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United States v. Turner

United States Court of Appeals, Eighth Circuit

March 18, 2015

United States of America, Plaintiff - Appellee
v.
Donald R. Turner, Jr., Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Antonio Turner, Defendant - Appellant; United States of America, Plaintiff - Appellee
v.
Corey E. Turner, Sr., Defendant - Appellant

Submitted: September 11, 2014.

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Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau.

For United States of America (13-2574, 13-2566, 13-2572), Plaintiff - Appellee: Nathan Judish, U.S. Department of Justice, Computer Crime and Intellectual Property Section, Washington, DC; Joseph M. Landolt, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO; Timothy J. Willis, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Cape Girardeau, MO.

For Corey E. Turner, Defendant - Appellant (13-2574): Peter M. Cohen, Saint Louis, MO; Corey E. Turner, U.S. Penitentiary, Terre Haute, IN.

For Donald R, Turner, Jr., Defendant - Appellant (13-2566): Preston Humphrey Jr., Preston Humphrey, LLC, Saint Louis, MO; Donald R, Turner Jr., U.S. Penitentiary, Pine Knot, KY.

For Antonio Turner, Defendant - Appellant (13-2572): Michael J. Fagras, Lampin & Kell, Saint Peters, MO; Antonio Turner, Federal Correctional Institution, Pollock, LA.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

OPINION

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KELLY, Circuit Judge.

Corey E. Turner, Sr., Donald R. Turner, Jr., and Antonio Turner appeal their convictions and sentences on drug-related charges. After reviewing all issues raised on appeal, we affirm.[1]

I. Background

In the spring of 2010, the Drug Enforcement Administration and the police department in Sikeston, Missouri, began an investigation into a local drug-distribution conspiracy. During the course of the investigation, law enforcement came to believe that Joe Lenzie Turner, along with several of his friends and family members, were involved in a conspiracy to distribute both powder and crack cocaine in and around the Sikeston area. Some of the other individuals allegedly involved in the conspiracy included Corey Turner, Sr.,[2]

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Donald Turner, Jr., Antonio Turner, Dwayne Woods, and Jerriereneika Dorsey. On August 18, 2011, the above-listed individuals and eleven others were charged in a 21-count indictment in the Eastern District of Missouri. All seventeen were charged with conspiracy to distribute cocaine; the remaining charges were substantive drug charges against some of the defendants. Most of the defendants pleaded guilty, with some entering into cooperation agreements with the government. Corey Turner, Donald Turner, and Antonio Turner went to trial on a seven-count superseding indictment. During trial, Joe Lenzie Turner and Jerriereneika Dorsey both testified as cooperating witnesses for the government. The jury found all three defendants guilty of conspiracy to possess with intent to distribute five kilograms or more of cocaine and additionally found them guilty on all substantive drug charges. On appeal, the defendants contest the denial of their motions to suppress, several evidentiary rulings at trial, the sufficiency of the evidence, and their sentences.

II. Discussion

A. Motions to Suppress

During the investigation of the conspiracy, the government obtained multiple Title III wiretap orders[3] for some defendants' phones, as well as separate warrants for Precise Location Information[4] (PLI) for phones used by Joe Lenzie Turner and Dwayne Woods. One of the wiretap orders purportedly authorized the seizure of PLI from Corey Turner's phone as well. Corey Turner and Donald Turner filed motions to suppress the evidence obtained as a result of these orders and warrants. The magistrate judge[5] recommended denying all of the motions, and the district court[6] adopted the recommendation after addressing the defendants' objections.

" When reviewing a district court's denial of a suppression motion, we review the court's factual findings for clear error and its legal conclusions de novo." United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). A district court's decision denying a motion to suppress will be affirmed " unless it is unsupported by substantial evidence on the record; reflects an erroneous view of applicable law; or after a thorough review of the record, we have a definite and firm conviction that a mistake has been made." Id.

1. PLI Warrants

The first suppression issue on appeal involves the three warrants authorizing the government to obtain prospective PLI from Joe Lenzie Turner's and Dwayne Woods's phones. Corey Turner moved to suppress the evidence seized pursuant to these warrants, and the district court denied the motion on the merits. Both in the district court and on appeal, the government asserts there is no need to address the merits of Corey Turner's

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motion because he lacks standing to challenge the seizure of the evidence.[7]

" To contest the validity of a search, a person must have a reasonable expectation of privacy in the place searched." United States v. Randolph, 628 F.3d 1022, 1026 (8th Cir. 2011). " Fourth Amendment rights are personal and may not be vicariously asserted." Id. (quotation omitted). With regard to the content of cell phones, " an accused must first establish that he personally has a legitimate expectation of privacy in the object that was searched." United States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014).

Corey Turner has failed to establish that he has standing to challenge the issuance of the warrants for PLI for phones belonging to Joe Lenzie Turner and Dwayne Woods. Corey Turner does not assert that he owned, possessed, or used either of these cell phones; nor does he describe any other legitimate expectation of privacy in these phones or in the PLI obtained from them.[8] Without any argument to support the conclusion that he had a legitimate expectation of privacy in these phones or their location, Corey Turner has failed to meet his burden to establish standing to challenge the seizure of this evidence. See Stringer, 739 F.3d at 396.

2. Wiretap Orders and Necessity

Donald Turner unsuccessfully moved to suppress all evidence seized as a result of the Title III wiretap orders issued during the investigation. On appeal, he asserts the district court erred in concluding the government had shown the requisite necessity to justify the issuance of the orders.

The Wiretap Act requires that any application for a wiretap 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 . . . ." 18 U.S.C. § 2518(1)(c). " If law enforcement officers are able to establish that conventional investigatory techniques have not been successful in exposing the full extent of the conspiracy and the identity of each coconspirator, the necessity requirement is satisfied." United States v. West, 589 F.3d 936, 939 (8th Cir. 2009) (quotation omitted). When reviewing a lower court's finding that the necessity requirement has been

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satisfied to support authorization for a wiretap order, this Court reviews ...


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