Submitted: April 5, 2013
Upon Consideration of Defendant's Motion to Suppress.
Nicole S. Hartman, Esq., Department of Justice, Dover, Delaware. Attorney for the State.
John R. Gary, 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. On June 2, 2012, investigators intercepted incriminating telephone conversations between Galen Brooks ("Brooks") and defendant Mark Matthews ("Matthews"). Matthews now moves to suppress all evidence obtained as a result of the wiretaps of cellular telephone numbers 302-222-5082 ("5082"), 302-399-3838 ("3838") and 302-535-9787 ("9787"). These numbers are alleged to have belonged to Brooks. This is one of several related motions from multiple defendants that attack the wiretap applications. On April 5, 2013, the Court heard oral argument on the wiretap motions and granted certain defendants an additional twenty days to make supplemental submissions. The defendant's original motion asserted probable cause and necessity arguments that were identical to those presented in Brooks' corresponding motion to suppress. Matthews' supplemental brief provides more specific allegations to support his contentions, but the essence of his arguments remains the same. In this order, I will address Matthews' arguments to the extent that they are unique from those offered by Brooks. As to Matthews' arguments that overlap with Brooks', the reasons set forth in my order denying Brooks' Motion to Suppress are equally applicable here.
2. The charges against Matthews arise in the context of an extensive police investigation into an alleged drug trafficking syndicate 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 syndicate. The syndicate is alleged to have specialized in the distribution of cocaine and crack cocaine.
3. 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 syndicate. The investigation began in 1996, and involved the use of physical and video surveillance, 16 confidential informants ("CIs"), interviews with suspected associates of the syndicate, 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 80 pages.
4. Matthews first contends that the State failed to establish probable cause. Specifically, he contends that the State improperly relied upon CIs who were not past proven reliable, and who provided anonymous tips that lacked sufficient indicia of reliability for the establishment of probable cause. He argues that CI #1 was ultimately uncooperative with police and that CI #5 was eventually imprisoned. The defendant next contends that the State failed to satisfy the necessity requirement of 11 Del. C. § 2407(a)(3). In particular, he contends that police learned Brooks' identity, the location of Brooks' residence, Brooks' cell phone number and the names of ten alleged conspirators utilizing confidential informants, search warrants and physical surveillance. He contends that this demonstrates that police were able to effectively investigate the syndicate without resorting to wiretaps.
5. The State contends that even though some of the CIs were not past proven reliable, that does not negate the importance of the information received; that information provided by three of those CIs was corroborated and verified by investigators; that of the 16 total CIs, seven were past proven reliable when the information was given; that four CIs conducted controlled purchases of drugs; that the warrant application must be reviewed as a whole rather than reviewing portions in a vacuum; and that the defendant suggests the standard for the necessity requirement is stricter than courts have previously found.
6. Title 11, Section 2407 of the Delaware Code sets forth the probable cause requirements necessary to obtain the issuance of an order authorizing a wiretap: c) Issuance of order.--
(1) Upon the application a judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications . . . if the judge determines on the basis of the facts submitted by the applicant that:
a. There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense ...