United States v. Merrett

The Federal Bureau of Investigation (FBI) used a confidential source (CS) while investigating a drug-trafficking organization that included Marshaun Merrett and Johnnathan Frencher (defendant). The CS knew a phone number to contact Frencher because the CS had called the number to buy drugs from Frencher before. Under FBI direction, the CS used that number to make three drug purchases from Frencher. Eventually, the FBI applied for a wiretap on the number CS had called. The wiretap application described how the CS and controlled-drug purchases failed to uncover all of the members and storage locations of the drug-trafficking operation. The application explained why using undercover agents and physical surveillance or seeking a grand-jury indictment with incomplete information would be too dangerous. The application also detailed the uselessness of trash searches. A judge authorized the wiretap. Shortly after, the FBI intercepted a call, hearing Frencher, his brother, and a third man plan a burglary for later that night. The FBI and local police staked out Frencher’s apartment, observing a vehicle retrieve Frencher and his brother. The FBI and police tailed and stopped the vehicle after smelling marijuana. The police arrested the three men and searched the vehicle, finding guns and ammunition. The United States charged Frencher with distributing cocaine and being a felon possessing a firearm. Frencher moved to suppress the evidence found during the traffic stop due to the wiretap. Frencher argued the wiretap was improper because the government failed to demonstrate necessity or probable cause to believe Frencher regularly used the target phone number. The district court denied Frencher’s motion. Frencher appealed.