United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3750
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United States of America, *
*
Appellee, *
*
v. *
*
Bernard NMN Gaines, aka Smiley, *
*
Appellant. *
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Appeals from the United States
No. 09-3754 District Court for the
___________ District of Minnesota.
United States of America, *
*
Appellee, *
*
v. *
*
Jerry Martese Dubose, aka Ray, *
*
Appellant. *
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Submitted: October 21, 2010
Filed: May 4, 2011
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
Bernard Gaines and Jerry Dubose, along with twelve others, were indicted for
their alleged involvement in a conspiracy to distribute cocaine and crack cocaine.
Ultimately, Gaines pleaded guilty and, subsequently, testified against Dubose, who
elected to stand trial. Prior to his trial, Dubose moved to suppress recordings of
wiretapped telephone conversations that he had with his alleged coconspirators,
arguing that the recordings were obtained in violation of his rights under the Fourth
Amendment because the initial wiretap application and resulting order failed to
particularly identify all potential conversants who might be overheard on the
wiretapped phone line. The district court1 denied Dubose's motion, and, following a
two-day trial at which Gaines testified, a jury found Dubose guilty. Thereafter, at
Gaines's sentencing, the district court found Gaines to be a "manager or supervisor"
of the drug conspiracy under U.S.S.G. § 3B1.1(b) and applied a three-level
enhancement to his base-offense level pursuant to that provision. Gaines and Dubose
appeal. Gaines appeals the district court's determination that he was a manager or
supervisor of the conspiracy, and Dubose appeals the district court's denial of his
pretrial motion to suppress. We affirm both judgments.
I. Background
In August 2007, Minneapolis Police and the Federal Bureau of Investigation
(FBI) commenced "Operation Sabotage" (OS), a joint effort between local and federal
law enforcement to interdict a drug network believed to operate between Chicago,
Illinois, and Minneapolis, Minnesota. On February 21, 2008, after several months of
"traditional" investigative methods by OS agents, including visual surveillance, search
warrants, garbage pulls, and controlled purchases of narcotics, the United States
Attorney's Office applied to the United States District Court for the District of
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
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Minnesota, for a wiretap order pursuant to 18 U.S.C. § 2518 ("Title III").2 The
application sought authorization to intercept calls to and from a "target" cellular phone
purportedly subscribed to the username of "Vegas Smith" and linked to the billing
name of a "Joe Green" residing in St. Paul, Minnesota. The application asserted that
Mario Leon Tyson actually owned and used the target phone. In support of the wiretap
application, FBI Special Agent James Somerville submitted the statutorily required
affidavit, identifying Tyson and other named individuals believed to be engaged in the
drug network. Specifically, Agent Somerville swore that "'there is probable cause to
believe Mario Tyson, Bernard Gaines, . . . and others as yet unknown, have committed
and are committing, and will continue to commit violations of [several firearm, drug
trafficking, and money laundering offenses].'" Additionally, Agent Somerville swore
that he had probable cause to believe a wiretap of the target phone would intercept
conversations of Tyson, Gaines, and others discussing their crimes. Agent
Somerville's affidavit made no mention of Dubose.
A District of Minnesota district judge authorized the requested 30-day wiretap
surveillance of Tyson's phone. Beginning on February 25, law enforcement
commenced the surveillance, intercepting 15 "pertinent calls" between Tyson and
Dubose. On March 17, 2008, the United States Attorney's Office successfully applied
for authorization to tap a second target phone, this time naming Dubose as a
participant in the drug network. Agent Somerville's affidavit noted Dubose's
involvement on the previously intercepted calls to establish probable cause. Finally,
on March 31, 2008, the United States Attorney's Office successfully applied for a third
wiretap, again naming Dubose in the application as a criminal participant whose
conversations it aimed to intercept.
2
Section 2518 is part of the federal wiretap statute formally known as Title III
of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510–2522.
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On July 22, 2008, Gaines, Dubose, and 12 others were indicted, each charged
with one count of conspiracy to distribute cocaine and crack cocaine. Gaines pleaded
guilty and ultimately testified against Dubose, who elected to stand trial. Dubose
moved to suppress the evidence obtained by the wiretaps. The district court denied
Dubose's motion to suppress. After reviewing Agent Somerville's affidavit, the district
court concluded that it "set[] forth sufficient probable cause that 'others yet unknown'
were involved in the alleged drug trafficking[,]" and that "[w]hile [Dubose] challenges
the amount of information contained in the affidavit devoted to whether 'others
unknown' were involved in the conspiracy, the Court is not to review supporting
affidavits 'in a hypertechnical manner, but rather with an eye toward a commonsense
determination.'" The district court concluded that "the affidavits viewed as a whole set
forth sufficient facts to support a reasonable belief a crime was being committed, and
that others unknown were involved."
