Opinion
E049127
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLMAN ALEXANDER ZAPETA, Defendant and Appellant.
Michael Ian Garey for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF060595)
OPINION
APPEAL from the Superior Court of Riverside County. Lawrence P. Best, Temporary Judge, and Jorge C. Hernandez, Judge. Affirmed. Michael Ian Garey for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
After the trial court denied his combined motion to suppress evidence and to traverse and/or quash a search warrant, defendant and appellant, Willman Alexander Zapeta (hereafter defendant), pled guilty to one count of possessing methamphetamine, in an amount exceeding one kilogram by weight, for sale in violation of Health and Safety Code sections 11378 and 11370.4, subdivision (a)(1). The trial court sentenced defendant to serve a term of three years in state prison.
Defendant contends in this appeal that the evidence against him, namely the methamphetamine recovered during a search of his apartment, was obtained as a result of a search warrant that was based on information recovered from two wiretaps that failed to comply with the pertinent constitutional and statutory requirements. In addition, defendant contends the search of his apartment was the result of an unlawful warrantless entry that preceded issuance of the search warrant. Therefore, defendant contends the trial court should have granted his combined motion to suppress the evidence and quash or traverse the search warrant. We disagree for reasons we explain below and therefore we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2007, Riverside County Superior Court Judge Helios Hernandez signed a wiretap order that authorized Drug Enforcement Agency (DEA) agents and other law enforcement officers to intercept electronic and wire communications on two telephones identified as "Target Telephone #22" and "Target Telephone #23." According to the affidavit of DEA Agent Sean Zelka, submitted in support of the wiretap order (referred to in the trial court and hereafter as wiretap No. 07-47) the target telephones are cell phones believed to be used by an unknown male identified only as "Indio" and other operatives in a drug trafficking operation that distributes cocaine and methamphetamine in Southern California, including Los Angeles and Riverside counties. Agent Zelka also disclosed that the DEA had obtained information about Indio and his use of the target telephones during earlier wiretaps conducted as part of the investigation identified in the affidavit, including wiretap No. 07-38 authorized by an order issued on October 3, 2007.
Based on information obtained during wiretap No. 07-47 that defendant was about to broker a drug deal, law enforcement agents conducted a surveillance of defendant's apartment in Palm Desert on December 3, 2007. They detained three men as they were leaving that apartment. After a cursory sweep of the apartment to prevent the destruction of evidence and for officer safety, law enforcement officers obtained a search warrant for the apartment, various vehicles including defendant's Honda Civic, and another apartment. Riverside County Deputy Sheriff Eric Romaine prepared the affidavit of probable cause in support of the search warrant. Among other things, Deputy Romaine recounted the investigation history, which began in 2006 and focused on the Hernandez/Sanchez-Meza drug trafficking operation (DTO) based in the Coachella Valley. He recounted the substance of a series of intercepted telephone calls to and from defendant on Target Telephone Nos. 22 and 23. Those telephone calls revealed what Deputy Romaine described as several transactions in which defendant either arranged to purchase or sell a quantity of methamphetamine. The most recent of the intercepted calls included information about a drug transaction between defendant and a person identified only as "Gil." The two were to meet at defendant's apartment at 7:30 p.m. on December 3, 2007. Law enforcement officers observed defendant enter the apartment at 7:19 p.m.; about 7:35 p.m. three unidentified Hispanic males arrived and entered defendant's apartment; the three men were detained a short time later when they left the apartment; and law enforcement officers entered the apartment to prevent the destruction of evidence while awaiting issuance of the search warrant. Deputy Romaine also included in the affidavit the officer's observations after entering the apartment of a scale with suspected narcotic residue and suspected narcotic packaging materials "in plain view."
During execution of the search warrant, law enforcement officers recovered methamphetamine from defendant's apartment. Defendant was arrested for possession of that controlled substance.
According to the transcript of defendant's preliminary hearing, law enforcement officers found a significant quantity of methamphetamine in the kitchen cabinets along with a quantity of suspected cutting agent.
