Opinion
No. 04 Cr. 603 (HB).
March 14, 2005
OPINION ORDER
On June 22, 2004, Defendants, Juan Garcia, Jose Fernando Salinas Garcia, Cleofas Contreras Vasquez ("Vasquez"), Juan Nicolas Ordenas ("Ordenas"), and Jose Ernesto Garcia (collectively, "Defendants") were charged with conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. ("Indictment"). Defendants filed, among others, a motion seeking, inter alia, suppression of electronic surveillance evidence, and the fruits thereof. Oral argument and a hearing was held on February 3 and 4, 2005. As to the wiretaps, the Defendants contend that the Government lacked the requisite probable cause for the order obtained by the Government and failed to undertake the necessary alternative means of investigation before applying for the order. For the following reasons, Defendants' motion to suppress is DENIED.
I. FACTUAL BACKGROUND
A. The Traffic Stop
On December 9, 2003, Illinois State Police conducted a routine traffic stop of a tractor-trailer on Interstate 55 in Illinois. (Decl. of Susan Walsh, Jan. 20, 2005, Ex. 9, Aff. of Amador Martinez, In the Matter of the App. of the Dist. Att'y of the County of L.A. for an Order Auth. the Interception of Wire and Elec. Comm., No. 04 — 47, dated May 27, 2004, at ¶ 10) ("Wiretap Appl. No. 04 — 47, Agt. Martinez Aff."). The driver ("Unnamed Driver") was placed under arrest when the state trooper uncovered approximately 46 kilograms of cocaine and $18,000. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 10). After the arrest, St. Louis based Drug Enforcement Administration ("DEA") agents were notified and interviewed the Unnamed Driver. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 11). He admitted that he was in the process of transporting the cocaine for Defendant Juan Garcia. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶¶ 10 — 12). In addition, he informed the agents that this was not the first time he made such a trip for Juan Garcia. He provided the DEA with Juan Garcia's phone number, and made several recorded calls. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶¶ 10 — 12). He also provided the DEA with details regarding his involvement in the transportation of hundreds of kilograms of drugs from California to the New York metropolitan area and his return trips to Los Angeles with the narcotics proceeds, which the Government estimated in the millions of dollars. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 11).
B. The Wiretap Application
Following the debriefing, an application was made by the Los Angeles District Attorneys' Office on behalf of the DEA to the Superior Court of the State of California for the County of Los Angeles, pursuant to California Penal Code § 529.50, et. seq., for an order to authorize the interception of wire and electronic communications. Based upon the Southwest Border Initiative (SWBI) an investigation into the Los Angeles County-based narcotics trafficking activities of Juan Garcia, agent Martinez concluded:
Equivalent to 18 U.S.C. Section 2510 et. seq.
[T]here is probable cause to believe that the Target Subjects (as defined below) have committed, are committing, and are about to commit the crimes of importation, possession for sale, transportation, manufacture, and sale of controlled substances in violation of Sections 11351 and 11352 of the Health and Safety Code, and a conspiracy to commit said offenses, with respect to a substance containing cocaine where the substance exceeds three pounds of solid substance by weight or ten gallons by liquid volume. I further assert there is probable cause to believe that wire communications of the Target Subjects concerning said offenses have been and are being made over Target Telephone #6, Target Telephone #7, Target Telephone #8, Target Telephone #9, Target Telephone #10, and Target Pager #1.
(Aff. of Amador Martinez, In the Matter of the App. of the Dist. Att'y of the County of L.A. for an Order Auth. the Interception of Wire and Elec. Comm., No. 04 — 06, dated Jan. 23, 2004, at ¶ 6) ("Wiretap Appl. No. 04 — 06, Agt. Martinez Aff."). The affidavit submitted by Agent Martinez specifically named Juan Garcia and other co-conspirators as the targets of the investigation. (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶ 7). Agt. Martinez stated that the interception of wire and electronic communications was necessary "because normal investigative techniques have failed or appear reasonably unlikely to succeed if tried, or are too dangerous to be tried." (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶ 29). The application detailed the ineffectiveness or inability to utilize confidential sources, undercover agents, physical surveillance, pen registers, trap and trace devices, toll analysis, subscriber information, search warrants, interviews, grand jury subpoenas, immunity, trash searches, consensual records and other wiretaps. (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶¶ 32 — 65).
C. The Wiretap Order
On December 18, 2003, Los Angeles County Superior Judge Larry P. Fidler granted Wiretap Appl. No. 03-155, which authorized the DEA to conduct a wiretap on Juan Garcia's phone. Judge Fidler determined that the government had demonstrated probable cause to believe that particular communications concerning particular crimes would be obtained through the interception and that "normal investigative procedures have been tried and have failed and appear to be unlikely to succeed if tried and/or are too dangerous," and authorized the interception of communications. (Order Author. the Intercep. Of Comm., In the Matter of the App. of the Dist. Att'y of the County of L.A. for an Order Auth. the Interception of Wire and Elec. Comm., No. 04 — 17, dated Feb. 5, 2004). On December 30, 2003, and January 16, 23, and 29, 2004, law enforcement agents applied and obtained authorization to conduct wiretaps on additional cellular phones utilized by Juan Garcia, Jose Fernando Salinas Garcia, and Vasquez. (Aff. of Det. Foster E. Johns, In the Matter of the App. of the Dist. Att'y of the County of L.A. for an Order Auth. the Interception of Wire and Elec. Comm., No. 03 — 156, dated Feb. 5, 2004, at ¶ 6) ("Wiretap Appl. No. 03 — 156, Det. Johns Aff.").
The wiretaps continued and uncovered what the DEA determined to be systematic importation, transportation and distribution of multi-kilogram quantities of cocaine and, the collection, remittance, and laundering of narcotics proceeds from Mexico to Los Angeles and onto the New York metropolitan area. (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 8 — 9). In total, the California state court issued at least 20 wiretap orders. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 9). D. The Arrests
Between July 6 and July 29, 2004, the five above named defendants were arrested or surrendered in California.
On July 6, 2004, Jose Fernando Salinas Garcia was arrested at his place of employment. ( see the January 2005 Aff. Jose Fernando Salinas-Garcia, U.S. v. Garcia, 04 Cr. 603, at 1) ("Aff. Jose Fernando Salinas Garcia"). Pursuant to a search warrant, the DEA uncovered what appeared to them to be a drug ledger and two loaded firearms.
Juan Garcia was arrested on July 8, 2004 at his California apartment. The agents recovered, among other things, a drug ledger, seven cellular telephones, and more than $50,000 in United States currency. ( see the January 2005 Aff. Juan Garcia, U.S. v. Garcia, 04 Cr. 603, at 1) ("Aff. Juan Garcia").
On July 26, 2004 at 7.00 a.m., three law enforcement agents, Special Agents Martinez, Bockelkamp, and Keuler, approached the trailer home residence of Jose Ernesto Garcia to execute an arrest warrant. (Decl. of Susan Walsh, Jan. 20, 2005, Ex. 4, Redacted Rep. of Invest. of Special Agent Keuler, at 1); (Aff. Jose Ernesto Garcia, U.S. v. Garcia, 04 Cr. 603, dated Jan. 16, 2005, at ¶¶ 4-5) ("Aff. Jose Ernesto Garcia"). Jose Ernesto Garcia answered the door to the trailer where he lived and identified himself. (Agt. Bockelkamp, Tr. 8:15 — 16). According to Jose Ernesto Garcia, he was arrested and handcuffed by the agents in the doorway of his home and was brought back inside to the living room couch where he was held in handcuffs. (Aff. Jose Ernesto Garcia at ¶ 5). According to the Report of the Investigation and testimony at the hearing, at approximately 11:30 a.m. Jose Ernesto Garcia was transported to the Los Angeles Field Division by Special Agent Bockelkamp. (Agt. Bockelkamp, Tr. 8:15 — 16). From the bench, I determined that any statements made by Garcia en route to the stationhouse did not violate Defendants rights as articulated by the Supreme Court in Miranda v. Arizona. 384 U.S. 436 (1966).
In addition, on or about July 26, 2004, Ordenas surrendered to the DEA. (Agt. Martinez, Tr. 8:6 — 13).
II. APPLICABLE STANDARD
The Omnibus Crime Control and Safe Streets Act (the "Act") grants the Attorney General, or a specially designated Assistant Attorney General, the authority to authorize a law enforcement officer to apply for an order to intercept wire or oral communications which may provide evidence of "any offense involving fraud connected with a case under Title 11 or the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana {sic}, or other dangerous drugs, punishable under any law of the United States" or "any conspiracy to commit any offense described in any subparagraph of this paragraph." 28 U.S.C. § 2516(1) (2004); see United States v. Workman, 80 F.3d 688, 698 (2d Cir. 1996). Any information obtained as a result of the investigation may be shared amongst various state and federal law enforcement officers and agencies which "may use such contents to the extent such use is appropriate to the proper performance of . . . official duties," 18 U.S.C.A. § 2517(1) — (2) (2004), and any evidence gleaned from interception may be admissible even if the interception violated state law. See United States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997).
