     Case: 11-20310     Document: 00511860773         Page: 1     Date Filed: 05/18/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           May 18, 2012

                                       No. 11-20310                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellant
v.

JOHN BUTLER, also known as Big John; WILLIAM HORNBEAK, also
known as Pookie; JAMINE LAKE, Fresh, also known as Jamie; ANDRE
MCDANIELS, also known as Dre; RONNIE PRESLEY, also known as
Pimpin, also known as PI

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-453-1


Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
PER CURIAM:*
        This is an interlocutory appeal in which the government challenges the
district court’s order suppressing evidence obtained from a warrantless wiretap,
a warrantless cell phone search, and a warrantless car search. The district court
erred in each of these instances. Accordingly, we vacate the suppression order
and remand for further proceedings.

        *
         Pursuant 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                               BACKGROUND
      On January 24, 2011, Defendant-Appellees John Butler, William
Hornbeak, Jamine Lake, Andre McDaniels, and Ronnie Presley were charged
with participating in a human trafficking enterprise compelling women and
children to engage in prostitution. Specifically, the defendants were charged
with conspiracy; sex trafficking by force, fraud, or coercion; transportation; sex
trafficking of children, transportation of minors; and coercion and enticement,
in violation of 18 U.S.C. §§ 371, 1591(a)(1) and 1591(a)(2) and 2, 2421, 2422(a),
and 2423(a). The underlying investigation began in 2005. The Vice Division of
the Houston Police Department and the Federal Bureau of Investigation
collaborated in response to complaints that minor children were being forced to
prostitute themselves in Houston area brothels.
      On November 29, 2006, Houston Vice Division police officers obtained an
advertisement with a photo of a female, B.S.R., who officers identified as a 17-
year-old girl. As part of a sting operation, an undercover officer called B.S.R.
through one of the advertisements and she arranged a “sex date” with him at a
specific hotel in Houston. On December 5, 2006, William Hornbeak drove B.S.R.
to the designated hotel where she left the car and proceeded to the agreed-upon
room to meet the undercover officer. In the hotel room, B.S.R. agreed to perform
a sex act with the undercover officer in exchange for a fee. She then called
Hornbeak, who was waiting for her in his car in the hotel parking lot. Officers
arrested B.S.R. in the hotel room for engaging in prostitution. Hornbeak
repeatedly called B.S.R. from his car. When she did not answer the phone,
Hornbeak went to the hotel room where the officers arrested Hornbeak for
transporting another for unlawful or immoral purposes.
      Upon his arrest, officers seized Hornbeak’s cell phone and searched the
recently made and received calls, as well as the contact list on the phone. They
did so without a warrant. Officers also conducted a search of Hornbeak’s car

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before having it towed from the scene. Incriminating evidence found in
Hornbeak’s car included boxes of condoms, a copy of a birth certificate for B.S.R.,
and accounting records and credit card charge receipts for a prostitution
business.
      On March 28, 2007, United States District Judge Ellison authorized the
interception of wire communications to and from Hornbeak’s cell phone for a
period of 30 days. On May 14, 2007, United States District Judge Hittner
authorized a renewed interception of wire communications to and from
Hornbeak’s cell phone and defendant Andre McDaniels’s cell phone.
      Defendants-Appellees jointly moved to suppress the wiretap evidence,
while Hornbeak so moved as to the cell phone and car searches. The trial court,
United States District Judge Hughes, took up their motions during a pretrial
conference on March 14, 2011, and ruled on it as a matter of law.
      Here, the government appeals the district court’s ensuing one-page
March 21, 2011 order suppressing all of this evidence. (The government does not
contest suppression of evidence following a warrantless search of Hornbeak’s
house.) On May 5, 2011, this court granted the government’s Emergency Motion
to stay the criminal trial and the setting of further pretrial proceedings in the
district court, pending the resolution of this appeal. This court has appellate
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3731.
                                 DISCUSSION
      1. We first consider whether the district court erred in suppressing the
evidence obtained from the government’s wiretaps. This court reviews the
issuing court’s wiretap order for clear error, see United States v. Tomblin,
46 F.3d 1369, 1376 (5th Cir. 1995), but reviews de novo the district court’s
conclusion that “necessity,” as required by 18 U.S.C. § 2518(1)(c), was not met.
See United States v. Edwards, 303 F.3d 606, 619 (5th Cir. 2002); United States



