United States District Court, E.D. Wisconsin
ORDER ADOPTING RECOMMENDATION (DKT. NO. 156) AND
DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
December 12, 2017, the defendant filed a motion to suppress
all evidence and derivative evidence obtained from
intercepted conversations, arguing that the wiretap
applications did not meet the necessity requirement of 18
U.S.C. §2518(1)(c). Dkt. No. 137. The defendant
simultaneously filed a motion for bill of particulars. Dkt.
No. 138. Magistrate Judge William E. Duffin issued a
recommendation and order on February 2, 2018, recommending
that this court deny the motion to suppress because the
government had met its burden by establishing necessity for
the wiretap. Dkt. No. 156. In the same order, Judge Duffin
granted the motion for a bill of particulars. Id.
The defendant timely objected to the recommendation,
asserting that Judge Duffin failed to address the specific
shortcomings in the application that the defendant had raised
in his earlier pleadings. Dkt. No. 159. The court will
overrule the objection, adopt Judge Duffin's
recommendation and deny the motion to suppress.
Standard of Review for Recommendation
59(b) governs dispositive motion practice initiated before
magistrate judges. Fed. R. Crim. P. 59(b). Parties have
fourteen days to file “specific written
objections” to a magistrate judge's report and
recommendation on a dispositive motion. Fed. R. Crim. P.
59(b)(2). When reviewing a magistrate's recommendation,
the district judge reviews de novo the
recommendations of the magistrate judge to which a party
timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P.
59(B)(2), (3). The court can “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate.” Id.
Government's Burden to Demonstrate Necessity
applying for a wiretap, the government must make “a
full and complete statement as to whether or not other
investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. § 2518(1)(c);
United States v. Long, 639 F.3d 293, 301 (7th Cir.
2011). Courts refer to this as the necessity requirement.
United States v. Campos, 541 F.3d 735, 746 (7th Cir.
2008). The government's burden to prove necessity
“is not great, ” and the court evaluates
compliance with this requirement in a “practical and
common-sense fashion.” Campos, 541 F.3d at
746. Nothing requires a showing of “absolute”
necessity, or a showing that seeking the wiretaps was a last
resort. Long, 639 F.3d at 301 (7th Cir. 2011). The
necessity provision requires only that the wiretap applicant
show that the success of other methods of investigation
appears unlikely or too dangerous. Campos, 541 F.3d
at 746. The requirement exists to ensure that the government
does not use the wiretaps as a first step in an
investigation. United States v. Durham, 2014 WL
4362838, *5 (7th Cir. 2014).
objection to Judge Duffin's recommendation, the defendant
notes that Judge Duffin relied on the fact that the
government does not shoulder a heavy burden. Dkt. No. 159 at
1. He points to the fact that Judge Duffin felt that the
government had shown necessity because it showed the need to
unearth additional co-conspirators. Id. He
referenced Judge Duffin's observation that the government
had indicated in the applications that the drug conspiracy it
was investigating was of unknown scope. Id. The
defendant characterizes these as “broad principles,
” and concedes that they are a correct statement of the
law. Id. at 2. He argues that the principles are so
broad, however, that under them, “a wiretap would
always be deemed necessary if the government hasn't
learned every detail about a suspect or an organization that
might exist.” Id. He also asserts that the
principles assume that the reason law enforcement's other
efforts did not uncover further information could be because
there isn't any information to uncover, and not because
the other means of investigation weren't sufficient.
Id. For these reasons, the defendant argues that the
fact that the scope of the conspiracy was not known is not
sufficient to show the “necessity” of a wiretap.
defendant next argues that the government's assertion
that a wiretap was needed to identify the conspiracy's
supplier was not sufficient. Id. at 3. The defendant
asserts that the government didn't follow up on other
investigative methods that would have identified the source.
He disputes Judge Duffin's observation that doing things
like surveilling one of the co-conspirators might have risked
the investigation, arguing (without citing legal authority)
that “the mere fact that an investigation [presumably,
other methods of investigation than a wiretap] might carry
some risk isn't enough.” Id. And he
asserts that “neither the government nor the magistrate
judge explain how [the co-conspirator] possibly realizing he
was under surveillance would have scuttled the
the defendant asserts that Special Agent Richard Bilson's
affidavits were not sufficient to demonstrate necessity.
Id. He argues that the affidavits took a
“divide-and-conquer” approach to necessity, by
asserting that each individual technique (such as
surveillance, or a garbage search, or a trap-and-trace) alone
might not establish probable cause, without addressing
whether all of the techniques cumulatively might have done
so. Id. He takes issue with Judge Duffin's
response that a reviewing judge could have conducted that
calculation, arguing that Judge Duffin failed to do so.
defendant concludes by stating that it “should not be
enough” for the government to state that it doesn't
know the scope of the conspiracy, can't identify the
suppliers, or that that a single investigative technique
would not work. Id. He asks the court to reject
Judge Duffin's recommendation, and to suppress the fruits
of the wiretaps.
The Court's Analysis
6, 2017, the government charged the defendant and nine others
with various drug and firearm offenses. Dkt. No. 1. During
the government's investigation, this court entered two
orders under 18 U.S.C. §2518, authorizing the
interception of wire communications to and from two cellular
telephones used by Kavanaugh Coleman, who the government
believed to be the leader of the drug trafficking
organization. Dkt. No. 137-1 at 95, 196. The government
voluntarily terminated the interception of phone number
414-487-7407 under the first order (authorized on March 17,
2017), because Coleman no longer used that number. The second
order, dated May 5, 2017, authorized the interception of wire
communications to and from the second phone number,
414-745-2347, for a period of thirty days. Dkt. No. 137-1 at
government supported its applications with affidavits
prepared by Bilson, who has worked for the Federal Bureau of
Investigation since 2010. Dkt. No. 137-1 at 1-70, 96-170. In
his March 17, 2017 affidavit, Bilson explained that the
government had probable cause to believe that Coleman acted
as the leader of the Coleman drug trafficking organization,
which distributed multi-ounce to kilogram quantities of
heroin and cocaine in the Milwaukee area. Dkt. No. 137-1 at
12. Multiple confidential sources provided historical
information, recorded phone calls and bought distribution
quantities of heroin from Coleman and other members of the
organization. Id. at 12-13. At the time of the
application, the investigation had used traditional law
enforcement methods such as confidential sources, gathering
and analysis of information from other ...