The Act also allows the states to pass statutes authorizing interception, with approval of a state judge, in connection with "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana {sic} or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year, . . . or any conspiracy to commit any of the foregoing offenses." 18 U.S.C.A. § 2516(2).
All wiretap applications must be made in writing, under oath, and specify compliance with six specific touchstones. First, the affidavit must identify the law enforcement officer who made the application and the authorizing officer. See 18 U.S.C. § 2518(1)(a). Second, the application must include a complete set of facts that justify the applicant's belief that an order should be issued. See 18 U.S.C. § 2518(1)(b). Such facts include the nature of the potential offense, the location of the wiretap, the type of communications sought and the intended target of the investigation. See 18 U.S.C. § 2518(1)(b). While the application should name every person the government has probable cause to believe is engaged in the criminal activity under investigation and whose communications it expects to intercept, in certain instances, failure to note every single person will not be a death knell or require suppression of evidence. See United States v. Matthews, 213 F.3d 966, 970 (7th Cir. 2000). Third, known as the necessity Requirement, the government must articulate with particularity what investigative techniques have been tried against the wiretap target and why any untried techniques would be either unsuccessful or too dangerous. See 18 U.S.C. § 2518(1)(c); United States v. Moran, 349 F. Supp. 2d 425, 456 (N.D.N.Y. 2005). Fourth, the affidavit must include "a statement of the period of time for which the interception is required to be maintained." 18 U.S.C. § 2518(1)(d); see United States. v. Chavez, 416 U.S. 562, 570 n. 3 (1974). The authorization may not extend more than 30 days without an application for an extension and findings similar to that required for the original authorization. See 18 U.S.C. § 2518(5) — (6); United States v. Gambino, 734 F. Supp. 1084 (S.D.N.Y. 1990). Fifth, the affidavit must include a statement of facts regarding all previous applications known to the affiant and the authorizing individual involving any of the same persons, facilities, or places. See 18 U.S.C. § 2518(1)(e); United States v. Bianco, 998 F.2d 1112, 1126 (2d Cir. 1993). Lastly, if the application is for an extension of the order, the affidavit must set forth in detail the results obtained to date from the wiretap. See 18 U.S.C. § 2518(1)(f); United States v. Harris, No. 00 Cr. 105, 2000 WL 1206724, *4 n. 8 (S.D.N.Y. Aug. 24, 2000) ("In addition to requiring the same showing as the initial application, an application for an extension must also contain a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results") (citation omitted).
The application must be submitted to a court of competent jurisdiction and the Court has to make an express finding of probable cause, identify the person, place, and type of communication subject to the wiretap, the agency authorized to intercept the communication and the duration of the authorized interception. See 18 U.S.C.A. § 2518 (4)(a)-(e); see also United States v. Matthews, 213 F.3d 966, 968 — 69 (7th Cir. 2000). In the wiretap context, "probable cause" is determined "the same as the standard for a regular search warrant," United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977), which "is established if the `totality-of-the-circumstances' indicate a probability of criminal activity." Illinois v. Gates, 462 U.S. 213, 230 — 232 (1983).
An "aggrieved person," may move to suppress the contents of any intercepted communications, or fruits of such interception, provided the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a)(iii). A technical defect, however, is insufficient grounds to warrant suppression. See United States v. Radcliff, 331 F.3d 1153, (10th Cir. 2003) (holding that suppression of evidence as a result of a technical defect is inappropriate because the defect does not "undermine the purposes of the statute or prejudice Defendant"). Nevertheless, a motion to suppress the evidence may be made if the interception violated constitutionally defined protections or if:
An "aggrieved person" is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11); see also Alderman v. United States, 394 U.S. 165, 171-80 (1969) (examining standing to move to suppress Title III intercepts); United States v. Capra, 501 F.2d 267, 821 (2d Cir. 1974) (same).
(i) [T]he communication was unlawfully intercepted;
(ii) [T]he order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) [T]he interception was not made in conformity with the order of authorization or approval.18 U.S.C.A. § 2518(10)(c).
III. DISCUSSION
A. MOTION TO SUPPRESS ELECTRONIC SURVEILLANCE EVIDENCE
In general, Defendants moved to suppress the fruits of the electronic surveillance on three grounds. First, Defendants maintain that the government failed to demonstrate the requisite probable cause. Second, Defendants maintain that the government failed to satisfy the Act's necessity requirement. In particular, Defendants argue that the government failed to demonstrate conventional investigative techniques had either been tried and failed or were otherwise unlikely to succeed before the government made an application for a wiretap. Third, Defendants argue that the warrant application failed to include material information.