Thereafter, Dubose's case proceeded to trial, where Gaines testified against him,
implicating Dubose and others in the drug network. Following a two-day trial, the jury
found Dubose guilty on the sole drug-conspiracy count, and, subsequently, the district
court sentenced Dubose to 120 months' imprisonment.
For Gaines's part, he testified at Dubose's trial that between 2006 and 2008, he
(Gaines) purchased cocaine in kilo quantities on two occasions from Dexter Fields,
the apparent Chicago-based supplier of the entire Minneapolis-based consortium to
which Gaines was a party. According to the factual recitation in Gaines's presentence
investigation report (PSR), to which he took no exception,3 "in approximately March
2008, Gaines traveled to Chicago and purchased one kilogram of cocaine from Fields
and Nelson for $23,000," and, subsequently, Gaines "sold 500 grams of cocaine to
others and converted the remaining 500 grams into cocaine base before distributing
3
"[U]nless a defendant objects to a specific factual allegation contained in the
PSR, the court may accept that fact as true for sentencing purposes." United States v.
Davis, 583 F.3d 1081, 1095 (8th Cir. 2009) (internal quotations and citations omitted).
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it to others." The PSR further provides that, on a different, undisclosed date, "Gaines
purchased another [one] kilogram of cocaine from Fields through Nelson for an
additional $23,000."
Gaines's testimony at Dubose's trial, coupled with the PSR's unobjected-to
findings, reveals that Gaines's primary enterprise responsibilities included dividing,
preparing, packaging, and distributing cocaine to lower distributors and sellers. In his
brief to this court, Gaines summarized his trial testimony by stating that, upon
receiving powder cocaine in bulk from Fields in Chicago, he "would then separate the
powder cocaine into '9's, 4's, and 63's,'" a "9" being nine ounces, a "4" being four and
one-half ounces, and a "63" being 63 grams of cocaine. Finally, Gaines confirms that,
"[a]t various times, [he] sold cocaine to co-defendants Turnipseed, Woods, Tyson,
Dubose, Holmes, Robinson, Shoals, Griffin, Kirk, and Lloyd," and further, that Gaines
"set the price on the cocaine he sold" to these individuals, but notes that "[t]here is no
evidence . . . that [he] told others what to charge for the cocaine they would resell."
The PSR matched Gaines's testimony and supplements that, "[f]ollowing a proffer
session with the authorities, a firearm and 441 grams of cocaine base was recovered
from Gaines'[s] residence." Moreover, "[i]ncluding the 243.84 grams of cocaine found
in his vehicle" upon apprehension, "Gaines agreed that he is responsible for at least
500 grams but less than 1.5 kilograms of cocaine base."
On November 18, 2009, the district court agreed with the PSR's
recommendation that Gaines was a manager or supervisor of the drug conspiracy and
applied a three-level enhancement to his base-offense level pursuant to U.S.S.G.
§ 3B1.1(b). However, in recognition of Gaines's cooperation with authorities and
testimony at Dubose's trial, the district court departed below the advisory Guidelines
range of 262 to 327 months' imprisonment and instead sentenced Gaines to 144
months' imprisonment.
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Gaines and Dubose each appeal. Gaines appeals the district court's imposition
of a three-level role enhancement. Dubose appeals the district court's denial of his
pretrial motion to suppress, maintaining that the recorded telephone conversations
used as evidence against him at trial were procured in violation of the Fourth
Amendment's requirement that a search warrant "particularly describ[e] the place to
be searched, and the persons or things to be seized." U.S Const. amend. IV. We
consolidated their appeals and now affirm both judgments.
II. Discussion
A. Gaines's Role Enhancement Under U.S.S.G. § 3B1.1(b)
The district court did not clearly err in finding that Gaines was a manager or
supervisor of the underlying drug conspiracy to which he was a party. Section
3B1.1(b) provides as follows:
Based on the defendant's role in the offense, increase the offense level as
follows: . . . (b) If the defendant was a manger or supervisor (but not an
organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive, increase by 3 levels.
