contradict the government's account of her arrest, they raise material issues of fact regarding her arrest. The court finds that the issues cannot be resolved without an evidentiary hearing.
Accordingly, the court grants the parties' requests for an evidentiary hearing regarding the events leading to the search of 7309 North Ashland, Chicago, Illinois, and Asanike's arrest; sets the hearing for August 11, 1997, at 10:00 a.m.; and will decide Asanike's motion to quash and suppress thereafter.
C. Defendant Victoria Olabunmi Onimole's motion to suppress evidence derived from pen register and trap and trace device
Defendant Victoria Olabunmi Onimole moves to suppress any evidence derived from the installation and use of a pen register and trap and trace device on a cellular telephone number registered in Onimole's name. Onimole claims that the application for the pen register and trap and trace device violated the Electronic Communications Privacy Act, 18 U.S.C. §§ 3121-27.
The Electronic Communications Privacy Act requires a person to obtain a court order before installing or using a pen register or trap and trace device. 18 U.S.C. § 3121(a). An attorney for the United States may apply for such an order "in writing, under oath or equivalent affirmation." 18 U.S.C. § 3122(a). The application must include the identities of the applying attorney and the law enforcement agency conducting the investigation. 18 U.S.C. § 3122(b)(1). The application also must include a certification by the attorney "that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency." 18 U.S.C. § 3122(b)(2).
Onimole contends that the government has failed to comply with section 3122(b), and that, based on this statutory violation, the court should exclude any evidence derived from the installation of the pen register and trap and trace device on the cellular telephone registered in Onimole's name.
Onimole fails to point out in what respect the government's application is deficient. Assistant United States Attorney Jacqueline Ross identified herself as the applicant; stated that she was an attorney for the government; stated that she certified that the United States Drug Enforcement Agency was conducting a criminal investigation of Onimole; and stated the reasons why the government was seeking installation of a pen register and trap and trace device on the cellular telephone registered in Onimole's name. (See Mot. to Suppress Ex. 1.) The foregoing complies with the requirements of 18 U.S.C. § 3122(b).
It appears that Onimole's only complaint is that the application was not "notarized" or "subscribed or sworn to" by a notary public, where the last page of the application indicated that a notary public would notarize the document. First, section 3122(b) contains no requirement that an application be notarized. Second, Onimole's motion ignores that Ross "declared under penalty of perjury that [the application was] true and correct," and signed the application. (Mot. to Suppress Ex. 1 at 5.) By making that declaration and signing the application, Ross complied with the requirement of section 3122(a) that the application be made "in writing, under oath or equivalent affirmation." 18 U.S.C. § 3122(a) (emphasis added).
In short, nothing about Ross's application for the installation of a pen register and trap and trace device on the cellular telephone number registered in Onimole's name violated the Electronic Communications Privacy Act. Because the pen register and trap and trace device were legally installed and used, the evidence derived from their installation and use was legally obtained.
Accordingly, the court denies Onimole's motion to suppress.
For the foregoing reasons, the court grants the requests of defendant Anthony Smith and the government to hold an evidentiary hearing on Smith's motion to suppress post-arrest statements; grants the request of defendant Mornkat Adola Asanike and the government to hold an evidentiary hearing on Asanike's motion to quash her arrest and suppress evidence; and denies defendant Victoria Olabunmi Onimole's motion to suppress evidence derived from the pen register and trap and trace device.
Date: AUG 07 1997
James H. Alesia
United States District Judge
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