RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0116p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMAL COOPER,

Defendant-Appellant.

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No. 17-5475

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:14-cr-00090-1—Aleta Arthur Trauger, District Judge.

Decided and Filed: June 22, 2018

Before: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Eileen M. Parrish, Nashville, Tennessee, for Appellant. Van S. Vincent, UNITED 

STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. The defendant appeals the denial of his 

motions to suppress evidence obtained from government wiretaps, claiming that the wiretaps 

were not properly authorized. He claims that the affidavit for the wiretap application did not 

demonstrate the necessity of the wiretap and that it materially misrepresented some facts and 

omitted others, necessitating a Franks hearing. He also claims that the government improperly 

used one application for two wiretap orders, did not seal the wiretap recordings as “immediately” 

>
No. 17-5475 United States v. Cooper Page 2

as the statute requires or explain its failure to do so, and did not prove that certain undercover 

informants consented voluntarily to the recordings of their communications on the wiretaps. We 

affirm.

I.

On March 31, 2014, the government obtained a 30-day electronic surveillance order 

authorizing the wiretapping of cellphones identified as “Target Telephone 1” (TT1) used by Eric 

Williams, and TT2 used by defendant-appellant Jamal Cooper. The government submitted a 

single application and the court issued a single wiretap order to cover both phones.

The government intercepted Cooper’s calls using TT2 for the next two weeks, including a 

call on Saturday evening, April 12. Cooper made no more calls on TT2 and the government 

confirmed this through a confidential informant on Monday, April 14, when it ended its TT2 

surveillance. On Wednesday, April 16, the government provided the disc containing the TT2 

wiretap recordings to the district court for the court to seal. The government did not intercept 

any conversations from TT1 because Williams had stopped using it prior to March 31, 2014. 

When the government charged Cooper with drug trafficking, he moved to suppress the 

evidence gathered directly or derivatively from the TT2 wiretap (and all subsequent wiretap 

recordings as fruits of the TT2 wiretap). Cooper accused the government of violating both the 

Fourth Amendment and 18 U.S.C. § 2518(1)(c), claiming that the TT2 application did not 

establish the necessity for the wiretap. Cooper also accused the government of violating 

§ 2518(8)(a) because, Cooper argued, it did not seal the TT2 recording “immediately” as 

required by the statute. The district court denied the motion without a hearing, relying on the 

affidavit accompanying the wiretap application and record evidence. United States v. Cooper, 

No. 3:14-cr-00090, 2015 WL 236271 (M.D. Tenn. Jan. 16, 2015). 

Later, Cooper moved again to suppress the evidence from the TT2 wiretap, requesting a 

hearing under Franks v. Delaware, 438 U.S. 154 (1978), based on his claim that the TT2 

application’s supporting affidavit was flawed by material misrepresentations and omissions. 

Cooper also claimed that the government violated § 2518(1)(c) “by offering generalized 

statements concerning two or more potential targets in its application for permission to use 
No. 17-5475 United States v. Cooper Page 3

wiretaps” and “surreptitiously recorded conversations allegedly between Jamal Cooper and 

various confidential informants . . . without either parties’ [sic] consent.” The district court 

denied the motion. 

Eventually, Cooper entered a guilty plea pursuant to a negotiated plea agreement in 

which he reserved the right to appeal the denials of his suppression motions. The district court 

accepted the plea agreement and sentenced Cooper to 396 months in prison. Cooper appeals.

II.

When reviewing a district court’s decision on a motion to suppress, we review findings of 

fact for clear error and conclusions of law de novo. United States v. Young, 847 F.3d 328, 342 

(6th Cir. 2017). A finding of fact is clearly erroneous when we are left with the definite and firm 

conviction that a mistake has been committed. Id. Whether a search was reasonable under the 

Fourth Amendment is a question of law. Id. Here we review the evidence in the light most 

favorable to the government because the district court denied the motions to suppress. Id.

A.

Cooper argues that the government cannot use one application for two wiretap orders 

and, therefore, the TT1 and TT2 wiretaps were improper and the evidence must be suppressed. 

