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United States v. Pernell

United States District Court, D. South Carolina, Columbia Division

January 14, 2019

UNITED STATES OF AMERICA
v.
GLENN QUANTA PERNELL; DONALD LEE ROBINSON; ANTONIO DEBOR GOWANS; WHITNEY SAD'E PERNELL; HATTIE F. PERNELL; FATIMA FLESINEARS FORD; SANTERRIO MONTINEZ SMITH; DANTRELL MARKEIS SMITH; TERRENCE VERNON DUNLAP; and JAMES EARL GREEN

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The Government has charged seventeen Defendants in a fifty-three count superseding indictment involving various drug-related, firearms, and animal-fighting crimes. Seven of the Defendants have pled guilty to various counts, and are not part of the instant motion. Pending before the Court is Defendants Glenn Quanta Pernell, Donald Lee Robinson, Antonio Debor Gowans, Whitney Sad'e Pernell, Hattie F. Pernell, Fatima Flesinears Ford, Santerrio Montinez Smith (Santerrio Smith), Dantrell Markeis Smith (Dantrell Smith), Terrence Vernon Dunlap (Dunlap), and James Earl Green's (collectively Defendants) motion to suppress wiretap evidence (motion to suppress). All Defendants are represented by counsel. Having carefully considered the motion, the response, the replies, oral argument, the record, and the applicable law, it is the judgment of the Court Defendants' motion to suppress will be denied.

         II. FACTUAL AND PROCEDURAL HISTORY

         This case arises out of an investigation into drug-related activities in the Columbia, South Carolina area. The factual and procedural history is extensive, and the Court need not recite it in full. Rather, the Court will recite only the facts and history relevant to the motion discussed in this Order.

         A. Factual Background

         The Court determines the following facts by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.” (citation omitted)); United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005) (“In the course of deciding a motion to suppress, the district court may make findings of fact. . . .”).

         This case stems from an investigation conducted by the Columbia Violent Gang Task Force (CVGTF), a task force led by the Federal Bureau of Investigations and involving municipal, county, state, and federal law enforcement officers. ECF No. 751 at 23. Around 2007, the CVGTF began investigating the Smith Brothers' Neighborhood Based Gang led by Dantrell Smith and Santerrio Smith for drug-related activities. Id. at 26. The investigation included controlled drug buys, statements from confidential informants, interviews with cooperating defendants, consensually-recorded telephone conversations, surveillance, pen register and telephone toll records, intelligence from law enforcement officers, and Title III authorized wiretaps from previous investigations. Id. at 25-83.

         On March 30, 2017, the Government applied for wiretaps on three telephone numbers (Target Phones 1, 2, and 3) for a period of thirty days; the same day, the Court issued an Order (March Order) authorizing interception. ECF No. 751. Dantrell Smith used Target Phone 1, and Santerrio Smith used Target Phones 2 and 3. Id. Interception began the following day. ECF Nos. 682 at 2, 750 at 2. The March Order expired on April 29, 2017; interception of Target Phone 1 ceased the same day. ECF No. 750 at 2. Recordings from Target Phone 1 were sealed on May 4, 2017. Id. at 38.

         On May 8, 2017, the Government applied for and received an order authorizing continued wiretapping of Target Phones 2 and 3, and wiretapping of Target Phones 4 and 5 for a period of thirty days. ECF No. 751-1. Target Phones 4 and 5 were used by a then-unknown male supplier of Dantrell and Santerrio Smith, later identified as Defendant Glenn Quanta Pernell. ECF No. 751-2. Interception under the May, 2017 Order (May Order) began on May 8, 2017. ECF No. 750 at 2. Interception over Target Phones 2 and 3 under the May Order ceased June 6, 2017. Id. Recordings of Target Phones 2 and 3 were sealed on June 15, 2017. ECF Nos. 682 at 17, 750 at 42.