Gaines concedes in his brief "that the criminal activity involved five or more
participants or was otherwise extensive" but "disputes . . . that he was a manager or
supervisor." The government bears the burden of proving by a preponderance of the
evidence that the aggravating role enhancement is warranted. United States v.
Garcia-Hernandez, 530 F.3d 657, 665 (8th Cir. 2008). "'The district court's factual
findings, including its determination of a defendant's role in the offense, are reviewed
for clear error,' while its 'application of the guidelines to the facts is reviewed de
novo.'" United States v. Bolden, 622 F.3d 988, 990 (8th Cir. 2010) (quoting United
States v. Vasquez-Rubio, 296 F.3d 726, 729 (8th Cir. 2002)). Finally, "'[w]e construe
the terms 'manager' or 'supervisor' broadly under U.S.S.G. § 3B1.1(b),'" United States
v. Adamson, 608 F.3d 1049, 1056 (8th Cir. 2010) (quoting United States v. Erhart,
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415 F.3d 965, 973 (8th Cir. 2005)), and the sentencing court is free to consider factors
such as:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
Id. (quoting U.S.S.G. § 3B1.1 cmt. n.4; United States v. Rosas, 486 F.3d 374, 376 (8th
Cir. 2007)).
Gaines correctly observes that there is no evidence that he: (i) "recruited anyone
into the drug conspiracy," (ii) "told anyone where they had to sell their drugs or to
whom they could sell them," or (iii) "instructed anyone on how to cook powder
cocaine into cocaine base." Nevertheless, we have affirmed a district court's
application of the manager/supervisor role adjustment on a very similar factual record.
We noted, however, that such facts present a "close question." In United States v.
Vasquez, the district court found Vasquez to be a manager or supervisor of a
methamphetamine ring based largely on the testimony of a coconspirator who stated
that when he wished to purchase methamphetamine for resale, he would contact
Vasquez, who in turn "would set the price for the methamphetamine depending on the
quantity and quality, and tell [the testifying coconspirator] where to meet him." 552
F.3d 734, 738 (8th Cir. 2009). Additionally, the district court relied on the trial
testimony of an individual who doubled as Vasquez's purchaser and supplier. Id.
Specifically, this witness testified that she purchased one-half ounce quantities of
methamphetamine from Vasquez between 25 and 30 times, and that, on occasion, she
would sell Vasquez methylsulfonylmethane (MSM), a principal cutting agent used to
manufacture methamphetamine. Id. Presented with these facts, our court concluded
that "[a]lthough this issue does present a close question . . . the government presented
sufficient evidence, when considered in its totality, to meet its burden of proof," and
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"[t]hus, the district court's imposition of three-level role enhancement was not clearly
erroneous." Id.
Gaines's case is similar to Vasquez in key respects. Much like the record in
Vasquez, the instant record is admittedly scant on the "degree of control," U.S.S.G. §
3B1.1 cmt. n.4, and "decision making authority," id., that Gaines exercised over his
accomplices. Still, these are but two of several factors in a non-exhaustive list that the
Guidelines advise a sentencing court to consider before imposing a
manager/supervisor enhancement.4 See id. (advising that "[f]actors the court should
4
Indeed, despite some likely inaccurate remarks in our case law, we have not
imposed a strict condition requiring evidence of control or decision making authority
over one or more accomplices as an absolute prerequisite for a manager/supervisor
enhancement under U.S.S.G. § 3B1.1. In United States v. Plancarte-Vazquez, we
stated that, "[f]or a sentencing court to impose a managerial or supervisory role
enhancement[,] there must be sufficient evidence from which to find that the
defendant controlled at least one other participant in the drug trafficking offense.", 450
F.3d 848, 853 (8th Cir. 2006) (emphasis added) (quoting in part United States v.
Mesner, 377 F.3d 849, 851–52 (8th Cir. 2004)). In Mesner, this court concluded that,
because "the government was able to demonstrate by a preponderance of the evidence
that Mesner 'controlled at least one other participant in the drug trafficking offense,'"
377 F.3d at 851–52 (emphasis added) (quoting United States v. Yerkes, 345 F.3d 558,
563 (8th Cir. 2003)), the district court "did not clearly err by enhancing Mesner's
sentence for being a manager or supervisor of the conspiracy," id. at 852. In United
States v. Yerkes, we stated that, "[t]o receive this enhancement, the Government need
only prove that 'the defendant controlled at least one other participant in the drug
trafficking offense.'" 345 F.3d at 563 (emphasis added) (citing United States v.