Following his arrest, defendant moved to unseal the affidavit in support of the search warrant. The district attorney also filed a motion for an order to unseal the search warrant affidavit. The trial court granted that motion. After his preliminary hearing defendant filed a motion under Penal Code section 1538.5 to suppress all evidence obtained through wiretap No. 07-47 combined with a motion to quash and/or traverse the search warrant. Defendant asserted in that combined motion that both the wiretap order and the search warrant were based in large part on an earlier wiretap (later identified as wiretap No. 07-38) the lawfulness of which was not established in the affidavits in support of either wiretap No. 07-47 or the search warrant. Defendant also argued that the affidavit in support of wiretap No. 07-47 did not comply with the state and federal wiretap statutes in that it did not make an adequate showing of necessity.
All further statutory references are to the Penal Code unless indicated otherwise.
Supplemental points and authorities defendant filed in connection with his effort to obtain the documents supporting wiretap No. 07-38 revealed that after agreeing to provide the pertinent documentation, the prosecution ultimately stated that some of the documents related to wiretap No. 07-38 would not be disclosed. The trial court conducted an in camera review of the pertinent documents and held that redacted versions would be disclosed to defendant but the original documents would remain sealed. The trial court subsequently denied defendant's motions to suppress evidence, and to quash and/or traverse the search warrant. Defendant challenges those rulings in this appeal.
Additional facts will be discussed below as pertinent to the issues defendant raises in this appeal.
DISCUSSION
Defendant raises various claims in this appeal all directed at invalidating the wiretap interceptions that led to his eventual arrest. We first address his claim that the in camera review procedure set out in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) for determining whether to disclose a sealed attachment to a search warrant affidavit is applicable to wiretap applications, conflicts with state and federal wiretap statutes, and/or violates various rights guaranteed under the federal Constitution.
1.
APPLICABILITY OF HOBBS TO WIRETAP AFFIDAVITS
As a result of wiretap intercepts under wiretap No. 07-38 issued on October 3, 2007, law enforcement officers identified a male known only as "Indio" as a person who made calls with Target Telephone Nos. 22 and 23, the telephones that were the subject of wiretap application No. 07-47. Defendant requested disclosure of the application and order for wiretap No. 07-38, a portion of which included information developed from confidential informants and was set out separately in a document designated a "Hobbs attachment." In response to defendant's request, the trial court held an in camera hearing to determine whether to disclose the attachment to defendant. The DEA agent who signed the application for wiretap No. 07-38 was present at the in camera hearing and provided the trial court with a redacted version of the supporting application for that wiretap. The entire "Hobbs attachment" was redacted along with names of people involved in the target DTO. While comparing the redacted version with the original application, the trial court had the DEA agent explain the reasons for the redactions. At the conclusion of the hearing the trial court found good cause existed to release only the redacted application to defendant, and to keep the Hobbs attachment sealed.
In challenging the trial court's ruling defendant first takes issue with the in camera review procedure. The Attorney General asserts that we need not address the issue because under section 629.70, subdivision (b) the prosecution is only required to "provide to the defendant a copy of all recorded interceptions from which evidence against the defendant was derived, including a copy of the court order, accompanying application, and monitoring logs." The prosecutor informed the trial court and counsel that he did not intend to introduce evidence of calls relied on to establish probable cause for wiretap order No. 07-47, and therefore, the Attorney General contends, no evidence against defendant was derived from wiretap No. 07-38.
The Attorney General does not cite authority for his interpretation of the above emphasized phrase. Instead, he argues "by contrast" from People v. Jackson (2005) 129 Cal.App.4th 129, which resolved "[a]n apparent conflict . . . between the general criminal discovery statutes [§ 1054 et seq.] . . . and the wiretap statute when it comes to disclosure of a defendant's statements. The criminal discovery law requires the prosecution to disclose all statements by the defendant. The wiretap statute, which predates Proposition 115, only requires disclosure of the defendant's statements 'from which evidence against the defendant was derived[.]'" (Id. at p. 170, fns. omitted.) The Court of Appeal held that the discovery statutes trump the wiretap statute when it comes to statements made by the defendant and therefore "all statements by the defendant captured on a wiretap must be disclosed to the defense . . . ." (Ibid.)