To support this claim, Cooper relies exclusively on the statute’s necessity prong, which states:

Each application for an order authorizing or approving the interception of a wire, 

oral, or electronic communication under this chapter shall be made in writing 

upon oath or affirmation to a judge of competent jurisdiction and shall state the 

applicant’s authority to make such application. Each application shall 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). Without further support or explanation, Cooper argues that this requires 

that “each request for a wiretap must be supported by a separate application.” It is noteworthy, 

and determinative, that this statutory provision does not say anything like that.

The government responds that Cooper forfeited his right to appeal this issue because he 

did not expressly reserve it in his agreement. Regardless, as the government also points out, the 
No. 17-5475 United States v. Cooper Page 4

statute does not require separate affidavits or applications as Cooper contends. In fact, we have 

routinely endorsed the use of a single application to wiretap multiple phones. See, e.g., United 

States v. Wright, 635 F. App’x 162, 164 (6th Cir. 2015); United States v. Sherrills, 432 F. App’x 

476, 479 (6th Cir. 2011). Cooper’s legal contention is unfounded and, ultimately, wrong.

B.

Cooper argues that the affidavit for the TT2 application does not prove the necessity of 

the wiretap and, therefore, the wiretap was improper and the evidence must be suppressed. 

Essentially, Cooper claims that the affidavit did not establish that traditional investigative 

methods had been tried or sufficiently explain why they would be unlikely to succeed.1

The 52-page affidavit, prepared by a competent and knowledgeable officer, stated that the 

government had been investigating Cooper and his drug-trafficking organization for some six 

months, during which several traditional investigative methods had been attempted and others 

considered. The affidavit explained that the government had attempted physical surveillance, 

pen registers, confidential informants, consensual recordings, trash searches, pole cameras, and 

tracking devices. But the evidence obtained was insufficient to bring the investigation to 

prosecution. The affidavit also explained why grand jury subpoenas, undercover officers, 

witness interviews, or search warrants were either unlikely to succeed or were simply too 

dangerous to attempt. 

The district court found that the affidavit contained facts sufficient to demonstrate the 

necessity of the wiretap, and that finding is not clearly erroneous. Moreover, one could argue 

that if this affidavit were found insufficient, it is unlikely that any affidavit would be sufficient to 

prove necessity for a wiretap.

 

1Cooper also claims that the government’s motive for using one application for both wiretaps was to use 

the evidence for the wiretap of TT1 (Williams) to improperly prove necessity for the tap of TT2 (Cooper), thus also 

suggesting without any basis that a reviewing judge or magistrate judge would have been unable to recognize that 

these were two different phones.
No. 17-5475 United States v. Cooper Page 5

C.

Cooper argues that the affidavit contains material misrepresentations and omits material 

information, and therefore he was entitled to a Franks hearing to demonstrate that the wiretap 

was improper and that the evidence must be suppressed. A defendant is entitled to a Franks

hearing if he (1) can make a substantial preliminary showing that the affiant knowingly and 

intentionally, or with reckless disregard for the truth, made a false statement or material omission 

in the affidavit; and (2) proves that the false statement or material omission was necessary to the 

finding of probable cause. United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013) (citing 

Franks v. Delaware, 438 U.S. 154, 171-72 (1978)).

Cooper alleges five “false or misleading” statements: (1) that Williams was using TT1 on 

March 31, though he was not; (2) that Williams was using TT1 and TT2 for drug trafficking, 

though he was not; (3) that police used physical surveillance “throughout” the investigation, 

when in fact they followed Cooper only one time; (4) that police used pen registers “in March 

2014,” when they actually monitored them for only five days between March 13 and 18; and (5) 

that traditional investigative techniques were insufficient, when police had not actually attempted 

things such as video surveillance, undercover agents, grand jury subpoenas, trash searches, or 

tracking devices, but instead only believed that they would be unsuccessful. 

In his brief, Cooper actually describes the second of these five allegedly false or 

misleading assertions as: “(2) that he was using them in connection with the target offenses.” 

We assume, from context, that Cooper is challenging an assertion that Williams was using TT1 

and TT2 for drug trafficking. But Cooper does not elaborate any further on this claim anywhere 

in his brief, nor did he raise it to the district court. Therefore, Cooper has forfeited this particular 

claim and we will not consider it further.

