Page 1 of 5

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

ERVIN BERONCO SMITH, 

Defendant. 

Case No. 15-20394 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

R. STEVEN WHALEN

 / 

ORDER DENYING MOTION FOR RECONSIDERATION [151] 

On June 24, 2016, Defendant Ervin Beronco Smith filed a Motion to Suppress 

[126]. Defendant Lucio Antonio Maldonado-Farias filed a Notice of 

Joinder/Concurrence in the Motion to Suppress on June 27, 2016. [127]. On 

November 9, 2016 the Court held a hearing on Defendant’s Motion to Suppress 

Evidence and denied the Motion from the bench. Defendant Smith filed a Motion for 

Reconsideration of the denial of the Motion to Suppress on November 29, 2016. 

[153]. Defendant Maldonado-Farias filed a Notice of Joinder/Concurrence in this 

Motion on December 1, 2016 [152]. For the reasons stated below, the Motion for 

Reconsideration is DENIED. 

STANDARD OF REVIEW

Local Rule 7.1(h)(3) provides that: 

Generally, and without restricting the court’s discretion, the court 

will not grant motions for rehearing or reconsideration that merely 

present the same issues ruled upon by the court, either expressly 

2:15-cr-20394-AJT-RSW Doc # 158 Filed 12/28/16 Pg 1 of 5 Pg ID 1034
Page 2 of 5

or by reasonable implication. The movant must not only 

demonstrate a palpable defect by which the court and the parties 

and other persons entitled to be heard on the motion have been 

misled but also show that correcting the defect will result in a 

different disposition of the case. 

See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 2003) 

(A motion for reconsideration is granted only “if the movant demonstrates that the 

district court and the parties have been misled by a palpable defect, and correcting the 

defect will result in a different disposition of the case”). “A palpable defect is a defect 

which is obvious, clear, unmistakable, manifest or plain.” Fleck v. Titan Tire Corp., 

177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations and quotations 

omitted). “The decision whether to grant reconsideration lies largely within the 

discretion of the court.” Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 

(Fed. Cir. 1990). 

ANALYSIS

 Defendant filed a Motion to Suppress Evidence [126] on June 24, 2016, 

arguing that the affidavit for the wiretap did not meet the necessity requirement 

because the objectives of the investigation, viz, identifying the drug supplier and those 

involved in the drug trafficking business, the sources of supply for the drugs, and the 

scope of the Detroit, Michigan-based organization’s operations and method of 

acquisition and distribution of heroin, could have been met without a wiretap. On 

November 9, 2016, the Court denied Defendant’s Motion to Suppress Evidence. 

2:15-cr-20394-AJT-RSW Doc # 158 Filed 12/28/16 Pg 2 of 5 Pg ID 1035
Page 3 of 5

The Motion for Reconsideration rests on a proposition that the Court was 

misled regarding the necessity of the wiretap affidavit. Specifically, that it was misled 

by the omission of material evidence in the form of information about the existence of 

a warrant for the capture of “radio signals” that was never used prior to obtaining the 

wiretap. 

First, Defendants argue that the Court was misled when the Government 

asserted at the hearing that all the “phone location technology” information was 

disclosed within the affidavit, since it failed to mention the May 28, 2015 order 

authorizing the capture of “radio signals,” only referring to the availability of “GPS 

Ping” technology in the affidavit. Defendants suggest that use of radio signals is a 

much more precise and accurate technology than GPS ping data to utilize geolocation 

information. As such, the wiretap was unnecessary because the objectives of the 

investigation could have been met without a wiretap given that the Government could 

have used radio signals to achieve the goals of the investigation. 

This mirrors Defendants’ argument in the Motion and at the hearing that the 

Government possessed all the tools to meet the objective of the wiretap affidavit. The 

Government pointed out at the hearing that the affidavit detailed that location 

technology was available and had been used, but that it was not sufficient to meet the 

objectives of the investigation. [126-2 at Pg ID 557]. The Court agreed with the 

Government because location data, no matter how accurate, cannot reveal the contents 

2:15-cr-20394-AJT-RSW Doc # 158 Filed 12/28/16 Pg 3 of 5 Pg ID 1036
Page 4 of 5

of conversations, which were necessary to meet the objectives of the investigation. 

Nothing Defendant has raised in this Motion regarding the lack of a specific mention 

of an order authorizing radio signal capture overrules the Court’s previous decision 

regarding necessity, and therefore it is not a ground for granting reconsideration. 

Second, Defendants argue that they believe the radio signal capturing device, 

authorized by Court order prior to the wiretap, was sufficient to seize text and/or 

telephone conversations in addition to raw radio signals through the use of 

“stingrays.” See Kim Zetter, Turns Out Police Stingray Spy Tools Can Indeed Record 

Calls, WIRED (Oct. 28, 2015), https://www.wired.com/2015/10/ stingraygovernment-spy-tools-can-record-calls-new-documents-confirm/; Renee Lewis, 

Stingray cell surveillance can record conversations, bug phones, ALJAZEERA (Oct. 

29, 2015), http://america.aljazeera.com/articles/2015/10/ 29/stingray-can-spy-oncallsand-texts-bug-phones.html. However, the articles Defendant relies on do not establish 

that, even if the Government’s order for the capture of radio signals permitted the use 

of “stingrays,” a wiretap order was not required to obtain the contents of the phone 

conversations and texts. 

As the articles presented by Defendant point out, while it is possible for 

stingrays to be used to acquire the contents of conversations, the Department of 

Justice’s guidelines state that stingray devices “must be configured to disable the 

interception function, unless interceptions have been authorized by a Title III order.” 

2:15-cr-20394-AJT-RSW Doc # 158 Filed 12/28/16 Pg 4 of 5 Pg ID 1037
Page 5 of 5

Kim Zetter, Turns Out Police Stingray Spy Tools Can Indeed Record Calls; see also, 

Renee Lewis, Stingray cell surveillance can record conversations, bug phones (“A 

federal wiretapping law allows law enforcement to obtain the contents of calls or texts 

with a court order to intercept those communications, the DOJ guidelines said.”). In 

fact, the warrant application for the radio signals specifically states that “[t]his warrant 

does not authorize the interception of any telephone calls, text messages, or internet 

data.” [126-8 at Pg ID 657]. Therefore, even if the radio signal capturing device 

enabled the Government to possibly intercept the contents of conversations and text 

messages, a Title III order would still be necessary for the Government to obtain the 

information needed to meet the objectives of the investigation. 

Accordingly, 

IT IS ORDERED that Defendant’s Motion for Reconsideration [151] is 

DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 28, 2016 Senior United States District Judge 

2:15-cr-20394-AJT-RSW Doc # 158 Filed 12/28/16 Pg 5 of 5 Pg ID 1038