United States v. Iiland

254 F.3d 1264, 2001 Colo. J. C.A.R. 3585, 2001 U.S. App. LEXIS 15088, 2001 WL 748074
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 3, 2001
Docket00-5012
StatusPublished
Cited by82 cases

This text of 254 F.3d 1264 (United States v. Iiland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Iiland, 254 F.3d 1264, 2001 Colo. J. C.A.R. 3585, 2001 U.S. App. LEXIS 15088, 2001 WL 748074 (10th Cir. 2001).

Opinions

SEYMOUR, Circuit Judge.

Sidney Ronnell Iiland and sixteen others were named in a multicount indictment charging numerous offenses involving drug trafficking. Mr. Iiland was convicted after a jury trial of distributing various controlled substances, possessing a firearm after a former felony conviction, possessing a firearm in furtherance of a drug trafficking offense, and maintaining a location for the purpose of distributing cocaine. On appeal, Mr. Iiland asserts (1) the trial court erred in failing to suppress wiretap evidence and evidence derived therefrom; (2) the court erroneously allowed the admission of evidence discovered as a result of a stale search warrant; (3) he was prejudiced by going to trial with three other codefendants; and (4) the [1267]*1267evidence was insufficient to sustain his conviction for possessing a firearm in furtherance of a drug trafficking crime. We affirm in part and reverse in part.

I

Wiretap Evidence

During the investigation of the criminal activity underlying the indictment, the district court issued wiretap orders authorizing electronic eavesdropping on the telephone at Mr. Eland’s apartment for a sixty-day period. Before trial, Mr. Iiland and other codefendants moved to suppress the audiotapes derived from these wiretaps. After a hearing on the matter, the district court held defendants had failed to rebut the presumption that the wiretap orders were proper. Recordings of intercepted calls obtained through these wiretaps were played for the jury at trial. Mr. Iiland contends on appeal that the court committed reversible error in failing to suppress these materials. We disagree.

Electronic eavesdropping by law enforcement officials is governed by the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. See 18 U.S.C. §§ 2510-22. The statute establishes a three-part procedure for obtaining a wiretap order, under which an officer must obtain administrative approval before applying to a federal judge for a wiretap, the officer must present a written application to the judge, and the judge must make certain findings and issue an order containing specified elements. See United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir.1997). The statute contains a “necessity” requirement, under which the officer must establish and the court must find 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). This requirement is intended “to ensure that the relatively intrusive device of wiretapping ‘is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.’ ” United States v. Edwards, 69 F.3d 419, 429 (10th Cir.1995) (quoting United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974)). “If an application was granted without meeting the necessity requirement, the wiretap evidence must be suppressed.” United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). Mr. Iiland contends the district court erred in ruling that the necessity requirement was satisfied.1

On appeal from a motion to suppress evidence obtained pursuant to a wiretap, [1268]*1268we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. The question of whether the government demonstrated sufficient “necessity” ... to support the issuance of a wiretapping order is a question of law which we review de novo.

Castillo-Garda, 117 F.3d at 1186 (citations omitted). A wiretap order is presumed proper and the defendant must bear the burden of overcoming this presumption. Green, 175 F.3d at 829-30.

In examining necessity challenges to wiretap orders, we have repeatedly held that law enforcement officials are not required “to exhaust all other conceivable procedures before resorting to wiretapping.” Consequently, we have upheld applications for wiretap orders where the application indicated: (1) several investigatory methods had been utilized prior to resort to wiretapping; (2) normal investigative techniques had been frustrated “by various problems local police were unable to overcome;” (3) increased visual surveillance would have increased the possibility of detection; and (4) potential witnesses were unwilling to testify in court because of fear of reprisal.

Edwards, 69 F.3d at 429-30 (citations omitted).

We have carefully reviewed the applications for the wiretaps and the supporting affidavits, as well as the transcript of the pretrial hearing on defense motions to suppress the evidence derived from the taps, and we agree with the district court that Mr. Iiland failed to rebut the presumption that the orders were proper. The district court found that several investigatory methods had been tried with little if any success, and supported this determination with specific evidence presented by the government showing that the wiretaps were necessary to develop the full scope and breadth of any conspiracy. Accordingly, the court did not err in rejecting Mr. Iiland’s necessity challenge.

II

Search Warrants

On March 8, 1999, FBI agents obtained a warrant to search Mr. Iiland’s residence and a mini storage unit he had rented. The search of the residence uncovered weapons, ammunition and scales, and the search of the storage unit revealed a substantial amount of powdered cocaine. Mr. Iiland moved to suppress the results of these searches on the ground that the information in the affidavit supporting the warrants was stale and therefore not sufficient to support a probable cause determination. The district court denied the motion to suppress, stating that adequate probable cause existed in view of the ongoing nature of the criminal activity alleged. We agree.

Upon review of the denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court’s factual findings unless clearly erroneous. United States v. Le, 173 F.3d 1258, 1264 (10th Cir.1999). The ultimate determination of reasonableness, however, “is a question of law which we review de novo, considering the totality of the circumstances.” Id. Although we give the magistrate’s probable cause determination “great deference,” we will not defer “if the affidavit does not provide a substantial basis for concluding that probable cause existed.” Id. (internal quotations omitted).

Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched. The [1269]

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Bluebook (online)
254 F.3d 1264, 2001 Colo. J. C.A.R. 3585, 2001 U.S. App. LEXIS 15088, 2001 WL 748074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-iiland-ca10-2001.