As for the other four contested statements, the district court explained that the dates were 

accurate based on the officer’s knowledge at the time of the affidavit; that the “general 

reference[s]” to “throughout this investigation” and to “in March 2014” were reasonable; and 

that Cooper’s belief that sufficient traditional investigation techniques had not been employed 

does not render the officer’s statements false or misleading. The court also addressed Cooper’s 
No. 17-5475 United States v. Cooper Page 6

attack on “boilerplate” language, explaining that boilerplate does not mean false or misleading. 

Finally, the court pointed out that the “correct” information that Cooper uses to craft these 

charges (that surveillance was used only once, that pen registers were sought for a period of only 

five days, and that the officer merely believed the investigatory techniques would fail) was, in 

fact, included in the affidavit, so rather than being misled, the reviewing judge was aware of 

these alleged inconsistencies and exercised his own judgment. 

Because these statements were not misleading, a Franks hearing was not necessary. 

D.

Cooper argues that the government did not seal the TT2 recordings “immediately,” as 

required by the statute, or explain why it did not, so the court must suppress the evidence from 

TT2. This statutory provision says, in pertinent part: “Immediately upon the expiration of the 

period of the order, or extensions thereof, such recordings shall be made available to the judge 

issuing such order and sealed under his directions.” 18 U.S.C. § 2518(8)(a). The order, as 

issued, was set to expire on April 29 (i.e., 30 days from the March 31 start date), but because 

Cooper stopped using TT2 earlier, the order effectively expired earlier. Cooper last used TT2 on 

April 12, but it was not until April 14 that the government was able to confirm that Cooper had 

stopped using TT2. The government submitted the TT2 recordings to the court for sealing on 

April 16. Cooper says that because the last interception occurred on April 12, April 16 was too 

late.

Under § 2518(8)(a), “immediately” means “within one or two days.” United States v. 

Wilkinson, 53 F.3d 757, 759 (6th Cir. 1995) (quotation marks and citation omitted). If a 

recording is not sealed “immediately,” the government must provide a “satisfactory explanation” 

for why it was not, in order for the recording to be admissible. Id. (quoting § 2518(8)(a)).

Cooper, of course, did not advise the government that he had stopped using TT2. But 

within two days of independently confirming that fact, and 13 days prior to the expiration date 

on the face of the warrant, the government submitted the TT2 recording to the district court for 

sealing. This satisfies the “immediately” requirement of § 2518(8)(a).
No. 17-5475 United States v. Cooper Page 7

E.

Cooper argues that the government did not establish that the undercover informants 

consented voluntarily to the recordings of their communications with Cooper and, therefore, it 

could not rely on 18 U.S.C. § 2511(2)(c) (“It shall not be unlawful under this chapter for a 

person acting under color of law to intercept a wire, oral, or electronic communication, where . . .

one of the parties to the communication has given prior consent to such interception.”). 

The government explained to the district court that the contents of the recordings 

demonstrate that the informants were aware that their conversations were being recorded and 

therefore gave valid consent. This is a legitimate means of proving consent in a situation such as 

this. See United States v. Moncivais, 401 F.3d 751, 754-55 (6th Cir. 2005). Because the court 

found consent, we review that determination for clear error. Id. And we find none. 

Cooper also contends that the government may not rely on consent from an informant 

who is on probation or parole because internal government policy forbids the use of probationers 

or parolees as confidential informants. The district court found that Cooper had failed to prove 

any aspect of this contention; most notably, Cooper had failed to show that these informants 

were on probation or parole. Regardless, even if Cooper could prove this alleged violation of 

internal government policy, that would not negate the informants’ consent. See United States v. 

Bussell, 266 F. App’x 393 (6th Cir. 2008); United States v. Porter, 29 F. App’x 232 (6th Cir. 

2002). 

Finally, Cooper contends that the government was subject to a higher burden of proof to 

demonstrate voluntary consent and that it failed to meet that burden. But Cooper has provided 

no authority to support this specific legal proposition, nor does he offer a demonstration of clear 

error in the decision. 

III.

For all of the foregoing reasons, we AFFIRM the judgment of the district court.