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United States v. Tutis

United States District Court, D. New Jersey

May 23, 2019

TOYE TUTIS, Defendant.

          Craig Carpenito, By: Diana Carrig, Stanley O. King, Esq. King & King, LLC Attorney for Defendant




         The Defendants, Toye Tutis and Jazmin Vega, are charged in a Second Superseding Indictment (filed September 14, 2016) with various offenses related to the distribution of drugs and money laundering in the Atlantic City, New Jersey area.

         Presently before the Court is the motion of Defendant Tutis to suppress evidence obtained as a result of a court-authorized wiretap of Defendant Tutis' cell phone approved by a New Jersey state court judge on September 26, 2014. (See Omnibus Motion of Toye Tutis (hereinafter “Def.'s Renewed Mot.”) [Docket Item 322].)[1]This motion rests on three principal grounds.

         First, the defense argues that the September 26, 2014 Order authorized an unlawful roving wiretap of any telephone Tutis may come to use and thus was a general warrant.

         Second, Defendant Tutis alleges that the wiretap order, obtained by an Atlantic County Prosecutor's Office (“ACPO”) Detective was based on false information about Toye Tutis' involvement, as well as material omissions, which the detective knowingly, intentionally, and/or recklessly made in his affidavit; accordingly, Defendant Tutis sought a hearing under Franks v. Delaware, 438 U.S. 154 (1978).[2] This Court convened a Franks hearing on October 17, 2016, and the evidence obtained will be discussed herein.

         Third, Defendant Tutis argues that the Government is barred from using evidence collected as a result of the September 26, 2014 Order, because such evidence was collected by state authorities in violation of the Fourth Amendment, and therefore is subject to the “Silver Platter” Doctrine, and must be excluded from trial under Elkins v. United States, 364 U.S. 206 (1960).[3]

         The Court previously filed an Order on October 21, 2016 [Docket Item 388] denying “Defendant Toye Tutis' motion to suppress evidence intercepted as a result of the September 26, 2014 Wiretap Order, ” including Defendant Tutis' Franks v. Delaware motion. The present Opinion memorializes the Court's reasons for that Order.[4]


         A. General Case and Investigation Background

         The charges contained in the Indictment stem from a long-running investigation conducted jointly by federal, state, and local law enforcement officers, targeting an alleged drug-trafficking organization in Atlantic City and the surrounding southern New Jersey region. (See Walsh Aff. at ¶¶ 5-6.)[5] The fruits of this investigation purportedly revealed, overall, that Defendant Tutis sourced supplies of heroin and cocaine from the Mexican Sinaloa cartel (with the help of alleged cartel broker, Defendant Ivan Cuellar Naranjo), through contacts in Los Angeles, California, and relied upon his network of alleged drug-traffickers in this region (namely, Defendants Tozine Tiller, Jewell Tutis, and Atiba, among others) to distribute and sell the drug products. (See id. at ¶¶ 6-7.) Defendant Tutis, with his wife Defendant Jazmin Vega, then allegedly “launder[ed]” the proceeds of this drug conspiracy through cash deposits into various bank accounts, high-end purchases, and by comingling the drug-trafficking proceedings with the proceeds of his legitimate business (namely, Ta'Ja Construction, LLC, Ta'Ja Construction I, LLC, Real Estate Investors, LLC, Ta'Ja Laundromat, Dave's Grocery, and Integrity Heating & Cooling, LLC). (Id. at ¶¶ 7-9.)

         During the course of the investigation, state and federal law enforcement officials learned of the nature of the alleged drug-trafficking conspiracy through a series of drug purchases (namely, controlled buys by confidential sources), package intercepts, trash pulls, authorized property searches and seizures, as well as court authorized “roving wiretaps” of telephones known to be used by various defendants. (Id. at ¶¶ 10-11.) Indeed, the genesis of the electronic-surveillance aspect of this case dates back to an initial federal wiretap obtained on November 21, 2013, and supported by a probable cause affidavit that identified a number of “‘target interceptees, '” including Tozine Tiller and Toye Tutis.[6] (Brief in Support of Tutis' First Motion to Suppress (hereinafter, “First Tutis Br.”) [Docket Item 234], 1-2; see also Gov't Opp'n to Tutis' First Motion to Suppress (hereinafter, “Gov't First Opp'n”) at 6.)

         B. State Wiretap Authorizations

         As relevant here, the Atlantic County Prosecutor's Office (hereinafter, the “ACPO”) obtained a series of wiretaps, authorized by the Honorable Bernard E. DeLury (hereinafter, “Judge DeLury”) and supported by the affidavits of Detective Jason E. Dorn (hereinafter, “Detective Dorn”), on cellular telephones known to be used by Defendants Jewell Tutis, Toye Tutis, and Ivan Cuellar Naranjo. (See Gov't First Opp'n at 7; see also Dorn Sept. 19, 2014 Aff. (Ex. 2 to Gov't First Opp'n); Dorn Sept. 26, 2014 Aff. (Ex. 3 to Gov't First Opp'n).)

