Probable Cause

Probable Cause

By

S J Tubrazy

Section. 10. Consideration for issuance of warrant.- (1) the judge while passing an order for issuance of warrant shall consider the following namely:-

(a) the issuance of requested warrant will enable the applicant to collect evidence; and

(b) the material or statement of the authorized officer whether indicates a reasonable threat or possibility of an attempt a scheduled offences.

(2) the judge while passing an order for the issuance of warrant shall ensure that –

(a) the authorized officer is properly authorized to represent the applicant; and

(b) the issuance of warrant shall not unduly interfere in the privacy of any person or property.

Chief Judge Patel granted the defendant’s motion to suppress because the affiant in a state search warrant affidavit referred to a federal wiretap as a “Confidential Reliable Source,” and thereby mislead the issuing magistrate.  The affidavit’s portrayal of investigators’ evaluations of wiretap evidence as the first-hand reports of a reliable witness showed a reckless disregard for truth in the factual assertions set forth in the affidavit upon which the magistrate’s finding was based. By describing the wiretap as if it were a human informant, the affiant made a proper determination of probable cause impossible. Law enforcement is not permitted to make misrepresentations in warrant affidavits in order to protect the confidentiality of their sources. Judge Patel suggested the following ways to protect confidential information sources used in search warrant applications:   [Affiant] could have submitted the warrant affidavit under seal, submitted a redacted affidavit along with an unredacted one to be sealed, or disclosed the nature of the source to the reviewing magistrate in in camera sealed proceedings. Furthermore, so that the magistrate has the actual facts to support probable cause rather than the affiant’s characterizations, the magistrate must be advised  of what is fact and what is characterization.  The way to accomplish this is to set forth the pertinent conversation and then interpret them where code or other obscure language is used.  Law enforcement must pursue those means of protecting investigations which do not risk compromising the protections of the Fourth Amendment. . .

At least two federal courts have refused to hold a warrant invalid where the affidavit described a wiretap as a ‘confidential informant,’ but in those cases the magistrate was informed orally of the true nature of the source.  United States v. Glinton, 154 F.3d 1245, 1255 (11th Cir.1998), cert. denied, 526 U.S. 1032, 119 S.Ct. 1281, 143 L.Ed.2d 374 (1999); United States v. Cruz, 594 F.2d 268, 271-72 (1st Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979).  In each of case, the deciding court emphasized that because of the affiant’s oral disclosure, the magistrate had not actually been misled as to any facts.  Another federal court of appeals cautioned that mislabeling wiretaps as human informants could affect the determination of probable cause.  United States v. Johnson, 696 F.2d 115, 118 n. 21 (D.C.Cir.1982).  Finally, at least one state court has actually excluded evidence gained from a search warrant in which the facts attested to by the ‘confidential reliable source’ described in the warrant affidavit turned out to be summaries of wiretap evidence provided to the affiant by a police officer in another state.  Florida v. Beney, 523 So.2d 744 (Fla. Ct. App. 1988).

Probable Cause

The existence of probable cause is determined by looking at the “totality of the circumstances.”  This determination is a practical, common sense decision whether, given all the circumstances set forth in the affidavit there is a fair probability that evidence of a crime will be found in a particular place.  Illinois v. Gates, 462 U.S. 213 (1983).    For the issuance of a wiretap order, probable cause is present if the totality of the circumstances reveals that there is a fair probability that a wiretap will uncover evidence of a crime.  U.S. v. Fairchild, 189 F.3d 769 (8th Cir. 1999).

The standard for probable cause under Title III is identical to that under the Fourth Amendment. U.S. v. Zambrana, 841 F.3d 1320 (7th Cir. 1988); U.S. v. Gotti, 2005 WL 859244 (S.D.N.Y.); U.S. v. Caldwell, 2005 WL 818412 (N.D. Ill.)(citing Zambrana); U.S. v. Garcia, 2005 WL 589627 (S.D.N.Y.); United States v. Mares- Martinez, 240 F. Supp.2d 803 (N.D. Ill. 2002); U.S. v. Santana, 218 F. Supp.2d 53 (D. N.H. 2002); U.S. v. Aparo, 2002 WL 2022329 (E.D.N.Y.)(citing U.S. v. Fury, 554 F.2d 522 (2d Cir. 1977)).  Title 18 U.S.C. 2518(3)(d) establishes three alternative bases for establishing probable cause: (1) that the target facilities are being used or are about to be used in connection with an enumerated offense; or (2) that the target facilities are leased to or listed in the name of an individual believed to have committed an enumerated offense; or (3) that the target facilities are commonly used by an individual believed to have committed an enumerated offense.  The only limitation on such interceptions is whether there is probable cause to believe that communications concerning the offense will be obtained through the interception.  U.S. v. Diguglielmo, 1985 U.S. Dist. LEXIS 19385 (E.D. Pa.).

It was error for magistrate to use bank records that were not submitted to the issuing court as a basis for second guessing that court’s probable cause determination.  Additional facts about the loan transactions that the magistrate thought the FBI recklessly failed to pursue were not essential to the showing of probable cause as to a possible kickback conspiracy.  Thus, there was no Franks v. Delaware violation.  Beyond misperceiving the government’s probable cause showing, the magistrate judge erred in focusing his Franks v. Delaware analysis on what the FBI could have learned with more investigation-which is relevant only to the statutory necessity issue-rather than on what the FBI actually knew when it prepared the instant affidavit.  Staleness was an issue in this case, but where recent information corroborates otherwise stale information, probable cause may be found.  Stripped of its erroneous Franks v. Delaware underlay, the district court’s contrary conclusion reflects a de novo probable cause determination that is inconsistent with the deferential standard of review that must be accorded the issuing judge. In view of the complex nature of the investigation (bank fraud conspiracy) and the issuing judge’s continuing supervision, the government’s minimization procedures did not violate 18 U.S.C. 2518(5).  The agents submitted their minimizing procedures to the issuing judge and reported minimizing problems to the judge as surveillance progressed.  “The agents used the ‘two minutes up/one minute down’ minimization technique recommended in the Department of Justice Manual, a

procedure we reviewed favorably . . . .”  This technique provided intermittent spot-checking of minimized conversations, a procedure expressly authorized by the issuing judge and previously approved by the Eighth Circuit.   The agents inadvertently intercepted numerous attorney communications, but the defendants failed to prove that each of these communications were attorney-client privileged and they also failed to prove that the agents acted in bad faith.  It was error to impose suppression as punishment for these inadvertent interceptions of attorney communications.  Because there was no bad faith attempt to obtain privileged conversations, those conversations should be suppressed on an individual basis at or before trial.  U.S. v. Ozar, 50 F.3d 1440 (8th Cir. 1995).

The Eighth Circuit Court of Appeals expressly disapproved of the government’s failure to inform the issuing judge, either in the affidavit or orally, that a person named in the affidavit as a person who was continuing to commit violations, actually was C/W-1 and not a suspect. “We are not unsympathetic to the need to ensure the safety of cooperating witnesses in this type of situation.  However, safety concerns are not compromised by sworn testimony before the issuing judge fully disclosing the fact of and the reasons for masking the witness’s identity in the affidavit.”  U.S. v. Falls, 34 F.3d 674 (8th Cir. 1994).

The court found that the affiant decided to omit the fact that confidential informant number six was a member of the Sons of Silence because he was concerned that the informant’s life would be endangered in the event that the Title III affidavit was unsealed prior to indictment.  However, at the evidentiary hearing, neither the affiant nor the government could identify a single instance where a Title III affidavit had been unsealed prior to the return of an indictment.  “Thus, the court finds Special Agent Terra’s reason for omitting the information regarding confidential informant number six’s Sons of Silence membership to be objectively unreasonable.  Nonetheless, although the court does not condone the action, this was not an attempt to enhance the contents of the affidavit submitted in support of the Tittle III application.  Rather, it was a measure employed in order to mask the informant’s identity for his own safety.  U.S. v. Gruber, 994 F. Supp. 1026 (N.D. Iowa 1998).

In the Sudafed/cyanide poisoning and murder case, the FBI’s original Title III application failed to disclose that 1) the principal informant had been convicted of forgery and fraud three times, and though each of these convictions was more than ten years old, he had a panoply of parole violations for similar offenses stretching back to his first conviction; 2) though the FBI rap sheet did not reflect it, Keith Meling had been convicted of a felony in 1990, just one year before the wiretap application, and had been committed to a mental institution, where he experienced auditory and visual hallucinations and was diagnosed as a schizophrenic; and 3) the affidavit failed to mention that Keith Meling came forward at least in part to obtain the $100,000 reward offered for information relating to the poisonings; to the contrary, the affidavit characterized Keith Meling’s motives as pure.  The FBI did not correct these misstatements and omissions in the extension applications.  The Ninth Circuit panel held, however, that the original and extension applications provided probable cause for the wiretap “once the FBI’s dissembling is corrected” and therefore no Franks hearing was required.  Regarding the omissions and misstatements in the Title III affidavits, the Ninth Circuit panel in its opinion:  “This conclusion should in no way commend similar practices to the FBI in the  future.  We understand the urgency the FBI agents felt as they strove to prevent further poisonings.  But this does not justify deliberate or reckless misrepresentations in wiretap applications.”   U.S. v. Meling, 47 F.3d 1546 (9th Cir. 1995).

