                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4942



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


HARVEY BREWER,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-04-
215)


Submitted:   October 6, 2006                 Decided:   November 3, 2006


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN & RAVENELL,
P.A., Baltimore, Maryland, for Appellant.      Rod J. Rosenstein,
United States Attorney, Christopher J. Romano, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Harvey    Brewer   appeals     his    conviction     and    121-month

sentence     imposed   following     a    guilty    plea   for    conspiracy    to

distribute and possess with intent to distribute one kilogram or

more of a quantity of a mixture substance containing a detectable

amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846

(2000).    After thoroughly reviewing the record, we affirm.

             In 1999, members of the Drug Enforcement Administration

("DEA"), in cooperation with the Baltimore City Police Department,

investigated alleged drug trafficking in Baltimore City, Maryland,

which revealed that Brewer and others, including Troy Crawley,

conspired to distribute and possess with the intent to distribute

heroin. As part of its investigation, the DEA sought authorization

to intercept wire communications on a cellular phone used by

Crawley, and electronic and wire communications on a pager and

cellular phones used by Brewer. Brewer contends the district court

erred in denying his motion to suppress evidence derived from the

interception of wire and electronic communications because the

affidavits in support of the wire and electronic surveillance (1)

did not establish probable cause; (2) were based on probable cause

that was stale; and (3) failed to comply with the "exhaustion"

provisions of 18 U.S.C. § 2518(1)(c) (2000). Brewer further argues

that   the    district     court’s       assessment    that      the    Government




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established “super probable cause" did not satisfy the probable

cause assessment required by 18 U.S.C. §§ 2510-20 (2000).

          We   review   the   district   court’s     factual   findings

underlying a motion to suppress ruling for clear error, and the

district court's legal determinations de novo.       Ornelas v. United

States, 517 U.S. 690, 699 (1996); United States v. Bush, 404 F.3d

263, 275 (4th Cir.), cert. denied, 126 S. Ct. 289 (2005).        When a

suppression motion has been denied, the evidence is reviewed in the

light most favorable to the Government. United States v. Grossman,

400 F.3d 212, 216 (4th Cir. 2005).

          Brewer first argues there was no probable cause to obtain

a wiretap to achieve the objectives set forth in the affidavits.

18 U.S.C. § 2518(3)(b) (2000) permits a district court to enter an

order authorizing a wiretap if “there is probable cause for belief

that particular communications concerning that offense will be

obtained through such interception.” In applying for such an order

it is not necessary for the applicant to prove beyond a reasonable

doubt that communications concerning the offense will be obtained,

but only that there is a fair probability thereof.       United States

v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988).      The issuing judge is

in the best position to determine if probable cause has been

established in light of the circumstances as they appear at the

time.   United States v. Depew, 932 F.2d 324, 327 (4th Cir. 1991).




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           Probable cause is judged by an analysis of the totality

of the circumstances, see Illinois v. Gates, 462 U.S. 213, 230

(1983), which are weighed “not in terms of library analysis by

scholars, but as understood by those versed in the field of law

enforcement,” id. at 232.         Furthermore, the “fact that an innocent

explanation may be consistent with the facts alleged,” does not

necessarily negate probable cause. United States v. Fama, 758 F.2d

834, 838 (2d Cir. 1985).       In United States v. Leavis, 853 F.2d 215,

221 (4th Cir. 1988), we held that the showing of need is tested in

a   practical   and   common    sense    fashion     and    not    in   an   overly

restrictive manner that would unduly hamper the investigative

powers of law enforcement agents.         The applications in the present

case met this standard and the motion to suppress was properly

denied.

           Turning     to      the      exhaustion         requirement,       under

§ 2518(1)(c), a wiretap application must contain “a full and

complete   statement    as   to    whether   or    not     other   investigative

procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.”                    The

burden 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 common sense fashion.’”

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

United States v. Clerkley, 556 F.2d 709, 714 (4th Cir. 1977)).