         On September 19, 2014, the ACPO obtained its first “roving” wiretap authorization (BED-ATL-21-WT-2014) to intercept communications over the cellular telephone of Jewell Tutis (609-626-4283) (hereinafter, the “Jewell wiretap”). (See Ex. 2 to Gov't First Opp'n.) In support of this initial authorization, Detective Dorn informed Judge DeLury of the federal wiretaps targeted at Toye Tutis (among other investigative techniques used in relation to Defendant Tutis) and explained that an ongoing investigation into Toye Tutis had identified Jewell E. Tutis as “an operator/partner of an ongoing criminal narcotics distribution organization.” (Dorn Sept. 19, 2014 Aff. at ¶¶ 11, 19.) More specifically, the affidavit stated that a confidential informant (hereinafter, “CI #607/CS-2”)[7] had a conversation with Toye Tutis in July 2014, during which time Tutis advised CI #607/CS-2 that he could supply the individual with cocaine, marijuana, and heroin in an array of quantities. (Id. at ¶ 21.) Toye then purportedly instructed CI #607/CS-2 to refer to him as “‘Santana'” over the telephone and provided CI #607/CS-2 with “a series of code phrases”[8] to use when contacting his brother, Jewell, to purchase drugs. (Id.) CI #607/CS-2, in turn, met with Jewell, who reiterated that he and his brother, Toye, could provide narcotics, and other “‘hardware.'” (Id. at ¶ 22.)

         Following these initial exchanges, on August 5, 2014, Detective Dorn met with CI #607/CS-2 at a predetermined location “to place a recorded telephone call to Toye Tutis.” (Id. at ¶ 23.) At that time, CI #607/CS-2 handed Detective Dorn a Ta'Ja Construction Real Estate Investor's LLC “business card” he claimed to have received from Defendant Tutis on August 4, 2014, [9] and on which someone had handwritten (on the back) “the name ‘Jewel' and a telephone number of (609)626-4684, and the name ‘Santana' with a telephone number of (609)431-2044.”[10] (Id.; see also Ex. 4 to Gov't First Opp'n.)[11] In the presence of Detective Dorn, the confidential informant then dialed the number for “‘Santana, '” 609-431-2044, and requested “‘a box of doughnuts'” (i.e., an ounce of cocaine). (Dorn Sept. 19, 2014 Aff. at ¶ 23.) A voice which Detective Dorn recognized as the voice of Toye Tutis instructed CI #607/CS-2 to “call [his] brother.”[12] (Id.) CI #607/CS-2, in turn, placed a call to the number for “‘Jewel, '” 609-626-4684, again in the presence of Detective Dorn, and requested a “‘box of doughnuts.'” (Id.) The following day, August 6, 2014, CI #607/CS-2 met with Jewell Tutis (i.e., Defendant Tutis' brother) and completed the first in a lengthy series of controlled drug purchases. (Id. at ¶ 24)

         Aside from these early encounters, Detective Dorn detailed and recounted the additional drug involvement evidence against Jewell Tutis as provided by the confidential informant through subsequent recorded conversations, [13] and through additional controlled purchases. (See id. at ¶¶ 11, 20-48.) Indeed, the affidavit documents no fewer than nine completed drug transactions between CI #607/CS-2 and Jewell Tutis, all of which the ACPO affirmatively identified as drug substances through field tests.[14](See, e.g., id. at ¶¶ 26, 28, 30, 34, 36, 39, 41, 44, 47, 52.)

         As a result, Detective Dorn expressed his opinion that the evidence gathered at that time demonstrated probable cause that Jewell E. Tutis utilized the cellular device to communicate between co-conspirators in furtherance of an illicit narcotics distribution conspiracy, and that an electronic interception of the communications would enable the state investigators to (1) understand the nature of Jewell Tutis' relationship with his co-conspirators, (2) identify the suppliers of the controlled substances, and (3) determine the location(s) of the drug substances and their proceeds.[15] (See id. at ¶¶ 49-50.)

