US v. Baraka Chauka

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00414-ELH-2. Copies to all parties and the district court. [999812176]. [15-4545]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4545

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BARAKA ZUBERI CHAUKA,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Ellen L. Hollander, District Judge.
(1:14-cr-00414-ELH-2)

Submitted:

April 21, 2016

Decided:

May 4, 2016

Before GREGORY, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jonathan P. Van Hoven, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Jason D. Medinger,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Baraka Zuberi Chauka appeals the district court’s denial of
his motion to suppress evidence derived from several wiretaps,
and

his

subsequent

conviction

for

conspiracy

to

distribute

cocaine, in violation of 21 U.S.C. § 846 (2012), and possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841 (2012).
On appeal, Chauka argues that the wiretap applications were
defective and the district court erred in failing to suppress
evidence

gathered

contends

that:

wiretap

because

as

(1)

a

result

of

those

wiretaps.

officers

misrepresented

traditional

investigative

the

Chauka

need

for

techniques

a

were

successful in this case; (2) officers did not provide sufficient
justification

to

extend

the

wiretaps

to

Chauka;

and

(3)

the

officers were not acting in good faith reliance on the wiretap
orders due to misrepresentations in the affidavits.
We review de novo legal conclusions from a district court’s
denial of a motion to suppress evidence, and review the court’s
factual findings for clear error.
F.3d 267, 280 (4th Cir. 2007).

United States v. Wilson, 484

Determinations of necessity for

a wiretap are reviewed for abuse of discretion.
orders

must

conform

to

both

state

and

federal

Id.
law,

Wiretap
United

States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994), but the

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relevant

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federal

similar.

and

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Maryland

statutes

are

substantially

Davis v. State, 43 A.3d 1044, 1046 (Md. 2012).

Federal and Maryland wiretap statutes require that police
officers

exhaust

ordinary

applying for a wiretap.
§§ 10-408(a)(1)(iii),

investigative

techniques

before

Compare Md. Code, Cts. & Jud. Proc.

(c)(1)(iii)

(Lexis

U.S.C. § 2518(1)(c), (3)(c) (2012).

Nexis

2013)

with

18

This exhaustion requirement

is “designed to ensure that the relatively intrusive device of
wiretapping is [not] ‘routinely employed as the initial step in
a criminal investigation.’”
United

States

v.

Smith, 31 F.3d at 1297 (quoting

Giordano,

416

U.S.

505,

515

(1974)).

“[H]owever, the burden . . . impose[d] upon the government to
show the inadequacy of normal investigative techniques is not
great, and the adequacy of such a showing is to be tested in a
practical

and

commonsense

marks omitted).
“that

it

fashion.”

Id.

(internal

quotation

The Government is not required to demonstrate

has

exhausted

all

possible

alternatives

to

wiretapping,” but instead “need only present specific factual
information
difficulties
gathering

sufficient
in

establish

penetrating

evidence

reasonable.”

to

—

to

the

the

that

criminal

point

where

it

has

encountered

enterprise
wiretapping

or

in

becomes

Id. at 1297-98 (ellipsis, brackets, citation, and

internal quotation marks omitted).

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We conclude that the district court correctly found that
the

affidavits

requirements. *

satisfied

state

and

federal

exhaustion

The affidavits noted that several investigative

techniques were attempted but failed to reveal the full scope of
Chauka’s

organization;

surveillance,
records.

these

informants,

techniques

and

analysis

included
of

physical

telephone

toll

Additionally, the affidavits provided particularized

reasons why numerous other techniques were unlikely to achieve
all the goals of the investigation.

These explanations were

sufficient to establish necessity for the wiretaps.

Wilson, 484

F.3d at 281; Smith, 31 F.3d at 1299; United States v. Leavis,
853 F.2d 215, 221 (4th Cir. 1988).
We also conclude that the affidavits were not contradicted
by

the

officers

officers’

actions.

contradicted

surveillance

would

First,

themselves
be

Chauka

by

ineffective,

argues

stating
while

that

that

the

physical

simultaneously

employing “extensive physical surveillance with numerous mobile
units.”
and

Although the officers did conduct surveillance on Reed

Chauka,

the

surveillance

counter-surveillance

was

techniques

often
employed

frustrated
by

both

by

the
men.

Surveillance was made more difficult by the rural location where

*

We assume, without deciding, that Chauka has standing to
challenge the wiretaps on Lamont Reed’s phone lines.

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Chauka operated, making it “nearly impossible” to enter the area
without being seen.
As

the

district

noted,

did

surveillance

court
occur

in

not

much

spite

of

of,

or

the

successful

alongside

wiretaps, but as a direct result of the wiretaps.

the

Officers

learned where Chauka was traveling and why, and were able to
surveil him away from his rural area of operation due to the
information

gleaned

in

the

wiretaps.

Chauka’s

arrest

was

facilitated not by physical surveillance, but by wiretaps that
revealed Chauka was purchasing cocaine.
Chauka points out that the affidavits attested that GPS
tracking

would

likely

be

ineffective,

but

officers

simultaneously applied for a warrant to install a GPS device.
While the use of tracking devices would assist the police in
tracking

Chauka,

however,

they

could

not

track

all

activities because he had access to multiple vehicles.
of

GPS

would

assist

police

in

determining

where

of

his

The use

Chauka

(or

rather, the vehicle primarily used by Chauka) was at any given
moment, but could not reveal what Chauka was doing at those
locations.

The officers never asserted that the use of a GPS

device

impossible,

was

merely

that

its

use

was

“reasonably

likely to fail . . . to achieve the full goals and objectives of
th[e] investigation.”

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Finally, Chauka argues that the search warrant executed on
his

home

demonstrates

inconsistent
asserted

with

that

that

the

search

the

wiretap

officers’

warrants

affidavits

actions.

would

“not

The

be

were

affidavits

helpful

at

this

stage” because the “conspiracy ha[d] not been fully defined” and
the

execution

of

search

warrants

would

alert

coconspirators

while only temporarily disrupting Chauka’s operation.

However,

the application for a search warrant on Chauka’s residence, and
the concomitant disclosure of the surveillance, occurred after
police arrested Chauka for possession of more than 125 grams of
cocaine.

At

that

time,

officers

had

been

investigating

and

conducting surveillance on Chauka for nearly 2 months, had been
listening to his phone calls through wiretaps for more than 1
month, and had been tracking him through the use of GPS for 11
days.

This

lengthy

monitoring

materially

changed

the

circumstances of the investigation.

Thus, the officers’ later

use

contradict

of

a

search

warrant

does

not

their

previous

assertions.
Because we conclude that the district court correctly found
that the wiretap authorizations were properly issued, we need
not address Chauka’s argument that the good faith exception does
not

apply.

judgment.
legal

Accordingly,

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions

are

adequately
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presented

in

the

materials

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argument

would

not

aid

the

decisional

process.
AFFIRMED

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