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State v. Castro

Superior Court of Delaware

July 24, 2019

STATE OF DELAWARE,
v.
RICARDO CASTRO, Defendant.

          Submitted: July 12, 2019

         Defendant's Motion to Suppress Wiretap Evidence. Denied.

          Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.

          Brian J. Chapman, Esquire of the Law Office of Brian J. Chapman, Wilmington, Delaware and Robert Gamburg, Esquire (pro hac vice) of Philadelphia, Pennsylvania; attorneys for the Defendant.

          ORDER

          HON. WILLIAM L. WITHAM, JR. RESIDENT JUDGE.

         Upon consideration of the parties' briefs and the record of the case, it appears to the Court that:

         1. Defendant Ricardo Castro (hereinafter "Defendant") moves to suppress all evidence obtained as a result of a wiretap of cellular telephone number 302-358-0876 (hereinafter "0876"). The Defendant's motion primarily focuses on the lack of probable cause to support the wiretap application for the 0876 number and the State's alleged failure to satisfy 11 Del. C. § 2407(c)(1)(c), which is known in Delaware 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 (hereinafter "the Organization") in Kent County, Delaware. Defendant allegedly supplied the Organization which allegedly specialized in the distribution of cocaine and marijuana.[1] The Organization is also accused of operations involving other illicit substances.

         3. The wiretap application that the Defendant challenges was for his own prepaid Verizon Wireless cellular phone and accompanying phone number. Law enforcement investigators obtained an order authorizing the wiretap of 0876 on June 4, 2018.

         4. Before the issuing Judge approved the wiretap application, he considered the State's "Affidavit in Support of Application for Interception of Wire Communications." The affidavit recounts the police investigation into the Organization and contains lengthy descriptions of the normal investigative efforts that were:

(1) Taken and had failed prior to the application for the inception order;
(2) Reasonably appeared likely to fail if they were tried; or
(3) Were too dangerous to employ.

         This was communicated by the affiants to the issuing Judge through:

(1) Physical surveillance;
(2) Search warrants;
(3) Use of Attorney General Subpoenas;
(4) Confidential informants (hereinafter "CIs");
(5) Undercover law enforcement activity;
(6) Interview of suspects;
(7) Arrest of suspects;
(8) Pen registers and telephone tolls;
(9) Examination of discarded trash;
(10) Use of pole cameras;
(11) Use of GPS device; and
(12) Controlled purchases.[2]

         The affiants are Detective Thomas Lamon of the Delaware State Police, Detective Matthew Krogh of the Dover Police Department, and Special Agent Matthew Toth of the United States Drug Enforcement Administration. The affidavit comprises thirty-two (32) pages.

         5. The affidavit in support of a wiretap application must contain a full and complete statement that explains why a wiretap is necessary to the investigation.[3]Therefore, the Court's attention is directed to those previously mentioned portions of the affidavit that discusses any previous implementation of and future impracticalities associated with normal investigative techniques. The following is a summary of these pertinent sections:

(1) Physical Surveillance:
The affiants state that although physical surveillance has been attempted and has been useful in uncovering the operational activities of the Organization, along with identifying some of its members, it has not succeeded in gathering sufficient evidence of criminal activity and will not conclusively establish the elements of a criminal violation. Furthermore, the affiants state that physical surveillance fails to establish all locations related to the offenses and/or additional information regarding the coordination of the Organization's controlled substance delivery operations.
(2) Search Warrants:
The affiants state that the use of search warrants will not provide law enforcement with sufficient evidence to determine the full scope of the drug organization, because of the limited amount of places law enforcement knows to search. Searches on those places are also unlikely to reveal the total scope of the Organization's operations because the Organization stores its drugs in multiple locations throughout Kent and New Castle counties. Simultaneous searches would also not be feasible and would further risk Organization members learning of law enforcement's efforts and destroying evidence before it is discovered. In addition, since law enforcement does not know the location of all premises where illegal activities take place, other members of the drug organization would be alerted of the investigation if law enforcement began conducting searches of some or all of the known residences.
(3) Attorney General Subpoenas:
The affiants state that they spoke with multiple Delaware Deputy Attorney Generals, including the Deputy Attorney General for Kent County, and based on that Deputy Attorney General's experience, the use of Attorney General subpoenas would be unsuccessful because the alleged conspirators would likely invoke their Fifth Amendment privilege against self-incrimination. Additionally, it would not be prudent to seek immunity for the targeted individuals because immunity may foreclose prosecution against members of the Organization who may be the most culpable. The subpoenas may also compromise the investigation further by alerting other conspirators regarding the investigation's existence and result in negative consequences.
(4) Confidential Informants:
The affiants state that CIs have been used in the investigation, but that they have provided only limited information with respect to the following: the Organization's specific activities; the names and roles of all of the members of the 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 state that it is unlikely that members of the Organization would share this information with CIs, or that any CIs would be able to purchase illegal drugs directly from the Defendant because he only deals with trusted and/or known regular customers and further limits information only to those on a "need to know" basis.[4]
(5) Undercover Law Enforcement Activity:
The affiants state undercover officers have been unable to infiltrate the Organization due to its close and secretive nature, and that even if they could infiltrate it, the undercover officers would not be able to infiltrate the Organization at a level high enough to learn details ...

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