United States v. Lopez
| Decision Date | 12 October 2021 |
| Docket Number | 3:19-cr-436-SI-43 |
| Parties | UNITED STATES OF AMERICA, v. EDUARDO BARBOSA LOPEZ, Defendant. |
| Court | U.S. District Court — District of Oregon |
Scott Erik Asphaug, Acting United States Attorney, District of Oregon, and Christopher Cardani and Cassady Anne Adams Assistant United States Attorneys, United States Attorney's Office for the District of Oregon, Of Attorneys for the United States of America.
Ethan Levi, Levi Merrithew Horst pc, Of Attorney for Defendant Eduardo Barbosa-Lopez.
In a Superseding Indictment, Defendant Eduardo Barbosa Lopez (Mr Barbosa) is charged with: (1) conspiring to distribute and possess with intent to distribute methamphetamine, heroin and cocaine; using communication facilities in furtherance of the conspiracy; and maintaining premises to distribute controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 843(b), 846, 856(a)(1), and 856(b) (Count 1); and (2) possessing with the intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (Count 61). ECF 202.
Defendant Barbosa has filed two motions to suppress evidence. In his first motion, Mr. Barbosa moves to suppress evidence seized during the execution of a search warrant. ECF 1277. Primarily, he argues that the search warrant affidavit was “bare bones” and failed to provide objective probable cause. He seeks to suppress evidence seized on October 2, 2019 from his home, located at 7449 SE Augusta Court, Portland, Oregon, 97206. ECF 1277. In his second motion, Mr. Barbosa moves to suppress evidence of wiretapped conversations and their fruits obtained under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. ECF 1279. In addition, in connection with both motions, Mr. Barbosa requests an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978) (Franks Hearing). The government opposes both motions to suppress and Defendant's request for a Franks Hearing.
The Court has considered the arguments and evidence presented by the parties, including the Declaration of Defendant in Support of Motion to Suppress Evidence. ECF 1278. On October 6, 2021, the Court heard oral argument. For the reasons that follow, the Court DENIES Mr. Barbosa's motions and his request for a Franks Hearing.
The Fourth Amendment requires that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. A search warrant is supported by probable cause if the issuing judge finds that, “given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). As the Court now tasked with reviewing the issuing judge's finding of probable cause, we must “simply ensure that the [issuing judge] had a ‘substantial basis for . . . concluding' that probable cause existed.” Id. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). A reviewing court must give great deference to an issuing judge's finding that probable cause supports a warrant. United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011); United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) ().
An affidavit filed in support of a search warrant application, however, must consist of more than conclusory statements and bare-bones assertions. See United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013). Instead, the affidavit “must recite underlying facts so that the issuing judge can draw his or her own reasonable inferences and conclusions; it is these facts that form the central basis of the probable cause determination.” Id. Whether probable cause exists “depends upon the totality of the circumstances, including reasonable inferences, and is a ‘commonsense practical question.'” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (quoting Gourde, 440 F.3d at 1069). “[P]robable cause means ‘fair probability,' not certainty or even a preponderance of the evidence.” Gourde, 440 F.3d at 1069.
The Ninth Circuit also has held that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993); see also United States v. Job, 851 F.3d 889, 901 (9th Cir. 2017); United States v. Garcia-Villalba, 585 F.3d 1223, 1234 (9th Cir. 2009); United Sates v. Fernandez, 388 F.3d 1199, 1254 (9th Cir. 2004); United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002).
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits the “[i]nterception and disclosure of wire, oral, and electronic communications, ” except as provided by the statute. 18 U.S.C. § 2511. Title III allows law enforcement officers to apply for authorization to conduct electronic surveillance. 18 U.S.C. § 2516. Under § 2518(1), the government's application to obtain a wiretap must include, among other things, the following:
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued . . . . [and] (c) 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) (emphasis added).
The government must strictly adhere to these procedural requirements. United States v. Kalustian, 529 F.2d 585, 588 (9th Cir. 1975) (citing United States v. Giordano, 416 U.S. 505 (1974)). Additionally, the government must overcome the statutory presumption against the use of wiretaps by establishing “necessity.” United States v. Gonzalez, 412 F.3d 1102, 1112 (9th Cir. 2005). A wiretap can be necessary when it enables the government to “develop an effective case” to prove the defendant's guilt beyond a reasonable doubt. United States v. McGuire, 307 F.3d 1192, 1198 (9th Cir. 2002).
The Ninth Circuit has recognized that the government need not “exhaust every conceivable alternative before obtaining a wiretap.” United States v. Rivera, 527 F.3d 891, 902 (9th Cir. 2008); see also United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985). As explained by the Ninth Circuit, “[t]he necessity for the wiretap is evaluated in light of the government's need not merely to collect some evidence, but to “develop an effective case against those involved in the conspiracy.” United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006) (quoting United States v. Brone, 792 F.2d 1504, 1506 (9th Cir.1986) (Kennedy, J.)). In this context, “effective case” means “evidence of guilt beyond a reasonable doubt.” United States v. McGuire, 307 F.3d 1192, 1198 (9th Cir. 2002).
In challenging an affidavit based on an alleged violation of Franks v. Delaware, a defendant must make a substantial preliminary showing that the affiant included a false statement made either knowingly and intentionally or with reckless disregard for the truth and that the allegedly false statement was material to the court's finding of necessity. See Ippolito, 774 F.2d at 1485; see also Gonzalez, 412 F.3d at 1111 (). The requirements for a Franks Hearing include five-factors:
(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find necessity.
United States v. DiCesare, 765 F.2d 890, 894-95 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985) (citation omitted).
In December 2017, local law enforcement officers were investigating drug trafficking activities of dealers operating in Portland, Oregon. Federal agents joined the investigation when organizational connections were established between local drug traffickers and others based in Mexico. The joint investigation revealed that a specific drug trafficking organization, the Monroy Drug Trafficking Organization (DTO), was arranging for transportation and distribution of large amounts of methamphetamine and heroin from Mexico and laundering the proceeds from the United States to Mexico. The investigation involved traditional law enforcement investigative methods, such as pole cameras surveillance, geolocation data for phones, vehicle trackers, search warrants, informants, and undercover drug buyers.
The government determined that applying these methods for 16 months did not achieve the goal of identifying, dismantling and charging DTO members. In March 2019, agents applied for and received authority to wiretap the telephone lines of several suspected members of the Monroy DTO, including potential drug dealers and money launderers. The government filed six applications and one extension for wiretap authority, all of which were granted. Agents found that the DTO rented several properties in the Portland area as residences for DTO line workers and as places to store drugs and related paraphernalia for DTO operations. One of these residences, 7449 SE...
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