United States District Court, D. South Carolina, Columbia Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS'
MOTION TO SUPPRESS
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
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
FACTUAL AND PROCEDURAL HISTORY
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
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. . . .”).
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.
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.
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.
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.
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.
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.
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.
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.
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.
STANDARDS OF REVIEW
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.
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. §
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
(a) the identity of the investigative or law enforcement
officer making the application, and the officer authorizing
(b) a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his
belief that ...