         After a few days of intercepting communications pursuant to the Jewell wiretap, Detective Dorn (and others) determined that Toye Tutis had used a specific cellular telephone in connection with his alleged drug distribution, 424-646-1761. (See Dorn Sept. 26, 2014 Aff. at ¶¶ 3-5.) As in the affidavit submitted in connection with the Jewell wiretap, [16] Detective Dorn acknowledged the wide scope of the investigation into Toye Tutis' drug activity, as well as the use of federal wiretaps that identified Toye Tutis as the target interceptee. (See id. at ¶ 11.) Nevertheless, Detective Dorn explained that the probable cause for “the present wiretap application” stemmed only from his state-based investigations, [17] including the evidence recited in the affidavit supporting the Jewell wiretap, together with the fact that the Jewell wiretap had captured conversations and text messages between Jewell and Toye allegedly concerning their attempts to obtain fraudulent drivers' licenses (and that supposedly confirmed Toye Tutis as the owner of the cellular telephone).[18] (See id. at ¶¶ 54-55; see also Ex. A to Dorn Sept. 26, 2014 Aff. (line sheets of recorded telephone calls concerning fraudulent drivers' licenses).)

         As a result, Detective Dorn again expressed his belief that the evidence gathered at that time demonstrated probable cause that Toye Tutis continued to be involved in the sale of controlled dangerous substances, and that an electronic interception of the communications of his identified cellular device would enable the state investigators to (1) further understand the nature of Tutis' relationship with his co-conspirators, (2) identify the suppliers of the controlled substances, and (3) determine the location(s) of the drug substances and their proceeds. (See id. at ¶¶ 56-58.) In view of the contents of the affidavit, Judge DeLury issued the requested wiretap on September 26, 2014 (BED-ATL-22-WT-14 & BED-ATL-153-CDW-14) (hereinafter, the “Toye wiretap”).[19]

         C. December 9, 2014 Search Warrants, December 10, 2014 Indictment, and Arrests

         On December 9, 2014, federal law enforcement agents obtained federal search warrants for approximately seven properties throughout southern New Jersey, all of which bore some claimed relation to the alleged drug trafficking organization. (See Gov't First Opp'n at 32; see also Walsh Aff. at ¶ 7.)

         Then, on December 10, 2014, a federal grand jury returned a two-count Indictment charging certain defendants with conspiring to traffic in cocaine, heroin, and crack cocaine, and select others with conspiring to conceal and/or disguise the proceeds of this unlawful activity. (See generally [Docket Item 1].) More specifically, and as relevant here, the Indictment charges Defendants Tutis and Atiba with perpetrating a drug-trafficking conspiracy in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (hereinafter, “Count I”), and then charges Defendants Tutis and Vega with perpetrating a money-laundering conspiracy in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), (a)(1)(B)(ii), and (h) (hereinafter, “Count II”).

         During the execution of the search and arrest warrants, officers seized additional evidence of drug trafficking and money laundering, including more than one kilogram of crack cocaine, lesser amounts of powder cocaine and heroin, eight firearms, two tasers, more than forty cellular telephones, a bulletproof vest, and in excess of $100, 000 in cash. (See Gov't First Opp'n at 32-33.)

         D. Defendant Tutis' First Motion to Suppress

         This Court, in its March 8, 2016 Opinion addressing Defendants' first set of pretrial motions, denied Defendant Tutis' motion to suppress the wire and electronic conversations captured under the September 26, 2014 wiretap because it found that Judge DeLury had a substantial basis to find that Detective Dorn's Affidavit, viewed in its entirety, demonstrated a “fair probability” of Toye Tutis' involvement in criminal activity. See Tutis, 2016 WL 885044, [Docket Item 264], at *11. The undersigned also denied Defendant Tutis' request that the Court conduct a Franks hearing regarding omissions in Detective Dorn's September 26, 2014 Affidavit, because Defendant Tutis made no showing that Detective Dorn knowingly, intentionally, and/or recklessly made a false statement. Id. at *12.

         E. Defendant Tutis' Renewed Motion to Suppress

         On July 29, 2016, Defendant Tutis, then represented by J. Michael Farrell, Esq., filed a second omnibus pretrial motion, including renewed requests to suppress the September 26, 2014 Wiretap Order and a renewed request for a Franks hearing. (See Def.'s Renewed Mot. [Docket Item 322], 7-31.)

         The Court reconsidered its earlier decision denying a Franks hearing during hearings on September 27, 2016 and October 13, 2016, and a Franks hearing commenced on October 17, 2016. (See Order Concerning Various Pretrial Motions [Docket Item 377].) On October 21, 2016, after the conclusion of the Franks hearing, the Court filed an Order denying Defendant Tutis' renewed motion, [Docket Item 322], insofar as it sought to “suppress evidence intercepted as a result of the September 26, 2014 Wiretap Order.” (Order [Docket Item 388].) The present Opinion sets forth the reasons for that denial.


