USA v. Landeros-lopez .

Decision Date09 June 2010
Docket NumberNo. CR 09-0576-PHX-DGC.,CR 09-0576-PHX-DGC.
Citation718 F.Supp.2d 1058
PartiesUNITED STATES of America, Plaintiff, v. Manuel LANDEROS-LOPEZ, et al., Defendants.
CourtU.S. District Court — District of Arizona

OPINION TEXT STARTS HERE

Ann Birmingham Scheel, US Attorneys Office, Phoenix, AZ, for Plaintiff.

Philip A. Seplow, Law Office of Philip A. Seplow, Phoenix, AZ, for Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendant Elisa Rojas-Cuadra has filed a motion to suppress evidence derived from a wiretap for failure to establish necessity. Dkt. # 145. The motion is fully briefed. Dkt. 182, 196. Several Defendants have joined in the motion. Dkt. 158, 164, 126, 185. The Court heard oral argument on May 26, 2010. Based on the arguments made by counsel for Defendants, the Court will construe this motion as a motion to suppress and for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Franks, 438 U.S. at 155-56, 98 S.Ct. 2674; U.S. v. Gonzalez, Inc., 412 F.3d 1102 (9th Cir.2005); U.S. v. Blackmon, 273 F.3d 1204 (9th Cir.2001); U.S. v. Carneiro, 861 F.2d 1171 (9th Cir.1988); U.S. v. Ippolito, 774 F.2d 1482 (9th Cir.1985). For reasons that follow, the Court will deny as moot the request for a Franks hearing and grant the motion to suppress.

I. Background.

In mid-2008, the government began investigating suspicious cash deposits and shipping patterns of several individuals who were suspected of trafficking illegal drugs. Dkt. # 145-2 at ¶¶ 16-18. The investigation, which was substantial and spanned more than six months, included use of the following investigative techniques: queries into the identity and history of suspected traffickers through the National Crime Information Center database, Phoenix Police Department arrest records, the Phoenix Police Department PACE system, social security records, Arizona driver's license records, Arizona Public Service records, and Arizona Department of Motor Vehicle records; interviews with Bank of America security officers who had notified investigators of suspicious transactions by the suspected traffickers; witness identification of photographs of the suspected traffickers; use of a confidential informant; substantial surveillance of the residence of several of the suspected traffickers; surveillance of facilities from which the suspected traffickers made shipments; examination of shipping records; issuance of administrative subpoenas to shipping companies; use of pen registers and toll records on the telephones of the suspected traffickers; use of a drug detection dog; and examination of a parcel pursuant to a search warrant. See Dkt. # 145-3 at 2-73. The investigation provided substantial evidence that Wayne Edward Vassel, otherwise known as “Harper,” Antwann Davon Holt, and others were engaged in the business of shipping marijuana through traditional mail and parcel services and collecting proceeds from their sales through the bank accounts of various individuals whose assistance they solicited.

After using these substantial investigative techniques, investigators applied for a wiretap of Harper's telephone on December 10, 2008. See Dkt. # 145-3 at 2-73. The affidavit filed in support of the wiretap (“the Harper affidavit”) was drafted by Special Agent Jeffrey P. Lehrmann and detailed the substantial investigative techniques used before seeking the wiretap. Id. District Judge Neil V. Wake granted the wiretap application the same day.

On December 11, 2008, while intercepting calls from Harper's telephone, investigators learned of the existence of an individual whom investigators called JUAN LAST NA[M]E UNKNOWN (LNU) (“Juan”). The intercepted calls suggested that Juan was a supplier of drugs for Harper. On December 22, 2008, just 11 days after learning of Juan, the government drafted an application to the Department of Justice (“DOJ”) seeking permission to wiretap a cellular telephone believed to be used by Juan in his drug trafficking activities. Juan's phone was identified in the affidavit as target telephone 3. The wiretap application was supported by a 53-page affidavit (“the Juan affidavit”) drafted by Agent Lehrmann. Dkt. # 145-2 at 2-53.

The Harper affidavit and Juan affidavit are very similar. The “facts and circumstances of the investigation” sections are nearly identical, except that the Juan affidavit discusses the call in which investigators learned of the existence of Juan, several calls in which Juan and Harper discussed drug transactions, and the investigators' use of trap-and-trace devices and pen registers on Juan's telephone. Dkt. # 145-2 at ¶¶ 16-124. Similarly, the “necessity” sections of the affidavits are nearly identical. The only substantial differences between the “necessity” sections of the two affidavits are that: (1) in the Juan affidavit, JUAN LNU replaced the names “HARPER and HOLT” 1 , and (2) in the Harper affidavit, there are additional paragraphs which contain detailed and case-specific explanations for why traditional investigative methods failed (or would fail) in producing information useful for the Harper investigation. 2

The Juan affidavit stated that the objectives of the wiretap were (1) to gather “evidence leading to the identification, indictment and conviction of all members of the JUAN LNU Drug Trafficking Organization, and others, including but not limited to the identities and roles of accomplices, aiders and abettors, co-conspirators and participants,” (2) to identify the “various methods employed” by members of the organization “to facilitate their drug distribution,” (3) to identify the locations and items used by the organization “in furtherance of their drug distribution activities,” (4) to identify all locations and methods used “to conceal” any drug-related proceeds or assets, and (5) to identify “transportation routes and methods of transportation used ... to transport controlled substances to and from the District of Arizona.” Dkt. # 145-2 at ¶ 9. After obtaining DOJ approval, investigators presented the Juan wiretap application to Judge Wake on January 22, 2009. Judge Wake approved the wiretap the same day. Dkt. # 145-5 at 2-8.

