IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1811017297

Vv.

JERMAINE K. McCOVE,

Defendant.

Submitted: July 12, 2019
Decided: July 25, 2019

ORDER

Defendant’s Motion to Suppress Wiretap Evidence
Denied.

Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.

Jonathan Layton, Esquire of Gonser & Gonser, P.A., Wilmington, Delaware; attorney
for Defendant.

WITHAM, R.J.
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

Upon consideration of the parties' briefs and the record of the case, it appears
to the Court that:

1. Defendant Jermaine McCove (hereinafter “Defendant”) moves to suppress
all evidence obtained as a result of a wiretap of cellular telephone number 917-686-
6479 (hereinafter “6479”). The Defendant's motion focuses on the lack of probable
cause to support the wiretap application for 6479 and the State's alleged failure to
satisfy the “necessity requirement,” codified by 11 Del. C. § 2407(c)(1)(c).

2. The charges against the Defendant arise in the context of an extensive police
investigation into an alleged drug trafficking syndicate (hereinafter “the
Organization”) in Kent County. The wiretap application that the Defendant
challenges was for a prepaid AT&T cellular telephone owned by co-defendant
Lamont K. McCove (hereinafter “co-defendant L. McCove’”).

3. Law enforcement obtained an order authorizing the wiretap of 6479 on
April 5, 2018 that helped law enforcement recover text messages that were allegedly
exchanged between the Defendant and co-defendant L. McCove. These text messages
form the basis of the charges against the Defendant.'

4. Before the issuing Judge approved the wiretap application for 6479, he
considered the State’s “Affidavit in Support of Application for Interception of Wire
Communications.” The affidavit recounts the police investigation into the

Organization. Additionally, the affidavit contains lengthy descriptions of the normal

 

' See Indictment, State v. Jermaine K. McCove, No. 1811017297 (Dec. 3, 2018) (hereinafter
“TD. Ex. E”).
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

investigative efforts that were taken and had failed prior to the application for the
inception order, reasonably appeared likely to fail ifthey were to be tried, or were too
dangerous to employ. This was communicated by the affiants to the issuing judge
through:

(1) physical surveillance;

(2) search warrants;

(3) use of Attorney General Subpoenas;

(4) confidential informants (hereinafter “CIs”’);

(5) undercover law enforcement activity;

(6) interview of suspects;

(7) arrest of suspects;

(8) pen registers and telephone tolls;

(9) examination of discarded trash;

(10) use of pole cameras; and

(11) use of GPS device.’
The affiants are Detective Thomas Lamon of the Delaware State Police, Detective
Matthew Krogh of the Dover Police Department, and Special Agent Matthew Toth
of the United States Drug Enforcement Administration. The affidavit is thirty-six (36)
pages in length.

5. The affidavit in support of a wiretap application must contain a full and

 

?'D. Ex. B at 21-31.
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

complete statement that explains why a wiretap is necessary to the investigation.’
Therefore, the Court's attention is directed to those previously mentioned portions of
the affidavit that discuss any previous implementation of and future impracticalities
associated with normal investigative techniques. The following is a summary of these
pertinent sections:
(1) Physical Surveillance: The affiants state that although physical surveillance
has been attempted and has been useful! in uncovering the operational activities
and some members of the Organization, it has not succeeded in gathering
sufficient evidence of criminal activity and will not conclusively establish the
elements of a criminal violation. The affiants state that physical surveillance
will fail to establish all locations related to the offenses or additional
information regarding the coordination of controlled substance delivery. This
is, in part, because the neighborhood, Capitol Park, has only one ingress/egress
and law enforcement’s constant transport through that point, using unknown
vehicles, would arouse the resident’s suspicions, many of whom may be
connected with the Organization.
(2) Search Warrants: The affiants state that the use of search warrants will not
provide law enforcement with sufficient evidence to determine the full scope
of the Organization because of the limited amount of places law enforcement
knows to search. Searches on those places would also unlikely reveal the total

scope of the Organization’s operations because the Organization stores its

 

311 Del. C. § 2407(a)(1)-(6).
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

drugs in multiple locations throughout Kent County. Simultaneous searches
would also not be feasible, and further risk Organization members learning of
law enforcement’s efforts and destroying evidence before it is discovered. In
addition, since law enforcement does not know the location of all of the
premises where illegal activities take place, other members of the Organization
would be alerted of the investigation if law enforcement began conducting
searches of some or all of the known residences.

