US V. Gingras

US V. Gingras                           CR-02-047-M   12/09/02
                    UNITED STATES DISTRICT COURT

                     DISTRICT OF NEW HAMPSHIRE


United States of America,
     Plaintiff

     v.                                  Criminal No. 02-47-1
                                         Opinion No. 

Michael Gingras,
     Defendant


                             O R D E R


     In April of 2002, defendant, Michael Gingras, was indicted

by a federal grand jury and charged with conspiracy to unlawfully

distribute, and possess with intent to distribute, more than 500

grams of cocaine.   Gingras now moves to suppress evidence derived

from the interception of certain communications over his cellular

telephone, as well as evidence that was seized from his home and

office.   For the reasons discussed below, those motions are

denied.



I.   Intercepted Wire Transmissions.

     Gingras challenges the electronic surveillance orders that

authorized the government to monitor telephone calls over his

cellular telephone, saying that:   (1) the orders were issued

without probable cause to believe that conversations relating to
illegal drug dealing and/or money laundering would be intercepted

over his cellular telephone; and (2) the affidavits submitted by

the government in support of its applications for those

surveillance orders failed to demonstrate "necessity," as

reguired by 

(l)(c).   The court disagrees.



     In support of the original application for an electronic

surveillance order,1 New Hampshire State Police Sergeant Robert

Quinn submitted a 139-page affidavit which, among other things,

details extensive information provided by four confidential

informants, substantial physical surveillance of Gingras,

consensual calls placed to Gingras's cellular telephone by

confidential informants, and an analysis of roughly eight months

of pen registers and toll records relating to that telephone.



     1    On February 22, 2001, this court (Barbadoro, C.J.)
signed an order authorizing the interception of wire
communications to and from three telephones, one of which was the
cellular phone used by Gingras.  Interception of communications
over those phones concluded on March 22, 2001. On March 27,
2001, the government sought and obtained authorization to
continue to intercept communications to and from those phones for
an additional 30 days.  Finally, on April 27, 2001, the
government sought and obtained a further extension of the
authorization to intercept communications to those phones.
Accordingly, Sergeant Quinn submitted three separate Title III
affidavits in support of the government's three distinct reguests
for wiretap authorization.

                                2
Applying the "totality of the circumstances" test, that affidavit

more than adequately established probable cause to believe that

Gingras's telephone was being used in connection with illegal

trafficking of controlled substances and money laundering.         See

generally Illinois v. Gates, 

 (1983); United States

v. Schaefer, 

      (1st Cir. 1996).



     It is equally plain that Sergeant Quinn's affidavit

satisfies the so-called "necessity" requirement of 

(1) (c) .    See United States v. London, 

    (1st

Cir. 1995)      ("We have interpreted this 'necessity' provision to

mean that the statement should demonstrate that the government

has made 'a reasonable, good faith effort to run the gamut of

normal investigative procedures before resorting to means so

intrusive as electronic interception of telephone calls.'")

(citation omitted).      Among other things. Sergeant Quinn's

affidavit explains:      (1) that the government exhausted all useful

information that had been provided, or could be provided, by

confidential informants;      (2) the extent to which Gingras and his

alleged associates had insulated themselves from law enforcement

and, as a consequence, the government's inability to infiltrate

the organization or even make undercover drug purchases,

                                     3
notwithstanding repeated efforts to do so; and (3) the

limitations encountered with regard to the government's extensive

use of physical surveillance.       See Affidavit of Sergeant Quinn at

120-22.     See generally United States v. Kahn, 

, 153

n.12   (1974)    ("It is true, as the Court of Appeals noted, that 

(1)(c) and 2518(3)(c) reguire the application to

demonstrate, and the judge authorizing any wire interception to

find, that 'normal investigative procedures' have either failed

or appear unlikely to succeed.       This language, however, is simply

designed to assure that wiretapping is not resorted to in

situations where traditional investigative technigues would

suffice to expose the crime.").          See also United States v. Lopez,

      (1st Cir. 2002)    (concluding, among other

things that, "the necessity reguirement is not tantamount to an

exhaustion reguirement.").



       The government has demonstrated that its application for

electronic surveillance was supported by probable cause and that

it had undertaken several alternatives to electronic surveillance

prior to seeking judicial authorization to monitor calls placed

to and from Gingras's cellular telephone, and that wiretapping

was not being sought in a situation in which traditional

                                     4
investigative techniques would be sufficient to expose the crime.

Consequently, Gingras's motion to suppress evidence generated as

a result of the government's interception      of hiscellular

telephone calls is denied.



