Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

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1 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA, Plaintiff, v. ALBERT DEWAYNE BANKS (01) CHARLES FOSTER (03) PATRICIA BRIDGET FOY (04) JOHNNY LEE IVORY, III (05) MARTYE MADABUTI MADKINS, III (06) ZACHARY CARLYLE PATMON (07) OTIS DEAN PONDS (08) ANTHONY CARLYLE THOMPSON (10) WALTER BERNARD TAYLOR (12) KAREN ANTOINETTE JOHNSON (14) Case No. 13-cr DDC Defendants. MEMORANDUM AND ORDER Defendants Johnson, Taylor, Thompson, Ponds and Madkins have filed motions arguing that the Court should suppress wiretap evidence because agents intercepted communications outside the territorial jurisdiction of the judge who authorized the wiretaps (Docs. 346, 349, 356, 362, 377). Other defendants have joined in their motions. The government has filed a response (Doc. 396). At a motion hearing on August 22, 2014, the Court ruled that a Kansas state court judge acting under Kansas law has no authority to authorize interception outside the judge s own judicial district. The parties have requested that the Court memorialize this ruling in a written order. This Memorandum and Order memorializes does so and, except for stylistic changes, tracks the ruling announced from the bench at the motion hearing. 1

2 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 2 of 7 Analysis A. Territorial Limits on Wiretap Authority The investigation at issue in this case led law enforcement officials for the state of Kansas to approach a Kansas state court judge, Judge David Platt, and ask him to issue orders authorizing wiretaps. The papers that law enforcement officials presented to Judge Platt make it clear: they relied on the authority granted by Kansas state law, K.S.A et seq, when they made this request. The Circuit s decision in United States v. McNulty 729 F.2d 1243 (10th Cir. 1983) explains the relationship between the federal wiretap statute, 18 U.S.C. 2510, et seq, and the Kansas wiretap statute. As McNulty says, [T]he federal statute itself requires our deference to [state] law on the question of the validity of the wiretap order obtained in state court under state law. Id. at 1266 (10th Cir. 1983). The relevant Kansas legal authority confines a state judge s authority to issue a wiretap order to his territorial jurisdiction. K.S.A (3). This is the limitation imposed, explicitly, by K.S.A (3) and applied by the Kansas Court of Appeals in State v. Adams, 576 P.2d 242 (Kan. Ct. App. 1978). In Adams, a district court judge in Johnson County, Kansas, issued an order authorizing wire intercepts. Id. at 242. Johnson County is located within Kansas Tenth Judicial District. Id. The target phone, the interception bridge, and the monitoring station all were located in Wyandotte County, which is within Kansas Twenty-Ninth Judicial District. Id. at The Kansas Court of Appeals affirmed the trial court s order suppressing evidence obtained under the wiretap order because it construed K.S.A (3) s limitation on territorial jurisdiction to mean that the judge issuing the wiretap order could only authorize interception within his judicial district. Id. at 245. Thus, the court reasoned, a district court judge sitting in Kansas Tenth Judicial District had no power to 2

3 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 3 of 7 authorize interception when the target phone, interception bridge and monitoring station all were physically located in the Twenty-Ninth Judicial District. Id. When he issued the wiretap orders at issue in this case, Judge Platt was a District Court Judge for the Eighth Judicial District of Kansas. The Eighth Judicial District of Kansas consists of Dickinson, Geary, Marion, and Morris counties. K.S.A So in the words of K.S.A (3), the Kansas legislature authorized Judge Platt to enter an order authorizing the interception of wire, oral, or electronic communications within [his] territorial jurisdiction, i.e., in those four counties only. B. Location of Interception This standard sets the table for the question that matters here: Where, in the words of K.S.A , is a phone call intercepted? Adams provides the answer, or at least some of it, and in a less than direct way. See 576 P.2d at 245. Adams makes it clear that a Kansas state court judge may order the interception of telephone calls when the monitoring station and the intercepting device are located in the judge s judicial district. Id. Here, agents monitored the wiretapped calls in Shawnee County, a place outside Judge Platt s judicial district. Judge Platt, therefore, lacked legal authority under Kansas law to issue the wiretap orders under this aspect of Adams holding. See id. The parties have not provided the Court any evidence or even any argument showing where the intercepting device was located. And the Court cannot discern from the materials provided by the parties what the intercepting device is in this wireless telephone context. But whatever the intercepting device is, the government has not contended that it was situated in the Eighth Judicial District. Thus, the Court concludes that it cannot sustain Judge Platt s wiretap orders under this second alternative of Adams. 3

