U.S. v. Serrano

• Decision Date: 23 May 2006
• Docket Number: No. 05 CR 748(SAS).,05 CR 748(SAS).
• Citation: 450 F.Supp.2d 227
• Parties: UNITED STATES of America v. Juan Carlos SERRANO, Wilmer Serrano, Peter Gonzalez, Eric Martinez, Raul Martinez, Manoa Vargas, Donnie Black, and Troy Phillips, Defendants.
• Court: U.S. District Court — Southern District of New York

450 F.Supp.2d 227

UNITED STATES of America v. Juan Carlos SERRANO, Wilmer Serrano, Peter Gonzalez, Eric Martinez, Raul Martinez, Manoa Vargas, Donnie Black, and Troy Phillips, Defendants.

No. 05 CR 748(SAS).

United States District Court, S.D. New York.

May 23, 2006.

Mark P. Goodman, Eric D. Meyer, Debevoise & Plimpton LLP, New York City, for Juan Carlos Serrano.

Roger L. Stavis, Oren L. Sibony, Stavis & Kornfeld LLP, New York City, for Wilmer Serrano.

Donald H. Vogelman, New York City, for Manoa Vargas.

Katherine Goldstein, Assistant U.S. Attorney, New York City, for the Government.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Defendants Juan Carlos Serrano, Wilmer Serrano and Manoa Vargas move to suppress all evidence obtained from allegedly improper electronic surveillance. Defendants argue that the warrants for electronic surveillance were improperly granted in violation of New York Criminal Procedure Law ("CPL") § 700.20, 18 U.S.C. § 2518, and the Fourth Amendment to the United States Constitution. The Government opposes these motions on the ground that all statutory requirements for obtaining eavesdropping warrants have been met. For the following reasons, defendants' motions are denied.

I. BACKGROUND

A. The Investigation

In January 2004, the Dutchess County Drug Task Force ("DCDTF") and the New York State Police ("NYSP") began an investigation into the drug distribution activities of Juan Carlos Serrano ("Serrano") and his associates.¹ The investigation intensified when a confidential source purchased small quantities of cocaine in October and December 2004, from a person who later became a confidential informant ("CI").² The CI began cooperating with state law enforcement in December 2004, after having been arrested for selling cocaine to the confidential source.³ At his debriefing, the CI disclosed that he previously obtained cocaine from Serrano.⁴ The CI told law enforcement officers that he regularly contacts Serrano by phone and provided two cellular phone numbers for Serrano.⁵ The CI also disclosed that local law enforcement officers were protecting Serrano and his drug trafficking operation.⁶ This protection included information provided to Serrano regarding investigations as well as the presence of law enforcement officers along routes used by Serrano when purchasing drugs that he intended to sell in Dutchess County.⁷

On December 16, 2004, the CI telephoned Serrano to discuss purchasing one ounce of cocaine.⁸ This call was recorded. Later that evening, the CI met Serrano at a pre-determined location, 146 Myers Corners Road, and purchased one thousand dollars worth of cocaine.⁹ On December 20, 2004, the CI made another taped telephone call to Serrano to discuss a debt he owed to Serrano.¹⁰ Later that evening, the CI met Serrano at his residence at 17 Creekview Court and paid him four hundred dollars.¹¹ The CI paid Serrano an additional one thousand dollars on January 4, 2005, again at Serrano's residence at 17 Creekview Court.¹²

State law enforcement did not arrest Serrano after the controlled purchase of cocaine by the CI, nor did they detain him for questioning or apply for a search warrant for his residence or vehicle.¹³ Physical surveillance was limited to observing Serrano's interactions with the CI and following Serrano's vehicle to his home after the first transaction.¹⁴ Nor is there any indication that state law enforcement used a pen register to determine whether Serrano ever spoke with a law enforcement officer.¹⁵

State law enforcement learned through its investigation that Serrano's operations were larger both in geographic scope and in quantities of drugs than initially anticipated.¹⁶ State-authorized wire intercepts revealed that Serrano bought and sold multi-kilogram quantities of cocaine in Bronx County, New York.¹⁷ Because the Dutchess County District Attorney's Office does not have jurisdiction in the Bronx, the state investigation was turned over to federal authorities, including the New York office of the Drug Enforcement Agency ("DEA"), in May 2005.¹⁸ On May 26, 2005, federal investigators observed Wilmer Serrano, Peter Gonzalez, Donnie Black and Troy Phillips engage in a drug transaction which resulted in the seizure of five kilograms of cocaine.¹⁹ The drugs seized from this transaction were the only drugs confiscated in the entire federal investigation.²⁰ On June 22, 2005, arrest warrants were obtained for Serrano and Wilmer Serrano, Peter Gonzalez, Eric Martinez, Raul Martinez and Manoa Vargas.²¹ On July 14, 2005, all of the defendants were indicted for conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846.²²

