U.S. v. Garcia, 98-1334

• Decision Date: 16 November 2000
• Docket Number: No. 98-1334,98-1334
• Citation: 232 F.3d 1309
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHNNY RAY GARCIA, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1309

232 F.3d 1309 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHNNY RAY GARCIA, Defendant-Appellant.

No. 98-1334

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 16, 2000

Appeal from the United States District Court for the District of Colorado. (D.C. No. 97-CR-197-D) [Copyrighted Material Omitted] Brian K. Holland, Holland, Kaplan & Pagliuca, P.C., Denver, Colorado for Defendant-Appellant.

John M. Hutchins, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, and Stephanie P. Podolak, Assistant United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before EBEL,PORFILIO, and MAGILL,^* Circuit Judges.

EBEL, Circuit Judge.

Appellant Johnny Ray Garcia appeals the district court's denial of his motion to suppress evidence obtained through two court-ordered wiretaps. Specifically, Appellant contends the district court erred in finding that the wiretaps were necessary and were appropriately minimized as required by 18 U.S.C. 2518(1)(c), (3)(c), (5) (1994 & Supp. 1999). For the reasons stated below, we AFFIRM.

BACKGROUND

In 1996, members of the FBI's Metro Gang Task Force ("MGTF") were investigating suspected gang-related drug activity in Denver, Colorado. Specifically, MGTF was investigating members of the West Side Ballerz Posse ("WSBP"), whom it suspected were selling controlled substances and engaging in gang-related violence. As part of this investigation, a series of wiretaps were authorized in late 1996 against suspected members of this drug conspiracy. On March 12, 1997, United States District Judge John L. Kane authorized a wiretap against a telephone used by Michael Vasquez. It was suspected that Vasquez was a member of the WSBP and involved in illegal drug dealing. This wiretap (hereinafter the "Vasquez wiretap") revealed that Vasquez was engaging in drug transactions with John Chavez, Jr. ("Chavez"), the alleged leader of the WSBP.

Soon thereafter, the government filed an application for wiretaps against two telephones believed to be used by Chavez in his drug dealing. "Subject Telephone One" was a cellular telephone using the number (303) 887-5533. "Subject Telephone Two" was a landline telephone using the number (303) 255-2064. In support of the application, the government submitted a lengthy affidavit from FBI Special Agent Kurt A. Remus detailing the nature of the investigation to date and the need for the requested wiretaps. Judge Kane authorized the wiretaps (hereinafter the "Chavez wiretaps") on April 8, 1997.

During the course of the Chavez wiretaps, law enforcement officers collected incriminating information against Appellant. Appellant moved to suppress the evidence gathered via the Chavez wiretap. The district court held a hearing on the matter and denied Appellant's motion to suppress. Appellant subsequently pleaded guilty to Use of a Communications Facility, a Telephone, to Facilitate Conspiracy to Possess with Intent to Distribute Methamphetamine in violation of 21 U.S.C. 843(b) & (d), 841(a)(1), 846. Pursuant to the plea agreement, Appellant reserved the right to challenge the district court's denial of his motion to suppress, which he now appeals.

DISCUSSION

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, lays out a strict framework for authorizing electronic eavesdropping by law enforcement officials. See 18 U.S.C. 2510-2522 (1994 & Supp. 1996). First, a law enforcement officer must obtain approval from the Attorney General of the United States or her designee to seek the appropriate order from a federal judge. See 18 U.S.C. 2516(1) (Supp. 1999). Second, the officer must submit to the judge a written application for the wiretap. See 18 U.S.C. 2518(1) (Supp. 1999). Third, the judge must issue an ex parte order granting the application and making specific supporting findings. See 18 U.S.C. 2518(3); United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir. 1997).

