United States v. Alvarez
| Decision Date | 06 January 2016 |
| Docket Number | Case No. 14-cr-00120-EMC-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EDUARDO ALVAREZ, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Moving defendants Jairo Hernandez and Miguel Ortiz, along with codefendants Castillo, Cortez, Garcia-Gomez, and Vasquez are alleged conspirators acting in furtherance of the Sureños criminal street gang. In September 2012, the San Francisco Police Department sought and obtained a wiretap order from the San Francisco Superior Court to intercept communications from certain members of the Sureños street gangs in the Mission District of San Francisco. The police subsequently sought and obtained an extension of the order in October 2012. The United States pursued criminal charges in this Court, relying in part on evidence obtained from those wire intercepts.
On November 4, 2015, the moving defendants filed a motion to suppress the fruits of those wire intercepts, alleging violations of 18 U.S.C. § 2518.1 They argue that the wiretap applications failed to provide a full and complete statement of necessity; that the Superior Court incorrectly found there to be probable cause; that the Superior Court incorrectly found there to be necessity; and that the government intercepted certain communications beyond the scope of the SuperiorCourt's orders. The United States opposes the motion. For the reasons discussed below, the Court DENIES the Motion to Suppress as to each defendant.
On September 9, 2012, San Francisco Police Department Sergeant Chorley executed an affidavit as part of an application for a wiretap order which he submitted to the San Francisco Superior Court. Scoble Decl. Ex. 2 (). Sergeant Chorley began the affidavit by introducing his credentials and particular expertise in investigating Latin gangs. WT-066-067. Sergeant Chorley then described his knowledge of two Sureños criminal street gangs known as the 16th Street and 19th Street cliques (hereinafter collectively referred to as "Sureños") whom he had physically surveilled in some portions of the three preceding years. WT-073-074; WT-102. Sergeant Chorley described these two Sureños street gangs as operating primarily out of the Mission District in San Francisco, where they asserted control over illegal narcotics and firearms trafficking by, among other things, committing violent assaults and homicides.2 WT-073-074. The affidavit named Mario Serrano, Freddy Arroyo, Miguel Ortiz, Carlos Vasquez, and other then-unknown members and associates of the Sureños as the targets of the wiretap application, with the aim of dismantling these Sureños organizations.3 WT-068.
Sergeant Chorley discussed a pattern of gang-related crimes committed or contemplated by the Sureños dating back to at least June 2002, including more than thirty arrests and convictions in that period. Sergeant Chorley indicated that he intended to intercept the telephones belonging to Serrano, Arroyo, and Ortiz (Target Telephones 1-3 respectively). As evidence of theirparticipation in the gang's activities, Sergeant Chorley detailed the following4:
Based on this pattern of conduct and the pattern he observed in relation to the other Sureños members, as well as his familiarity with the Sureños organization, Sergeant Chorley concluded that the wiretap targets would likely continue committing specific narcotics and firearms trafficking offenses and violent offenses as exemplified by the pattern he described. He further concluded that they would continue to commit the substantive offense of active gang participation under California law (California Penal Code Section 182.22(a)).
Sergeant Chorley further set forth the basis for his belief that Serrano, Arroyo, and Ortiz would use the three target telephones in furtherance of the target offenses. He pointed to recent incidents within weeks of the application for the order where each target was recorded intelephone conversations or text messages negotiating the sale of narcotics or firearms. WT-083-087. He also pointed to phone records from three overlapping periods that he concluded showed a high volume of contact between gang members during times when the police suspected they were engaging in illegal transactions. WT-098-099. Sergeant Chorley pointed to their use of these phones not just in connection with discrete offenses, but in connection to the continuing criminal enterprise as a whole, and in relation to their active gang participation as defined by California law.
Sergeant Chorley further asserted that no less intrusive means of investigation could accomplish the goal of identifying and successfully prosecuting all of the Sureños members.5 Specifically:
1. Confidential Informants
CS-1 was suspected of being an informant by some of the targets and was actively shunned by them. Sergeant Chorley, relying in part on his own familiarity with the Sureños gangs, concluded that further inquiries by CS-1 into other gang activities would confirm suspicions of informant status and put him/her at serious peril. Additionally, CS-1 expressed unwillingness to participate in long-term investigation whereby he/she could potentially acquire more information.
CS-2 attempted to make inquiries into other areas of the gangs' activities, but had only been successful in initiating contact with Arroyo for the sale of firearms. Arroyo had offered to sell CS-2 a certain type of narcotic which Sergeant Chorley understood to be a kind of test by the gangs to...
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