U.S. v. Santana, 02-2697.

• Decision Date: 03 September 2003
• Docket Number: No. 02-2697.,02-2697.
• Citation: 342 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. Nelson SANTANA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

342 F.3d 60

UNITED STATES of America, Appellee, v. Nelson SANTANA, Defendant, Appellant.

No. 02-2697.

United States Court of Appeals, First Circuit.

Heard July 29, 2003.

Decided September 3, 2003.

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Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and BALDOCK,^* Senior Circuit Judge.

Bjorn Lange, Assistant Federal Public Defender, Federal Defender Office, District of New Hampshire, for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, and Samantha M. Jewett, Legal Intern, were on brief, for appellee.

TORRUELLA, Circuit Judge.

Nelson Santana was convicted of conspiracy to distribute and to possess with intent to distribute between one-half and five kilograms of cocaine. After considering Santana's challenges, which were ably briefed and well argued, we affirm.

I. Background Facts

In 1998, local, state, and federal law enforcement agencies began an investigation of suspected cocaine and marijuana traffickers in southern New Hampshire. They debriefed informants, used undercover agents to attempt to purchase drugs, conducted physical surveillance, and reviewed telephone records. In addition, beginning February 22, 2001, law enforcement agencies conducted court authorized wire taps on four telephone numbers, including a cellular telephone belonging to Alfred Nickerson.

Telephone calls between Nickerson and Santana were recorded on May 7 and May 9, 2001. Based on those calls and other information gathered during their investigation, law enforcement agents believed Santana regularly supplied cocaine to Nickerson and that a drug transfer was going to take place May 9.

At about 10:30 a.m. on May 9, an agent with the Drug Enforcement Administration ("DEA") saw Santana enter the apartment complex at 210 Brook Village Road in Nashua, New Hampshire, where Santana's ex-wife lives. Santana left about 1:00 p.m., accompanied by an unidentified male. Santana spoke briefly and shook hands with this man before driving away.

Also on May 9, investigators were watching Nickerson. Leaving his home at about 9:05 a.m., he stopped at several Nashua businesses including R.J. Motor Sports. This stop is significant because agents watched Nickerson leave R.J. Motor Sports May 7 with a package. At trial, the government alleged that Nickerson obtained marijuana from Roger Paget, the owner of R.J. Motor Sports. The defense argued at trial that Nickerson's cocaine also came from Paget.

On May 9, Nickerson left R.J. Motor Sports empty-handed. He then drove to the Brook Village Road apartment complex, arriving at approximately 12:30 p.m. and leaving (alone) fifteen minutes later. The surveilling officer saw him enter the complex, but could not identify which apartment, if any, he entered.

Believing that Nickerson and Santana made a drug transaction inside the Brook Village Road complex, investigators ordered state troopers to stop Nickerson's car. Nickerson was "clearly nervous"; the trooper ordered him out of the car to ensure her safety. She then found what she believed to be marijuana in Nickerson's car and arrested him. An inventory search of Nickerson's car yielded approximately eight ounces of cocaine, four ounces of marijuana, a digital scale, an address book, and more than one thousand dollars. After his arrest, Nickerson agreed to become a government informant.

A grand jury indicted Santana on April 10, 2002, and he was arrested on April 11, 2002 and charged with conspiracy to distribute more than five kilograms of cocaine between 1997 and May 2001. At Santana's trial, Nickerson testified that Santana had been his long-time supplier of cocaine and that he purchased cocaine from Santana up to and including the day of Nickerson's arrest — May 9, 2001. Nickerson said that he and Santana had little social interaction and mainly communicated about drugs. Nickerson also testified that he used and sold marijuana, which he obtained from Paget, the owner of R.J. Motor Sports.

On September 24, 2002, a jury found Santana guilty of conspiring to possess and possessing with intent to distribute between one-half and five kilograms of cocaine. He was sentenced to 121 months imprisonment to be followed by four years of supervised release and ordered to forfeit money, certain real property and an automobile. This appeal followed.

II. Discussion

A. Motion to Suppress Wiretaps

An April 27, 2001, order permitting wiretapping of Nickerson's telephone identified Santana as a potential interceptee.¹ Conversations on that line between Santana and Nickerson were recorded on May 7 and May 9, 2001. Santana appeals the district court's denial of his motion to suppress the evidence and his request for a hearing under Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The government does not contend that Santana lacks standing to seek suppression of the wiretap evidence.

Santana claims that the wiretap violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 (2000) ("Title III") — the federal statute governing electronic surveillance — because (1) probable cause did not exist to support the wiretap and (2) there was no required showing of necessity for the wiretap. He also asserts that a Franks hearing was warranted because of material misrepresentations by the affiant.

First, Santana asserts that while the government had probable cause to suspect Nickerson was committing or would commit a crime, it lacked probable cause to identify Santana as involved in criminal activity and therefore had no right to identify Santana as an interceptee. We review de novo the district court's determination that the facts in the affidavit constituted probable cause. United States v. Strother, 318 F.3d 64, 67 (1st Cir.2003). Any findings of fact are reviewed for clear error. Id. Our inquiry is whether the affidavit "provided a sufficient basis for a finding of probable cause," United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.1977); that is, we must determine "if the facts set forth in the application were minimally adequate to support the determination that was made." United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir.2003). Probable cause exists when the affidavit demonstrates in some trustworthy fashion the likelihood that an offense has been or is being committed. United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999).

The affidavit contains the following information about Santana:² that an informant knew Santana was Nickerson's cocaine supplier for many years and as recently as two months before the affidavit was made; that the informant (correctly) knew that Santana had previously been arrested on drug charges and that Santana's brother was in prison following a drug conviction; and that several phone calls had been placed from Nickerson (the primary target of the investigation and wiretap) to the cell phone of Santana's girlfriend and to Santana's ex-wife, and that Santana was thought to use each of those phones. We therefore find that there was a sufficient basis for the issuing judge to determine that Santana was committing, had committed, or was about to commit the listed drug-related crimes.

Second, Santana asserts that the government did not demonstrate necessity for the wiretap. The necessity requirement under Title III requires that the government's interception application 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. § 2518(1)(c). The application must "demonstrate that the government has made a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls." United States v. London, 66 F.3d 1227, 1237 (1st Cir.1995). However, the government need not demonstrate that it exhausted all investigative procedures. United States v. López, 300 F.3d 46, 52 (1st Cir.2002). When reviewing the government's showing of necessity, our role "is not to make a de novo determination of sufficiency as if [we] were [the issuing judge], but to decide if the facts set forth in the application were minimally adequate to support the determination that was made." Id. at 53 (quotation omitted); see also United States v. Ashley, 876 F.2d 1069, 1073 (1st Cir.1989) ("The government affidavit is adequate if it satisfies the burden that it indicate a `reasonable likelihood' that alternative techniques would fail to expose the crime.").

We find that the government's application contained the required details regarding its inability to pursue the criminal activity through less intrusive means. The affidavit stated, among other things, that physical surveillance and the use of pen register information had been employed; that no confidential informants were available to purchase drugs; that not enough information was known to seek a search warrant; and that garbage searches were not possible. The affiant therefore stated that a wiretap was necessary to uncover the full scope of the conspiracy, including conclusive proof of identity and information as to how the drug sales were made. See Villarman-Oviedo, 325 F.3d at 9-10 (showing of necessity made under similar circumstanced). We find that the affidavit does not fall below the standard of minimal adequacy. See Nelson-Rodríguez, 319 F.3d at 33.

Finally, a Franks hearing is required "where the defendant 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 warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155, 98 S.Ct. 2674. A district court's determination that the...