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v. Smith, 273 F.3d 629, 632 (5th Cir. 2001) (holding that a legal conclusion on a
motion to suppress is reviewed de novo).
      Two district judges separately authorized the interception of wire
communications to and from Hornbeak’s phone. Four years later, the assigned
trial judge granted Defendant-Appellees’ joint motion to suppress the evidence
obtained from the wiretaps. The court announced during the pretrial conference
on March 14, 2011 that the government could have continued using other
investigative techniques, which the court believed would have been productive
and fruitful, and that the government’s wish to “expand its investigation” was
an unlawful basis for the wiretaps. The trial court erred in overruling the other
judges’ well-supported wiretap authorizations.
      Wiretap applications must comply with the procedures outlined in
18 U.S.C. § 2518(1)(c).      This statute provides that an application for
authorization to intercept wire communications shall include “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[.]” Id. 18 U.S.C. § 2518(1)(c) is “a statutory
‘necessity requirement’ designed to insure that ‘wiretapping is not resorted to in
a situation in which traditional investigative techniques will suffice to expose
the crime.’” United States v. Guerra-Marez, 928 F.2d 665, 669–70 (5th Cir. 1991)
(citing United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984)).
      The government offered 64- and 100- page affidavits to the judges who
issued the wiretap orders.      These explained in considerable detail why
traditional investigative techniques had not uncovered the full scope of the
conspiracy; the limitations of techniques that had been used; and the type of
evidence that might be sought from wiretaps.
      Defendant-Appellees attempt to support suppression, arguing that the
government has not made “any reference to specific assertions of fact that any

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investigative procedure ‘had been tried and failed or reasonably appeared to be
unlikely to succeed if tried or to be too dangerous.’” However, this court has held
that, “[i]t is enough if the affidavit explains the prospective or retrospective
failure of several investigative techniques that reasonably suggest themselves.”
United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978). The government
satisfied this standard by explaining in its affidavits that, despite various
attempts, it had not been able to infiltrate the infrastructure of this sex
trafficking operation, specifically noting that officers were unable to determine
(1) the location(s) of the profits earned, (2) the resources used to evade detection
by law enforcement, (3) the methods of control used on the victims, (4) the extent
of Defendant-Appellees’ intrastate transportation methods, or (5) the identities
of other possible victims.
      Second, Defendant-Appellees cite the success of the government’s
investigation prior to the wiretap orders to contend that the government should
not have been allowed to “expand” its investigation to the use of a wiretap.
However, “the purpose of § 2518(1)(c) is not to foreclose electronic surveillance
until every other imaginable method of investigation has been unsuccessfully
attempted.” Webster, 734 F.2d at 1055. “What is required is a showing that in
the particular investigation normal investigative techniques employing a normal
amount of resources have failed to make the case within a reasonable period of
time.” United States v. Krout, 66 F.3d 1420, 1424–25 (5th Cir. 1995) (internal
quotation marks and citations omitted). Here, the government’s investigation
began in 2005, but the government did not resort to applying for the wiretaps
until two years later. At the pretrial conference, the district court opined that
other investigatory techniques “may have been less convenient or less
confessional than a wiretap, but that doesn’t make it a practical impossibility to
get the information other than through the wiretap.” To repeat, the statutory
“necessity” requirement does not require the government to show “that ‘every

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other imaginable mode of investigation would be unsuccessful.’” United States
v. Guerra-Marez, 928 F.2d 665, 669–70 (5th Cir. 1991) (citations omitted).
      Moreover, this court has repeatedly upheld the issuance of a wiretap
authorization where, as in this case, the government sought to expand its
investigation into the full scope of a criminal enterprise, and traditional
investigative techniques, though productive of some evidence, could not reveal
that scope. See United States v. Kelley, 140 F.3d 596, 604–06 (5th Cir. 1998)
(upholding denial of motion to suppress wiretap evidence where, despite
investigative efforts, the government had uncovered information about the
drugs’ origin and the participants’ identities, but “was never able to determine
the source and volume of the trade”); Krout, 66 F.3d at 1424–25 (upholding
denial of motion to suppress wiretap evidence where application affidavits
“contained detailed accounts of the investigative techniques that were used by
the agencies” yet “asserted that informants or undercover agents could not
infiltrate the conspiracy at high enough level to obtain sufficient evidence”);
Guerra-Marez, 928 F.2d at 669–71 (upholding denial of motion to suppress
wiretap evidence where, “[a]lthough other investigative techniques had been
employed, gaps in the government’s case were evident,” including inability to
show a large-scale conspiracy).
      The district court incorrectly enunciated “practical impossibility” and “no
investigative expansion” standards for evaluating the “necessity” for wiretaps.
The government made a sufficient showing of necessity in line with this circuit’s
case law.
      2. We next consider whether the district court erred in suppressing the
evidence obtained from the warrantless search of Hornbeak’s cell phone, which
was on his person, incident to his 2006 arrest.
      “In considering a ruling on a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusion, including its

