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United States v. Scherrer

United States District Court, E.D. Missouri, Eastern Division

October 8, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVIN JOHN SCHERRER, et al., Defendants.

ORDER AND RECOMMENDATION

DAVID D. NOCE, Magistrate Judge.

The pretrial motions of the parties were referred to the undersigned Magistrate Judge under 28 U.S.C. § 636(b). A pretrial hearing was held on September 10, 2014.

Pending for disposition are the motions of defendant Melvin John Scherrer to suppress evidence (Doc. 137 oral), to suppress evidence obtained through a search of his residence (Doc. 457), to suppress his statements (Doc. 458), and to suppress evidence obtained from the attachment of a global positioning system device on his vehicle and from Title III wiretaps (Doc. 459). Also, the government has moved for a determination by the court of the admissibility or not of any arguably suppressible evidence. (Doc. 136.)

I

MOTION TO SUPPRESS STATEMENTS

Defendant Scherrer has moved to suppress his statements to law enforcement officers. (Doc. 458.) In response, counsel for the government states it will not introduce statements made by defendant in response to questions posed by law enforcement officers. (Doc. 472.) At the pretrial hearing, no contrary information or evidence was presented to the court. Therefore, this motion ought to be denied as moot.

II

MOTION TO SUPPRESS EVIDENCE ACQUIRED BY ELECTRONIC MEANS

Defendant moves to suppress evidence obtained through a global positioning system (GPS) device attached to his vehicle and evidence derived from Title III wiretaps.

The government has advised that it intends to offer at trial evidence acquired from

(a) the electronic interceptions of voice communications over telephone numbers XXX-XXX-XXXX, XXX-XXX-XXXX, XXX-XXX-XXXX, and XXX-XXX-XXXX;

(b) the use of a global positioning system (GPS) tracking device it placed on defendant's 2003 white Dodge Ram; and

(c) the execution of a search warrant on July 24, 2013 at defendant's residence, 6858 Cedar Lake Drive.

From the evidence adduced at the hearing, the court makes the following findings and conclusions of law:

FACTS

(a)

Electronic interceptions of voice communications

1. The investigation that led to the indictment in this case included orders for wiretaps on telephones.

XXX-XXX-XXXX (TT#3)

2. a. On April 4, 2013, the United States Attorney for this district, pursuant to 18 U.S.C. § 2518, [1] filed an application for an order, in Case No. 4:13 MC 167, authorizing the interception of wire communications to and from a cellular telephone being used by Brent Bouren, Jerami Westenberger, Jerry Addison, Joshua Ezell, and others unknown ("target subjects") bearing telephone number XXX-XXX-XXXX, referred to as Target Telephone (TT) #3. The application sought a wiretap order for the monitoring of the telephone conversations of Bouren and the others, named and unnamed, in the government's investigation of the subjects' drug trafficking and related offenses. More specifically, the application stated:

In particular, these wire communications will concern the specifics of the above-described offenses, including (1) the nature, extent and methods of operation of the illegal drug-trafficking business of one or more of the target subjects and others unknown; (2) the identities and roles of principles, accomplices, aiders and abettors, coconspirators and participants in these persons' above-described illegal activities; (3) the distribution, concealment, and transfer of the contraband and money involved in those activities; (4) the existence and location of records pertaining to those activities; (5) the location and sources of resources used to finance those illegal activities; (6) the location and disposition of the proceeds from those activities; and (7) the location of items used in furtherance of those activities.

(Gov. Ex. A, Tab 1 at 3-4.) The application stated, in part, that normal investigative procedures had been tried and failed, reasonably appeared unlikely to succeed if tried, or were too dangerous to employ. The application was approved by a Deputy Assistant Attorney General in the Criminal Division of the Office of the Attorney General of the United States. (Gov. Ex. A, Tab 1.)

b. In his sworn affidavit, filed April 4, 2013, submitted in support of the application, Drug Enforcement Administration Task Force Officer Jeff Milam described his extensive training and experience in investigating the illegal trafficking in narcotics, and he set forth his expert opinions about the manner in which large-scale drug traffickers operate. He described the general types of sources of his information. He identified and described the backgrounds of the subjects of the investigation. He stated that a search of certain federal investigative surveillance indices indicated two prior wiretap applications and orders related to this investigation:

(1) On December 19, 2012, this court authorized a wiretap for XXX-XXX-XXXX involving two persons not named as targets in the instant affidavit. Jerami Westenberger, had been named in the earlier wiretap, but he was not intercepted on the phone. Interceptions on that phone number have ended.

