was
nevertheless appropriate since there was
clear evidence that someone was using the
phone for criminal purposes. See United
States v. Van Horne, 789 F.2d 1492, 1499
(llth Cir. 1986) (electronic surveillance
appropriate even during defendant's
temporary absence where there was probable
cause to believe that other possible
coconspirators would be intercepted during

this period). See also United States v.

Donovan, 429 U.S. 413 (1977) (statutory
requirement that application identify the
person whose communications are to be
intercepted does not play a central, or
even a functional, role under Title III).

Moreover, I cannot accept the

defendant's assertion that the affidavit

fails to establish probable cause that he

(29)

made regular use of the cellular telephone
to conduct the business of his criminal
organization. When read in a commonsense
[sic] and practical fashion -- rather than
in the hypertechnical manner urged by the
defendant -- it is clear that’ the
affidavit presented sufficient information
to believe that Byron Thompson was the
head of a large-scale cocaine distribution
organization, that he made frequent use of
telephones to conduct his business, and
that he specifically used the subject
cellular phone in his ongoing criminal
activity.

After a careful review of the
application and affidavit for the second
wiretap Title III, I find that’ the
application and affidavit demonstrate
probable cause to believe that a crime was

being committed, that the criminal

(30)

activity involved the use of the subject

cellular telephone, and that the
government . provided a sufficient
justification for the use of wiretap
rather than other investigative
techniques. Accordingly, the defendant's
second ground for the suppression of the
wiretap evidence is without merit and

should be DENIED.

III. Did the Agents Fail o Minimize

Intercepted Conversations?

In his~ final argument, the
defendant contends that the government
agents failed to comply with the
minimization requirement of 18 U.S.C.
§2518(5), which provides that Title III
wiretaps should "be conducted in such a
way as to minimize the interception of
communications not otherwise subject to

interception under this chapter...."

(31)

Ro asi ingrtecer.

“

During the pretrial motions
hearing on November 9, 1989, the
government presented evidence of the
efforts it took to ensure compliance with
the minimization requirements of the
wiretap law.° After the wiretap orders
were entered, but prior to the initiation »&
of the wiretap, AUSA Joseph Newman and
Special Agent Darrell Snider conducted a
minimization meeting with the law

enforcement officers who would be employed

> During the hearing the government
tendered a list of the various items of
evidence that were relevant to the
minimization issue. These evidentiary
materials, which had previously been filed
with the Court and placed under seal,
consisted of the minimization instructions
to the monitoring agents, the wiretap
intercept logs, the weekly summaries to
the district court, the various
applications and Title III orders, and the
original tapes. Rather than opening these
sealed materials, the Court requested, and
the government furnished, copies of the
materials relevant to the Court's
minimization inquiry.

(32)

as monitors during the execution of the
wiretap. After the monitors were briefed
as to the nature and purpose of the
government's criminal investigation, they
were furnished with copies of Agent
Snider's affidavit in support of the
wiretap and with a memorandum. of
“monitoring instructions" prepared by AUSA
Newman. The monitors were then required
to read these documents in the presence of
Mr. Newman and the case agent and to
acknowledged that fact on a form attached
to the monitoring instructions.® Through
this procedure, the government prosecutor
sought to acquaint the monitors with the
subject matter of the investigation, the
purpose of the wiretap, and the nature of

the conversations which could be

°* The authorization form reflects that
Mr. Newman read the minimization letter to
each of the monitors.

(33)

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intercepted. The written monitoring

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instructions and’ wiretap affidavit were
then placed at the listening post for the
agents' reference, and the monitors were
instructed to contact Mr. Newman or Agent
Snider should any questions arise. The
agents were further instructed that the
failure to minimize conversations could
result in the suppression of the fruits of
the wiretap.

During the minimization
briefing, the prosecutor advised the
agents that they were prohibited from
listening to any conversations which fell
within a legal privilege. The agents were
further specifically instructed that they
must minimize the interception of
conversations that did not relate to the
conspiracy under investigation. In this

regard, the agents were instructed to

(34)

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intercept all "pertinent conversations
while minimizing the interception of
innocent (non-criminal) conversations."
To emphasize the importance of the
minimization requirement, the agents were
cautioned that they could be called upon
to testify in court as to why a particular
conversation was intercepted.

The government noted during the
minimization hearing that, as to the
second wiretap of (404) 626-2032, only
outgoing calls could be monitored since
the cellular phone company had disabled
the phone due to nonpayment of the bill.
The case agent also noted that coded
language was employed by the suspected
conspirators during the course of the
wiretap and that in several intercepted
conversations a caller stated that the

phone was “not cool" or otherwise

(35)

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indicated that the phone was possibly
tapped.’

The government and defendant
agree that there were a total of 584
telephone intercepts during the second
wire tap [sic]. Special Agent Snider
testified that since an intercept occurred
each time the phone receiver was picked
up, included within the intercepts were
many busy signals, unanswered calls,
wrong-number calls or misdialings, calls
made to a pager, and other instances where
the receiver was lifted momentarily but
was not dialed. According to the

government, of the intercepts during the

7 The government agents also received
evidence that the conspirators suspected
that a surveillance camera had been placed
on a telephone pole near one of the
residences utilized in the’ criminal
enterprise. In fact, the government did
obtain authorization from this Court to
install a video surveillance camera.

(36)

second wiretap which involved actual
conversations, 51 of the calls were
minimized. The government's case agent
conceded on cross-examination that there
were a large number of nonpertinent calls
which were not minimized.

From my review of the intercept
logs for cellular phone (404) 626-2032, I
find that the 584 intercepts during the
second wiretap, there were 176 instances
where no conversation occurred due to
either a busy signal, an unanswered call,
a wrong-number call, a call to a pager, or
a call received by a telephone answering
machine. Of the 408 remaining intercepts
involving actual conversation, I find that

some form of minimization occurred with

respect to 58 of these calls.* I further

* The log sheets reflect that the
following calls were minimized: call nos.
te Bey OO, Bey Gee Gee SF, GO, B2, 84, BS.

(37)

find that 77 of the 408 successfully
completed calls involved telephone
conversations lasting longer than two
minutes. Minimization occurred with
respect to 35 of the 77 calls in excess of
two minutes. Of the 42 nonminimized calls
lasting longer than two minutes, at least
15, and possibly 25, of the calls were

nonpertinent.’

91, 96, 107, 136, 144, 163, 171, 249, 278,
325, 345, 347, 351, 360, 367, 368, 384,
392, 396, 397, 404, 405, 406, 415, 416,
426, 451, 455, 456, 457, 463, 466, 470,
475, 484, 485, S08, 518, 535, 543, 545,
546, 547, 548, 549, 551, 553, 554, 556,
and 567. Although the "minimization"
block on several of the log sheets was
not checked (call nos. 7, 351, 384, and
345), the synopsis reflects that
minimization did in fact occur during
these calls.

° Of the nonminimized calls over two
minutes the following 15 calls were
Clearly not pertinent: call nos. 29, 34,
42, 94, 124, 131, 166, 208, 231, 273, 319,
426, 428, 507, and 509. The record is
somewhat ambiguous as to the pertinence of
the following calls: 22, 110, 181, 194,
261, 280, 290, 292, 296, and 425.

(38)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2251%3A1. Public record. Not legal advice.