The Attorney General argues that because there is no general discovery provision that conflicts with section 629.50, subdivision (a)(6), the wiretap statute controls. That statute requires only that prior applications be disclosed in the current wiretap application. The district attorney did that in this case, and according to the Attorney General, "Nothing more was required." That assertion begs the question. As the Attorney General acknowledges the dispositive question is whether evidence against defendant was derived from wiretap No. 07-38. If so, then under section 629.70, subdivision (b) defendant is entitled to disclosure.
According to the facts set out in the affidavit supporting issuance of wiretap No. 07-47, "Indio" was identified as a result of telephone calls intercepted under prior wiretaps, including wiretap No. 07-38. Law enforcement officers eventually identified defendant as the person known as Indio during calls intercepted on the telephones that were the targets of wiretap No. 07-47. Defendant's identity as the person known as Indio is evidence against defendant that was "derived" from wiretap No. 07-38., i.e., that wiretap is the source or origin of the information. (See Black's Law Dict. (5th ed. 1979) p. 399, col. 2 ["Derive. To receive from a specified source or origin."].) Therefore, defendant was entitled to the items specified in section 629.70, subdivision (b), which include the affidavit in support of the application for wiretap No. 07-38.
The next question we must resolve is the one defendant raises—whether defendant is entitled to an unredacted copy of the affidavit submitted to support wiretap order No. 07-38?
Defendant argues that he is entitled to the unredacted affidavit because Hobbs only applies to search warrant affidavits and not to wiretap applications. Defendant bases this claim in part on his view that the state and federal wiretap statutes "make no provision for a Hobbs-type of sealing."
Defendant's view of the wiretap statutes is incorrect. As previously noted, section 629.70, on which defendant relies, authorizes a trial court to limit disclosure of wiretap documents. That section states in pertinent part that, "(a) A defendant shall be notified that he or she was identified as the result of an interception that was obtained pursuant to this chapter. The notice shall be provided prior to the entry of a plea of guilty or nolo contendere, or at least 10 days prior to any trial, hearing, or proceeding in the case other than an arraignment or grand jury proceeding. [¶] (b) Within the time period specified in subdivision (c), the prosecution shall provide to the defendant a copy of all recorded interceptions from which evidence against the defendant was derived, including a copy of the court order, accompanying application, and monitoring logs." (§ 629.70.) Subdivision (d) of section 629.70, authorizes a court to "issue an order limiting disclosures pursuant to subdivisions (a) and (b) upon a showing of good cause."
The authority contained in section 629.70, subdivision (d), to limit disclosures based on a showing of good cause necessarily includes authority to adopt a procedure in which to make the necessary determination. The in camera review procedure set out in Hobbs is appropriate not only for review of search warrant affidavits but also affidavits in support of a wiretap order. Defendant has not demonstrated otherwise.
Defendant contends that section 629.70 conflicts with the federal wiretap statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510 et seq.) sometimes also referred to simply as Title III. Defendant asserts that "section 2518(9) [of Title III] requires full disclosure" of all wiretap applications, orders, etc. Defendant does not quote the language of that section in his argument. Defendant has the burden on appeal to demonstrate error and if he does not provide this court with the statutory language on which his claim depends, he simply has not met that burden. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'"].)
Section 2518(9) of Title III specifies the circumstances under which wiretap evidence can be received in evidence in a state or federal court proceeding. The statute states, "The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information."
