USA v. Louis Johnson

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USA v. Louis Johnson

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Case: 09-31026

Document: 00511222366

Page: 1

Date Filed: 09/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31026 S u m m a r y Calendar September 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s L O U I S JOHNSON, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Eastern District of Louisiana N o . 2:06-CR-301-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

L o u is Johnson entered a conditional guilty plea to one count of conspiracy t o possess cocaine and cocaine base with intent to distribute, one count of conPursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-31026

Document: 00511222366 Page: 2 No. 09-31026

Date Filed: 09/01/2010

s p ir a c y to possess a firearm in furtherance of a drug crime, and one count of poss e s s in g a firearm in furtherance of a drug crime. He appeals the denial of his m o t io n to suppress evidence, claiming it was improperly obtained pursuant to a wiretap. His argument is threefold: The affidavit submitted in support of the w ir e t a p application did not establish probable cause; the affidavit failed to make t h e required showing of necessity; and the government failed to minimize the in t e r c e p t io n of nonrelevant communications as required by 18 U.S.C. § 2518(5). W it h respect to probable cause, Johnson contends that information from a confidential source ("CS") was unreliable. Specifically, he maintains that the C S 's statements that Johnson was a crack distributor and that he and others h a d picked up five kilograms of cocaine, converted it to crack, and distributed it w e r e based only on the CS's knowledge from "the street." Johnson also argues t h a t there was insufficient information regarding the CS's reliability and verac it y and that information from certain law enforcement officers regarding Johns o n 's role and the roles of other targets as drug distributors was similarly unsupp o r t e d and unreliable. I n deciding whether there is probable cause, a court must look to the totalit y of the circumstances, keeping in mind that deficiencies in some parts of a s o u r c e 's information may be compensated for by corroborating information or o t h e r indicia of reliability. Illinois v. Gates, 462 U.S. 213, 232-33, 244-45 (1983). There were numerous facts that corroborated or otherwise indicated the reliabilit y of the challenged statements. These include two sales of crack by Johnson to t h e CS for a total of $5,200; the CS's history of providing reliable information; in t e r v ie w s with various sources of information, including a person who "cooked" c r a c k cocaine and offered information about Johnson's activities; and multiple s o u r c e s of information regarding the roles of Johnson and the other targets in c r a c k distribution. W e reject Johnson's assertion that the CS was not reliable because he was u n n a m e d and should thus be viewed skeptically. Johnson relies on the law re2

Case: 09-31026

Document: 00511222366 Page: 3 No. 09-31026

Date Filed: 09/01/2010

la t in g to anonymous tipsters or their equivalent, but this CS does not fall into t h a t category. See United States v. Martinez, 486 F.3d 855, 862 (5th Cir. 2007). Also, there are no deficiencies in the affidavit regarding the CS's past reliability a n d veracity. See United States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1 9 9 2 ). In sum, in light of the totality of the circumstances, the affidavit sets fo r t h facts sufficient to find probable cause. W e next turn to Johnson's necessity argument. Before a wiretap may be a u t h o r iz e d , the government must show, and the court must find, that "other inv e s t ig a t iv e procedures have been tried and failed" or that "they reasonably app e a r to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1 )(c ), (3)(c). Contrary to Johnson's assertions, the affidavit gave specific reasons w h y physical surveillance, trash pulls, and the use of cameras would risk comp r o m is in g the investigation because of the geographic layout of the area and w o u ld be unlikely to provide information about the scope of the operation or J o h n s o n 's supplier. Similarly, using the CS to make more purchases would pose d a n g e r s and would not likely produce information about other members of the o p e r a t io n or Johnson's source. The government is not required to show that it has exhausted every conc e iv a b le option before a wiretap can be approved. United States v. Kelley, 140 F .3 d 596, 605 (5th Cir. 1998). We have sustained wiretap orders under similar c ir c u m s t a n c e s . United States v. Krout, 66 F.3d 1420, 1425 (5th Cir. 1995); Unite d States v. Webster, 734 F.2d 1048, 1054-55 (5th Cir. 1984). There is no reason n o t to do so here. F in a lly , the district court rejected Johnson's conclusional arguments that t h e government failed to minimize the monitoring of conversations that were not s u b je c t to interception. We agree. See United States v. de la Fuente, 548 F.2d 5 2 8 , 534 (5th Cir. 1977). AFFIRMED.

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