(2) On March 7, 2013, this court authorized a wiretap for XXX-XXX-XXXX, subscribed to by Jerami Westenberger. At the time of the instant affidavit, the monitoring was ongoing. Targets Westenberger and Bouren have been intercepted on this wiretap.

c. His affidavit described confidential source information received about the drug trafficking activities of Westenberger. Confidential Source #1 (CS#1) has identified Westenberger as a cocaine distributor and has conducted consensually recorded conversations with Westenberger. For the reasons stated, TFO Milam considered CS#1 a reliable source.

d. The affidavit stated the wiretap sought will enable the investigators to determine (a) how the Westenberger organization obtains and distributes controlled substances; (b) the identities and roles of the organization members; (c) when and where the target offenses were committed; (d) the administration of the drug distribution and the receipt of drug sale proceeds; (e) the nature, scope, places and methods of the organization's operation; and (f) where trafficking records are kept.

e. He described facts uncovered by the investigation to date to demonstrate that probable cause existed for the issuance of the order. The affidavit includes facts, occurring between September 2012 and March 20, 2013, described in Westenberger's conversations with CS#1, Westenberger's introduction of CS#1 to Bouren, toll records and information regarding a source of drugs which Westenberger discontinued (Guillermo Navarro), monitored phone calls, text messages from Westenberger, purchases of cocaine from Westenberger by an undercover officer as late as March 17, 2013, physical surveillance of Bouren following a drug sale, physical surveillance of Westenberger's residence, and recorded conversations during drug transactions.

f. The affidavit also described facts derived from the analysis of pen register information regarding TT#3. Between November 12, 2012 and April 2, 2013, there were 796 contacts with TT#3, involving target subjects Jerami Westenberger, Jerry Addison, and Joshua Ezell.

g. The affidavit described the investigators' need for the authorization of interception and monitoring of conversations over TT#3. The affidavit stated that the following investigative techniques have been attempted and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ.

(A) Wiretaps. The investigators monitored conversations over Target Telephone #1 and Target Telephone #2. Westenberger was not intercepted over TT#1 and conversations monitored over that telephone did not yield the identity of his source; they did, however, lead to identifying the source of supply for Guillermo Navarro. The monitoring of conversations over TT#2 identified Bouren as Westenberger's cocaine source and the identification of Jerry Addison as one who participates in the drug distribution. It did not, however, identify Bouren's source and methods of trafficking, nor the people he deals with other than Westenberger. Even with the conversations monitored over TT#1 and TT#2, the full extent of the relationship between Bouren and Addison is unclear. The monitoring of conversations over TT#3 is necessary to identify (1) all of the members of Bouren's organization; (2) the places Bouren uses in his trafficking; (3) the sources of supply for the organizations; and (4) the organization's methods of distributing drugs and collecting proceeds. (Id., Tab 3 at 31-33.)

(B) Physical Surveillance. Between December 2012 and March 2013, investigators conducted physical surveillance of Bouren and Westenberger. On these occasions, Bouren and Westenberger engaged in counter-surveillance behavior and on two occasions Bouren became more cautious in his activities. Further, physical surveillance was ineffective for several trafficking transactions that occurred out of public view. While physical surveillance can be a valuable investigative tool, it more often leads to relevant investigative information when it is used with the monitoring of wiretapped conversations. (Id., Tab 3 at 33-35.)

(C) Controlled Purchases. The investigators engaged in controlled purchases which yielded information about Bouren being Westenberger's source of supply. But they did not yield much other information about Bouren or his source. Physical surveillance of Bouren in conjunction with a controlled purchase indicated that Addison had some unknown role in the drug trafficking. While future controlled purchases may yield more information about Addison, they would not indicate other items of relevant information, such as other sources, the organization's ways of laundering the drug proceeds, and others involved in the trafficking. (Id., Tab 3 at 35-36.)

(D) Subject Interviews and Grand Jury Subpoenas. Attempts to interview target subjects and grand jury subpoenas would not yield much information about the identities of all the people involved in the trafficking and the locations where narcotics and sale proceeds are stored. Investigators fear that attempts to interview will cause the subjects to remain silent and perhaps flee the area to avoid prosecution. Those willing to cooperate in the investigation are not likely to have information about the full extent of the conspiracy under investigation. (Id., Tab 3 at 36-38.)