The determination of whether the government had "probable cause" under the "federal wiretap statute is the same as the test for determining probable cause for a search warrant." United States v. Rodriguez, 213 F.3d 627 (2d Cir. 2000); United States v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999); United States v. Rowell, 903 F.2d 899, 901 (2d Cir. 1990). As such, the "totality of the circumstances" test articulated by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), applies.
A finding of "probable cause," requires the court to "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that . . . evidence of a crime will be found." Gates, 462 U.S. at 238 (emphasis added). The evidence must be evaluated "as understood by those versed in the field of law enforcement." Gates, 462 U.S. at 232. The "totality of the circumstances" standard applies regardless of whether the investigation was conducted by federal or "solely by state officials." United States v. Rowell, 903 F.2d 899, 902 (2d Cir. 1990); United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir. 1987). Provided that the judge that issued the warrant had a substantial basis for the conclusion that a search warrant would reveal evidence of wrongdoing, the decision to Order the wiretap complied with Fourth Amendment guarantees. See Gates, 462 U.S. at 236. On review, "it is necessary only to insure that the issuing judge had a substantial basis for finding probable cause." United States v. Moran, 349 F. Supp. 2d 425, 456 (N.D.N.Y. 2005) ( citing to Gates, 462 U.S. at 238 — 39).
A judge must also make a determination 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." 18 U.S.C. § 2518(3)(c). The necessity requirement is "designed to assure that the wiretap is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974); see also United States v. Patterson, No. 02 Cr. 0283, 2002 WL 31890950, at *2 (S.D.N.Y. Dec. 27, 2002). However, the necessity requirement does not demand that law enforcement exhaust every conventional method of investigation before electronic surveillance may be authorized. See United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987); United States v. Pappas, 298 F. Supp. 2d 250 (D. Conn. 2004); Patterson, No. 02 Cr. 0283, 2002 WL 31890950, at *2; United States v. Wager, 00 Cr. 629, 2002 WL 31106351, at *3 (S.D.N.Y. Sept. 20, 2002).
Instead, the Government must demonstrate "that normal investigative techniques would prove difficult . . . [and not] that any other option would be doomed to failure." United States v. Bellomo, 954 F. Supp. 630, 638 — 39 (S.D.N.Y. 1997). "The issue of whether a normal investigative method has been exhausted must be tested in a practical and common sense manner," United States v. Diaz, 176 F.3d 52, 111 (2d Cir. 1999), and the judge's decision to grant the wiretap application is entitled to substantial deference. See United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990); United States v. Wilkinson, 754 F.2d 1427, 1433 (2d Cir. 1985).
As to the third ground advanced by the Defendants, an omission in an affidavit requires suppression only when defendants demonstrate "deliberate falsehood or [a] reckless disregard for the truth, and those allegations must be accompanied by an offer of proof." Franks v. Delaware, 438 U.S. 154 (1978). However, there is a presumption that the affidavit supporting the warrant application is valid and, therefore, oftentimes, "the veracity of the underlying affidavit cannot be challenged." United States v. Moran, 349 F. Supp. 2d 425, 456 (N.D.N.Y. 2005) (citing to Franks, 438 U.S. 154 at 171).
1. Jose Ernesto Garcia a. Probable Cause
According to Jose Ernesto Garcia, Agt. Martinez's affidavit failed to provide a sufficient basis for interception of Target Telephone #21 because it failed to establish probable cause that Jose Ernesto Garcia was engaged in narcotics trafficking. Jose Ernesto Garcia also maintains that Agt. Martinez improperly relied upon an uncorroborated informant.
The affidavit submitted by Agt. Martinez in support of the wiretap sets forth sufficient facts to justify the order. According to Martinez's affidavit, on May 10, 2004, Juan Garcia (Target Telephone #16) called Jose Fernando Salinas Garcia (Target Telephone #17) to discuss money owed by Juan Garcia's relative, Jose Ernesto Garcia, to Jose Fernando Salinas Garcia. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 22(a)). Jose Fernando Salinas Garcia indicated that he asked Jose Ernesto Garcia for half of the money that he was owed and then asked Juan Garcia for Jose Ernesto Garcia's telephone number (Target Telephone #21). (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 22(a)). Juan Garcia provided Jose Fernando Salinas Garcia with the telephone number, which Jose Fernando Salinas Garcia entered into his telephone. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 22(b)). Based on the toll records of Target Telephone #21, Agt. Martinez determined that Target Telephone #21 was Jose Ernesto Garcia's cellular telephone. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 22(b)).
