U.S. v. Garcia-Villalba

• Decision Date: 02 November 2009
• Docket Number: No. 05-30506.,05-30506.
• Citation: 585 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando GARCIA-VILLALBA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

585 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Armando GARCIA-VILLALBA, Defendant-Appellant.

No. 05-30506.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2009.

Filed November 2, 2009.

Brooks Holland, Gonzaga University School of Law, Spokane, WA, argued the cause for the defendant-appellant and filed the briefs.

Michael S. Morgan, Assistant United States Attorney, Seattle, WA, argued the cause for the plaintiff-appellee and filed the brief. Jeffrey C. Sullivan, United States Attorney, was on the brief.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding. D.C. CR-04-00301-012-MJP.

Before: DIARMUID F. O'SCANNLAIN, ANDREW J. KLEINFELD, and MARSHA S. BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We venture into the world of organized crime to evaluate the legality of a wiretap and a search of a stash house for illegal drugs.

I

A

This case is about a wiretap that led to the takedown of a sophisticated drug-trafficking organization. Run by members of the Garcia-Villalba family, the drug ring operated in rural Washington. Couriers made drug runs by car to Arizona, where they picked up narcotics that had been smuggled into the United States from Mexico. The vehicles contained secret "stash compartments" designed to ferry the drugs back to Washington undetected. There, the couriers were met by higher-ups in the organization, who unloaded and distributed the drugs. Armando Garcia-Villalba ("Armando") was one such distributor.

In 2003, the Drug Enforcement Agency ("DEA") began an investigation which Paul Hackett, a Spanish-speaking DEA agent, spearheaded by going undercover. Using a confidential informant, Hackett managed to get introduced to Alejandro Delgadillo-Uribe, apparently a front-line dealer. Over the following months, Hackett became a reliable customer. He purchased significant quantities of methamphetamine on five separate occasions. Later, he bought heroin and cocaine.

During the business relationship, Hackett obtained Delgadillo-Uribe's cell phone number. That number, and two others allegedly used by Delgadillo-Uribe, became the focus of the investigation. In August 2003, when Hackett had been dealing with Delgadillo for about eight months, a magistrate judge authorized a pen register and trap-and-trace device to be used on all three phone numbers. A pen register and trap-and-trace device are used to record the numbers dialed from a particular telephone number, but do not allow the listener to overhear the contents of the communication. The initial authorization expired in October 2003, but two additional magistrate judges extended it until April 2004.

Using information gleaned from the pen register and trap-and-trace device, Hackett identified several of Delgadillo-Uribe's associates. There, however, the investigation appeared to stall. In March 2004, the DEA sought authorization to wiretap one of Delgadillo-Uribe's phones. In support of the wiretap application, Agent Hackett submitted an affidavit to United States District Judge Robert Lasnik. Hackett's affidavit cited the limits of the information provided by physical and aerial surveillance, the pen register, and confidential informants. The affidavit also explained why alternative investigatory techniques, such as trash searches, search warrants, grand jury subpoenas, and interviews, were rejected as impractical. Judge Lasnik granted the application and authorized the wiretap, which we will refer to as the "TCT1" wiretap.

The TCT1 wiretap, which was in effect for two months, intercepted over 2,700 calls. As the investigation continued to unfold, the DEA sought and obtained another wiretap on a phone allegedly used by a man named Anthony Tanguma (the "TCT2" wiretap). After a confidential informant linked Delgadillo-Uribe to another man named Andres Ayon-Corrales, the DEA sought and obtained a third wiretap (the "TCT3" wiretap) on a cell phone allegedly used by Ayon-Corrales. The toll records for Ayon-Corrales' phones, in turn, revealed a fourth cell phone that was connected to Cecilio Garcia-Villalba ("Cecilio"), a brother of the defendant in this case.