The government concedes that it recklessly failed to include in its wiretap affidavit information concerning the times a confidential informant had perjured himself, lied, been arrested and failed to pay income taxes.  Several circuit opinions mention the informant by name and impugn his credibility. However, the Ninth Circuit held that the omission was not material.  There was overwhelming evidence in the affidavit corroborating the evidence obtained via the subject informant.  This evidence included physical surveillance, three other informants and an undercover agent.  U.S. v. Bennett, 219 F.3d 1117 (9th Cir. 2000).

Regarding a Title III affidavit’s failure to disclose a CI’s prior drug trafficking conviction, his past involvement with some defendants, and other indicia of his possible unreliability, the First Circuit held that the CI’s information was not material to the finding of probable cause and therefore not a basis for suppression, and that no Franks hearing was required because the defendants failed to make the requisite showing of materiality. Regarding the affidavit’s omission of information concerning the CI’s background, the Court opined as follows: The affidavit was, to put it mildly, economical on this point, stating only that there was no indication that Hernandez “has been less than truthful at any time with regard to this investigation.”  This statement was crafted carefully to avoid mention of facts that would call Hernandez’s trustworthiness into serious question.  We are concerned that such significant omissions could thwart the intent of Title III and mislead an issuing judge, who relies on the government to present the full case for its belief in probable cause, including any contraindications.  The troubling omissions here have less significance because the affidavit also included large quantities of evidence from sources other than Hernandez. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).

We find troubling Agent Lucas’ apparent misrepresentations concerning the past cooperation of the informants involved in this case. Although the government maintains that there was an absence of proof concerning the agent’s deliberateness or recklessness in making the misrepresentations, it is unclear how Agent Lucas could have made such statements of an affirmative character for which there was no basis without having acted either deliberately or recklessly. . .However. . .[t]he Supreme Court made it clear in Franks that in order to be entitled to relief a defendant must show. . . that, absent those misrepresentations or omissions, probable cause would have been lacking. . .[T]he mere fact that an informant’s trial testimony contradicts information attributed to that informant in an affidavit supporting a warrant does not entitle a defendant to suppression. Instead, the defendant must show that it is the agent, and not the informant, who has made misrepresentations.” U.S. v. Novaton, 271 F.3d 968 (11th Cir. 2001). A Franks motion must challenge the veracity of the affiant, not that of his informant. U.S. v.Staves, 383 F.3d 977 (9th Cir. 2004). Defendant failed to make requisite preliminary showing that allegations in affidavit were deliberate falsehoods or made with a reckless disregard for the truth, and therefore district court did not have to order a Franks hearing on motion to suppress.  U.S. v. Brown, 298 F.3d 392 (5th Cir. 2002). “The inaccurate code words and summaries demonstrate a troubling carelessness, but do not support an inference that [affiant] was attempting to mislead or was acting with reckless disregard of the true content of the conversations.”  U.S. v. Estrada, 1995 WL 577757 (S.D.N.Y.).

Alleged misstatements regarding the size and scope of the criminal organization do not negate the conclusion that the Government satisfied the necessity and probable cause requirements for the issuance of a wiretap.  U.S. v. Small, 229 F. Supp.2d 1166 (D. Col. 2002). The government conceded that affiant and DEA were mistaken in their initial identification of subject and the assignment of a criminal history.  Once discovered, the government omitted this information from future affidavits, drafted reports to this effect, and informed defendants of the mistake.  Such mistakes do not constitute a knowing false statement or reckless disregard for the truth.  It also falls short of what is required for a Franks hearing.  Even if this were not the case, the misstatements are immaterial to the probable cause determination and therefore a Franks hearing is unnecessary.  U.S. v. Velazquez, 1997 WL 564674 (N.D. Ill.). See also U.S. v. Caldwell, 2005 WL 818412 (N.D. Ill.)

Without the support of factual affidavits, defendants’ arguments in their memorandum of law almost exclusively dispute the conclusions and inferences drawn by the affiant from the intercepted  conversations about defendants’ involvement in a scheme to defraud union pension funds. By merely disagreeing about the fair interpretation of the intercepted communications, which were reproduced or summarized for independent review by the authorizing judges, defendants fail to meet their burden of establishing that the affiant’s statements were false or recklessly made.  U.S. v. Labate, 2001 U.S. Dist. LEXIS 6509 (S.D.N.Y.).