In further support of the application, Agt. Martinez's affidavit detailed the information provided by a confidential source regarding the Defendants. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 26). A confidential source indicated that Jose Ernesto Garcia was involved with a "Narcotics Trafficking Organization" and, in particular, that Jose Ernesto Garcia was "responsible for the stash house." (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 26). While the intercepted conversation between Juan Garcia and Jose Fernando Salinas Garcia alone may have been insufficient to establish "probable cause," the additional information provided by the DEA's confidential source and the other investigative techniques outlined in the affidavit significantly strengthened the application and ensured that it satisfied the probable cause requirement. b. Necessity
Agt. Martinez's affidavit in support of the wiretap application also contains an extensive recitation of alternative investigative techniques employed by the DEA and satisfies the necessity requirement. Inside informants were no longer viable, the use of undercover agents was not possible, and subpoenas and search warrants were unlikely to succeed.
For instance, Agt. Martinez's affidavit details the DEA's confidential source whose ability to communicate with Juan Garcia had been compromised following his arrest. (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶ 32(a) — (b)). The ability to employ additional informants appeared remote and, because of time constraints, such information was determined by those in the field as inadequate. (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶ 32(a) — (b)). Similarly, undercover agents (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶¶ 36 — 38), physical surveillance (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶¶ 39 — 52), pen registers, trap and trace devices, toll analysis and subscriber information (Wiretap Appl. No. 04 — 06, Agt. Martinez Aff. at ¶¶ 53 — 54) had either been attempted and failed, or posed their own limitations. Having exhausted its ability to utilize alternative sources, the DEA had little choice but to utilize wiretaps as an investigative tool. (Wiretap Appl. No. 04 — 47, Agt. Martinez Aff. at ¶ 34).
Accordingly, the presiding judge was presented with ample evidence "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 be too dangerous," 18 U.S.C. § 2518(1)(c). Having failed to demonstrate that the presiding judge acted unreasonably, Juan Ernesto Garcia's motion must be DENIED.
2. Juan Nicolas Ordenas
Ordenas challenges the necessity of the interception of Target Telephone #10, a cellular telephone that belonged to Juan Garcia, and Target Telephone #12, a cellular telephone that belonged to Vasquez. Ordenas argues that the affidavits in support of the wiretaps could be made in any drug case and a boilerplate affidavit does not warrant sufficient justification for a wiretap. For example, Ordenas maintains that the Affidavit of Foster E. Johns ("Det. Johns"), a detective with the Los Angeles County Sheriff's Department, submitted in support of the wiretap application filed on February 5, 2004, mischaracterized the drug organization as "compartmentalized" to support a conclusion that undercover officers could not infiltrate the organization:
Furthermore, I know that large narcotics organizations are compartmentalized and follow a strict hierarchy such that the suppliers, transporters, distributors, customers, and money launderers generally have little or no interaction and normally do not know each other. A long-term buyer/seller relationship would not be feasible because the government cannot allow the Target subjects to purchase narcotics from the government and release them on the street. I do not believe that narcotics transactions between an undercover agent and a member of this organization would develop enough information about the organization as a whole or their methods of operation.
(Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶ 20).
It is well established that a defendant may challenge an affidavit in support of a warrant when the affidavit contained material omissions or misrepresentations. See Franks v. Delaware, 438 U.S. 154, 164-72 (1978). To invoke the Franks doctrine, a defendant "bears the burden of proving that there were intentional and material misrepresentations or omissions in the warrant affidavit." United States v. Pappas, 298 F. Supp. 2d 250, 256 (D. Conn. 2004). In particular, "the plaintiff must show that the affiant knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause." Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994); see Franks, 438 U.S. at 171-72. "Recklessness may be inferred where the omitted information was clearly critical to the probable cause determination." Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991) (emphasis added).
Defendants failed to demonstrate that either Det. Johns or Agt. Martinez made intentional or material misrepresentations in their affidavits in support of the wiretap. While the wiretap applications may have been formulaic and repetitive, they described a variety of investigative techniques that had been "tried and failed, appeared unlikely to succeed, might alert the conspirators, or were too dangerous to pursue." United States v. Lopez, 300 F.3d 46, 53 (1st Cir. 2002). Despite previous successes of alternative investigative techniques, the utility of such tools was demonstrated to have been sufficiently exhausted, ineffective, or greatly diminished by the time the government sought its warrant. Det. John and Agt. Martinez's affidavits demonstrate that the traditional techniques employed by the DEA over the course of several months "unaided by wire interception," would not have achieved the desired investigative goals. See, e.g., United States v. Diaz, 176 F.3d 52, 110-11 (2d Cir. 1999) (holding that necessity for wiretap was shown because traditional techniques were not adequate to reveal sources of drug supply and location of drug proceeds); United States v. Cooper, 868 F.2d 1505, 1509 — 10 (6th Cir. 1989) (holding that necessity for wiretap was shown because wiretap followed lengthy investigation in which normal investigative procedures were used extensively but had not identified customers and agents of prescription drug ring).