         On June 6, 2017, the Government applied for and obtained an order (June Order) authorizing continued wiretapping of Target Phones 4 and 5, and wiretapping of Target Phones 6 and 7 for a period of thirty days. ECF No. 751-2. Target Phones 6 and 7 were used by an unknown supplier. Id. Interception over all phones ended July 5, 2017. ECF No. 750 at 3.

         B. Procedural History

         On September 6, 2017, the Government filed a one-count indictment against sixteen defendants including nine of the ten Defendants participating in the instant motion and seven defendants who have already pled guilty and are not involved in the motion to suppress. ECF No. 3. The indictment charged conspiracy to possess with intent to distribute and to distribute cocaine, cocaine base (crack), and heroin. Id.

         On December 6, 2017, the Government filed a superseding indictment. ECF No. 420. That indictment added James Earl Green to the original sixteen Defendants, and charged fifty-three counts. Id. Count One charged conspiracy to possess with intent to distribute and to distribute cocaine, crack, and heroin. Id. Counts Two through Twenty-Seven charged use of a telephone to facilitate conspiracy to distribute, possession with intent to distribute, and distribution of cocaine, crack, and heroin. Id. Counts Twenty-Eight through Forty-Nine charged possession with intent to distribute and distribution of controlled substances. Id. Count Fifty charged possession with intent to distribute 500 grams or more of cocaine. Id. Counts Fifty-One and Fifty-Two charged felon in possession of a firearm or firearms and ammunition. Id. Count Fifty-Three charged possessing, training, transporting and receiving animals in interstate commerce for the purpose of participating in an animal-fighting venture. Id.

         On October 12, 2018, Santerrio Smith filed a motion to suppress seeking to suppress any materials, evidence, or fruits thereof obtained pursuant to the March, 2017, May, 2017, and June, 2017 wiretaps. ECF No. 682. Defendants Glenn Quanta Pernell, Donald Lee Robinson, Antonio Debor Gowans, Whitney Sad'e Pernell, Hattie F. Pernell, Fatima Flesinears Ford, Dantrell Smith, Dunlap, and James Earl Green all moved to join the motion to suppress; the Court granted all motions to join. ECF Nos. 691, 693, 694, 695, 697, 700, 701, 703, 704, 706, 753, 754, 755, 758, 759. The Government responded to Defendants' motion to suppress on December 6, 2018. ECF Nos. 750, 751. Santerrio Smith replied on December 11, 2018. ECF No. 762.

         On December 17, 2018, the Court held a hearing (motion hearing) on Defendants' motion to suppress. Counsel for the Government, Santerrio Smith, and Dunlap made arguments. ECF No. 765. The Government introduced an affidavit from Assistant United States Attorney (AUSA) Nick Bianchi (Bianchi) as an exhibit; Santerrio Smith introduced GPS tracking records for Santerrio Smith for late January, 2017. See ECF No. 766.

         Following the motion hearing, Santerrio Smith filed a reply regarding issues raised at the motion hearing. ECF No. 767. The Government replied. ECF No. 770. Dunlap also filed a reply to supplement his arguments at the motion hearing. ECF No. 769. The Court, having been fully briefed on the relevant issues, is now prepared to discuss the merits of Defendants' motion to suppress.

         III. STANDARDS OF REVIEW

         The Fourth Amendment to the United States Constitution provides in part: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. The Fourth Amendment's protections “extend[] . . . to the recording of oral statements overheard . . . .” Katz v. United States, 389 U.S. 347, 353 (1967). Thus, for the Government to properly wiretap a telephone, it must follow judicial procedure to comply with the Fourth Amendment. See Id. at 354-59.

         In seeking a wiretap, the Government must follow a statutorily prescribed process. See 18 U.S.C. § 2510 et seq. First, an application for a wiretap order must be authorized by, inter alia, one of a limited number of Department of Justice (DOJ) officials. 18 U.S.C. § 2516(1).

         The person authorized to apply must then make written application to a judge stating the applicant's authority to make the application. 18 U.S.C. § 2518(1). The application must include:

(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that ...

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