Sensing they were about to break the conspiracy wide open, the DEA sought authorization for a fourth wiretap on Cecilio's phone (the "TCT4" wiretap). In support of the TCT4 application, Hackett submitted another affidavit, spanning thirty-one pages, which described the status of the investigation and explained the need for a wiretap. The district court approved the TCT4 wiretap, which generated information linking Armando to narcotics trafficking. The legality of the TCT4 wiretap is the central issue in this appeal.

Based on information obtained from the four wiretaps, Agent Hackett sought a warrant to search four separate structures that he believed were being used as stash houses. One of the four structures was a residence located on Dunbar Road in Mount Vernon, Washington. Hackett's affidavit in support of the warrant application alleged that the Dunbar Road residence, called the "choza," was a key "stash house" for narcotics and money. A magistrate judge concluded that the affidavit established probable cause that narcotics would be found at the Dunbar Road residence and signed the warrant.

Agents executed the search warrants in July 2004. Inside the "choza," they came upon a safe containing heroin, cocaine, and methamphetamine. Agents also found digital and gram scales, sandwich bags, magazines for firearms, ammunition, drug ledgers, wire transfer receipts, bills, and receipts.

Following the searches, agents arrested members of the Garcia-Villalba organization, including Armando.

B

A grand jury in the Western District of Washington indicted Armando on forty-six counts. He was charged with conspiracy to distribute methamphetamine, heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. He was also charged with possession of heroin, cocaine and methamphetamine with intent to distribute (21 U.S.C. § 841(a)(1), (b)(1)(A)), use of a communication facility to facilitate a drug offense (21 U.S.C. § 843(b)), and distribution of cocaine.

Prior to trial, Armando moved to suppress the evidence obtained from the TCT4 wiretap and the contraband recovered from the Dunbar Road residence. After an evidentiary hearing, the district court denied the motion to suppress the wiretap evidence. It also concluded that the search of the "choza" was not supported by probable cause, but nevertheless denied the motion to suppress because the officers relied in good faith on the search warrant. After a jury trial, Armando was convicted and sentenced to the mandatory minimum of 120 months in prison followed by five years of supervised release.

Armando's original appellate counsel filed an Anders brief, asserting that no meritorious issues were presented on appeal. Counsel also moved to withdraw. A motions panel of our court granted the motion to withdraw, but struck the Anders brief, identified arguable issues, and appointed new counsel. Armando's new appellate counsel filed this timely appeal.¹

II

On appeal, Armando takes no issue with anything that occurred during the trial. Rather, he challenges the denial of his pretrial motions to suppress. In particular, he claims that the government did not adequately demonstrate necessity for the wiretap. He also insists that the search of the Dunbar Road residence was not supported by probable cause and that the officers did not rely in good faith on the magistrate's approval of the warrant. We address these contentions in turn.

A

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, allows law enforcement agencies to conduct electronic surveillance of suspected criminal activities. This authority is not a blank check; aside from demonstrating probable cause, see 18 U.S.C. § 2518(3)(a), "the government must prove necessity" before it resorts to a wiretap. United States v. Gonzalez, Inc., 412 F.3d 1102, 1110 (9th Cir.2005). "The purpose of the necessity requirement is to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir.1988).

To this end, a wiretap application must contain, among other things, "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). The judge may grant the application if he determines, among other requirements, 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." Id. § 2518(3)(c).

We have held "that the wiretap should not ordinarily be the initial step in the investigation, but that law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap." United States v. McGuire, 307 F.3d 1192, 1196-97 (9th Cir.2002) (footnote omitted). 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." Id. at 1196. "The necessity for the wiretap is evaluated in light of the government's need not merely to collect some evidence, but to develop an effective case against those involved in the conspiracy." United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006) (internal quotation marks and citation omitted). An "effective case" means "evidence of guilt beyond a reasonable doubt, not merely evidence sufficient to secure an indictment." McGuire, 307 F.3d at 1198 (internal quotation marks omitted).

Our review takes place in two related steps. First, we must "review de novo whether the application for...