         A. Standard for Suppression

         The traditional Fourth Amendment principles that apply to property searches govern probable cause determinations under the federal and/or state wiretap statutes. See United States v. Tehfe, 722 F.2d 1114, 1118 (3d Cir. 1983); see also 18 U.S.C. § 2518(3) (federal wiretap statute); N.J.S.A. § 2A:156A-10 (state wiretap statute). Under these principles, a finding of probable cause requires a “‘fair probability'” of criminal activity, based upon the totality of the circumstances. United States v. Bond, 581 F.3d 128, 139 (3d Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Stated differently, the issuing court must “make a practical, common-sense decision” concerning whether the circumstances set forth in the supporting affidavit, “including the ‘veracity' and ‘basis of knowledge' of the persons supplying the hearsay information, ” demonstrate “a fair probability” that the authorization will result in evidence of a crime. Id. at 238-39.

         A reviewing court must afford great deference to the probable cause finding of an issuing court. See United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001); United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). As a result, the probable cause determination of an issuing court will be upheld so long as the supporting documents provided a substantial basis for the initial probable cause decision.[20] See Hodge, 246 F.3d at 305; Jones, 994 F.2d at 1055. This deferential standard “does not mean that reviewing courts should simply rubber stamp” the authorizing judge's conclusions, ” Tehfe, 722 F.2d at 1117 (citing United States v. Ventresca, 380 U.S. 102, 108 (1965)), but it does counsel that “resolution of doubtful or marginal cases . . . be largely determined by the preference . . . accorded to warrants.” Jones, 994 F.2d at 1055 (citing Ventresca, 380 U.S. at 109). In other words, the standard encourages that slight doubts concerning the propriety of the wiretap authorization be resolved in favor of the issuing court. See generally id.

         B. Standard for Determining Whether a Warrant is an Unconstitutional General Warrant

         The prohibition against general warrants stems directly from the text of the Fourth Amendment to the Constitution, which requires that all warrants describe “particularly . . . the place to be searched, and the persons or things to be seized.” As interpreted by the Supreme Court, this language prohibits a “‘general, exploratory rummaging in a person's belongings.'” Andresen v. Maryland, 427 U.S. 463, 480 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). “The particularity requirement ‘makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another.'” United States v. Christine, 687 F.2d 749, 752 (3d Cir.1982) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)). On the other hand, “‘no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision.'” United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (quoting Christine, 687 F.2d at 760). The terms of a search warrant must be read in context and not in isolation, in order to determine whether the warrant is sufficiently specific. Id.


         A. The Wiretap Order Was Not a General Warrant

         Tutis first claims that the evidence obtained from the state roving wiretap of his cell phone should be suppressed because the September 26, 2014 wiretap order signed by Judge DeLury was an unconstitutional general warrant in that it authorized a tap of “up to five phones 24 hours a day, 7 days a week.” (Reply Br. [Docket Item 331], 7.)

         General warrants violate the Fourth Amendment because they authorize “a general, exploratory rummaging in a person's belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). For a warrant to be invalidated as general, it must “vest the executing officers with unbridled discretion to conduct an exploratory rummaging through [defendant's] papers in search of criminal evidence.” United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1983). Whereas a regular wiretap involves tapping a particular phone, a roving wiretap “authorizes the government to, in effect, tap a person, ‘intercept[ing] any and all identified telephones used by that person.'” United States v. Shannon, 766 F.3d 346, 349 n.4 (3d Cir. 2014).

         As a threshold matter, the Government's argument that Defendant Tutis's motion to suppress the wiretap evidence is actually a motion for reconsideration is not persuasive. A motion for reconsideration may be granted only if “(1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Interfaith Community Organization v. Honeywell Int'l, Inc., 215 F.Supp.2d 482, 507 n. 12 (D.N.J. 2012). Tutis argues that these are “new motions based on separate and distinct grounds, ” and even if the Court construes it as a motion for reconsideration, Tutis has received additional discovery that was not available during his first set of pretrial motions. (Reply Br. [Docket Item 331], 4.) The Court agrees, as Tutis makes arguments based on evidence not previously available - notably, the line sheets and Friday reports describing wiretap updates from ACPO to Judge DeLury had not yet been provided to the Defendant. (Id. at 5.) As a result, the Court will proceed to the merits of the motion.

         Tutis argues that the September 26, 2014 wiretap order was defective because state and federal law require the applicant to show that a defendant's purpose in switching phones was to thwart law enforcement. Tutis claims that he merely used multiple phones, not that he used one, terminated it, and moved on to another one. (Id. at 7.) As a result, he argues that Judge DeLury actually authorized a roving warrant that essentially permitted the tapping of multiple phones simultaneously even though the warrant identified only one target phone. In other words, the Government used a simple order as to one target phone to “simultaneously rummage” five at a time, 24 hours a day, seven days a ...

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