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           The affidavits in this case presented extensive detail

regarding various investigative techniques that had been tried, and

the reason for their failure, as well as those that were not

possible in light of the investigative goals. These included: use

of an informant, material from a prior search warrant and other

investigative data, physical surveillance, toll record and pen

register analysis, use of the grand jury, undercover investigation,

and other subscriber information.             The affidavits explained that

through these procedures, law enforcement authorities had been able

to gather a limited amount of evidence concerning the organization

but could not determine the identities of other co-conspirators and

sources.   For example, it was only through the use of electronic

surveillance     that   Brewer’s       identity     became     known   to   law

enforcement.

           The affidavits also explained that such techniques as

introducing undercover agents, employing physical surveillance, and

search warrants would not be successful in disclosing the nature of

the conspiracy and those involved.             Because the application and

affidavit provided specific factual information as to how certain

investigative methods had been employed with limited success and

how   others   were   unlikely   to    succeed,    we   find   the   Government

provided sufficient facts from which the issuing court could

reasonably have concluded a wiretap was necessary.              Thus, we find




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the district court did not err in denying Brewer’s motion based on

exhaustion.

          Brewer next argues that the information set forth in the

affidavits in support of the wiretaps was stale.     He claims that

the investigation came to a “standstill” in August 2003 and almost

five months elapsed from August 2003 until January 2004, during

which time there was no indication that agents obtained any new

information as to Crawley’s activities.    As this court has made

clear, “[t]he vitality of probable cause cannot be quantified by

simply counting the number of days between the occurrence of the

facts supplied and the issuance of the affidavit.”    United States

v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984); see also United

States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (staleness not

measured “solely by counting the days on a calendar”). “Rather, we

must look to all the facts and circumstances of the case, including

the nature of the unlawful activity alleged, the length of the

activity, and the nature of the property to be seized.”     McCall,

740 F.2d at 1336.

          Even the most cursory read of the affidavits does not

support Brewer’s contention.   The affidavits establish that the

investigation was ongoing and information and evidence was being

obtained by the investigators in support of probable cause to seek

the wiretaps.    Here, Brewer was under investigation for drug

trafficking--not “mere isolated violation[s]” of the law, but


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criminal    activities    of   “a   protracted    and   continuous   nature.”

United States v. Farmer, 370 F.3d 435, 439 (4th Cir.), cert.

denied, 543 U.S. 1022 (2004) (citation omitted).                 The ongoing

nature of the drug trafficking operation rendered the recency of

the information in the affidavit less crucial, and “suggest[ed]

that probable cause [was] not diminished solely by the passage of

time.”    Id.; see also United States v. Alvarez, 358 F.3d 1194, 1203

(9th Cir.), cert. denied, Valenzuela v. United States, 543 U.S. 887

(2004) (long-term drug trafficking operation) (other citations

omitted).    Brewer’s argument is unavailing.

            Finally,     Brewer     complains    that   the   district   court

erroneously denied his motion to suppress by referring to the

Government’s demonstration of what was characterized as "super

probable cause."       Contrary to Brewer’s allegations, the district

court's remarks at the suppression hearing demonstrated a full

awareness of the relevant statutory standards for the judicial

authorization of wire and electronic surveillance.

            Even if Brewer is correct that the affidavits did not set

forth adequate probable cause, or that the exhaustion requirements

of 18 U.S.C. § 2518(1)(c) had not been met, the affiants were

entitled to rely on the facially valid wiretap orders pursuant to

the good faith exception of United States v. Leon, 468 U.S. 897

(1984).     See United States v. Moore, 41 F.3d 370, 376 (8th Cir.

1994) (good faith doctrine required that suppression of wiretap


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evidence be denied, despite defect in order allowing electronic

surveillance); United States v. Malekzadeh, 855 F.2d 1492, 1497

(11th Cir. 1988) (Leon applied to wiretap affidavit that was devoid

of deliberately false or recklessly false information); United

States   v.    Baranek,    903   F.2d    1068,    1071-72    (6th   Cir.   1990)

(recognizing      that    Congress     intended    federal   wiretap    law    to

incorporate Fourth Amendment evidence suppression doctrines).

              Accordingly, we affirm Brewer’s conviction and sentence.

We further grant Brewer’s motion to file a pro se supplemental

brief but deny Brewer’s motion to compel the Government’s response

to his pro se supplemental brief and deny counsel’s motion to

withdraw representation.         We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials     before     the   court   and     argument   would   not   aid   the

decisional process.



                                                                        AFFIRMED




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