(3) Attorney General Subpoenas: The affiants state that they spoke with
multiple Delaware Deputy Attorney Generals, including the Deputy Attorney
General for Kent County, and that, based on that Deputy Attorney General’s
experience, the use of Attorney General subpoenas would be unsuccessful
because the alleged conspirators would likely invoke their Fifth Amendment
privilege against self-incrimination. Additionally, it would not be prudent to
seek immunity for the targeted individuals because immunity may foreclose
prosecution against members of the Organization who may be the most
culpable. The subpoenas may also compromise the investigation further by
alerting other conspirators regarding the investigation’s existence.

(4) Confidential Informants: The affiants state that CIs have been used in the
investigation, but that they have provided only limited information with respect
to the following: the specific activities of the Organization; the names and
roles of all of the members of the drug organization; the sources of the drugs;

the methods of concealing the proceeds of the sales of drugs; and the details
State v. Jermaine K. McCove
ID. No. 1811017297
July 25, 2019

of specific drug transactions. The affiants further state that it is unlikely that
members of the Organization would share this information with Cls, or that
any CIs would be able to purchase illegal drugs directly from co-defendant L.
McCove because he only deals with trusted and/or known regular customers
and further limits information only to those on a “need to know” basis.

(5) Undercover Law Enforcement Activity: The affiants state that undercover
officers have been unable to infiltrate the Organization due to its close and
secretive nature, including the fact that co-defendant L. McCove does not
allow new and unknown persons into the Organization. Affiants also state that
even if they could place an undercover officer within the Organization, the
undercover officer would not be able to infiltrate the Organization at a level
high enough to learn details about the Organization's activities and all its
members, particularly co-defendant L. McCove.

(6) Interview of Suspects: The affiants state that interviewing suspected
members of the Organization will produce insufficient information about the
Organization's members and activities; that the suspects would likely lie to law
enforcement; that they would likely invoke their Fifth Amendment privilege
against self-incrimination; and that interviewing suspects would alert other
members of the investigation which would cause them to be more cautious and
jeopardize the investigation.

(7) Arrest of Suspects: The affiants state that even if one of the targeted

members of the investigation was arrested, law enforcement would be unable
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

to learn the identities of all members of the Organization and those individuals
would escape prosecution. Furthermore, other associates of the Organization
would take the place of the arrested targeted subjects, including co-defendant
L. McCove.

(8) Pen Register and Telephone Tolls: The affiants state that a pen register, trap
trace device, and telephone tolls have been used in the investigation to verify
communications between the target phone number, but that they are
insufficient because they do not record the identity of the parties to the
conversations, nor the substance of the conversations.

(9) Examination of Discarded Trash: The affiants state that law enforcement
cannot collect discarded trash from co-defendant L. McCove’s residence
because he lives on a large plot of land in a rural area and law enforcement’s
presence would be discovered if they made any attempts to conduct a trash
pull. Furthermore, the affiants state that in their experience, drug dealers do not
typically discard information about their drug activities in personal trash
containers and, assuming they did, any information that discarded trash may
reveal, whether recovered from personal trash containers or by a trash pull,
would insufficiently reveal the scope of the drug organization, nor prove any
unlawful activity.

(10) Use of Pole Cameras: The affiants state that pole cameras have been used
in the investigation, but cannot be utilized in regards to the co-defendant L.