The section specifies that full disclosure under 18 United States Code 2518(9) is a prerequisite to introducing wiretap evidence during a state or federal court proceeding. In U.S. v. Forrester (9th Cir. 2010) 616 F.3d 929, the Ninth Circuit held that the redacted parts of a wiretap application and affidavit need not be disclosed to the defendant if, without considering the redacted portions, the wiretap affidavit is sufficient to support issuance of a wiretap order. (Id. at pp. 942-943, citing U.S. v. Danovaro (7th Cir. 1989) 877 F.2d 583, 588.)
The so-called Hobbs attachment that is the subject of defendant's claim in this appeal is directed at providing additional facts to support the necessity finding that is a prerequisite under section 629.52, subdivision (d) to an order authorizing a wiretap. Section 629.52, subdivision (d) states, in pertinent part, that a judge may issue a wiretap order if he or she finds, among other things, that "[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous." The unredacted parts of the affidavit submitted in support of wiretap order No. 07-38 include facts that adequately demonstrate necessity, as we discuss below, in addressing defendant's claim that the necessity showing was inadequate. Therefore, the affidavit is sufficient to support the wiretap order without considering the redacted portions.
In short, defendant simply is wrong when he claims that state and federal law mandate full disclosure of wiretap applications and orders under all circumstances.
We also do not share defendant's view that if limited disclosure is statutorily authorized, the Hobbs procedure does not meet constitutional muster. Defendant contends that Hobbs conflicts with Waller v. Georgia (1984) 467 U.S. 39 (Waller),in which the Supreme Court held that the Sixth Amendment is violated when a suppression hearing is completely closed to the public in order to maintain the integrity of wiretap evidence and the privacy of persons not then before the court. The Supreme Court noted that the wiretap evidence comprised only two and one-half hours of the seven-day hearing, and only a few of the tapes involved or mentioned parties not before the court. (Waller, at p. 49.) Therefore closing the entire hearing was not justified, but "[u]nder certain circumstances, these interests may well justify closing portions of a suppression hearing to the public." (Waller, at p. 48.)
The Waller court reiterated its holding in Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501, that "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." (Waller, supra, 467 U.S. at p. 48.) The Hobbs hearing at issue in this case comports with the quoted requirements. The in camera hearing was limited to the issue of whether to disclose (1) confidential information regarding possible informants, (2) the name of the criminal enterprise that was the subject of what then was an ongoing investigation, and (3) the names of persons involved in that enterprise. Accordingly, we reject defendant's claim that the procedure the trial court followed in this case violated the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
2.
VALIDITY OF WIRETAP INTERCEPTIONS
Defendant contends that the applications for wiretap orders No. 07-38 and No. 0747 do not demonstrate either probable cause or necessity, both of which are statutorily required showings. Therefore, defendant contends the trial court should have suppressed the intercepted telephone conversations. We disagree.
A motion to suppress the contents of intercepted cell phone communications or evidence derived therefrom is "subject to review in accordance with the procedures set forth in Section 1538.5." (§ 629.72.) We review a trial court's ruling on a motion under section 1538.5 to suppress evidence according to a well-known and long-established standard: "[W]e are bound by the trial court's factual findings, whether express or implied, if they are supported by substantial evidence. However, we review questions of law independently to determine whether the challenged seizure meets constitutional standards of reasonableness." (People v. Boissard (1992) 5 Cal.App.4th 972, 977 [Fourth Dist., Div. Two], citing People v. Loewen (1983) 35 Cal.3d 117, 123; and People v. Leyba (1981) 29 Cal.3d 591, 596-597.) The wiretap intercepts at issue in this case are lawful if they comport with the statutory requirements for conducting such searches.
A judge can issue a wiretap order if the facts set out in the affidavit supporting the application for that order furnish probable cause to believe an individual is committing one of the crimes specified in section 629.52, subdivision (a), which include "[i]mportation, possession for sale, transportation, manufacture, or sale of controlled substances in violation of [specified Health and Safety Code sections, including section 11378] with respect to a substance containing heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight." (§ 629.52, subd. (a)(1).) In addition the judge must find that "[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous." (§ 629.52, subd. (d).) The order must provide, among other things, that the interception "shall be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." (§ 629.58.) Evidence obtained in violation of these provisions is subject to a suppression motion. (§ 629.72.)
