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State v. McCove

Superior Court of Delaware

July 25, 2019

STATE OF DELAWARE,
v.
JERMAINE K. McCOVE, 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.

          Jonathan Layton, Esquire of Gonser& Gonser, P.A., Wilmington, Delaware; attorney for 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 Jermaine McCove (hereinafter "Defendant") moves to suppress all evidence obtained as a result of a wiretap of cellular telephone number 917-686-6479 (hereinafter "6479"). The Defendant's motion focuses on the lack of probable cause to support the wiretap application for 6479 and the State's alleged failure to satisfy the "necessity requirement," codified by 11 Del. C. § 2407(c)(1)(c).

         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. The wiretap application that the Defendant challenges was for a prepaid AT&T cellular telephone owned by co-defendant Lamont K. McCove (hereinafter "co-defendant L. McCove").

         3. Law enforcement obtained an order authorizing the wiretap of 6479 on April 5, 2018 that helped law enforcement recover text messages that were allegedly exchanged between the Defendant and co-defendant L. McCove. These text messages form the basis of the charges against the Defendant.[1]

         4. Before the issuing Judge approved the wiretap application for 6479, he considered the State's "Affidavit in Support of Application for Interception of Wire Communications." The affidavit recounts the police investigation into the Organization. Additionally, the affidavit contains lengthy descriptions of the normal investigative efforts that were taken and had failed prior to the application for the inception order, reasonably appeared likely to fail if they were to be tried, or 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; and
(11) use of GPS device.[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 is thirty-six (36) pages in length.

         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 discuss 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 and some members of the Organization, it has not succeeded in gathering sufficient evidence of criminal activity and will not conclusively establish the elements of a criminal violation. The affiants state that physical surveillance will fail to establish all locations related to the offenses or additional information regarding the coordination of controlled substance delivery. This is, in part, because the neighborhood, Capitol Park, has only one ingress/egress and law enforcement's constant transport through that point, using unknown vehicles, would arouse the resident's suspicions, many of whom may be connected with the Organization.
(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 Organization because of the limited amount of places law enforcement knows to search. Searches on those places would also unlikely reveal the total scope of the Organization's operations because the Organization stores its drugs in multiple locations throughout Kent County. Simultaneous searches would also not be feasible, and 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 of the premises where illegal activities take place, other members of the 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 that, 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.
(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 specific activities of the 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 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 co-defendant L. McCove because he only deals with trusted and/or known regular customers and further limits information only to those on a "need to know" basis.
(5) Undercover Law Enforcement Activity: The affiants state that undercover officers have been unable to infiltrate the Organization due to its close and secretive nature, including the fact that co-defendant L. McCove does not allow new and unknown persons into the Organization. Affiants also state that even if they could place an undercover officer within the Organization, the undercover officer would not be able to infiltrate the Organization at a level high enough to learn details about the Organization's activities and all its members, particularly co-defendant L. McCove.
(6) Interview of Suspects: The affiants state that interviewing suspected members of the Organization will produce insufficient information about the Organization's members and activities; that the suspects would likely lie to law enforcement; that they would likely invoke their Fifth Amendment privilege against self-incrimination; and that interviewing suspects would alert other members of the investigation which would cause them to be more cautious and jeopardize the investigation.
(7) Arrest of Suspects: The affiants state that even if one of the targeted members of the investigation was arrested, law enforcement would be unable to learn the identities of all members of the Organization and those individuals would escape prosecution. Furthermore, other associates of the Organization would take the place of the arrested targeted subjects, including co-defendant L. McCove.
(8) Pen Register and Telephone Tolls: The affiants state that a pen register, trap trace device, and telephone tolls have been used in the investigation to verify communications between the target phone number, but that they are insufficient because they do not record the identity of ...

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