## Facts

- The FBI investigated a drug-trafficking organization that included Marshaun Merrett and Johnnathan Frencher.
- A confidential source (CS) knew a phone number associated with Frencher because the CS had previously used the number to buy drugs from Frencher.
- Acting at the FBI’s direction, the CS used the number to complete three controlled drug purchases from Frencher.
- The FBI sought a wiretap for the phone number the CS used to reach Frencher.
- In the wiretap application, the government stated that informants and controlled buys had not revealed all participants or drug-storage locations and explained limits of other investigative tools.
- The application explained why using undercover agents and physical surveillance or seeking a grand-jury indictment with incomplete information would pose safety risks, and why trash searches would be ineffective.
- A judge authorized the wiretap.
- Soon after interception began, the FBI heard a call in which Frencher, his brother, and a third man discussed plans for a burglary later that night.
- The FBI and local police set up surveillance at Frencher’s apartment and saw a vehicle pick up Frencher and his brother.
- Officers followed and stopped the vehicle after detecting the odor of marijuana.
- Police arrested the three men and searched the vehicle, finding firearms and ammunition.
- The United States charged Frencher with distributing cocaine and being a felon in possession of a firearm.
- Frencher moved to suppress evidence from the traffic stop, arguing the wiretap was invalid because the government did not show necessity and lacked probable cause to believe he regularly used the target phone number.
- The district court denied the suppression motion, and Frencher appealed.

## Issues

1. Did the district court err in denying Frencher’s motion to suppress by upholding the wiretap authorization where Frencher claimed the government failed to show (a) necessity for the wiretap and (b) probable cause connecting him to regular use of the target phone?

## Decision

- The Eighth Circuit affirmed.
- The court held that the wiretap application adequately addressed the statutory necessity requirement by explaining why traditional investigative techniques had not succeeded and why other methods were unlikely to succeed or posed safety risks.
- The court held that the application established probable cause to believe the target phone was being used for drug trafficking and that intercepting communications over the phone would yield evidence, including probable cause connecting Frencher to use of that phone based on the CS’s prior dealings and the controlled purchases.

## Legal Principles

- Under Title III (18 U.S.C. § 2518), a wiretap order requires a showing of probable cause that (1) a specified offense is being committed, (2) communications concerning the offense will be obtained through interception, and (3) the targeted facility is being used in connection with the offense.
- Title III also requires necessity: the application must explain that normal investigative procedures have been tried and failed, appear unlikely to succeed, or are too risky.
- Necessity does not require exhaustion of every conceivable investigative technique; a practical explanation of why alternatives are inadequate can be sufficient.
- Appellate review gives substantial deference to the issuing judge’s probable-cause determination and to the district court’s assessment of the wiretap’s statutory compliance.

## Conclusion

The Eighth Circuit affirmed the denial of Frencher’s motion to suppress, concluding that the wiretap application satisfied Title III by adequately explaining why other investigative methods were insufficient and by establishing probable cause linking the target phone and Frencher to drug-trafficking activity, so the evidence obtained after the interception was not subject to suppression.


United States v. Merrett, 8 F.4th 743 (2021)