A. Probable Cause Showing
Defendant challenges the probable cause showing set out in the affidavit submitted in support of wiretap order No. 07-38 on two grounds: (1) the redactions make it "largely impossible" to assess probable cause, and (2) there are no facts to connect Maria Guadalupe Carrillo to a drug transaction of the size necessary to support a wiretap. For reasons we now explain, we disagree.
Consistent with the view expressed in the respondent's brief that defendant is not entitled to disclosure of the affidavit in support of wiretap order No. 07-38, the Attorney General does not address any other issues regarding that wiretap order.
To determine whether probable cause supports issuance of a wiretap order, the issuing judge makes "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238; see also People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6.) "And the duty of a reviewing court is simply to ensure that the [judge] had a 'substantial basis for . . . [concluding]' that probable cause existed." (Gates, at pp. 238-239.) We pay "'great deference'" to the judge's determination. (Id. at p. 236.) "Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants. [Citation.]" (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)
(1.) Wiretap Order No. 07-38
According to the redacted affidavit submitted in support of wiretap order No. 0738, the target of that wiretap is Maria Guadalupe Carrillo, a.k.a., Lupe, a member of a DTO that is the subject of an ongoing DEA investigation. Lupe is believed to be the girlfriend of one of the DTO head guys, and she is also believed to be the person who coordinates drug shipments on his behalf within California. The affidavit states that on February 24, 2007, Customs and Border Protection (CBP) agents stopped a Range Rover crossing from Mexico into the United States at the Otay Mesa border crossing. After a narcotics dog alerted on the rear tire well, CBP agents searched the Range Rover and recovered about 27.82 kilograms (about 61 pounds) of cocaine. The driver was arrested. The driver's cell phone included text messages between his phone and Target Telephone No. 1 used by a member of the DTO then under investigation and believed to be the person slated to take delivery of the cocaine. Target Telephone No. 1 contacted the cell phone of the Range Rover's driver 21 times on February 23, 2007.
The affidavit states that on August 18, 2007, DEA agents utilized a court-issued wiretap order to intercept communications on Target Telephone No. 1. The intercepted calls included "multiple pertinent communications" with Lupe, including a voicemail message on Lupe's cell phone, identified as Target Telephone No. 2, in which an apparent drug shipment was discussed through the use of coded terminology. The affidavit sets out additional communications between Target Telephone No. 1 and Lupe's Target Telephone No. 2 on September 5, 2007, and September 12, 2007, that make reference in coded language to drug transactions, including a reference to the cocaine seizure on February 24, 2007, by CBP agents.
The above noted facts connect the cocaine seized on February 24, 2007, to Lupe through Target Telephone No. 1, over which the user communicated with both the driver of the Range Rover from which the cocaine was recovered and Lupe. Coded communications between Target Telephone No. 1 and Lupe connect her with suspected narcotics shipments from Mexico. Those facts establish probable cause to believe Lupe is involved in transporting narcotics of the type and quantity specified in section 629.52, defendant's contrary claim notwithstanding.
(2.) Wiretap Order No. 07-47
According to DEA Agent Zelka's affidavit submitted in support of wiretap application 07-47, defendant made three phone calls in September 2007 to Jose Luis Figeroa-Saldana, a person identified during the investigation as a suspected methamphetamine customer/broker of Gabriel Cabrera-Ortiz. Cabrera-Ortiz had arranged to import methamphetamine in 10- to 15-pound increments from Mexico for delivery to Porterville, California in June, 2007. Defendant's conversations with Saldana included phrases Agent Zelka knew based on his training and experience were code for terms used in the drug trade. The details of those intercepted phone calls are recounted in Zelka's affidavit.