One of the findings a judge must make when authorizing a wiretap is 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) (1994). In our cases, this is known as the "necessity" requirement. See Castillo-Garcia, 117 F.3d at 1185. The statute additionally requires that "[e]very [wiretap] order . . . shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. 2518(5) (Supp. 1999). It is thus required that law enforcement agents conducting the wiretap intercepts "minimize" the intrusion into otherwise lawful communications. In the present case, Appellant contests both the necessity and minimization of the wiretaps leading to his arrest and subsequent conviction.

"On appeal from a motion to suppress evidence obtained pursuant to a wiretap, we accept the district court's factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party." Castillo-Garcia, 117 F.3d at 1186. We note that there is a conflict of authority in this circuit regarding the appropriate standard of review to apply to a district court's determination that a wiretap application satisfies the necessity requirement. Compare Castillo-Garcia, 117 F.3d at 1186 ("The question of whether the government demonstrated sufficient 'necessity' under 18 U.S.C. 2518(1)(c) (1994) to support the issuance of a wiretapping order is a question of law which we review de novo."), with United States v. Armendariz, 922 F.2d 602, 608 (10th Cir. 1990) ("[W]e review the conclusion that the wiretap was necessary in each situation for an abuse of discretion.") (alterations omitted). It is not necessary to resolve this issue in the present case, however, because we would reach the same result under either standard of review.

I. Necessity

In Castillo-Garcia, we laid out the criteria for determining whether the necessity requirement was satisfied:

To obtain an electronic surveillance order, the government must explain fully in its application what investigative techniques have been tried against the target of the wiretap. 18 U.S.C. 2518(1)(c), 2518(3)(c) (1994). If any of the four categories of normal investigative techniques referred to in the legislative history of Title III have not been tried, the government must explain with particularity why each of such untried techniques would be either unsuccessful or too dangerous. Those investigative procedures are: (1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants. In addition, if other normal investigative techniques such as pen registers or trap and trace devices have not been tried, a similar explanation must be offered as to why they also would be unsuccessful or too dangerous.

Castillo-Garcia, 117 F.3d at 1187. We further stated that "it is not necessary for the government formally to address each category with an explanation . . . if it is clear, under the government's recitation of the facts of the case, that requiring the government to attempt the unexhausted and unexplained normal investigative techniques would be unreasonable." Id. at 1188. This approach is consistent with our adherence "to Congress's intention that the government's demonstration of the necessity for instituting a wiretap be evaluated in a practical and commonsense fashion." Id. at 1187 n.5.

With these standards in mind, we analyze the applications for the wiretaps at issue in this case.

(1) Visual and Aural Surveillance

The affidavit supporting the wiretaps indicated that some surveillance had been attempted, but that further surveillance would be difficult, would potentially compromise the investigation, and would likely be ineffective at identifying Chavez's drug suppliers. The affidavit stated that Officer Adam Fuller of the Adams County Sheriff's Office had conducted physical surveillance of the WSBP for three years. The affidavit further stated that Officer Fuller was able to identify many members of the WSBP through surveillance, but that "many of the known residences and businesses connected to the WSBP are extremely difficult to conduct surveillance on." Officer Fuller also indicated to the affiant that "it is not possible to determine the full nature and scope of the . . . offenses by the use of physical surveillance." The affiant concluded that although "[s]urveillance has been used to stop and identify possible unnamed co-conspirators . . . continued use of this tactic could compromise the investigation."

In light of these statements, we conclude that the officers had attempted to investigate the WSBP and Chavez through traditional surveillance techniques, but that further reliance on this tactic would likely be unsuccessful. As described in the supporting affidavit, it was clear that Chavez conducted a great deal of his drug transactions via telephone, thus placing limits on the effectiveness of less intrusive methods of investigation. While use of telephones to conduct criminal activity does not necessarily warrant a wiretap, in this case evidence against the upper echelon of the WSBP and against Chavez's suppliers could not have reasonably been obtained via traditional forms of surveillance.

(2) Questioning and Interrogation of Witnesses and Participants

The supporting affidavit indicates that witnesses and participants to the suspected drug transactions were interviewed prior to seeking the Chavez wiretaps, but that further use of this investigative technique would not be effective to reveal the full...