United States District Court, S.D. Ohio, Western Division, Dayton
OPINION AND ORDER STRIKING DEFENDANT'S MOTION TO
SUPPRESS (ECF 174)
M. ROSE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Motion to Suppress (ECF 174) by
Defendant Charles Darnell Spencer. On May 1, 2018, Defendant
filed a motion for permission to file motions out of time.
(ECF 168.) On May 2, 3018, this motion was denied by
notation. Later that day, Defendant proceeded to file Motion
to Dismiss (ECF 172) and Motion to Suppress (ECF 173) anyway.
The Court denied these motions, because they were filed after
the Court's motions deadline. (ECF 175). Yet another
motion has been filed, Defendant's Motion to Suppress.
to Suppress (ECF 174), filed May 2, 2018, asserts repeated
challenges to the veracity and accuracy of the affidavit
supporting the Government's request for a wiretap.
Defendant has been aware of the Government's wiretap
since May of 2016. (See ECF 12, Order Granting Motion for
Authorization to Provide Defense Counsel a Copy of the Sealed
Supporting Affidavit, authorizing release of search warrant
affidavit, which references the wiretap, See ECF 173-1,
PageID 751, ¶ 44.) After many extensions, “a new
Motion deadline [was] set for Friday, March 31, 2017.”
(Docket Entry March 20, 2017). Counsel was warned, “No
further continuances shall be granted without just
cause.” (Id.) Defendant offers no just cause
for his delay.
it is filed out of time and without permission, the Court
ORDERS Defendant's Motion to Suppress,
ECF 174, to be struck. Should a reviewing Court find this an
abuse of discretion, it would be denied in any event.
application for a wiretap order must include “a full
and complete statement as to whether other investigative
procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(1)(c). Based upon
this application, the court may grant the order if it
determines that “normal investigative procedures have
been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous.”
18 U.S.C. § 2518(3)(c). These provisions do not require
that the police officials exhaust every conceivable
non-wiretap investigative technique. All that is required is
that the investigators give serious consideration to the
non-wiretap techniques prior to applying for wiretap
authority and that the court be informed of the reasons for
the investigators' belief that such non-wiretap
techniques have been or will likely be inadequate. United
States v. Alonso, 740 F.2d 862, 868 (11th Cir. 1984);
United States v. Webster, 734 F.2d 1048, 1055 (5th
Cir. 1984); United States v. Lambert, 771 F.2d 83,
91 (6th Cir. 1985). The Government has met this requirement.
See 3:15-mc-004, ECF 150-1, PageID 473-92, ¶¶
84-126; see also id., ECF 153-1, PageID 603-623, ¶¶
84- 124. “All that is required is that the
investigators give serious consideration to the non-wiretap
techniques prior to applying for wiretap authority and that
the court be informed of the reasons for the
investigators' belief that such non-wiretap techniques
have been or will likely be inadequate.” United
States v. Giacalone, 853 F.2d 470, 480 (6th Cir. 1988)
(citing United States v. Alfano, 838 F.2d at 163-64
(6th Cir. 1988) (quoting United States v. Lambert,
771 F.2d 83, 91 (6th Cir. 1985).
the challenges to veracity and accuracy, Defendant challenges
the veracity of information relayed from sources to the
Government. This does not provide a basis for a hearing:
Regarding defendants' affidavits denying things
attributed to them by Conley's affidavit, I must first
note that the Supreme Court made it very clear that a
defendant's challenge must be directed at the veracity of
the affiant, not the veracity of governmental informants.
[Franks v. Delaware, ] 438 U.S. at 171, 98 S.Ct. at
2684. The question is whether agent Conley accurately and
truthfully represented what the informants told him, not
whether the informants lied to agent Conley. See United
States v. Barnes, 604 F.2d 121, 152-53 (2nd Cir. 1979);
United States v. Edwards, 602 F.2d 458, 465 (1st
Cir. 1979); United States v. Weingartner, 485
F.Supp. 1167, 1182-83 (D.N.J. 1979). With this distinction in
mind, I find that defendants' affidavits do not
sufficiently implicate agent Conley's veracity. Assuming
the truth of what defendants state, their offer of proof at
best impugns either the veracity of the informants or the
veracity of Conley. In order to establish their right to a
Franks hearing, however, defendants must make a
substantial preliminary showing of deliberate falsehood or
reckless disregard for the truth on the part of agent Conley.
Defendants' affidavits fail to meet this standard.
United States v. Brian, 507 F.Supp. 761, 764 (D.R.I.
1981). Likewise, here, even if Defendant's motion had
been filed in a timely manner, it would fail ...