B. The Wiretaps

On January 21, 2005, state law enforcement received authorization from the Honorable J. Michael Bruhn, Ulster County Court Judge, Kingston, New York, to intercept telephone calls over a cellular phone with call number (646) 685-9250 (the "Serrano Sprint Phone") and a cellular phone with call number (646) 418-9327 ("Phone # 2").²³ The application for this wiretap was made by William V. Grady, District Attorney for Dutchess County.²⁴ In support of his application were the Bryan State Affidavit and the affirmation of Matthew A. Weishaupt, Senior Assistant District Attorney for Dutchess County.²⁵ Interception of the Serrano Sprint Phone and Phone # 2 began on January 28, 2005.²⁶ State-court authorization to intercept the Serrano Sprint Phone was renewed on February 24, 2005,²⁷ March 23, 2005,²⁸ and April 21, 2005.²⁹ Interception of the Serrano Sprint Phone ended on May 21, 2005.³⁰ Investigators did not seek to extend interception of Phone # 2 beyond the initial thirty-day period authorized by the warrant.

On March 16, 2005, Judge Bruhn issued an Order authorizing the interception of communications from a cellular phone with call number (718) 593-0810 (the "Serrano Nextel Phone"), also primarily used by Serrano.³¹ State interception of the Serrano Nextel Phone began on March 17, 2005 and ended on April 16, 2005.³²

On May 25, 2005, Assistant United States Attorney Katherine Goldstein sought federal authorization to intercept the Serrano Sprint Phone and the Serrano Nextel Phone (collectively, the "Serrano Cellphones").³³ Goldstein's application was supported by the Bryan Federal Affidavit. The Honorable Harold Baer, Jr. authorized the requested interceptions the same day.³⁴ On June 9, 2005, authorization was obtained for interception over the cellular telephone with call number (646) 878-6805, used by Peter Gonzalez (the "Gonzalez Cellphone").³⁵ Federal wire surveillance over the Serran Cellphones and the Gonzalez Cellphone continued until June 23, 2005, at which point arrests had been made.³⁶

C. The Supporting Affidavits

1. The Bryan State Affidavit

The Bryan State Affidavit sets forth the requisite probable cause to believe that Serrano was committing drug-related crimes over the Serrano Sprint Phone. With regard to the usual procedures and techniques employed in drug trafficking investigations,³⁷ the Affidavit states: "These usual procedures and techniques have either failed, reasonably appear to be unlikely to succeed or would, in all likelihood, compromise the investigation."³⁸ The Affidavit further states that "[t]his is especially so where members of law enforcement may be providing information or protecting the traffickers in a variety of other ways."³⁹

The Bryan State Affidavit then discusses the efficacy and viability of the abovementioned usual investigative procedures. The Affidavit first discusses confidential sources stating that: "Reliable and confidential sources of information have been developed and used and will continue to be developed in this investigation."⁴⁰ The Affidavit then describes the following limitations with respect to the use of confidential informants:

However, the confidential sources presently available to law enforcement, including the CI described above, have only limited information with respect to the inner workings and activities of this narcotics trafficking group. Neither the confidential informant described in this Affidavit nor any of the available confidential sources used to date have been able to identify all the members of this criminal conspiracy, sufficiently define the roles of the conspirators for the purposes of successful prosecution, effectively identify all the sources or routes used for the supply of cocaine, describe all the methods of the alleged protection which is being provided to this group, or identify all the methods of concealing or disguising the nature, location, source, control and disposition of the proceeds of the sale of illegal narcotics.⁴¹

The Affidavit concludes that "[e]ven if such were known, it is unlikely that all of the details of the deliveries, quantities, financial arrangements, transactions and the like could be ascertain[ed] through the use of confidential sources alone."⁴² This conclusion is based on the assumption that long-term drug distributors, such as Serrano, "learn that it is best not to divulge all of the details of their illegal activities to persons beyond their `need to know.'"⁴³ It is equally unlikely that Serrano would divulge the alleged law enforcement protection he received.⁴⁴

With regard to physical surveillance, the Bryan State Affidavit states as follows:

Surveillance, even if highly successful, does not always succeed in gathering evidence of the criminal activity that is under investigation. Although surveillance can confirm and sometimes photographically document meetings between alleged conspirators, on most occasions it leaves investigators with limited evidence as to the purpose of the meetings they have witnessed from a distance. At the same time, surveillance entails a high risk that the suspects will detect the investigation, thus jeopardizing the security of confidential sources and undercover agents. This risk is substantially heightened in a case where members of...