U.S. v. Castillo-Garcia

• Decision Date: 30 June 1997
• Docket Number: CASTILLO-GARCIA,No. 96-1259,96-1259
• Citation: 117 F.3d 1179
• Parties: 97 CJ C.A.R. 1125 UNITED STATES of America, Plaintiff-Appellant, v. Ceferino, also known as Pini, Jesus Saul Bujanda-Ibarra, Ismael Armendariz-Amaya, Victor Julia Avila, Jr., Larry Pino, Apolonio Portillo-Rodriguez, Alonso Moreno, Thomas McCulloch, Alberto Avila, also known as Jesus Javalera, Jack Girard, also known as Jacko, Joanne Ayers, and Jaime Olivas-Sanchez, Defendants-Appellees, and Jeffery Samuel Pino, Ray Gutierrez, also known as Guero, Doug Tierney, John Sheridan, and Matt Hilton, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1179

117 F.3d 1179

97 CJ C.A.R. 1125

UNITED STATES of America, Plaintiff-Appellant, v. Ceferino CASTILLO-GARCIA, also known as Pini, Jesus Saul Bujanda-Ibarra, Ismael Armendariz-Amaya, Victor Julia Avila Jr., Larry Pino, Apolonio Portillo-Rodriguez, Alonso Moreno Thomas McCulloch, Alberto Avila, also known as Jesus Javalera, Jack Girard, also known as Jacko, Joanne Ayers and Jaime Olivas-Sanchez, Defendants-Appellees and Jeffery Samuel Pino, Ray Gutierrez, also known as Guero, Doug Tierney, John Sheridan, and Matt Hilton, Defendants.

No. 96-1259.

United States Court of Appeals, Tenth Circuit.

Argued March 18, 1997.

Decided June 30, 1997.

John M. Hutchins, Assistant United States Attorney, Denver, CO, argued the cause, for appellant. Henry L. Solano, United States Attorney, Denver, CO, and David M. Gaouette, Assistant United States Attorney, Denver, CO, assisted on the brief.

Virginia Grady, Assistant Federal Public Defender, Denver, CO, argued the cause, for appellee Ismael Armendariz-Amaya. Michael G. Katz, Federal Public Defender, Denver, CO, assisted on the brief.

Harvey A. Steinberg, Denver, CO, argued the cause, for appellee Jesus Saul Bujanda-Ibarra. Susan Fuller, Denver, CO, assisted on the brief.

Before PORFILIO, EBEL, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

After obtaining and executing five separate but related telephone wiretapping orders, the government secured evidence sufficient to indict eighteen members of an alleged drug conspiracy. In a pre-trial order, however, the district court suppressed all evidence obtained pursuant to four of the five wiretapping orders, on the grounds that the government had not demonstrated sufficient "necessity" for those wiretaps. Pursuant to 18 U.S.C. § 2518(10)(b) (1994), the government now appeals the district court's suppression order. We exercise jurisdiction under 18 U.S.C. § 3731 (1994), affirm in part, and reverse in part.

BACKGROUND

During the summer of 1994, Denver Police detective Stephen F. Barnhill (working as a special federal officer "deputized" by the FBI) was told by a confidential informant that Rosario Portillo-Rodriguez ¹ was running a large cocaine distribution operation out of two houses located on Raritan Street in Denver. United States v. Castillo-Garcia, 920 F.Supp. 1537, 1541 (D.Colo.1996). The confidential informant claimed to have obtained 22 kilograms (almost 50 pounds) of cocaine from Rosario Portillo-Rodriguez over the past year. Detective Barnhill impounded 1.25 of those kilograms.

Based on that information, and after a month of collecting additional evidence against Rosario Portillo-Rodriguez, Detective Barnhill applied for a warrant to wiretap three phone numbers assigned to Rosario Portillo-Rodriguez's home telephone, cellular telephone, and pager. The application noted certain difficulties which had thwarted the government's attempts to conduct visual surveillance of Rosario Portillo-Rodriguez and the Raritan Street houses. Specifically, the application alleged that one of the Raritan Street houses was set too far back from the street to be observed, that the residential nature of the Raritan Street neighborhood rendered surveillance officers conspicuous, and that it was difficult to tail Rosario Portillo-Rodriguez because he owned and drove nine different vehicles and frequently went to construction sites located in remote locations with limited traffic access. In addition, the application documented a fruitless year-long attempt by a confidential informant to determine the ultimate source of Rosario Portillo-Rodriguez's drugs. Finally, the application enumerated certain reasons, discussed Part III, infra, why other normal investigative techniques would be unlikely to succeed if tried. On August 19, 1994, United States District Judge Sparr issued a warrant authorizing interceptions of communications from these three phone numbers [the "First Wiretap"]. The First Wiretap began immediately, and terminated on September 17, 1994.

During the period from August 19, 1994, to September 17, 1994, by eavesdropping on calls to and from Rosario Portillo-Rodriguez's home telephone, cellular telephone, and pager, the FBI learned the identities of several other suspected members of Rosario Portillo-Rodriguez's suspected cocaine distribution operation. Equipped with this information, the government began visually surveilling at least one of Rosario Portillo-Rodriguez's suspected drug suppliers: defendant-appellee Ceferino Castillo-Garcia. On September 5, 1994, however, Ceferino Castillo-Garcia phoned Rosario Portillo-Rodriguez and told him that he "saw them watching."