(E) Confidential Informants/Undercover Agents. The investigators have used Confidential Source #1, who provided some valuable information. However, CS#1 was able to purchase only small amounts of drugs from Westenberger and those only as a favor to CS#1. Investigators would use an undercover officer but the occasion to do so safely has not yet presented itself. However, the monitoring of conversations over TT#3 could provide information about the risks and rewards of introducing an undercover agent to Bouren. (Id., Tab 3 at 38-39.)

(F) Search Warrants. The use of search warrants has been considered. However, they would be inappropriate at this time, because the evidence acquired by their use would not reveal the total scope of the criminal activity under investigation and would likely compromise the investigation by alerting the target subjects to the investigation. Further, not enough information about all the relevant locations is known. They may be used in the future, if more information is acquired through the monitoring of conversations over TT#3. Also, the use of subpoenas and warrants to electronic communications service providers would not allow the acquisition of the contents of communications, and not in real time. (Id., Tab 3 at 39-40.)

(G) Tracking Devices. The investigators have used a GPS tracking device on Bouren's Hummer vehicle. While the use of this device on another vehicle would yield information about the location of the subject vehicle, it will not provide the identities of all of the members of the drug trafficking organization and such information as their roles. (Id., Tab 3 at 40-42.)

(H) Trash Searches. The use of trash searches from target residences has been considered. Bouren's residence area is well illuminated and there would be a high risk of detection. If detected, whether by direct observation or indirectly by information from the usual trash hauler, the investigation would be compromised. Further, the information learned from trash searches, in the experience of the affiant, would be limited and would not indicate the leaders of the trafficking, how and when drugs are being delivered, and how drug sales proceeds are hidden. (Id., Tab 3 at 42.)

(I) Mail Cover Requests. Mail cover information from the United States Postal Service would not be helpful, because investigators do not believe Bouren's organization is using the mails to transport either drugs or the proceeds from drug sales. (Id., Tab 3 at 42-43.)

(J) Financial Investigation. Investigators have initiated the financial investigation of Bouren and his businesses, Elmo's Sports Bar & Grill, B & P Management, and Full Throttle Midwest. However, such financial investigations are slow and labor intensive. They are often unsuccessful, because target individuals do not place investigative information in public records such as vehicle registrations. Even when successful, financial investigations do not identify the leaders of the drug trafficking, how and when drugs are delivered, and how drug proceeds are hidden. (Id., Tab 3 at 43-44.)

(K) Pen Register and Trap and Trace Data/Toll Records. The investigators have obtained orders for pen registers, trap and trace devices, and toll records for TT#3. The use of these investigative techniques, while helpful to the investigators, provides only a list of telephone numbers used and not the identities of the persons who used them. (Id., Tab 3 at 44-45.)

h. The affidavit described the manner by which the wiretap monitoring would be minimized as required by statute. (Id., Tab 3 at 45-46; Id . Tab 4.)

i. Upon this affidavit, on April 4, 2013, District Judge Audrey G. Fleissig issued her order authorizing the interception of communications over cell phone number XXX-XXX-XXXX, Target Telephone #3. Her order stated her findings of probable cause to believe that the target subjects were engaged in committing the stated violations of federal criminal statutes, that wire communications of the target subjects concerning these offenses would be obtained by implementation of the order, that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ, and that TT#3 will continue to be used in connection with the commission of the described offenses under investigation. The order also required the minimization of the monitored communications to those that relate to the subject investigation. (Id., Tab 2.)

j. On April 4, 2013, Assistant United States Attorney Jeannette S. Graviss issued a letter to the investigating agents stating the agents' specific requirements for knowing the contents of the court orders authorizing the wiretapping, executing the orders as soon as practicable, recording the intercepted conversations, monitoring and minimizing procedures, protecting the recordings of conversations from alterations, duplicating the original disks of pertinent conversations, daily reporting on the investigation activities, when intercepting legally privileged communications, intercepting communications regarding other crimes, keeping an accurate log of wiretapping activities, keeping the intercepted communications confidential to those legally authorized to have access, terminating the wiretapping when the monitoring objectives have been accomplished, preparing transcripts of the conversations, and each investigating agent reviewing this letter. (Id., Tab 4.)

k. As required by statute and by Judge Fleissig's order, the government filed three written ten-day reports on the progress the investigation was making toward achieving its objectives and the need for continued interception.

(i) The first reported that, among other facts, 1216 calls were intercepted, 1099 were completed, 108 were incomplete, 58 were non-pertinent, 84 were pertinent, 16 were no conversation calls, 24 had no audio, 29 were not monitored, 282 were unknown calls, 3 were malfunction calls, 268 were text message (SMS) nonpertinent calls, 52 were incomplete data voice message calls, 6 pertinent calls were minimized, and 23 calls were minimized. 2.09% of the completed calls were minimized. (Id., Tab 5.)