McCove because there are no appropriate public locations, i.e. a telephone or
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

electrical poles, around his residence that would support the installation of the
device. Affiants also state that even if they could install a pole camera, it would
likely prove folly because those involved in illicit drug activity typically look
for such devices, oftentimes destroying or disabling the device if discovered.
(11) Use of GPS Tracking Device: The affiants state that even if a search
warrant was approved to utilize a GPS device, the device would only provide
the whereabouts of the subject being tracked. It would not reveal why the
targeted individual was at the location or how the location is related to the
Organization. Additionally, the GPS tracker would track the targeted
individual only, whom in this case, is suspected of employing others to
distribute drugs in his stead. Furthermore, affiants state that because co-
defendant L. McCove typically uses rental vehicles, rather than his own
personally registered vehicles, it makes it difficult to pinpoint what vehicle he
will be utilizing at any given time.

6. On July 8, 2019, the Defendant moved for an order to suppress evidence
related to all wire interceptions in which he was involved concerning the 6479
cellular telephone number. The State replied, in opposition, on July 10, 2019. Oral
arguments were held on July 12, 2019. At the hearing, both parties agreed that the
Court should decide the matter based on their written submissions. As such, the Court

agreed to do so and took the matter under advisement.
State v. Jermaine K. McCove
LD. No. 1811017297
July 25, 2019

7. The Defendant’s motion is based on two assertions.’ The first claim is that
the affiants’ affidavit failed to establish probable cause that a wiretap of 6479 would
reveal evidence of a crime.’ Second, the Defendant claims that the necessity
requirement, codified in 11 Del. C. § 2407(a)(3), was not satisfied because affiant’s
affidavit relied on boilerplate language, general declarations, and conclusory
statements and failed to show that normal investigative procedures were unlikely to
succeed or would be too dangerous.°

8. In a Motion to Suppress challenging the validity of a search warrant, the
Defendant bears the burden of proving that the challenged search or seizure was
unlawful.’ The burden is preponderance of the evidence.® The issuing Judge must
“make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the veracity and basis of knowledge of

persons supplying hearsay information, there is a fair probability that contraband or

 

* The Court notes that there was no argument made by either party regarding the Defendant’s
“aggrieved person” status. Pursuant to 11 Del. C. § 2401(1), an “aggrieved person” means a person
who was a party to any intercepted wire, oral or electronic communication or a person against whom
the interception was directed. Here, it appears clear to the Court that the Defendant has standing to
challenge the wire tap as an aggrieved person.

> D. Mot. to Suppress at J 12-16.
° D. Mot. to Suppress at 912, 17-18.

’ State v. Felton, 2016 WL 3568523, at *12 (Del. Super. June 22, 2016) (citing State v.
Sisson, 883 A.2d 868, 875 (Del. Super. 2005)).

* Id. (citing State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as
corrected (July, 2007)).
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

evidence ofa crime will be found in a particular place. The duty of a reviewing court
is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that
probable cause existed.”” Those same basic principles apply to the review of warrants
authorizing wiretaps. The reviewing Judge's “determination of probable cause should
be paid great deference by reviewing courts.”"”

9. An order authorizing the interception of wire, oral, or electric
communications may be granted upon a determination that:

(1) There is probable cause to believe that a person has committed, is

committing, or is about to commit an enumerated crime;

(2) There is probable cause to believe that communications concerning the

enumerated offense will be obtained through the wire intercept;

(3) Normal investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if attempted or would be too

dangerous; and

(4) There is probable cause to believe that the telephone number from which

communications are being intercepted are being used in the commission of an

enumerated offense or are used by an individual engaged in criminal activity."

10. In State v. Perry, this Court discussed how to determine if a wiretap

warrant application complies with the aforementioned necessity requirement:

 

* Id. (citing Illinois v. Gates, 462 U.S. 213, 236 (1983) (citations omitted)).
ld.
'' 11 Del. C. § 2407(c)(1)(a)-(d).