4 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 4 of 7 Federal cases applying the nearly identical federal statute identify a third alternative. In United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992), the Second Circuit held that for purposes of [the federal wiretap statute s] jurisdictional requirement, a communication is intercepted where the tapped telephone is located, among other places. Id. at (emphasis added). In United States v. Tavarez, 40 F.3d 1136 (10th Cir. 1994), the Tenth Circuit considered a nearly identical definition of interception contained in Oklahoma s wiretap statute. Id. at Although the facts of the case did not require the Tenth Circuit to make this holding explicit, the court approved Rodriguez s conclusion that a judge had valid wiretap authority if the tapped phones were physically located within that judges judicial district. Id. at The Court finds this approach logical and highly persuasive for two reasons. First, its reasoning is consistent with Adams. The last paragraph of Adams strongly implies that the phone s physical location at the time of the call s interception is another way for a tapped phone to fall within the scope of the issuing judge s authority. See 576 P.2d at 245 ( Where... the locations of the telephone as to which the intercept is conducted, the intercepting device and the monitoring are within the same judicial district, a district judge sitting in another judicial district has no power under [K.S.A (3)] to authorize the interception. ). Second, this reasoning comports with traditional notions about the extent of a judge s judicial power if a tangible object is physically located within a judge s judicial district, it is generally subject to that court s judicial power. C. The Government Must Prove the Wiretaps Complied with K.S.A (3) Based on this analysis, the Court concludes that the prosecution may introduce evidence about wiretapped phone calls to the extent that it can show that the tapped phone was physically located within Kansas Eighth Judicial District Dickinson, Geary, Marion and Morris 4

5 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 5 of 7 counties at the time of the call s interception. But if the tapped phone was physically located outside the boundaries of that Judicial District, the Kansas legislature did not authorize Judge Platt to order the call s interception and Kansas law mandates suppression of any evidence about that call. Adams, 576 P.2d at 244. In short, Kansas has chosen to adopt a wiretap law that is more restrictive than the provisions of Title III under federal law. That was its right, and McNulty requires the Court to honor this decision. D. The Government s Arguments The Court now turns to the three arguments made by the government. First, the government has argued that Kansas law authorizes Kansas state court judges to issue search warrants executable anywhere within the state of Kansas. Wiretap orders, the government says, are just another form of search warrants and, therefore, Judge Platt had authority to issue a wiretap order affecting any phone within the state of Kansas. Adams rejected this argument as squarely as a case could. We do not believe case law dealing generally with the subject of searches and seizures and the issuance of search warrants is applicable to the present case [ a case involving a wiretap]. Search warrants are not subject to the same strict procedural requirements and degree of judicial oversight as is electronic eavesdropping. Nothing in the search and seizure statutes expressly limits the power of [state court] district judges and associate district judges to issue warrants within the territorial jurisdiction of the judge as the [wiretapping statute] limits the issuance of electronic eavesdropping orders. 576 P.2d at Second, the Court is not persuaded by the government s argument that Kansas law permits it to apply the core concerns analysis adopted by federal law. Adams affirmed an order suppressing improperly intercepted telephone calls and it did not engage in the core 1 The government withdrew this argument after the briefing had closed. The Court nonetheless addresses the argument here because the parties have asked the Court to memorialize its reasoning as comprehensively as possible. 5

6 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 6 of 7 concerns analysis. Moreover, the core concerns analysis of Title III issues had been adopted by federal courts four years earlier, starting with the Supreme Court s decision in United States v. Giordano, 416 U.S. 505 (1974). The core concerns analysis was plainly available for the Adams court to incorporate into its application of the Kansas wiretap statute. But the Kansas state court did not do so, and no subsequent development persuades the Court that Kansas law has adopted the core concerns analysis to decide suppression issues arising under its wiretap statute. In short, no reason currently exists to conclude that the core concerns analysis is part of Kansas law, and McNulty requires the Court to limit its analysis to Kansas law. Third, and related to the government s second argument, the government claims that State v. Bruce, 287 P.3d 919 (Kan. 2012) applied the core concerns analysis to Kansas wiretap statute. The Court disagrees. Bruce involved a provision of the Kansas wiretap statute that permitted the Attorney General to delegate its authority to apply for wiretap orders. Id. at The Kansas Supreme Court held this aspect of the state statute is more permissive than Title III and, thus Title III preempted the Kansas act on this subject. Id. at Because Title III preempted the Kansas provision, only Title III governed the issue presented in Bruce. Id. at The Kansas court thus was bound to apply federal law and this included the core concerns analysis used by federal law. The decision did not ultimately involve any application of state law, and therefore, the Court is unpersuaded by the government s reliance on State v. Bruce. Conclusion On the current state of the record, the Court cannot discern what this ruling means for the wiretaps at issue in this case. That determination depends on facts that are more granular than the record presented by the parties so far. It is incumbent on the parties to sort out these facts, but the Court emphasizes that it is the government s responsibility to (1) marshal evidence about 6

7 Case 5:13-cr DDC Document 517 Filed 11/19/14 Page 7 of 7 the particular calls it claims meet this legal standard; and (2) make all relevant evidence available to the defendants so that they can challenge it. The Court also cannot evaluate whether this ruling, if it excludes any wiretapped calls, implicates or taints other warrants or other evidence in a way that presents additional challenges for its admissibility. IT IS THEREFORE ORDERED BY THE COURT THAT that the government come forward with evidence (if it has any) to prove the tapped phones were physically located within Kansas Eighth Judicial District Dickinson, Geary, Marion and Morris counties at the time when the calls were intercepted. The Court will postpone its rulings on defendants motions to suppress wiretap evidence (Docs. 346, 349, 356, 362, 377) pending the government s offer of proof about the location of the tapped phones at the time of the calls interception. IT IS SO ORDERED. Dated this 18th day of November, 2014, at Topeka, Kansas. s/ Daniel D. Crabtree Daniel D. Crabtree United States District Judge 7