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2nd Circuit Upholds Use of Wiretap While Faulting Its Justification
New York Law Journal
September 03, 2009
While acknowledging that the government could have provided a more detailed justification for a wiretap, a federal appeals court has reversed a judge's suppression of cell phone tapes obtained in a terrorism investigation that turned into a drug bust.
The 2nd U.S. Circuit Court of Appeals observed that the government's affidavit in its case against Alexander Concepcion was "skimpy," but nonetheless ruled in United States v. Concepcion, 08-3785-cr, that the affidavit had set forth facts "minimally adequate" to support a judge's finding that investigators needed the wiretap.
Judges Joseph M. McLaughlin, Guido Calabresi and Robert D. Sack issued the decision, which was written by Judge McLaughlin. The ruling reversed a decision by Southern District Judge Shira Scheindlin.
A confidential informant told the government in 2007 that his former cell mate, Concepcion, was going to help foreign terrorists attack the United States.
Agents with the FBI's Joint Terrorism Task Force applied to Southern District Judge Victor Marrero for a wiretap on Concepcion's cell phone, representing that alternative investigative procedures either had been tried and had failed, or would not work in the future or would be too dangerous.
The application was granted for a wiretap to run 30 days, beginning on June 20, 2007.
The tap yielded no information on terrorism, but the FBI did learn that Concepcion might be involved in drugs and weapons trafficking.
A second affidavit was submitted for another wiretap, with Agent Eric Paholsky representing that the original informant was still in prison and could not be used; that Concepcion refused to engage an undercover officer who had approached him; that surveillance was of limited value; and that phone records, pen registries, interviews and grand jury subpoenas would be ineffective.
Paholsky also represented that search warrants would not be appropriate because the task force had yet to learn where Concepcion was storing documents, weapons or narcotics.
Judge Marrero granted the second application, and the eavesdropping paid off when Concepcion was arrested in November 2007 on one count of conspiracy to possess with intent to distribute more than 50 grams of crack cocaine.
However, Judge Scheindlin suppressed the evidence, saying the government had failed to show that other investigative techniques had failed or were likely to fail.
Citing her experience in "numerous drug cases," Scheindlin said the "government has shown it has done little, other than the wiretap, in its investigation."
Noting that the government did not try to introduce the undercover to Mr. Concepcion for the purpose of buying or selling drugs, she concluded that "the government simply bypassed other more conventional techniques in favor of an already existing wiretap," which she called an "impermissible shortcut."