10
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

When reviewing the application and accompanying affidavits for compliance
with these sections, it is enough if the affidavit explains the prospective or
retroactive failure of several investigative techniques that reasonably suggest
themselves. The government's burden of establishing compliance is not great.
Compliance is tested in a practical and common sense fashion and subject to
the broad discretion of the judge to whom the wiretap application is made. The
purpose of the “necessity” requirement is not to foreclose electronic
surveillance until every other imaginable method of investigation has been
unsuccessfully attempted, but simply to inform the issuing judge of the
difficulties involved in the use of conventional techniques. Each case is
examined on its own facts and the factors to be considered are the type of
crime involved and the relationships between the suspected defendants.
Finally, a wiretap order should not be invalidated simply because defense
lawyers are able to suggest post factum some investigative technique that
might have been used and was not.’

In order to show that traditional methods would not likely succeed, “‘an affidavit must

allege specific circumstances that render normal investigative techniques particularly

ineffective.”?

 

" State v. Perry, 599 A.2d 759, 764 (Del. Super. 1990) (citations and internal quotation
marks omitted).

° Felton, 2016 WL 3568523, at *13 (citing U.S. v. Landeros—Lopez, 718 F.Supp.2d 1058,
1065 (D. Ariz. 2010) (citing US. v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001))).

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State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

11. Wiretap statutes implicate an intrusion into a person's constitutionally
recognized right to privacy and thus should be strictly interpreted.'*A reading of the
wiretap statute reveals that a reviewing judge must find normal investigative
procedures have failed, or reasonably appear unlikely to succeed, or are too
dangerous, and an affidavit that explains the prospective or retroactive failure of
several reasonable investigative techniques will suffice.'? However, “[b]oilerplate
assertions that are unsupported by specific facts relevant to the particular
circumstances of [the] case are not sufficient.”!®

12. Probable cause exists “when the officer possesses information which
would warrant a reasonable man in believing that a crime has been committed.”"”
The finding of probable cause does not require proof beyond a reasonable doubt, or
even that the defendant's guilt is more likely than not. “Probable cause is established
if the totality of the circumstances contained in the affidavit indicates a probability
of criminal activity and that evidence of the criminal activity could be obtained

through the use of electronic surveillance.”'? Although probable cause to issue a

wiretap order must exist at the time the order is sought, its existence is “determined

 

"4 Id. (citing State v. Jock, 404 A.2d 518, 520 (Del. Super. 1979)).

8 Id. (citing US. v. Hyde, 574 F.2d 856, 867 (Sth Cir.1978)).

'® Id. (citing Landeros—Lopez, 718 F.Supp.2d at 1065 (citing Blackmon, 273 F.3d at 1210)).
'’ State v. Maxwell, 624 A.2d 926, 929-30 (Del.1993).

'8 Felton, 2016 WL 3568523, at *12 (citing US. v. Ambrosio, 898 F.Supp. 177, 181
(S.D.N.Y.1995)).

12
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

on an ad hoc basis and depends upon the nature of the criminal activity alleged.”'? An
affidavit of probable cause will be considered in a flexible and practical manner, and
will be considered as a whole rather than on the basis of its separate components.”°

13. An issuing Judge's finding of probable cause “will not be invalidated by
a hyper-technical, rather than a common sense, interpretation of the warrant
affidavit.””!

14. Regarding probable cause, the Defendant asserts that it does not exist to
support the wiretap application. He specifically appears to contend that (1) any

9 66.

reference to the affiants’ “training and experience” coupled with the conclusory,
speculative, overreaching, and rather hollow statements contained in the [a]ffadavit[]”
do not amount to probable cause.” The Court disagrees.

15. The Court agrees with the State that these communications with the 6479
number are enough to establish probable cause. Here, the affiants’ affidavit
sufficiently recites all affiants’ experience and training, where they all have

experience in wiretap investigations. And despite the Defendant’s assertions to the

contrary, the Court is entitled to give “considerable weight” to these affiants’

 

'? Blount v. State, 511 A.2d 1030, 1033 (Del. 1986) (quoting Jensen v. State, 482 A.2d 105,
111 (Del. 1984)).