Title III suppression denial by court contains a thorough discussion of necessity, probable cause, facial sufficiency, informant reliability, staleness, and Franks issues.  U.S. v. Hanhardt, 157 F. Supp.2d 978 (N.D. Ill. 2001).  The application established probable cause. The cumulative effect of the alleged misrepresentations and omissions do not undermine the basis for probable cause, and the defendant, having failed to make the requisite showing, is not entitled to a Franks hearing.  U.S. v. Jarding, 2002 WL 1905533 (N.D. Ill.).

The application established probable cause. The defendant failed to establish the requisite materiality and intent for a Franks hearing. U.S. v. Mikos, 2003 WL 22462560 (N.D. Ill.); U.S. v. Le, 377 F. Supp.2d 245 (D. Me 2005). Defendant failed to establish that purported misstatements and omissions with regard to the finding of probable cause were made with the intent to deceive the court, or were necessary to the finding of probable cause. Therefore, a Franks hearing is not required.  U.S. v. Moran, 349 F. Supp.2d 425 (N.D.N.Y. 2005).

Defendant failed to make specific allegations regarding false statements in the affidavit, much less a substantial showing or an offer of proof. Accordingly, he has not met the standards for a Franks hearing.  U.S. v. Scala, 388 F. Supp.2d 396 (S.D.N.Y. 2005).

Where the facts adduced to support probable cause describe a course or pattern of ongoing and continuous criminality, the passage of time between the occurrence of the facts set forth in the affidavit and the submission of the affidavit itself loses significance.” The confidential sources cited in the government’s affidavit depicted the acceptance of payments not only as a routine and continuous practice from 1992-1997, but, as evidenced by CS1’s statements concerning Appellant Tursi’s extortion in April of 1999, and payments made to inspector O’Donnell from April to October 1999, also as a practice that continued beyond 1997 into late 1999. In other words, there was evidence that the plumbing inspectors’ misconduct was an established, routine practice that had spanned numerous years and had continued at least up until just months prior to the District Court’s initial authorization of the video surveillance in February of 2000. We therefore conclude that the evidence of the plumbing inspectors’ continuous misconduct leading up to the time of the first affidavit’s issuance was not stale, and therefore provided probable cause for the video surveillance. U.S. v. Urban, 404 F.3d 754 (3d Cir. 2005). The principal factors in assessing whether or not the supporting facts have become stale are theage of those facts and the nature of the conduct alleged to have violated the law.  U.S. v. Gallo, 863 F.2d 185 (2d Cir.1988) (quoting U.S. v. Martino, 664 F.2d 860 (2d Cir. 1981)).  Where a supporting affidavit presents a picture of continuing conduct as opposed to an isolated instance of wrongdoing, the passage of time between the last described act and the presentation of the application becomes less significant. This is especially true in a case involving an ongoing narcotics operation, where intervals of weeks or months between the last described act and the application for a wiretap do not necessarily make the information stale.  Rivera v. U.S., 928 F.2d 592 (2d Cir.1991) (dealing with search warrants) (citing U.S. v. Rowell, 903 F.2d 899 (2d Cir.1990) (holding that gap of 18 months did not render information stale);  Martino, 664 F.2d at 867 (3 weeks); U.S. v. Fama, 758 F.2d 834 (2d Cir. 1985) (5 weeks)).  Here, the district judge properly concluded that the Affidavit did not contain stale information.  First, the Affidavit stated that Roman and other members of the Latin Kings (1) were involved in drug trafficking activities as late as March 1994, within one month of the wiretap application; (2) used telephones to conduct their illegal drug activities; and (3) that Roman’s phone was used to make calls to and receive calls from these individuals until March 1994.  Moreover, as the district judge found, to the extent that there are acts of past criminal activity that in and of themselves might be stale,  such acts “can be sufficient if [an] affidavit also establishes a pattern of continuing criminal activity so there is reason to believe that the cited activity was probably not a one-time occurrence.”  U.S. v. Wagner, 989 F.2d 69 (2d Cir. 1993).  U.S. v. Diaz, 176 F.3d 52 (2d Cir.1999).

Where recent information corroborates otherwise stale information, probable cause may be found.  U.S. v. Ozar, 50 F.3d 1440 (8th Cir. 1995).Notwithstanding four month period between last observed drug transaction and filing of wiretap application, the on-going nature of the conspiracy was sufficiently established by the affidavit to support finding that probable cause existed for the issuance of the wiretap order.  U.S. v. Tallman, 952 F.2d 164 (8th Cir. 1991).

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