Brown, 311 .3d 886, 890 (8th Cir. 2002)). Finally, in United States v. Brown, we
stated merely that "[w]e will uphold this enhancement if the defendant controlled at
least one other participant in the drug trafficking offense." 311 F.3d at 890 (emphasis
added). In sum, this circuit's rule that proof of a defendant's control over at least one
accomplice is sufficient to sustain, under clearly erroneous review on appeal, a
manager/supervisor enhancement, has, over the course of several iterations,
inadvertently evolved into a rule that such proof is necessary and sufficient, at
sentencing, to procure a manager/supervisor enhancement. More simply, "need only,"
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consider include the exercise of decision making authority . . . and the degree of
control and authority exercised over others") (emphasis added). Here, as in Vasquez,
the factors supporting a role enhancement include Gaines's manufacture of the drug
to be distributed and his distribution of the end product to others, at a price Gaines set,
for redistribution in smaller quantities. These similarities, coupled with (1) the nature
and broad scope of the illegal activity, and (2) the nature of Gaines's participation in
the crime—both factors which the Guidelines also advise this court to consider—lead
us to conclude that the district court did not clearly err in finding Gaines to be a
manager or supervisor of the drug network.
B. Dubose's Motion To Suppress
On appeal, Dubose maintains that Agent Somerville's first affidavit fell short
of the Fourth Amendment's particularity requirement. The Fourth Amendment to the
U.S. Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
Yerkes, 345 F.3d at 563, on appeal, Brown, 311 F.3d at 890, has become "must" at
sentencing, Plancarte-Vazquez, 450 F.3d at 853.
Accordingly, Plancarte-Vazquez inaccurately characterized prior precedent. We
therefore apply the more accurate prior panel statement of the law under the rule that
precludes one panel of this court from overruling a prior panel's decision. See Owsley
v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) ("It is a cardinal rule in our circuit that
one panel is bound by the decision of a prior panel."). Application of the prior panel
rule to this case clarifies that, although proof of Gaines's control over at least one
participant is sufficient to sustain a manager/supervisor enhancement on appeal, such
proof is not necessary, either on appeal or at sentencing.
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U.S. Const. amend. IV (emphasis added).
Dubose contends that Agent Somerville's affidavit failed to "particularly
describ[e] the places to be searched, and the persons or things to be seized" because
it omitted any reference to Dubose, whose telephone conversations were subsequently
recorded. Dubose maintains that Agent Somerville's affidavit stated that Somerville
had probable cause to believe that only Tyson, Gaines, and other named individuals
were involved in the conspiracy under investigation, along with "others unknown."
Dubose contends that this residual, catch-all clause referencing "others unknown" is
too general to satisfy the Fourth Amendment and that the affidavit was unsupported
by probable cause to entitle law enforcement to eavesdrop on Dubose's conversations.
"The District Court reviewed the suppression hearing transcript and made a de
novo determination concerning those portions of the magistrate's findings and
recommendations to which appellants objected." United States v. Garcia, 785 F.2d
214, 222 (8th Cir. 1986) (reviewing a wiretap application affidavit). Accordingly,
"[t]hese determinations are findings of fact, which we must uphold unless clearly
erroneous." Id. Still, our review of a district court's probable cause determination is
actually a mixed question of law and fact. United States v. Williams, 616 F.3d 760,
764 (8th Cir. 2010) (quoting United States v. Parish, 606 F.3d 480, 486 (8th Cir.
2010)). Consequently, "[i]n reviewing a denial of a motion to suppress, we review the
district court's factual determinations for clear error and its legal conclusions de novo."
Id. (quoting Parish 606 F.3d at 486). Ultimately, "[t]he existence of probable cause
is a mixed question of law and fact that we review de novo." Id. We hold that the
district court did not err in concluding, as a matter of law, that Agent Somerville's
affidavit stated sufficient particularity and probable cause under the Fourth
Amendment.
