United States v. Fregoso

60 F.3d 1314, 1995 WL 442149
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 27, 1995
DocketNos. 94-2959, 94-3035, 94-3039 and 94-3041
StatusPublished
Cited by96 cases

This text of 60 F.3d 1314 (United States v. Fregoso) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fregoso, 60 F.3d 1314, 1995 WL 442149 (8th Cir. 1995).

Opinion

HANSEN, Circuit Judge.

Adonna R. Fregoso, David A. Fregoso, Gregoria Soria, and Fred H. Brown appeal from the final judgments entered by the district court1 after they were found guilty on two drug counts. They make various challenges to their convictions, and Brown challenges his sentence. We affirm.

I.

In early 1992, narcotics officers of the Omaha, Nebraska, Police Department acquired information which gave them cause to believe that Dixie Buck was distributing drugs from her residence. Officers obtained authority from the Douglas County, Nebraska, district court to install pen registers for 60 days on the telephone lines of Buck and Peter Lopez, whom they also believed to be distributing cocaine. The state court also authorized the telephone company to supply subscriber information and caller identification service for the phones to which the pen registers were attached. Subsequently, officers also requested and received state court authorization to intercept conversations over Buck’s and Lopez’s home telephones.

Based upon information acquired from the pen registers, wiretaps, and other investigative methods, officers obtained search warrants for the residences of Buck, the Frego-sos, Soria, and Brown. As the officers commenced execution of the search warrant at the Fregosos’ residence, they observed David Fregoso, who was standing outside the residence, drop a towel and plastic baggie from his hand. The contents of the plastic baggie were later determined to be over one-half of an ounce of cocaine. Additionally, pursuant to the search, three one-eighth-ounce quantities of cocaine in plastic baggies were seized from Soria’s residence.

An indictment later charged eleven defendants, including the Fregosos, Soria, and Brown, with conspiracy to distribute and possess with intent to distribute cocaine (Count I) and with possession of cocaine in furtherance of the conspiracy (Count II, a Pinkerton v. United States, 328 U.S. 640, 648-49, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946), theory of criminal liability), based upon the quantity of cocaine David Fregoso dropped on the day the search warrants were executed. After the district court denied various pretrial motions filed by the defendants, the case proceeded to trial against four defendants, i.e., the Fregosos, Soria, and Brown. The jury convicted all four defendants on both counts of the indictment. The district court sentenced each defendant to a term of imprisonment at the bottom of that defendant’s identified Guidelines range, with the sentences for the two counts to run concurrently.2 The defendants appeal.

II.

A.

The Fregosos contend that the district court erred by denying their motion to suppress evidence obtained in connection with the state court order authorizing the use of pen registers.3 In addition to authorizing the use of pen registers, the state court order also authorized the use of “caller identification service”4 on the same telephone and [1320]*1320permitted the phone company to supply subscriber information for the telephone numbers obtained from the pen register and the caller identification service. The Fregosos claim that authorizing the use of caller identification service and permitting the phone company to provide subscriber information violated federal and Nebraska law and argue that evidence obtained through these means must be suppressed.5 The magistrate judge6 determined that these practices did not violate state or federal law and the district court adopted this conclusion. “We review the district court’s disposition of the motion to suppress under a clearly erroneous standard.” United States v. Olderbak, 961 F.2d 756, 760 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 422, 121 L.Ed.2d 344 (1992).

Initially, we reject the Fregosos’ argument to the extent that they contend that these investigative means violated Nebraska law. We have consistently held that evidence obtained without violating the Constitution or federal law is admissible in a federal criminal trial even if the evidence is obtained in violation of state law. See Olderbak, 961 F.2d at 760; United States v. Neville, 516 F.2d 1302, 1309 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 251 (1975). In Olderbak, we held that the results of the pen register were admissible under federal law and accordingly declined to decide whether it violated state law. Id. The Fregosos’ attempts to distinguish this caselaw are unpersuasive.7

Further, the use of these means was not a violation of federal law. We believe that the caller identification service is a “trap and trace device” as that term is defined in 18 U.S.C. § 3127(4). A trap and trace device is “a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.” 18 U.S.C. § 3127(4). As the magistrate judge observed, the caller identification service at issue in this case is a device which “decode[s] the electronic impulses the telephone is receiving and display[s] them as a telephone number at the same time that the telephone is receiving the ringing impulses.” (R. at 213-14.) We believe that the caller identification service in this case clearly falls within the definition of a trap and trace device under § 3127(4).

The judicial role in approving use of trap and trace devices is ministerial in nature because, upon a proper application being made under 18 U.S.C. § 3122, “the court shall enter an ex parte order authorizing the installation” of such a device. 18 U.S.C. § 3123(a) (emphasis added); see also United States v. Hallmark, 911 F.2d 399, 402 (10th Cir.1990) (outlining limited judicial role in approving pen registers and trap and trace devices); In re Order Authorizing Installation of Pen Reg., 846 F.Supp. 1555, 1558-59 (M.D.Fla.1994) (court’s role with respect to trap and trace devices limited to confirming: (1) identity of applicant and investigating law enforcement agency, and (2) certification from applicant that information sought relevant to ongoing investigation). Furthermore, the statutory scheme (which is the same for trap and trace devices as for pen registers) does not mandate exclusion of evidence for violations of the statutory requirements. See United States v. Thompson, 936 F.2d 1249, 1249-50 (11th Cir.1991) (information obtained from a pen register need not be suppressed despite noncompliance with statutory requirements because governing stat[1321]

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Bluebook (online)
60 F.3d 1314, 1995 WL 442149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fregoso-ca8-1995.