See, e.g., search warrants (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 38-41); interviews, grand jury subpoenas, and immunity (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 42 — 43); trash searches (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 44 — 46); consensual recordings (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶ 47); and other wiretaps (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 48 — 49).
For example, as with Juan Garcia, the use of confidential sources was compromised by the arrest of the informant. In addition, while physical surveillance was utilized, "surveillance alone, even in conjunction with conventional methods of investigation, would fail to achieve law enforcement's state investigative goals." (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at Det. Johns Aff. at ¶¶ 15, 23). The affidavit also extensively detailed the other techniques that had been attempted or that were unlikely to satisfy the desired objectives. (Wiretap Appl. No. 03 — 156, Det. Johns Aff. at ¶¶ 12 — 49).
Accordingly, Ordenas failed to demonstrate that the presiding judge acted unreasonably and, therefore, Ordenas's motion is DENIED.
3. Cleofas Contreras Vasquez
Vasquez also challenges the validity of the court-authorized wiretap of his cell-phone, Target Telephone # 12. Vasquez alleges that the affidavit submitted by Det. Johns in support of the wiretap failed to demonstrate either "probable cause" or satisfy the necessity requirement.
a. Probable Cause
As with Jose Ernesto Garcia, Vasquez's argument that the wiretap application lacked probable cause is without merit. According to Vasquez, while Det. Johns describes certain phone conversations and determined that they were drug related, the actual conversations revealed very little and failed to demonstrate any illegal activity engaged in by the subjects of the wire or by anyone else. Vasquez argues that law enforcement "ascribed illegal or impermissible knowledge or information" and "found it convenient to characterize such conversations as containing illegal knowledge . . . in order to save law enforcement the time or trouble to properly investigate — in any manner whatever, prior to seeking a wiretap order." (Iannuzzi Aff. in Supp. at ¶ 15).
The telephone conversations described in Det. Johns affidavit and one prong of Vasquez's motion to suppress were intercepted over a week long period. On January 26, 2004, Det. Johns described a telephone conversation between Target Telephone #10 and Target Telephone #12. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 13(a)). Target #10 was believed to be utilized by Juan Garcia and Target Telephone #12 was used by Vasquez. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 13(a)). According to Det. Johns's description, Vasquez had called Juan Garcia to discuss which phone numbers to use to contact one another once Vasquez arrived at an unspecified location. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 13 (a)).
Following the January 26, 2004 interception, on February 2, 2004, Vasquez and Juan Garcia exchanged a series of telephone calls and messages. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 13(b) — (d)). According to Det. Johns, the calls concerned the loading and transportation of narcotics and the collection of narcotics proceeds. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 13(b) — (d)).
Calls were logged on Feb. 2, 2004 at 8.59 a.m. (Wiretap No. 04 — 17, Det. Johns Aff. ¶ 13(b)) (Juan Garcia told Vasquez to wait); at 10.29 a.m. (Wiretap No. 04 — 17, Det. Johns Aff. ¶ 13(c)) (Vasquez left a message for Garcia that loading was taking place); and, at 10.36 a.m. (Wiretap No. 04 — 17, Det. Johns Aff. ¶ 13(d)) (an individual was "around here trying to collect money" and the individual "was supposed to take [a car] with the hidden compartment containing the narcotics proceeds").
The affidavit of Det. Johns demonstrated that there was a "sufficient basis" for presuming that "evidence of a crime will be found." Gates 462 U.S. at 238. While "the subjects' use of cellular phones [and] their calling patterns, in and of itself does not establish probable cause and likely does not even raise a suspicion of criminal activity," United States v. Mares-Martinez, 240 F. Supp. 2d 803, 815 (N.D. Ill. 2002) (cell phone, pager and other communication devices alone fail to establish probable cause), "the allegations contained in a wiretap affidavit should be read as a whole and in a common-sense manner." United States v. Gangi, 33 F. Supp. 2d 303, 306 — 307 (S.D.N.Y. 1999). Det. Johns was able to relate the series of communications between Target Telephone #10 and #12 to the narcotics transaction revealed by other sources and techniques described in the affidavit and other suspicious activities among the participants. As such, "the juxtaposition of these events with the telephone contacts revealed by [the] examination of telephone records was sufficient to persuade a reasonable person to believe that the users of the subject telephones were involved in joint criminal activity the details of which might be revealed by interception of their calls." Mares-Martinez, 240 F. Supp. at 815. With these principles in mind, and upon review of Det. Johns's affidavit, I conclude that Det. Johns's affidavit provided probable cause to believe that the targets of the electronic surveillance were engaging in criminal activity.