Title III codifies its own particularity and probable-cause standards for wiretap
applications and orders. Specifically, it requires wiretap applications to provide the
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"identity of the person, if known, committing the offense and whose communications
are to be intercepted," 18 U.S.C. § 2518(1)(b)(iv), and wiretap orders to "specify
. . . the identity of the person, if known, whose communications are to be intercepted,"
id. § 2518(4)(a). We have long held that the "statutory probable cause standards set
out in Title III are co-extensive with the constitutional requirements embodied in the
fourth amendment." United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988)
(emphasis added). But, to the extent Dubose reads that line of Eighth Circuit precedent
as holding that the wiretap statute's particularity requirements are coextensive with
the Fourth Amendment's, Dubose misreads our case law. Indeed, any assertion that
Title III's particularity requirements are coextensive with the Fourth Amendment's
contradicts the Supreme Court's clear statement that, "[i]n the wiretap context, [the
Fourth Amendment's particularity] requirements are satisfied by identification of the
telephone line to be tapped and the particular conversations to be seized." United
States v. Donovan, 429 U.S. 413, 427 n.15 (1977).
Title III's particularity requirements must be distinguished from the Fourth
Amendment's particularity requirements. Id. Dubose's case brings this distinction into
sharp relief. Dubose does not allege that law enforcement's wiretap application
violated Title III's particularity mandates, but, rather, the Fourth Amendment's.5
In Berger v. New York, the Supreme Court invalidated New York's
eavesdropping law on Fourth Amendment particularity grounds because it authorized
the ex parte issuance of wiretap and "bugging" warrants merely on the basis of a law
enforcement official's affidavit swearing that he or she had a "'reasonable ground to
believe that evidence of crime may be thus obtained.'" 388 U.S. 41, 54 (1967) (quoting
N.Y. Crim. Proc. Law § 813-a) (emphasis added). In its decision, the Court noted that
5
Indeed, because Dubose alleges only that the wiretap application and order
violated the Fourth Amendment's particularity requirements, we do not consider
whether the application and resulting order violated Title III's particularity
requirements.
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the New York law "la[id] down no requirement for particularity in the warrant as to
what specific crime has been or is being committed, nor 'the place to be searched,' or
'the persons or things to be seized' as specifically required by the Fourth Amendment."
Id. at 56. Finally, and critically important to the present analysis, the Berger Court
conceded that "[i]t is true that the statute requires the naming of 'the person or persons
whose communications, conversations or discussions are to be overheard or recorded'"
but concluded that "this does no more than identify the person whose constitutionally
protected area is to be invaded rather than 'particularly describing' the
communications, conversations, or discussions to be seized." Id. at 59.
Thereafter, in United States v. Kahn, the Supreme Court concluded that "Title
III requires the naming of a person in the application or interception order only when
the law enforcement authorities have probable cause to believe that that individual is
'committing the offense' for which the wiretap is sought." 415 U.S. 143, 155 (1974)
(emphasis added). In other words, the Supreme Court in Kahn decided, on statutory
grounds, the very question that this court now considers on constitutional grounds.
See id. at 150 ("The question presented is simply whether the conversations that the
Government wishes to introduce into evidence at the respondents' trial are made
inadmissible by the 'others as yet unknown language' of Judge Campbell's order or by
the corresponding statutory requirements of Title III.") (emphasis added); id. at 160
(Douglas, J., dissenting) ("Whether the search would satisfy the Fourth Amendment
is not before us, the decision below being based solely on the Act of Congress.").
Indeed, the Kahn Court rejected the court of appeals's effort to equate a wiretap order
containing the statutory, "as others yet unknown" language, with an unconstitutional
"general" warrant, stating the following:
The fallacy in the Court of Appeals' "general warrant" approach may be
illustrated by examination of an analogous conventional search and
seizure. If a warrant had been issued, upon a showing of probable cause,
to search the Kahn residence for physical records of gambling operations
[of Mr. Kahn's], there could be no question that a subsequent seizure of
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such records bearing Minnie Kahn's [(Mr. Kahn's wife)] handwriting
would be fully lawful, despite the fact that she had not been identified in
the warrant or independently investigated. In fact, as long as the
property to be seized is described with sufficient specificity, even a
warrant failing to name the owner of the premises at which a search is
directed, while not the best practice, has been held to pass muster under
the Fourth Amendment.
Id. at 155 n.15 (emphasis added).
Finally, three years later, in United States v. Donovan, the Supreme Court
considered, inter alia, "whether 18 U.S.C. § 2518(1)(b)(iv), which requires the
Government to include in its wiretap applications 'the identity of the person, if known,
committing the offense and whose communications are to be intercepted,' is satisfied
when the Government identifies only the 'principal targets' of the intercept." 429 U.S.