As a result of calls intercepted under an earlier authorized wiretap, defendant was identified as the person using Target Telephones No. 22 and No. 23. Calls from those phones were made to Lupe, whom Agent Zelka identified as a suspect in the methamphetamine trade whose cell phone was the subject of wiretap order No. 07-38. Agent Zelka set out the details of defendant's conversations with Lupe, which Agent Zelka stated were coded conversations in which defendant (who then was known only as Indio) attempted to purchase drugs from Lupe. Among other things, Lupe quoted defendant a price for a pound of methamphetamine. Although defendant initially said the price was too high, he later said that his drug associate "went to work" with Lupe's guy because there was nothing else out there.
In challenging the probable cause finding, defendant first takes issue with Agent Zelka's interpretation of the coded language Lupe and defendant used in their conversations and contends that "[t]here is no basis given for" the agent's specific interpretations. Agent Zelka's interpretations are based on his training and experience, set out in the paragraphs of the affidavit entitled "Introduction and Expertise," as a DEA special agent assigned to investigate large scale drug trafficking organizations, and in intercepting coded telephone conversations. According to the affidavit, Agent Zelka has been employed by the DEA since 1999 as a special agent and has been assigned to investigate large scale drug operations. From those facts, the judge who issued the wiretap order could reasonably infer the agent was familiar with the terminology in question and therefore was competent to interpret the terms used.
The facts set out in the affidavit, as quoted above, establish probable cause to believe defendant was engaged in at least one illegal drug transaction with Lupe that involved one pound of methamphetamine. Defendant contends that one pound does not satisfy the wiretap statute which, as previously quoted, requires that in order to support a wiretap order, the quantity of controlled substance involved must be more than three pounds by weight or 10 gallons by liquid. The facts recounted above connect defendant to Figueroa-Saldana, who in turn was connected with Gabriel Cabrera-Ortez, a large scale importer of methamphetamine from Mexico to Coachella Valley, Porterville, and Baldwin Park. Those facts constitute probable cause to believe defendant "is committing, has committed, or is about to commit" a crime specified in section 629.52, subdivision (a)(1) where the controlled substance involved exceeds 10 gallons by liquid volume or three pounds by weight.
B. Necessity
As previously noted, section 629.52, subdivision (d) requires a showing not only of probable cause but also of necessity, i.e., that "[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous." (§ 629.52, subd. (d).) "Like section 629.52, the federal statute contains a 'necessity' requirement. A judge may approve a wiretap only if the application contains facts to support a finding that 'normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.' [Citations.]" (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196.)
"The requirement of necessity is designed to ensure that wiretapping is neither 'routinely employed as the initial step in criminal investigation' [citation] nor 'resorted to in situations where traditional investigative techniques would suffice to expose the crime.' [Citation.] The necessity requirement can be satisfied 'by a showing in the application that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case.' [Citation.] As numerous courts have explained, though, it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap. [Citations.] Instead, the adequacy of the showing of necessity '"is 'to be tested in a practical and commonsense fashion,' . . . that does not 'hamper unduly the investigative powers of law enforcement agents.'"' [Citation.] A determination of necessity involves '"a consideration of all the facts and circumstances."' [Citations.]" (People v. Leon (2007) 40 Cal.4th 376, 385.) "The finding of necessity by the judge approving the wiretap application is entitled to substantial deference." (Ibid.)In other words, on appeal we review the finding under the abuse of discretion standard. (People v. Zepeda, supra, 87 Cal.App.4th at p. 1204.)
(1.) Wiretap Order No. 07-38
Defendant contends the necessity showing set out in the application for wiretap order No. 07-38 is inadequate because it does not state why surveillance of Lupe would not suffice. We disagree.
The affidavit in support of wiretap order No. 07-38 includes six pages explaining why physical surveillance of Lupe has not been effective in identifying the target subjects of the investigation. Defendant asserts the affidavit resembles the one the Ninth Circuit found deficient in United States v. Blackmon (9th Cir. 2001) 273 F.3d 1204, 1206-1207 (Blackmon), and that "the showing amounts to little more than surveillance is easier and more convenient when aided by wire interceptions." Defendant's characterization is inaccurate.
