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United States v. Terry

July 16, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 CR 146-Charles N. Clevert, Jr., Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before KANNE, WOOD, and WILLIAMS,Circuit Judges.

In October 2007, the defendant, Ronald Terry, pled guilty to conspiring to distribute controlled substances and was sentenced to more than twenty years in prison. In his plea agreement, Terry reserved the right to appeal adverse decisions on his pretrial motions, which included the denial of a motion to suppress evidence. Terry appeals that ruling, and we now affirm.


The government began investigating the drug trafficking activities of Mark Cubie, one of Terry's co-defendants, in late 2004. As part of the investigation, authorities monitored Cubie's telephone communications using "pen registers" and "trap and trace devices." A pen register records the telephone numbers of outgoing calls made from the monitored phone, while a trap and trace device records the telephone numbers of those calling the phone. Neither method records conversations; both compile only numerical data.

In early April 2005, investigators noted a significant change in calling patterns on Cubie's telephone, which was registered with a number ending in 1716. This change indicated that the phone was no longer in Cubie's possession. The government subsequently identified Cubie's new telephone, which ended in 5638. As we discuss below in the context of Terry's suppression hearing, the way in which this identification occurred is at the center of the present dispute.

On April 12, 2005, authorities requested authorization to monitor 5638 with a pen register and a trap and trace device. On the same day, acting pursuant to 18 U.S.C. § 2703(d), they also obtained 5638's past phone records. Using data gathered from these sources, investigators later received permission to place Title III wiretaps on the telephones of Cubie and Orlandes Nicksion, another of Terry's co-defendants. Evidence compiled from these wiretapped conversations ultimately led to Terry's indictment.

On September 18, 2007, a federal grand jury in the Eastern District of Wisconsin returned a third superseding indictment against six men, including Terry, Cubie, and Nicksion. Three of the indictment's nine*fn1 counts, all involving various drug and related firearm offenses, named Terry as a defendant.

Terry filed a motion to suppress on October 20, 2006. Terry presented two arguments: first, that law enforcement illegally obtained information that it then used to identify and monitor Cubie's 5638 telephone, thereby tainting any evidence derived therefrom, see 18 U.S.C. §§ 2515, 2518; and second, that the government knowingly failed to disclose the illegality of these intercepts, in violation of Franks v. Delaware, 438 U.S. 154 (1978).*fn2 Both claims hinge on the legality of the government's investigation into Cubie's new telephone number.

A federal magistrate judge held two hearings on Terry's motion. At the first, held December 6, 2006, the government presented a single witness, Dan Thompson, a detective with the Milwaukee Police Department. Detective Thompson detailed the process he followed to obtain court orders for the pen register, trap and trace device, and § 2703(d) report on 5638. He then discussed using the information gleaned from these sources to acquire authorization for the Title III wiretap on that same phone. According to Thompson, the government used two primary clues to identify 5638: (1) a confidential informant's call to 1716; and (2) a comparison of 1716's old calling patterns with the past and current calling patterns of phones associated with Nicksion and Terry.

First, Thompson stated that on April 4, a confidential informant, acting at the behest of investigators, telephoned 1716 and asked to speak with Cubie. A female answered the call and told the informant that the phone was no longer Cubie's. According to Thompson, 1716's pen register indicated an outgoing call to 5638 "[a] couple of hours after [the confidential informant's call]." The timing of this call from 1716 to 5638 was later questioned during the second suppression hearing.

Second, Thompson testified that he had analyzed call information taken from pre-existing pen registers and trap and trace devices on phones belonging to Nicksion and Terry. Thompson stated that Nicksion and Terry were placing calls to and receiving calls from 5638 in frequencies that were similar to their previous calling patterns with 1716, while calls to and from 1716 had stopped altogether.

In his motion and at the hearing, Terry sought to discredit Thompson. Terry targeted one attack at a supplemental report, prepared by Thompson, that documented the calling patterns of Cubie's new 5638 number. Thompson's report contained two date/time stamps. The first stamp, which appears on the report's first page, was entered manually by the person creating the report. The second stamp, located on the report's second page, was automatically generated by the computer program. The manually ...

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