U.S. v. Brone

• Decision Date: 02 July 1986
• Docket Number: No. 85-5102,85-5102
• Citation: 792 F.2d 1504
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Terry BRONE, Holly Ann Coats, Thomas Joseph Mason, Donald George Brown, Paul Francis Barnes, Richard Mohlenbruck, Louis Vaith, Leonard Barella, Robert John Ansel, Daniel Frederick Coates, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1504

792 F.2d 1504

UNITED STATES of America, Plaintiff-Appellant, v. Terry BRONE, Holly Ann Coats, Thomas Joseph Mason, Donald George Brown, Paul Francis Barnes, Richard Mohlenbruck Louis Vaith, Leonard Barella, Robert John Ansel, Daniel Frederick Coates, Defendants-Appellees.

No. 85-5102.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 7, 1986.

Decided July 2, 1986.

Sara Criscitelli, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Roger J. Rosen, David M. Dudley, Los Angeles, Cal., Joel Levine, Los Angeles, Cal., Philip Deitch, Los Angeles, Cal., Harland W. Braun, John M. Powers, Los Angeles, Cal., Terry J. Amdur, Pasadena, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, SKOPIL, and ALARCON, Circuit Judges.

KENNEDY, Circuit Judge:

This case involves an investigation into alleged drug trafficking by appellee Terry Brone and other members of a California motorcycle gang called the Vagos Motorcycle Club. The investigation commenced in Rochester, New York, and continued (or recommenced) in Los Angeles, California, where the government obtained authority to wiretap two telephone numbers. The government appeals from a district court order suppressing all evidence obtained from the wiretap of Brone's telephone, an extension of that wiretap, and a spinoff wiretap of codefendant Thomas Mason's telephone. The district court suppressed the evidence because the affidavit submitted to obtain authority for the initial wiretap did not comply with the necessity requirement of 18 U.S.C. Sec. 2518(1)(c) and (3)(c). Specifically, the district court found that the Rochester and Los Angeles investigations were two separate investigations and that the government relied too heavily on its difficulties in the Rochester investigation when it claimed that normal investigative techniques in California would be ineffective. We disagree with the district court's characterization of the investigations as separate inquiries. We find the affidavit in support of the initial wiretap to be sufficient to authorize the first wiretap against defendant Brone, but as to the extension of that wiretap and the Mason wiretap, we remand to the district court for further proceedings.

Over the course of nine months in Rochester, agents of the FBI and DEA interviewed confidential informants, conducted physical surveillance of Brone, and installed a pen register on his home telephone number. They also monitored telephone conversations between Brone and an undercover DEA agent, whose cover was apparently so believable that she was able to make several direct purchases of amphetamines from Brone.

The investigation then moved to Los Angeles for several more months. The Los Angeles investigation consisted of interviews with informants and local police officers, an analysis of telephone toll records, and the use of a pen register. In addition, the government applied for and obtained a district court order authorizing the electronic interception for thirty days of all calls to and from a telephone number in Los Angeles subscribed to by Brone and codefendant Holly Ann Coats. Pursuant to 18 U.S.C. Sec. 2518, an FBI agent submitted a forty-five-page affidavit reciting the investigative methods that had been tried and stating that they were insufficient to enable the agents to uncover the source of Brone's narcotics or the modus operandi of the alleged conspiracy.

A month later, another district judge extended the wiretap order for thirty days and authorized the further interception of calls to and from a number subscribed to by codefendant Thomas Mason. Based on the information gathered from the wiretaps, search warrants were ultimately issued, leading to the arrest of the defendants and the issuance of a twenty-three count indictment against them, charging various drug-related offenses.

An application for a court-authorized wiretap must include "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. Sec. 2518(1)(c), and facts indicating that "normal investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous," id. Sec. 2518(3)(c). This necessity requirement means that the affidavit must set out a factual background that shows that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case. See United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir.1985); United States v. Brown, 761 F.2d 1272, 1275-76 (9th Cir.1985). As a general rule, the wiretap should not be the initial step in the investigation, United States v. Bailey, 607 F.2d 237, 241 (9th Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980), but law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap. United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir.1977).

The judge authorizing a wiretap has considerable discretion. United States v. Martin, 599 F.2d 880, 886-87 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 2408, 60 L.Ed.2d 1067 (1979). Accordingly, the standard of review of the decision on appeal is deferential. Brown, 761 F.2d at 1275. We review de novo whether a full and complete statement of the facts was submitted in compliance with 18 U.S.C. Sec. 2518(1)(c), but we review the issuing judge's decision that the wiretaps were necessary for an abuse of discretion. Brown, 761 F.2d at 1275.

The issuing court did not abuse its discretion in finding that the affidavit in support of the initial wiretap met the necessity requirement and in authorizing the wiretap. The forty-five-page affidavit related the results of the New York and California investigations and concluded that there were no investigative techniques other than wiretapping that would allow the government to develop an effective case against those involved in the conspiracy. The New York investigation indicated that Brone and his cohorts were wary, and this was highly relevant to the...