b. Necessity Failure to Include Seizure
Vasquez also argues that the Government failed to demonstrate that a wiretap was necessary. In support, Vasquez points to the fact that the DEA had failed to even identify Vasquez at the time of the application and simply knew the target as "Solovino," a Hispanic male truck driver "believed to be a narcotics/narcotics proceeds courier." (Iannuzzi Aff. in Supp. at ¶ 17).
Det. Johns's affidavit directly contradicts Vasquez's contention. The affidavit sets forth in some detail the other investigative techniques utilized prior to the wiretap application. As already discussed, confidential sources and undercover agents were ineffective investigative techniques for the information that the investigation required. Physical surveillance, the only other technique that might have proved fruitful, was impossible under such short notice because Target Telephone #12 was in the New York area. (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 27). Pen registers, trap and trace devices, toll analysis and subscriber information would be ineffective because they "will only provide agents with a list of numbers called and will not establish the identities of the persons called or the content of the conversations." (Wiretap Appl. No. 04 — 17, Det. Johns Aff. ¶ 40).
As a separate concern, Vasquez, and the other defendants, argue that the wiretap should be suppressed because the affidavit failed to include any mention of the money seized the evening before the application was submitted. (Iannuzzi Tr. 26:23 — 29:14). The failure to include information regarding the seizure in the application was, according to Vasquez, a material misrepresentation that Judge Fidler "relied on . . . in order to issue the wiretap on my client's phone." (Iannuzzi Tr. 29:8 — 13).
Vasquez's argument fails to recognize the timing of the warrant application. The omitted events occurred less than forty-eight hours prior to the affidavit being sworn to and less than twenty four hours before the wiretap order was approved by a DEA supervisor on February 3, 2004. While affiants are required to make a concerted effort to include any and all information in the affidavit in support of the wiretap application, the fact that the seizure of money was not included in the submission fails to demonstrate that a "reasonable [issuing] judge could have denied the application because necessity for the wiretap had not been shown." United States v. Blackmon, 273 F.3d 1204, 1208 (9th Cir. 2001).
In addition, defendants' reliance on Blackmon is misguided. In Blackmon, the Ninth Circuit held that a suppression was warranted when the affidavit's submitted in support of the affidavit: (i) "contain[ed] material misstatements and omissions regarding the necessity for the wiretap," and (ii) "contain[ed] only generalized statements that would be true of any narcotics investigation." Blackmon, 273 F.3d at 1204. Here, however, as discussed throughout this Opinion Order, the government sufficiently detailed the feasibility, or lack thereof, and results obtained from, traditional investigative methods and why a wiretap was necessary. The Government sufficiently demonstrated that any omissions in the affidavits or application was not material, but rather, the results of time constraints or impracticability. Accordingly, Judge Fidler did not abuse its discretion in granting the wiretap application and the subsequent application extensions because the applications did not intentionally or recklessly omit facts and did not include false statements material to the necessity of the wiretap application,
Accordingly, the presiding judge was presented with ample evidence "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 be too dangerous." 18 U.S.C. § 2518(1)(c). The alternative techniques were no longer possible and the use of wiretaps was deemed necessary. Since Vasquez failed to demonstrate that the presiding judge acted unreasonably, Vasquez's motion is, therefore, DENIED.
4. Juan Garcia and Jose Fernando Salinas Garcia
Juan Garcia and Jose Fernando Garcia jointly move to suppress all intercepted oral communications, and evidence derived therefrom, including physical property seized at the time of their arrests and post-arrest statements on the grounds that the Government failed to satisfy the necessity requirement. See 18 U.S.C. § 2518(1)(c). Juan Garcia and Jose Fernando Garcia maintain that the application's failure to include Jose Parra ("Parra") as a "confidential informant . . . that was part of the organization and that worked for the person who supplied the cocaine" was intentional and necessitates suppression of any evidence derived from the use of the wiretap. (Juan Garcia Mot. To Supp. at 3; Arredondo, Tr. 10:2 — 17; 11:8 — 12:4).