(ii) The second report stated that 1208 calls were intercepted, 1092 were completed, 106 were incomplete, 70 were non-pertinent, 53 were pertinent, 12 were no conversation calls, 45 had no audio, 20 were not monitored, 89 were unknown calls, 484 were text message (SMS) non-pertinent calls, 154 were text message pertinent calls, 40 were incomplete data voice message calls, 9 pertinent calls were minimized, and 36 calls were minimized. 3.30% of the completed calls were minimized. (Id., Tab 6.)

(iii) The third report stated that 1353 calls were intercepted, 1243 were completed, 102 were incomplete, 79 were non-pertinent, 54 were pertinent, 4 were no conversation calls, 20 had no audio, 12 were not monitored, 16 were unknown calls, 3 were malfunction calls, 569 were text message (SMS) non-pertinent calls, 247 were text message pertinent calls, 51 were incomplete data voice message calls, 2 pertinent calls were minimized, and 36 calls were minimized. 2.49% of the completed calls were minimized. (Id., Tab 7.)

l. On May 6, 2013, pursuant to the application of the United States, District Judge John A. Ross ordered the sealing of the Blue Ray disk that contained the communications intercepted over the subject telephone. (Id.. Tab 9.)

XXX-XXX-XXXX (TT#4) XXX-XXX-XXXX (TT#5) XXX-XXX-XXXX (TT#6)

3. a. On May 10, 2013, the United States Attorney for this district, pursuant to 18 U.S.C. § 2518, filed an application for an order, in Case No. 4:13 MC 243, authorizing the interception of wire communications to and from the above captioned cellular telephones being used by Brent Bouren, Jerami Westenberger, Jerry Addison, Joshua Ezell, Melvin Scherrer, Jorge Lopez, Anthony Shamus, Arvil Matthews, Otto Plopper, Alan Adler, and others unknown ("target subjects"). The application sought a wiretap order for the monitoring of the telephone conversations of Bouren and the others, named and unnamed, in the government's investigation of the subjects' trafficking in controlled substances and related offenses. More specifically, the application stated:

In particular, these wire/and or electronic communications will concern the specifics of the above-described offenses, including (1) the nature, extent and methods of operation of the illegal drug-trafficking business of one or more of the target subjects and others unknown; (2) the identities and roles of principles, accomplices, aiders and abettors, coconspirators and participants in these persons' above-described illegal activities; (3) the distribution, concealment, and transfer of the contraband and money involved in those activities; (4) the existence and location of records pertaining to those activities; (5) the location and sources of resources used to finance those illegal activities; (6) the location and disposition of the proceeds from those activities; and (7) the location of items used in furtherance of those activities.

(Id., Tab 10 at 5-6.) The application stated, in part, that normal investigative procedures had been tried and failed, reasonably appeared unlikely to succeed if tried, or were too dangerous to employ. The application was approved by a Deputy Assistant Attorney General in the Criminal Division of the Office of the Attorney General of the United States. (Id., Tab 10.)

b. In his sworn affidavit, filed May 10, 2013, submitted in support of the application, Federal Bureau of Investigation Special Agent Christopher Johnson described his extensive training and experience in investigating the illegal trafficking in narcotics, and he set forth his expert opinions about the manner in which large-scale drug traffickers operate. He described the general types of sources of his information. He identified and described the backgrounds of the subjects of the investigation. He stated that a search of certain federal investigative surveillance indices indicated five prior wiretap applications and orders related to this investigation, as set forth below:

(1) On March 23, 2012, this court authorized a wiretap for XXX-XXX-XXXX. All interceptions on that phone number have ended. Arvil Matthews was intercepted on the phone.

(2) On July 25, 2012, this court authorized a wiretap for XXX-XXX-XXXX. At the time of the instant affidavit, the monitoring had ended. Targets Matthews, Bouren, and Adler have been intercepted on this wiretap.

(3) On December 19, 2012, this court authorized a wiretap for XXX-XXX-XXXX. At the time of the instant affidavit, the monitoring had ended. The stated target for that wiretap was Jerami Westenberger. However, he was not intercepted on that wiretap.

(4) On March 7, 2013, this court authorized a wiretap for XXX-XXX-XXXX, used and subscribed to by Westenberger. At the time of the instant affidavit, the monitoring had ended. Targets ...


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