Between December 22, 2008 (when the application was sent to the DOJ for approval) and January 22, 2009 (when the wiretap was approved by Judge Wake), the government did not update the Juan affidavit. During this time, however, government investigators obtained substantial additional information about Juan. By January 22, 2009, (1) agents strongly suspected that Juan was an individual named Manual Landeros-Lopez, (2) Landeros-Lopez had been linked to a particular residence by his driver's license, (3) agents had started surveillance of the residence and had identified relatives of Landeros-Lopez there, and (4) a tracking device had located Juan's telephone-target telephone 3 that was the subject of the requested wiretap-at the residence in the early morning hours, suggesting that Juan (Landeros-Lopez) was at the house and likely lived there. Dkt. # 181 at 6-7. These facts were not disclosed to Judge Wake in the wiretap application or the supporting affidavit. At oral argument, the government conceded for purposes of this motion that these omissions were reckless.

Through the wiretap of target telephone 3, the government intercepted numerous conversations between Juan and other Defendants. Defendants now seek suppression of all evidence obtained through the wiretap.

II. Legal Standard.

Congress authorized the government's use of wiretaps in the Federal Wiretap Act. The Act includes “elaborate procedural requirements for the initiation of wiretaps[.] U.S. v. King, 478 F.2d 494, 503 (9th Cir.1973). Before a wiretap can be issued, a judge must find that “there is probable cause for belief that an individual is committing, has committed, or is about to commit” certain offenses.

18 U.S.C. § 2518(3)(a). The government must also show that the wiretap is “necessary.” Necessity exists under the Act if traditional investigative procedures (1) have been tried and failed, (2) reasonably appear unlikely to succeed if tried, or (3) are too dangerous to try. Gonzalez, Inc., 412 F.3d at 1112; 18 U.S.C. § 2518(3)(c).

If a defendant challenges the affidavit used to secure a Title III wiretap, the defendant is entitled to an evidentiary hearing if she “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the [wiretap] affidavit, and if the allegedly false statement is necessary to the finding of probable cause” or necessity. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674 (probable cause); Ippolito, 774 F.2d at 1485 (necessity). The Supreme Court has made clear that there is “a presumption of validity with respect to the affidavit.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. As a result, [t]o justify a hearing, a defendant must make specific allegations, allege a deliberate falsehood or reckless disregard for the truth” or a deliberate or reckless omission of facts that tend to mislead, and “accompany such a claim with a detailed offer of proof.” U.S. v. Craighead, 539 F.3d 1073, 1080 (9th Cir.2008); U.S. v. Stanert, 762 F.2d 775, 781 (9th Cir.1985).

Even after making a preliminary showing, a defendant is not entitled to a hearing if, after excising the allegedly false information from the affidavit and including the alleged omissions, “there remains sufficient content in the [wiretap] affidavit to support a finding of probable cause” or necessity. Franks, 438 U.S. at 172, 98 S.Ct. 2674. If, “at [the] hearing the allegation of ... reckless disregard is established by the defendant ... and, with the affidavit's false material set to one side” and the false omissions included, “the affidavit's remaining content is insufficient to establish probable cause” or necessity, the wiretap “must be voided and the fruits of the search excluded to the same extent as if probable cause”...

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    • United States
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    • June 13, 2011
    ...v. Carneiro, 861 F.2d 1171 (9th Cir.1988), United States v. Santora, 600 F.2d 1317 (9th Cir.1979), and United States v. Landeros–Lopez, 718 F.Supp.2d 1058 (D.Ariz.2010). [807 F.Supp.2d 1245] [ Id.]. Although the court believes two of these cases can be distinguished because the underlying p......
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    ...where the Government sought a wiretap after only "limited (but undisclosed) physical surveillance." UnitedStates v. Landeros-Lopez, 718 F. Supp. 2d 1058, 1065-66 (D. Ariz. 2010); see United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005). The Government's surveillance efforts ......
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    ...U.S. v. Ventresca, 380 U.S. 102, 109 (1965)). 45. 11 Del. C. § 2407(a)(3). 46. 11 Del. C. § 2407(c)(1)(c); U.S. v. Landeros-Lopez, 718 F. Supp. 2d 1058, 1063 (D. Ariz. 2010). 47. Landeros-Lopez, 718 F. Supp. 2d at 1065 (citing U.S. v. Blackmon, 273 F.3d 1204, 1210 (9th Cir. 2001)). 48. Id. ......
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