Page 34 - TPA Journal July-August 2025
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I just put that sh*t up and wait ‘til it get dry again, Title III of the Omnibus Crime Control and Safe
boy.” Boler testified that they were still talking Streets Act of 1968 permits “[a]ny aggrieved per-
about a half pound of methamphetamine, and the son in any trial, hearing, or proceeding” to “move
“two” that Donovan mentioned meant two pounds to suppress the contents of any wire or oral com-
of methamphetamine that Boler had already sold munication intercepted pursuant to this chapter, or
him. Boler additionally testified that he had been evidence derived therefrom, on the grounds that .
indicted for conspiracy to distribute methamphet- . . (i) the communication was unlawfully inter-
amine and that he had pleaded guilty. In cepted; [or] (ii) the order of authorization or
September 2020, several months after the July approval under which it was intercepted is insuffi-
phone conversations, deputies stopped Orlando cient on its face.”
for speeding and found that he was in possession
of a 9mm semi-automatic pistol and 1,319.68 Donovan and Orlando argue that the district court
grams of marijuana, which appears to have been erred in denying their motion to suppress evidence
purchased from another supplier, Montreal obtained through wiretaps (A) by ruling that they
Bourrage. did not have standing to challenge the wiretaps;
(B) by ruling that the motion challenging the wire-
In April 2022, a grand jury indicted Donovan and taps was untimely; (C) by not ordering a Franks
Orlando for conspiracy to possess with intent to hearing; and (D) by not recognizing that the orders
distribute methamphetamine “beginning in May authorizing the wiretaps were facially insufficient.
2020, and continuing to on or about May 29, Orlando filed his motion to suppress and a sup-
2020.” The grand jury additionally indicted porting attorney affidavit on May 4, 2023.
Donovan for conspiracy to possess with intent to Orlando then filed a memorandum in support of
distribute “a mixture or substance containing a the motion to suppress on May 8, 2023, and
detectable amount of methamphetamine” during a Donovan filed a motion to join Orlando’s motion
period “beginning on or about July 6, 2020, and to suppress that same day. After a hearing on May
continuing to on or about July 10, 2020.” Prior to 22, 2023, the district court denied the motion to
trial, Donovan and Orlando filed a motion to sup- suppress on the grounds covered in “the
press the evidence obtained via wiretaps, which Government’s argument in response.” The
the district court denied. The case then proceeded Government maintains that those grounds for dis-
to trial in May 2023 in the Southern District of missal included untimeliness, lack of standing,
Mississippi, and following a five-day trial, a jury and insufficiently specific allegations.
found the defendants guilty on all counts. Assuming without deciding that we must reach the
The district court sentenced Orlando in February standing issue, we hold that the defendants had
2024, and his sentence included a three-level standing. Title III allows “[a]ny aggrieved person”
enhancement pursuant to United States to “move to suppress the contents of any wire or
Sentencing Guidelines § 3B1.1(b) for managing or oral communication intercepted pursuant to this
supervising the conspiracy and a two-level chapter.” oral, or electronic communication or a
enhancement pursuant to Guidelines § person against whom the interception was direct-
2D1.1(b)(1) for possessing a gun. After initially ed.” Based on the Supreme Court’s determination
sentencing Donovan in February 2024, the district that “the wiretap statute incorporated existing
court resentenced him in March 2024, and his sen- Fourth Amendment standing principles,” we have
tence included a three-level enhancement pursuant interpreted the statutory definition as meaning that
to Guidelines § 3B1.1(b) for managing or super- “only ‘one who participated in the intercepted
vising the conspiracy. Both defendants timely conversation or on whose premises the conversa-
appealed. tion occurred’ ha[s] standing to challenge the
fruits of an illegal wiretap.” The party seeking
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