In Blackmon, the Ninth Circuit held the wiretap application did not make a particularized showing of necessity because "[f]irst, the application, which is nearly a carbon copy of a previous application for a different suspect, contains material misstatements and omissions regarding the necessity for the wiretap. Second, purged of the material misstatements and omissions, the application contains only generalized statements that would be true of any narcotics investigation." (Blackmon, supra, 273 F.3d at p. 1208.)
The affidavit in this case does not contain material misstatements or omissions regarding the necessity for the wiretap, although defendant purports to claim otherwise as a separate issue on appeal. Unlike the affidavit in Blackmon, which did not include any information regarding failed attempts at surveillance, the affidavit in this case states that surveillance has been conducted since December 2005 on locations associated with Lupe and other members of the target DTO but the surveillance was unsuccessful, in part, because various members of the target DTO have moved back to Mexico. Surveillance on Lupe established that she did not live at the address in Sacramento listed as the billing address for the target cell phone. Cell tower records for the target cell phone revealed that Lupe most likely lived at an address in Perris, California. Between May 2007 and October 2007, law enforcement officers conducted three checks of that address all of which failed to yield information; "no significant vehicles or activity was observed during these checks." Surveillance of Lupe's residence on two additional occasions also failed to reveal anything other than normal daily activity. Surveillance at the Los Angeles residence of one of the target suspects, whose name was redacted from the affidavit, also did not result in information because on one occasion the subject left the house and eluded the surveillance team by using evasive driving techniques when they attempted to follow and on the other occasion no activity occurred. Another surveillance was conducted a month later in anticipation of conducting a trash search, but the trash cans were inaccessible.
Even though the affidavit includes redactions, it nevertheless includes adequate information to support a necessity finding. In addition to the previously discussed information regarding surveillance, the affidavit discusses the use of confidential informants and explains why that investigative tool is not likely to yield information. The affidavit also states that pen registers and trace devices, along with toll record analysis, have been used in the investigation and explains why the usefulness of those investigative techniques has been exhausted. The affidavit also discusses why search warrants would not be useful (there was no probable cause to support issuance of a search warrant on Lupe's residence or that of any other suspect); and why trash searches have not yielded results (a dog at one subject's residence barked loudly when the agent approached the trash cans and Lupe's residence is in a rural area where neighbors close by could easily detect an attempt to seize the trash).
In short, and contrary to defendant's claim, the affidavit in support of wiretap order No. 07-38 includes sufficient information to support a necessity finding.
(2.) Wiretap Order No. 07-47
Defendant contends the necessity showing in the application for wiretap order No. 07-47 is generic and conclusory and fails to demonstrate the need for wire interceptions of defendant as the specific target. Defendant does not support the initial assertion with citations to or discussion of the actual defects in the affidavit. His second claim assumes that defendant's identity and location were known.
The use of other techniques to investigate defendant was not possible according to the affidavit because the only information known about him is that he uses Target Telephone No. 22, he is the person to whom Target Telephone No. 23 is subscribed, and he has a post office box address in Cathedral City. Defendant does not explain how any other investigation techniques could have been employed until defendant's identity was determined.
Defendant also contends that the wire interceptions of his conversations with Lupe show he was not involved with any DTO and therefore he is not a specific target of the investigation because the facts set out in the affidavit show he refused to buy methamphetamine from Lupe. We do not share defendant's interpretation of the pertinent wiretap evidence. The facts set out in the wiretap application show that defendant did initially protest the price Lupe quoted for a pound of methamphetamine, but then defendant called back and asked Lupe if he could purchase one pound of methamphetamine. That deal did not go through because Lupe could not get the drugs quickly enough, and as a result defendant made a deal to buy the drugs from someone else.
