Submitted: April 5, 2013
Nicole S. Hartman, Esq., Department of Justice, Dover, Delaware. Attorney for the State.
James E. Liguori, Esq., Dover, Delaware. Attorney for the Defendant.
VAUGHN, President Judge
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. Defendant Galen Brooks ("Brooks") moves to suppress all evidence obtained as a result of the wiretaps of cellular telephone numbers 302-222-5082 ("5082"), 302-723-1412 ("1412"), 302-399-3838 ("3838") and 302-535-9787 ("9787"). This is one of several related motions from multiple defendants that attack the wiretap applications. Brooks' motion primarily focuses on the State's alleged failure to satisfy 11 Del. C. § 2407(a)(3), which is known as the "necessity requirement."
2. The charges against the defendant arise in the context of an extensive police investigation into an alleged drug trafficking syndicate (the "Organization") in Kent County. The investigation largely focused on Brooks, who, at the time of the wiretap applications, was believed to be the head of the Organization. The Organization allegedly specialized in the distribution of cocaine and crack cocaine.
3. With the exception of 1412, which was used by Jermaine Dollard, another defendant, the wiretap applications that defendant Brooks challenges were for his own cellular phones. Investigators obtained orders authorizing the wiretaps of 3838 and 5082 on May 15, 2012. The order authorizing the wiretap of 9787 was issued on May 25, 2012 and the order for Dollard's phone, 1412, was issued on June 5, 2012.
4. The State submitted an "Affidavit in Support of Application for Interception of Wire Communications" to accompany each of the contested wiretap applications. The affidavits necessarily present and rely upon much of the same information. Generally, they recount the police investigation into the Organization. The investigation began in 1996, and involved the use of physical and video surveillance, sixteen confidential informants ("CIs"), interviews with suspected associates of the Organization, pen registers, search warrants, an Attorney General Subpoena and controlled purchases of drugs by informants. The affiants are Detectives Jeremiah Lloyd and G. Dennis Shields of the Delaware State Police. The affidavits are lengthy. Each individual affidavit contains more than eighty pages.
5. As mentioned, the affidavit must also contain a full and complete statement that explains why a wiretap is necessary to the investigat ion. Therefore, the Court's attention is directed to that portion of each affidavit that discusses the previous implementation of and future impracticalities associated with normal investigative techniques. The following is a summary of these pertinent sections:
• Physical Surveillance: The affiants state that although physical surveillance has been attempted and has been useful in identifying a number of suspects, it has not succeeded in gathering sufficient evidence of criminal activity and will not establish conclusively the elements of a criminal violation. Furthermore, the affiants state that physical surveillance will not establish the identity and roles of all of the alleged conspirators in the drug organization, and that the surveillance will likely be noticed by the suspects, which will cause them to become more cautious and would risk jeopardizing the investigation.
• Search Warrants: The affiants state that the use of search warrants will not provide the police with sufficient evidence to determine the full scope of the drug organization, because suspected drug dealers do not keep permanent records of their illegal activities. In addition, the police do not know the location of all of the premises where illegal activities take place, and the other members of the drug organization would be alerted of the investigation when the police begin conducting searches of some or all of the known residences.
• Attorney General Subpoenas: The affiants state that they spoke with the Chief Prosecutor for Kent County, and that it is his belief that the use of Attorney General subpoenas would be unsuccessful because the alleged conspirators would likely invoke their Fifth Amendment privilege against self-incrimination. Additionally, they could compromise the investigation by alerting other conspirators regarding the existence of the investigation.
• Confidential Reliable Individuals: The affiants state that confidential informants have been used in the investigation, but that they have provided only limited information with respect to the following: the specific activities of the drug organization; the names and roles of all of the members of the drug organization; the sources of the drugs; the methods of concealing the proceeds of the sales of drugs; and the details of specific drug transactions. The affiants further ...