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United States v. Smith

United States District Court, N.D. Illinois, Eastern Division

September 6, 2016

UNITED STATES OF AMERICA Plaintiff,
v.
LADELL SMITH, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Court Judge

         Defendant Ladell Smith, a convicted felon, was charged by indictment with possession with intent to distribute 500 grams or more of cocaine on February 21, 2013 in violation of 21 U.S.C. § 841(a)(1), possession with intent to distribute 500 grams or more of cocaine and 100 grams or more of heroin on February 22, 2013 in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm on February 22, 2013 in violation of 18 U.S.C. § 924(c)(1)(A) and § 922(g). The evidence underlying the February 22, 2013 charges was discovered during the execution of a search warrant by Chicago police officers on February 22, 2013, and has been the subject of two prior motions to suppress. Probable cause for that warrant, which was issued on February 18, 2013, was based on the testimony of a confidential informant. Independently, on February 21, 2013 officers engaged in a joint DEA/CPD investigation which had intercepted communications linking Smith to an attempted drug transaction and had observed him participating in the transaction. The evidence against Smith discovered as a result of that investigation supports Count I, which alleges Smith's possession of 500 grams of cocaine with intent to distribute it on February 21, 2013. Smith, proceeding pro se, moves this Court to suppress the wiretap communications underlying Count I pursuant to 18 U.S.C. § 2518(10)(a). Smith also moves this Court to suppress the results of the February 22nd search that underlie the remaining counts based on his allegation that the timing of that search resulted from information obtained from the wiretaps. For the reasons set forth herein, Smith's motion [87] is denied.

         Background

         The wiretap investigation implicated in this case began as an investigation into the Imperial Insane Vice Lords street gang with the interception of gang-leader Nathaniel Hoskins' phone. During that investigation, the Vice Lords' suppliers were identified and the investigation was subsequently expanded to target their activities. The phase of that investigation which relates to Smith's case focused on the supplier organization led by Michael Whiting.

         Smith's phone was not directly intercepted during the investigation into Whiting. Instead, Smith was recorded on an intercepted call with Target Phone 38, which was owned by Charles James. That call establishes that Smith's telephone number was (773) 420-8206. Smith was also recorded speaking in the background during an intercepted call between James and Jameson Hamlin (Target Phone 41). The government also intends to introduce at trial intercepted calls between Jameson Hamlin, Charles James, and Malcolm Harris arranging the February 21 drug transaction. These intercepted calls constitute circumstantial evidence that Smith was involved in that transaction based on pen register records showing that on multiple occasions James called Smith immediately after stating, in intercepted calls, that he was going to contact his supplier. Additionally, the government seeks to introduce testimony that officers identified Smith with James, Hamlin, and Harris that night.

         Discussion

         As an initial matter, this Court notes that Smith lacks standing to challenge wiretap orders that did not result in the interception of communications to which he was a party. See United States v. Thompson, 944 F.2d 1331, 1339 (7th Cir. 1991). Accordingly, Smith may only seek to suppress the intercepted conversation involving Target Phone 38 and Target Phone 41.

         Smith brings this motion under 18 U.S.C. § 2518(10)(a), which permits a defendant to move to suppress the contents of any wire or oral communication intercepted under that chapter, or any derivative evidence, on the grounds that:

(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.

         In order for a judge to enter an ex parte order authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting, the judge must determine from the facts submitted by the applicant that:

(a) there is probable cause for the belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through ...

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