Defendant has not demonstrated that the necessity showing in the application for wiretap order No. 07-47 is deficient. Therefore, he has not demonstrated that the trial court abused its discretion in issuing that order
C. Conclusions, Omissions, Misstatements, and Overbreadth
Defendant also purports to challenge both wiretap orders on the grounds that they include conclusions, omissions, misstatements, and that the goals of the investigation are too general and therefore overly broad. Despite his assertions, defendant only actually argues that there are omissions from the affidavit in support of wiretap order No 07-38 but other than the redactions that we already addressed, defendant does not support the claim with citations to the affidavit or other evidence. As a result, defendant has not demonstrated that the affidavit is defective.
Defendant's only remaining assertion is that the affidavits in support of both wiretap orders contain statements of investigative goals that are too general and therefore are overly broad. We will not discuss this claim other than to note that defendant acknowledges the Supreme Court has approved general language such as that used in this case. (See United States v. Kahn (1974) 415 U.S. 143, 157.) We need say nothing more.
We conclude the evidence supports the trial court's implied finding that the wiretap orders were issued in accordance with the pertinent state and federal statutes. Therefore, we must conclude that the wiretaps were lawful and that the trial court properly denied defendant's motion to suppress evidence recovered as a result of the those orders.
3.
UNLAWFUL ENTRY
Apart from his various challenges to the lawfulness of the wiretaps, defendant also contends that the methamphetamine recovered from his apartment should have been suppressed because it was obtained as a result of a warrantless entry into his apartment. We disagree.
The pertinent facts, briefly summarized and taken from the affidavit in support of the search warrant, are that on December 3, 2007, task force agents conducted a surveillance of an apartment in Palm Desert that they had identified, through intercepted calls placed to or from defendant on Target Telephones No. 22 and No. 23, as a place defendant used to "stash" methamphetamine. Based on information obtained from calls intercepted earlier in the day on December 3, 2007, task force agents suspected defendant had brokered a deal to purchase methamphetamine from a male identified only as "Gil" around 7:30 p.m. that day at the "office," a term suspected to be a coded reference to defendant's Palm Desert apartment. Defendant arrived at the apartment about 7:20 p.m. Three previously unidentified males arrived and entered the apartment at approximately 7:35 p.m. The three men were detained a short time later after they left defendant's apartment. Several task force agents entered the apartment in order to prevent the destruction of evidence. Inside they observed "in plain view . . . scales with suspected narcotic residue as well as suspected narcotic packaging materials."
Based on the above noted facts the trial court issued a search warrant for, among other locations, defendant's Palm Desert apartment. In executing that warrant, task force officers recovered the methamphetamine that is the basis for the charge to which defendant pled guilty. In moving to suppress that evidence in the trial court, defendant argued among other things that the search pursuant to the warrant was unlawful because it was tainted by the earlier warrantless entry and search. The trial court denied defendant's motion, which defendant had styled a motion to quash or traverse the search warrant, based on an insufficient showing of probable cause. Defendant challenges that ruling in this appeal on the same ground he asserted in the trial court—that the initial entry into his apartment was unlawful and tainted the later search pursuant to the warrant.
We will not determine whether the warrantless entry into defendant's apartment was lawful under either the exigent circumstance or protective sweep exceptions to the Fourth Amendment because even if the initial entry were unlawful, it would not vitiate the later search pursuant to the warrant if the search warrant is based on a showing of probable cause that does not include facts derived from the illegal search. (People v. Farley (2009) 46 Cal.4th 1053, 1098.) When, as in this case, the search warrant affidavit includes facts obtained during the illegal search, the later search pursuant to the warrant nevertheless is valid if after excising the unlawfully obtained facts from the search warrant affidavit, the remaining facts establish probable cause, i.e., a fair probability that evidence of a crime or contraband will be found in a particular place. (Ibid.)
The facts recounted above establish probable cause to support the search warrant even after the observations from the initial entry are excised from the affidavit. The information obtained from the intercepted phone calls to and from defendant, combined with his arrival at the apartment and the arrival shortly thereafter of the three unidentified males establish probable cause to support the warrant. Accordingly, we reject defendant's claim that the search of the apartment violated the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Richli
J.
Miller
J.