II.   The Search of Gingras's Home and Office.

      In support of his motion to suppressevidence       seized from

his home and office, Gingras alleges that:       (1) the affidavits

submitted to the court in support of the government's application

for the search warrants failed to establish probable cause to

believe that evidence of drug dealing or money laundering would

be found at the target premises;       (2) the warrants authorizing the

searches of Gingras's home and office were overbroad;       (3)

attachment B to the affidavits, which listed the items to be

seized, was insufficiently detailed to satisfy the requirements

of the Fourth Amendment; and (4) the law enforcement officers who

executed the search warrants exceeded the authorized scope of

those warrants.



      As to the asserted lack of probable cause, Gingras says

that:



                                   5
     the probable cause issues raised in this motion do not
     relate to whether the affidavit sets forth sufficient
     information from which the issuing judge could conclude
     that there was probable cause to believe that Gingras
     had committed drug-related crimes.  Instead, Gingras
     argues that the affidavit failed to establish probable
     cause to believe that evidence of drug dealing or money
     laundering would be found in his home or office at the
     time the warrant issued.


Gingras's memorandum (document no. 39) at 2-3.    In short, Gingras

asserts that the government failed to establish a sufficient link

between his drug dealing activities and his home and/or office to

justify the issuance of the challenged search warrants.    Again,

the court disagrees.



     The affidavit submitted by New Hampshire State Trooper

Cheryl Nedeau   (which incorporates by reference Sergeant Quinn's

original, as well as subseguently filed. Title III affidavits)

sets forth ample evidence to support the conclusion that probable

cause existed to believe that evidence of drug trafficking and

money laundering would be found at Gingras's home and office.

Among other things. Trooper Nedeau's affidavit describes wiretap

and surveillance information obtained on roughly a half-dozen

occasions that more than adeguately supports the conclusion that

there was a direct connection between Gingras's drug dealing


                                 6
activities and both his home and office.   That affidavit also

sets forth sufficient information to support the conclusion that

there was probable cause to believe evidence of Gingras's

unlawful activities   (and proceeds therefrom) would likely be

found at those locations.   Consequently, the warrant application

satisfied the so-called "nexus" requirement and established a

link between Gingras's unlawful conduct and both his home and

office.   See generally United States v. Feliz, 

(1st Cir. 1999), cert. denied 

 (2000) .



     In light of the affidavit submitted by Trooper Nedeau in

connection with the search warrant application, and the

additional affidavits from law enforcement officers that were

incorporated by reference by Trooper Nedeau's affidavit, the

warrants authorizing the searches of Gingras's home and office

were not overbroad.   Nor was attachment B to the affidavits,

insufficiently detailed to satisfy the requirements of the Fourth

Amendment.   That attachment listed the items to be seized and

provided appropriate limitations upon, and guidance for, the

officers executing the warrants   (e.g., limiting books and records

to be seized to those "relating to the distribution of controlled

substances and [money] laundering"; limiting currency, financial

                                  7
documents, and related papers to those "which may evidence

proceeds and/or the disposition of monies generated by the

purchase and subsequent sale of illegal controlled substances").

See generally United States v. Timpani, 

 (1st Cir.

1981); United States v. Gilbert, 

    (D.

Mass. 2000) .2



     Finally, the officers executing the search warrants did not

exceed the authorized scope of those warrants.   More

specifically, the seizure of Gingras's computer was plainly

permitted by the warrant, which authorized the government to

seize any documents "which may evidence the proceeds and/or the

disposition of monies generated by the purchase and subsequent

sale of illegal controlled substances" and which were "kept

manually, mechanically or electronically."   By authorizing the

government to seize documents that were "kept"   (i.e., stored)



     2    Even if the warrant's description of the property to be
seized had been insufficiently "particularized," the court's
inquiry would shift to "whether the description of items to be
seized was so facially defective that an objectively reasonable
officer would have known of the warrant's unconstitutionality."
United States v. London, 

 (1st Cir. 1995).   It
was not. Consequently, the court would have denied defendant's
motion under the rule described in United States v. Leon, 

 (1984).
electronically, the warrant included within its scope the

authority to seize Gingras's computer, which of course would

provide the medium of electronic record keeping.



                            Conclusion

      For the foregoing reasons, and for the reasons set forth in

the government's memoranda (document nos. 45 and 50), defendant

Gingras's motions to suppress    (document nos. 39 and 40) are

denied.


      SO ORDERED.


                                 Steven J. McAuliffe
                                 United States District Judge

December 9, 2002

cc:   Mark A. Irish, Esg.
      Kevin E. Sharkey, Esg.
      Martin G. Weinberg, Esg.
      Steven M. Gordon, Esg.
      Stephen T. Jeffco, Esg.
      Thomas J. Butters, Esg.
      Mark F. Sullivan, Esg.