2° Jensen, 482 A.2d at 111-12.
1 Td at 111 (citing US. v. Ventresca, 380 U.S. 102, 109 (1965)).

*2 T), Mot. to Suppress at §f] 15-16.

13
State v. Jermaine K. McCove
LD. No. 1811017297
July 25, 2019

conclusions based on their experience and training.”

16. Moreover, the affidavit provides specific information establishing probable
cause in that (1) co-defendant L. McCove is currently committing drug crimes, and
(2) that communications regarding these crimes will be intercepted on the 6479 phone
line. Furthermore, it also appears that a pen register and telephone tolls confirmed
that the 6479 line had high usage with another targeted individual of the
investigation.

17. After considering the affidavit in a flexible and practical manner, and
considering it as a whole, the Court finds that the issuing Judge properly found
probable cause at the time the wiretap order was issued on number 6479.

18. Next, the Court is required to analyze the necessity of the wiretaps. This
Court reviews the question of whether a full and complete statement of necessity for
a wiretap was made in the application de novo.” Once it is determined that the
statement was made, the Court will review the magistrate's determination of necessity
for an abuse of discretion.”

19. The Defendant attacks the affidavit's use of general declarations,
conclusory statements, and boilerplate language that he asserts can be recycled and

used indiscriminately against any drug dealing ring. He cites United States v.

 

* U.S. v. Kaplan, 526 Fed. Appx. 208, 212 (3d Cir. 2013).

* State v. Brooks, 2013 WL 4051049, at *3 (citing United States v. Phillips, 959 F.2d 1187,
1189 (3d Cir.1992)).

25 Id.

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State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

Blackmon in support and contends a wiretap application cannot stand when it makes
“only general allegations that would be true in most narcotics investigations” as well
as “boilerplate conclusions that merely describe inherent limitations of normal
investigative procedures.””°

20. However, the Court distinguishes Blackmon, which is not binding on this
Court, from the present case. In Blackmon, the affidavit was found to be boilerplate
and generic because the particularized information was purged from the affidavit
because of material misstatements and omissions.”’ There, that defendant was indicted
following a narcotics investigation that utilized wiretaps and investigated multiple
suspects.”* Prior to trial, the defendant moved to suppress any wire-tap related
evidence, alleging that the application failed to satisfy the necessity requirement, and
also sought a hearing pursuant to Franks v. Delaware.”? The District Court for the
Central District of California denied both and then convicted the defendant.*® On
appeal, the United States Court of Appeals for the Ninth Circuit found that, pursuant

to Franks,*' the affidavit, in the necessity portion, contained misstatements in reckless

 

*° 1). Mot. to Suppress at § 17; see also Blackmon, 273 F.3d at 1210.
27 Blackmon, 273 F.3d at 1209.

*8 Td. at 1206.

9 Td.

9 Id.

*! Franks v. Delaware, 438 U.S. 154 (1978) (holding that where the defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or with reckless

15
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

disregard for the truth.” Therefore, the Ninth Circuit held that those statements
should be excluded from the affidavit in determining probable cause and necessity.*°
The Blackmon court then considered only the remaining boilerplate and repetitive
language when determining “whether upon review of this application, purged of its
misstatements, a reasonable issuing judge would find that the application nonetheless
conforms to the [necessity] requirements.** The Ninth Circuit held that the purged
affidavit, on its face, failed to meet the full and complete statement requirement for
a wiretap application.*

21. Here, unlike Blackmon, the 6479 affidavit is not subject to a Franks
hearing and no information has been, nor is it foreseeable that any information will
be, purged from the affidavit because of any misstatements in reckless disregard for

the truth.

 

disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury
or reckless disregard is established by the defendant by a preponderance of the evidence, and, with
the affidavit's false material set to one side, the affidavit's remaining content is insufficient to
establish probable cause, the search warrant must be voided).