To justify the suppression of evidence, a defendant "must present his claim through an affidavit of an individual with personal knowledge of the relevant facts." United States v. Nelson, 335 F. Supp. 2d 477, 478 (S.D.N.Y. 2004); see also United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967). Here, the affidavit was submitted by the defendant's attorney "without personal knowledge of the facts." United States v. Cox, 190 F. Supp. 2d 330, 332 (N.D.N.Y. 2002).
See also United States v. Barrios, 210 F.3d 355 (2d Cir. 2000) (defendant moving for suppression of evidence must support motion with papers which are "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, including an affidavit from someone alleging personal knowledge of the relevant facts.") (emphasis added); United States v. Belin, No. 99 Cr. 214, 2000 WL 679138, at *5 (S.D.N.Y. May 24, 2000); United States v. Harris, 2000 WL 1229263, at *1 n. 1 (S.D.N.Y. Aug. 29, 2000).
The argument that Parra is in Mexico and, therefore, is the confidential informant lacks any evidentiary support and is impermissibly based upon conjecture without personal knowledge. Absent any evidence in support of Juan Garcia and Jose Fernando Garcia's allegation that Parra was the informant, the motion to suppress evidence is DENIED.
B. MOTION TO SUPPRESS TANGIBLE PROPERTY
In accordance with Maryland v. Buie, 494 U.S. 325 (1990) and United States v. Colon, 250 F.3d 130 (2nd Cir. 2001), Jose Ernesto Garcia's motion to suppress the physical evidence seized from his residence is DENIED. See Baer, J. Tr. 51: 16 — 22 ("With respect to the issue in terms of the cursory sweep, although tangential, I find that [it] was a legal and appropriate opportunity to be sure that there was no one else who might have a weapon or be of any danger to the DEA and that the testimony of Agent Martinez to the effect that it was one or two minutes in duration supports that conclusion, and the motion to suppress is denied.").
C. MOTION TO SUPPRESS STATEMENTS
Jose Ernesto Garcia's motion to suppress his post-arrest statements is DENIED. See Baer, J. Tr. 51: 4 — 15 ("There was an uncontested valid arrest warrant in that the testimony was clear and convincing to me that while the defendant was not Mirandized at the time of his arrest that statements sought to be suppressed were all voluntary and unsolicited and that when the defendant was Mirandized several hours later, he immediately asked for an attorney, which simply to me at least makes the cheese more binding. Had he in fact been Mirandized, he wouldn't have been talking, and whatever statements he made on the trip back to Los Angeles with Agent Bockelkamp or, indeed, any statements he may have made in his trailer at the time of his arrest were unsolicited.")
D. MOTION TO REQUIRE THE PRODUCTION OF ALL 403 404(B) EVIDENCE
Defendants Motions for Disclosure of Rule 403 and 404(b) is GRANTED and the Government is required to furnish an adequate 404(b) notice no later than ten days before trial. See AUSA Berger, Tr. 16:6 — 10 ("The government's plan is to produce 404(b) as it usually does, by court order, approximately, you know, one to two weeks prior to trial, reserving the right to supplement that if it learns anything from that time of notice until the trial.").
E. MOTION TO REQUIRE THE PRODUCTION OF BRADY, GIGLIO, BAGLEY AND KYLES MATERIAL
The Government has complied and will continue to provide such information when such materials surface. See also Baer, J. Tr. 36:6 — 9.
F. MOTION TO REQUIRE THE DISCLOSURE OF THE IDENTITY OF ANY INFORMANTS AND/OR CO-CONSPIRATORS AND OPPORTUNITIES TO CONDUCT DEFENSE INTERVIEWS OF THE INDIVIDUALS
In accordance with United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990), "Fed.R.Crim.P. 16 does not require the Government to furnish the names and addresses of its witnesses" and, therefore, Defendants' motion for a witness list, at this time, is DENIED. As the trial gets closer, I am willing to here defense counsel again.
G. MOTION FOR LEAVE TO FILE FURTHER MOTIONS MOTION TO ADOPT JOIN MOTIONS OF CO-DEFENDANTS
Defendants' motion to join motions of Co-Defendants and for leave to file further motions is GRANTED. See Baer, J. Tr. 3:12 — 18 ("With respect to the joinder concept, that's fine with me. Each defendant may join in the other's motions, and in terms of making other motions in the future, that's all right with me [too], just so long as you are all on the same page with respect to when we go to trial, which I think is 4/11. So if you want any motions decided, you best make them a little before then.").