United States v. Madrid

• Citation: 916 F.Supp.2d 730
• Decision Date: 25 September 2012
• Docket Number: No. EP–11–CR–2903–DB(2),(4).,EP–11–CR–2903–DB(2),(4).
• Parties: UNITED STATES of America v. Jesus MADRID TN: Jesus Madrid a.k.a. Ramon Roberto–Flores a.k.a. “Chuy” a.k.a. “Chuchis” a.k.a. “William Levy” Billy Omar Ruvalcaba–Madrid a.k.a. “Chino.”
• Court: U.S. District Court — Western District of Texas

916 F.Supp.2d 730

UNITED STATES of America

v.Jesus MADRID TN: Jesus Madrid a.k.a. Ramon Roberto–Flores a.k.a. “Chuy” a.k.a. “Chuchis” a.k.a. “William Levy” Billy Omar Ruvalcaba–Madrid a.k.a. “Chino.”

No. EP–11–CR–2903–DB(2),(4).

United States District Court,

W.D. Texas,

El Paso Division.

Sept. 25, 2012.

Michael Rose Whyte, U.S. Attorney's Office, El Paso, TX, for United States of America.

John Lee Granberg, Ruben Nunez, Attorney at Law, El Paso, TX, for Jesus Madrid.

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, Senior District Judge.

Before the Court are Defendants Jesus Madrid (“Madrid”) and Billy Omar Ruvalcaba–Madrid's (“Ruvalcaba”) (collectively “Defendants”) Motions to Suppress Wiretap Evidence [ECF Nos. 168, 169] and the United States of America's (“the Government”) respective Response [ECF Nos. 174, 175]. Also before the Court are Defendants' Motions to Reconsider Motion to Suppress [ECF Nos. 200, 201] and the Government's respective Responses [ECF Nos. 204, 206]. For the reasons that follow, the Court finds that Defendants' Motions should be denied.

BACKGROUND

On November 22, 2011, a Grand Jury sitting in the Western District of Texas returned an Indictment charging Defendants with three counts of alleged violations of federal anti-narcotics laws.¹ During the course of the prior investigation leading to the Indictment, the Government sought and obtained four orders authorizing the interception of wire communications from United States (“U.S.”) District Judge Kathleen Cardone (“Judge Cardone”) on May 19 (“the May 2011 wiretap”), June 24 (“the June 2011 wiretap”), July 25 (“the July 2011 wiretap”), and September 22, 2011 (“the September 2011 wiretap”), respectively. Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), Judge Cardone issued each order after reviewing an application signed by the U.S. Attorney for the Western District of Texas and an affidavit subscribed by an agent of the U.S. Drug Enforcement Agency (“DEA”). Through the instant Motions, Defendants challenge the sufficiency of these applications and affidavits under Title III and under the Fourth Amendment to the U.S. Constitution (“the Fourth Amendment”), ² and they pray that the Court suppress evidence seized as a result of the wiretaps.

LEGAL STANDARDS

The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment Warrant Clause ensures 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.” Id. Moreover, the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusions,” Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and the “touchstone of Fourth Amendment analysis is reasonableness,” United States v. Brigham, 382 F.3d 500, 507 (5th Cir.2004) (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)).

Congress passed Title III seeking to protect individual privacy while also allowing law enforcement to use “electronic surveillance as a weapon against the operations of organized crime.” See United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); S.Rep. No. 90–1097, at 66–76 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2185–95. Title III contains a series of procedural and substantive safeguards aimed at striking a balance between these two competing interests. For example, Title III requires the Government to obtain an order authorizing a wiretap by submitting a written application, upon oath or affirmation, describing the particular offense under investigation, the location where the communication will be intercepted, the type of communications sought, and the identity of the person committing the offense. 18 U.S.C.A. § 2518(1)(b) (West 2012).³ Other safeguards include a probable cause requirement, id. §§ 2518(3)(a), (b) & (d), a showing of “necessity,” id. §§ 2518(1)(c) & (3)(c), and a “notice” requirement, id. § 2518(8)(d).⁴

DISCUSSION

Defendants petition the Court to suppress evidence seized as a result of the wiretaps, arguing that the wiretap applications and affidavits in the instant cause lacked a showing of probable cause as to each Defendant and contained material misrepresentations and/or omissions without which Judge Cardone would not have found probable cause.⁵