2 Blackmon, 273 F.3d at 1209.
33 Id.
Id.
> Id.

16
State v. Jermaine K. McCove
I.D. No. 1811017297
July 25, 2019

22. As it pertains to the Defendant’s case, the Court finds U.S. v. Heilman*®
instructive. In Heilman, the defendants were charged and convicted of drug
trafficking related charges as members of a extensive drug organization. During the
investigation of the drug organization, law enforcement sought and obtained wiretaps
for two phones used by one defendant and one phone used by a second defendant.
Those two defendants contended that “the government failed to make a facial
showing, within the four corners of the affidavits, to establish necessity for three
separate wiretaps.”*’ The defendants moved to suppress evidence from the wiretaps,
arguing that the application contained boilerplate recitations and conclusory language
about the limitations of certain investigative techniques.** The defendants further
contended that normal investigative tools, including surveillance and informants, had
been successful.

23. The District Court in Heilman denied defendants’ motions to suppress,
finding that necessity had been appropriately established.*? On appeal, the Third
Circuit recognized that “[t]he Government does not have a ‘great’ burden in proving
necessity, because it need not prove to a certainty that normal investigative

techniques will not succeed, but rather it needs only to show that such techniques

 

°° U.S. y. Heilman, 377 Fed.Appx. 157 (3d Cir. 2010)
°7 Heilman, 377 Fed.Appx. at 185.
8 Id. at 186.

39 Td.

17
State vy. Jermaine K. McCove
ILD. No. 1811017297
July 25, 2019

reasonably appear to be unlikely to succeed if tried. The affidavit need only establish
a “factual predicate” for why other investigative techniques are not sufficient.”

24. Furthermore, the Heilman court held that “the issuing court should take
into account affirmations based on the specialized training and experience of law
enforcement officers” and that the District Court did not abuse its discretion by
finding necessity."’ Additionally, the Third Circuit stated “[t]he fact that law
enforcement had some success using physical surveillance does not render a wiretap
per se unnecessary” and that the law did not require law enforcement “to prove that
a certain investigative approach is useless to pursue a wiretap; it is only obligated to
give a full explanation as to why a technique is impractical under the circumstances
and that it would be unreasonable to require pursuit of those avenues.”

25. In this case, as in Heilman, it is clear from the record that the 6479
affidavit explained how normal investigative techniques would not be sufficient to
locate co-conspirators, stash locations, among other objectives of the investigation.
The affiants further supplied a full and complete statement as to whether or not other
investigative procedures have been tried and failed, why such procedures reasonably
appear to be unlikely to succeed if tried, or why such procedures would be too

dangerous if tried. The affiants described the difficulty in conducting physical

surveillance, and other methods of investigation, on co-defendant L. McCove,

 

“° Td. at 185-86 (citations omitted).
*' Heilman, 377 Fed.Appx. at 186-87.

” Td. at 187.

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State v. Jermaine K. McCove
ILD. No. 1811017297
July 25, 2019

including operations of the Organization, and how physical surveillance, for instance,
although valuable, was not enough to identify all of the members and associates of
the Organization as well as the stash locations and suppliers. Furthermore, the affiants
clearly explain as to why interviews of suspects, arrests, search warrants and other
investigative techniques would not be sufficient because they would alert the targets
and impair the investigation. The affidavit details what methods were undertaken and
what they yielded, as well as adequately explains those methods’ limitations. For
these reasons, the Court finds that the necessity for interception has been sufficiently
justified as well.

26. Accordingly, after a four corners review of the respective affidavit, the
Court finds the intercepted communications of 6479 were lawfully acquired and the

Defendant’s Motion to Suppress evidence obtained as a result of these intercepted

YL =

Hon. William L. Witham, Jr.
Resident Judge

communications is DENIED.

IT ISSO ORDERED.

 

WLW/dmh

oc: Prothonotary

cc: Gregory R. Babowal, Esquire
Jonathan Layton, Esquire

19