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ultimate conclusion as to the constitutionality of the law enforcement action, de
novo.” United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002) (citing United
States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir. 2001)). The district court
drew a legal conclusion that the warrantless search of the phone’s call data was
unreasonable. See United States v. Curtis, 635 F.3d 704, 711 (5th Cir. 2011)
(reviewing de novo the search of the contents of defendant’s cell phone incident
to a lawful arrest), cert. denied, 132 S. Ct. 191 (2011).
      This conclusion, unexplained by the court, directly contradicts United
States v. Finley, 477 F.3d 250 (5th Cir. 2007), and United States v. Curtis,
635 F.3d 704 (5th Cir. 2011), cert. denied, 132 S. Ct. 191 (2011). Finley held that
no warrant is required for a search of an arrestee’s cell phone, including text
messages and call records, incident to lawful arrest. 477 F.3d at 259–60.
Officers arrested Finley at the scene of a traffic stop, searched his person and
seized a cell phone from his pocket. Id. at 254. The officers retrieved call records
and text messages in the search of Finley’s cell phone. Id. In Curtis, we relied
on Finley to hold that an officer could search a defendant’s cell phone, including
text messages, incident to his lawful arrest. 635 F.3d at 711–13 (holding that
“Finley authorizes a police officer to search the electronic contents of a cell phone
recovered from the area within an arrestee’s immediate control”).
      3. Finally, we consider whether the district court erred in suppressing the
evidence obtained from the search of Hornbeak’s vehicle following his 2006
arrest.
      As discussed above, we review the district court’s legal conclusions de
novo. Chavez, 281 F.3d at 483; Carreon-Palacio, 267 F.3d at 387. Because the
facts regarding the search of Hornbeak’s car are undisputed, the only issue
presented here is whether it was “reasonable” for officers to believe Hornbeak’s
car contained evidence pertinent to his arrest.



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      The government contends that the warrantless search was justified based
on the Gant “offense of arrest” doctrine. Arizona v. Gant expressly held that a
warrantless search of a vehicle incident to arrest is permissible “when it is
reasonable to believe that evidence relevant to the crime of arrest might be
found in the vehicle.” 556 U.S. 332, 129 S. Ct. 1710, 1719 (2009) (quotation
omitted). Justice Scalia, who supplied the critical fifth vote for the majority,
articulated the point somewhat more broadly: “ . . . a vehicle search incident to
arrest is ipso facto “reasonable” only when the object of the search is evidence of
the crime for which the arrest was made, or of another crime that the officer has
probable cause to believe occurred.” 129 S. Ct. at 1725 (Scalia, J., concurring)
(emphasis added). In this case, officers searched Hornbeak’s car after he was
arrested for transporting B.S.R. for unlawful or immoral purposes. The
government contends they “had reason to believe that evidence of Hornbeak’s
unlawful purpose—prostitution—would be located in the instrumentality he
used to transport a minor for that purpose.” Although the district court did not
make a determination as to whether it was “reasonable” for officers to believe
Hornbeak’s car contained evidence of his offense of arrest, the court’s
observations at the pretrial conference support that conclusion. The court stated
that the officers “thought [the car] was a likely location for evidence of
prostitution because they had just busted a call” and “had a pretty good reason
to believe that there might be evidence in that car” such as “a call book, receipts,
and things like that.” Yet the court failed to apply Gant.1
                                  CONCLUSION
      For the reasons given above, this court VACATES the district court’s
March 21, 2011 order granting the motion to suppress evidence obtained from the



      1
         Because the search was permissible according to Gant, we need not consider the
proffered alternate justification that it was an inventory search.

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government’s wiretaps and the December 2006 search of Hornbeak’s phone and
vehicle. We REMAND for further proceedings consistent herewith.




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