Subsequently, on September 22, 1994, the government applied for a warrant to wiretap two more telephone numbers: one subscribed to in the name of Fidela Armendariz, and one subscribed to in the name of Anita Pino. Neither of these two individuals, however, were targets of the government's investigation. Rather, the government sought these wiretaps because Ceferino Castillo-Garcia had on several occasions placed drug-related "business" calls to Rosario Portillo-Rodriguez from each of the two targeted phone numbers. ² In response to this application, Judge Sparr issued Warrant 94-WT-7, authorizing electronic eavesdropping on phone numbers (303) 431-4345 and (303) 292-1131 [the "Second Wiretap"].

Also on September 22, 1994, the government applied for a warrant to wiretap two phone numbers assigned to digital paging devices. One pager was subscribed to in the name of Ruben Martinez; the other in the name of Raul Ferrnandez. Once again, neither of these two individuals were the targets of the government's investigation. Rather, the government sought to wiretap the "Ruben Martinez" pager because it overheard Ceferino Castillo-Garcia (phoning from Juarez, Mexico) instruct Rosario Portillo-Rodriguez to "take down the 'beeper number' in case an opportunity arises," and then provide the pager number assigned to Ruben Martinez. The government understood this instruction to mean that Rosario Portillo-Rodriguez should page Ceferino Castillo-Garcia at Ruben Martinez's pager number if Rosario Portillo-Rodriguez wanted any more cocaine or marijuana while Ceferino Castillo-Garcia remained in Mexico. The government sought to wiretap the "Raul Ferrnandez" pager because, on several occasions, Rosario Portillo-Rodriguez left messages on that pager requesting return phone calls. The government suspected that Rosario Portillo-Rodriguez and Jaime Olivas-Sanchez (a suspected intermediary between Rosario Portillo-Rodriguez and other sources of cocaine and marijuana) were using the "Raul Ferrnandez" pager. In response to this application, Judge Sparr issued Warrant 94-WT-8, authorizing electronic eavesdropping on phone numbers (303) 251-1594 and (303) 609-1931 [the "Third Wiretap"].

On October 7, 1994, the government applied for a warrant to wiretap Ceferino Castillo-Garcia's- "Garcia's home telephone number. In the application, the government presented evidence that both Ceferino Castillo-Garcia and Ismael Armendariz-Amaya had made drug-related "business" calls from this number. In response to this application, Judge Sparr issued Warrant 94-WT-10, authorizing electronic eavesdropping on phone number (303) 477-2721 [the "Fourth Wiretap"].

Finally, on October 21, 1994, the government applied for a warrant to wiretap a telephone number subscribed to in the name of "M. Olivas." In the application, the government presented evidence that Jaime Olivas-Sanchez had, on several occasions, phoned Rosario Portillo-Rodriguez from the "M. Olivas" phone number to discuss several drug purchases which Jaime Olivas-Sanchez was attempting to broker for Rosario Portillo-Rodriguez. In response to this application, Judge Sparr issued Warrant 94-WT-11, authorizing electronic eavesdropping on phone number (303) 937-1365 [the "Fifth Wiretap"].

During September and October, 1994, the "Second through Fifth Wiretaps" were all executed. Castillo-Garcia, 920 F.Supp. at 1542-43. All wiretapping was completed by October 30, 1994, by which time about 3500 telephone conversations had been intercepted. United States v. Castillo-Garcia, No. 94-CR371, slip op. at 2 (D.Colo. May 23, 1996) (unpublished order & mem.).

Based largely on information obtained through the five wiretaps, indictments were brought against eighteen named defendants on eight counts. Castillo-Garcia, 920 F.Supp. at 1540. A group of these defendants--not including original target Rosario Portillo-Rodriguez--moved to suppress the wiretap evidence, on the grounds that the government had not demonstrated the "necessity" for the wiretaps required by 18 U.S.C. § 2518(1)(c) (1994). On March 25, 1996, U.S. District Judge Nottingham, who had not issued any of the warrants, granted the defendants' motion to suppress the evidence obtained pursuant to the Second through Fifth Wiretaps. Id. at 1548-52. Judge Nottingham denied the motion to suppress evidence obtained pursuant to the First Wiretap. Id. at 1547-48.

The government then moved for reconsideration, arguing that even if there was no "necessity" for the Second through Fifth Wiretaps, the evidence obtained from those wiretaps should not be suppressed because, in executing the wiretaps, the FBI relied in good faith on a facially valid warrant issued by U.S. District Judge Sparr. See United States v. Castillo-Garcia, No. 94-CR-371, slip op. at 4, 5 (D.Colo. May 23, 1996) (unpublished order & mem.).

Judge Nottingham denied the government's motion for reconsideration, noting that the government had not raised the "good faith exception" issue in the initial proceeding. United States v. Castillo-Garcia, No. 94-CR-371, slip op. at 5-8 (D.Colo. May 23, 1996) (unpublished order & mem.). In dicta, however, Judge Nottingham opined both that the "good faith exception" to the exclusionary rule does not apply to statutory wiretap situations, id. at 8-13, and that even if it did, the FBI did not...