413, 416 (1977). The Court ultimately construed § 2518(1)(b)(iv) to require that "a
wiretap application . . . name an individual if the Government has probable cause to
believe that the individual is engaged in the criminal activity under investigation and
expects to intercept the individual's conversations over the target telephone." Id. at
428. In concluding that Title III entailed such sweeping identification requirements,
the Court deduced from Title III's legislative history that "the requirements set forth
in the various subdivisions of § 2518(1)(b), including the identification requirement
at issue here, were intended to 'reflect . . . the constitutional command of
particularization.'" Id. at 426–27 (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., 66,
at 101 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, at 2190)). Specifically, the Court
observed that, "to the extent that Congress thought it was meeting the constitutional
commands of particularization established in Berger and Katz, Congress may have
read those cases as mandating a broad identification requirement." Id. at 427.
Nevertheless, the Court explicitly clarified in Donovan what it implicitly stated in
Kahn. See supra Section II-B. Specifically, the Donovan Court wrote that,
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[a]t the time of the enactment of Title III, Congress did not have before
it the view we expressed on this issue in United States v. Kahn, 415 U.S.,
at 155 n.15, 94 S.Ct. at 984. The Fourth Amendment requires
specification of "the place to be searched, and the persons or things to be
seized." In the wiretap context, those requirements are satisfied by
identification of the telephone line to be tapped and the particular
conversations to be seized. It is not a constitutional requirement that all
those likely to be overheard engaging in incriminating conversations be
named. Specification of this sort "identif(ies) the person whose
constitutionally protected area is to be invaded rather than 'particularly
describing' the communications, conversations, or discussions to be
seized." Berger v. New York, 388 U.S., at 59, 87 S.Ct., at 1883.
Id. at 427 n.15 (emphasis added).
Thus, the Supreme Court does not treat the Fourth Amendment's particularity
standards as "coextensive" with Title III's particularity standards.
Agent Somerville's affidavit and the district court's subsequent wiretap order
did not run afoul of the Fourth Amendment for lack of particularity because the Fourth
Amendment requires that a wiretap application (and subsequent wiretap order)
identify only "the telephone line to be tapped and the particular conversations to be
seized." Id. Here, as the district court recognized in its de novo review of the wiretap
application proceedings, the record reflects that "[the judge authorizing the wiretap
order] made a finding . . . 'that particular wire communications' as to certain named
targets," i.e. Tyson and Gaines, "and others yet unknown," concerning the described
drug trafficking offenses, would be intercepted. We uphold this factual finding unless
it is clearly erroneous. Garcia, 785 F.2d at 222. "Under this standard, we ordinarily
affirm a decision unless there is not substantial evidence to support it, it evolves from
an erroneous view of the applicable law, or upon considering the entire record, we are
left with a definite and firm conviction that a mistake has been made." Ross, 713 F.2d
at 392. Moreover, "[c]ourts must test applications for wiretaps and eavesdropping in
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a practical and commonsense fashion," and consequently we, as "[a] reviewing
court[,] must accord broad discretion to the decision to authorize wiretapping or
eavesdropping." Garcia, 785 F.2d at 221–22.
As the magistrate judge noted in his report and recommendation, "the
application requested authorization to intercept calls to and from telephone number
(612) 235-8604, with 'push-to-talk' number 183*810*4707, assigned to a Sprint
Nextel Corporation cellular telephone further identified by International Mobile
Subscriber Identification (IMSI) # 316010103756236." Moreover, according to the
magistrate judge, "[t]he application generally assert[ed] the existence of probable
cause as stated with particularity in an attached affidavit of FBI Special Agent James
J. Somerville." Specifically, the district court concluded as a matter of law that "there
was probable cause to find that such communications would concern drug trafficking."
Based on the magistrate judge's factual findings concerning the contents of Agent
Somerville's affidavit and the resulting wiretap order—findings that are not clearly
erroneous—the district court did not err in concluding, as a matter of law, that the
affidavit and order were sufficiently particular under the Fourth Amendment. Both the
affidavit and the order identified the particular telephone line to be tapped and the
particular conversations (i.e., those concerning drug trafficking) to be seized. That is
all the particularity that the Fourth Amendment requires.
III. Conclusion
Based on the foregoing, we affirm.
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