Before addressing Defendants' arguments, the Court notes that Ruvalcaba lacks standing to challenge the May 2011 wiretap. Section 2518(10)(a) provides that “any ‘aggrieved person’ may suppress the contents of an unlawfully intercepted communication or evidence derived therefrom.” United States v. Scasino, 513 F.2d 47, 49 (5th Cir.1975). The statute defines an aggrieved person as “a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” 18 U.S.C.A. § 2510(11). Alderman v. United States explains that “ ‘aggrieved person’ ... should be construed in accordance with existent standing rules” for wiretap cases. Alderman v. United States, 394 U.S. 165, 175 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The United States Court of Appeals for the Fifth Circuit (“the Fifth Circuit”) has interpreted Alderman to mean that “[u]nder prestatutory fourth amendment law, one does not have standing to suppress an illegal wiretap unless his conversations were overheard or the conversations occurred on his premises.” Scasino, 513 F.2d at 50. Here, Ruvalcaba was not a party to any intercepted communications resulting from the May 2011 wiretap nor did any of the conversations occur on his premises. Moreover, the interception was not directed against him. Nevertheless, the Government failed to raise this argument. Therefore, the Court deems this argument waived and considers Ruvalcaba's arguments as to the May 2011 wiretap. The Court now examines Defendants' arguments below.

I. Whether the wiretap applications / affidavits lacked probable cause

Defendants challenge the wiretap applications and affidavits as lacking probable cause. Without citing to any authority whatsoever to support their position,⁶ Defendants first argue that the wiretap applications and affidavits are deficient because they lack a showing of probable cause as to each Defendant. Second, Defendants allege that the wiretap applications and affidavits are deficient because they contain material misrepresentations and/or omissions without which Judge Cardone would not have found probable cause. The Court examines these arguments in turn.

A. Whether the Fourth Amendment or Title III require the government to make a showing of probable cause as to each individual named in a wiretap application and affidavit

“It is axiomatic that in order to obtain a wiretap pursuant to Title III, as when seeking a search warrant, the government must make a showing of probable cause.” United States v. Bannerman, No.Crim. 03–10370–DPW, 2005 WL 2323172, at *3 (D.Mass. Aug. 25, 2005); see alsoU.S. Const. amend. IV; 18 U.S.C.A. §§ 2518(3)(a), (b) & (d). Nevertheless, whether the Fourth Amendment and Title III require the Government to make a showing of probable cause for each individual named in a wiretap application and affidavit is a question of first impression within the Fifth Circuit. Several federal appellate and district courts that have addressed the issue—including district courts within the Fifth Circuit—have found, however, that neither the Fourth Amendment nor Title III require a showing of probable cause as to each individual named in the application and affidavit. E.g., United States v. Domme, 753 F.2d 950, 954 n. 2 (11th Cir.1985); United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.1985) (“[T]he government need not establish probable cause as to all participants in a conversation. If probable cause has been shown as to one such participant, the statement of the other participants may be intercepted if pertinent to the investigation.”) (citing United States v. Tortorello, 480 F.2d 764, 775 (2d Cir.1973)); United States v. Martin, 599 F.2d 880, 884–85 (9th Cir.1979), overruled on other grounds by United States v. DeBright, 730 F.2d 1255 (9th Cir.1984) ( en banc ); see also United States v. Vargas, 116 F.3d 195, 197 n. 1 (7th Cir.1997) (no probable cause needed to simply list a defendant in a wiretap application as a probable converser); United States v. Little, Crim. Action No. 11–189–01, 2012 WL 489194, at *3 (W.D.La. Feb. 14, 2012) (“There is no requirement for probable cause to be demonstrated as to every individual who is named as a target interceptee.”). This conclusion is further supported by case law delineating the constitutional requirements of wiretap statutes generally and by a plain reading of the statute at issue here.

In Berger v. New York, the United States Supreme Court (“the Supreme Court”) struck down, under the Fourth Amendment, a New York statute that permitted a judge to issue an ex parte wiretap order after a district attorney or police officer provided an oath or affirmation stating that “reasonable grounds” existed to believe that evidence of a crime would be obtained; particularly describing “the person or persons whose communications, conversations or discussions [were] to be overhead or recorded”; and identifying “the particular telephone number or telegraph line involved.” Berger v. New York, 388 U.S. 41, 54, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (internal quotations omitted). While the Supreme Court declined to decide whether the statute was constitutionally infirm because it allowed the State to obtain a wiretap warrant on less than probable cause,⁷ the Supreme Court found the statute deficient because it lacked the Fourth Amendment's “particularization” requirement. Id. at 55,...