US v. Paredes-Moya

• Decision Date: 13 October 1989
• Docket Number: Crim. No. CR3-88-262-D.
• Citation: 722 F. Supp. 1402
• Parties: UNITED STATES of America, Plaintiff, v. Maria PAREDES-MOYA and Susie Vela, Defendants.
• Court: U.S. District Court — Northern District of Texas

722 F. Supp. 1402

UNITED STATES of America, Plaintiff, v. Maria PAREDES-MOYA and Susie Vela, Defendants.

Crim. No. CR3-88-262-D.

United States District Court, N.D. Texas, Dallas Division.

October 13, 1989.

COPYRIGHT MATERIAL OMITTED

James T. Jacks, Ass't U.S. Atty., for U.S.

Mark S. Werbner (court appointed), of Carrington, Coleman, Sloman & Blumenthal, Dallas, Tex., for Maria Paredes-Moya.

Arch C. McColl, III (court appointed), of Bruner, McColl & McColloch, Dallas, Tex., for Susie Vela.

FITZWATER, District Judge:

Defendants' motions to suppress the fruits of two wiretap orders and a search warrant present the questions whether Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), applies to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, whether the affidavits submitted in support of the wiretap applications contain false statements and material omissions sufficient to void the interceptions, and whether the defendants have standing to challenge the search warrant. The court concludes that Franks applies but that, analyzed under Franks, the interceptions were valid. The court holds the defendants lack standing to challenge the search and seizure. The court thus denies the motions to suppress.¹

I.

Maria Paredes-Moya ("Maria") and her adult daughter, Susie Vela ("Susie"), are two defendants charged in a multi-defendant, multi-count indictment. The government alleges they were members of a heroin distribution organization that consisted of several Moya family members. The defendants are charged with conspiring to import and importing large quantities of Mexican black tar heroin into the Northern District of Texas for distribution.

Beginning in 1986 the Drug Enforcement Administration ("DEA") and members of a drug enforcement task force that included narcotics officers of the Dallas Police Department ("DPD") began actively investigating the Moya organization. Following the employment of other investigative techniques, including extensive use of information provided by Norma Aguilar ("Norma"), a family member who had turned government informant, the government in the Summer and Fall of 1988 applied for and obtained orders permitting it to intercept communications to three digital pagers and over a telephone used to conduct heroin distribution activities.²

On July 7, 1988 the government obtained from Judge Sanders an order authorizing the government to intercept — by use of clone pagers — electronic communications transmitted to three digital display paging devices. This order was subsequently extended on August 10, 1988, October 5, 1988, and November 10, 1988. The interceptions occurred between July 8 and December 5, 1988. On November 10, 1988 Judge Sanders authorized the government to intercept wire communications over a telephone located at 1436 Templecliff, Dallas, Texas, which the organization used to facilitate its heroin distribution activities. On December 13, 1988 DEA agents obtained from U.S. Magistrate Sanderson a warrant to search Unit 215, Lock-N-Key, 3333 North Buckner Blvd., Dallas, Texas. The government culminated its investigation on December 13, 1988, when it arrested several family members and searched the mini-warehouse unit and seized heroin and other items from the unit.

Maria filed motions to suppress the contents of the pager and telephone interceptions and the mini-warehouse search. With leave of court, Susie adopted the motions. Maria and Susie assert they are "aggrieved persons" within the meaning of 18 U.S.C. § 2518(10)(a) and so may move for suppression. The court conducted a Franks hearing on September 7, 8, 13, 14, and 18 to permit the defendants to challenge the applications and affidavits submitted by the government to procure the interception orders and search warrant.

II.

Defendants move to suppress the December 13, 1988 search and seizure at the mini-warehouse on the ground the affidavit submitted by the DEA to obtain the search warrant was defective in several respects. The motion may be rejected on the narrow ground that both defendants lack standing to challenge the search and seizure.

The unit in question apparently was rented by Maria's sister, Sylvia Ventura ("Sylvia"), and the lease was in Sylvia's name.³ In order for Maria and Susie to have standing to challenge the search, each must have a legitimate expectation of privacy in the place. United States v. Salvucci, 448 U.S. 83, 92-93, 100 S.Ct. 2547, 2553-54, 65 L.Ed.2d 619 (1980). The burden of establishing this expectation is upon Maria and Susie as the movants. Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); United States v. Antone, 753 F.2d 1301, 1306 (5th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985).

Neither ownership of the place searched nor presence at the time of the search is required to establish a legitimate expectation of privacy. United States v. Johns, 851 F.2d 1131, 1136 (9th Cir.1988). Rather, the determination whether an individual's legitimate expectation has been violated requires examination of several factors. United States v. Briones-Garza, 680 F.2d 417, 420 (5th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 181 (1982). Among the factors a court must examine are:

whether the defendant has a property or possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion; whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.

Id. (citing United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir.1981)). No one factor should be controlling. If the record indicates the defendant is a party to a formalized arrangement to jointly supervise and control the place searched, the defendant may claim a legitimate expectation of privacy. Compare Johns, 851 F.2d at 1136 (concluding defendant who owned some chemicals found in storage unit and paid part of rent had standing to complain of Fourth Amendment violations although his name was not on rental agreement) with United States v. McCulley, 673 F.2d 346, 352 (11th Cir.) (concluding defendants whose names were not on car rental agreement and who did not have property in car, but who had agreed to share expenses, did not have legitimate expectation of privacy), cert. denied, 459 U.S. 852, 103 S.Ct. 116, 74 L.Ed.2d 102 (1982).

In this case, neither Maria nor Susie introduced evidence that either of them had any expectation of privacy in the mini-warehouse. In response to the court's inquiry whether Susie had such an expectation, Susie's counsel conceded at the hearing that it would "probably be tough to make that out." Tr. 3:53.⁴ Maria demonstrated through the testimony of DEA Agent Benjamin Victor Routh ("Agent Routh") that the mini-warehouse unit in question was padlocked and the lock had to be cut in order to gain access. Agent Routh also testified that personal letters and bank statements were found in the unit. This proves that someone had an expectation of privacy, but not that Maria did. Maria and Susie did not adduce evidence sufficient to establish Fourth Amendment standing.

III.

The court next considers defendants' motions to suppress the digital pager and telephone wiretap interceptions. Because defendants' challenges to the orders overlap in certain respects, the court will consider the motions together.

A.

The government applied to the court on July 7, 1988 for an order authorizing the government to intercept electronic communications received by three digital display paging devices. The government alleged the pagers were leased by Maria and used by Maria and her brother, Candido Moya ("Candido"), to engage in narcotics distribution. Maria and Candido were alleged to be participants in a large scale narcotics importation and trafficking organization operating in Texas. The application was supported by the affidavit of DEA Special Agent Edward F. Senecal, Jr. ("Agent Senecal"). The 13-page affidavit contained 23 paragraphs in which the government justified its request for authority to intercept the pager communications by means of clone pagers. Judge Sanders signed the authorization order the same day, permitting the interceptions for no more than 30 days. See 18 U.S.C. § 2518(5) (order may not exceed period necessary to achieve objective of authorization and in no event may permit interception for more than 30 days). The order was extended on August 10, 1988, October 5, 1988, and November 10, 1988.

On November 10, 1988, the government applied to Judge Sanders for authorization to intercept wire communications over a telephone subscribed to by Maria and located at 1436 Templecliff in Dallas, Texas. The government alleged the telephone was being used by Maria, Candido, and Susie, and co-defendants, Jose Luis Vela ("Jose") (Susie's husband), Viola Moya, and Adam Victor Guerra-Marez ("Adam"), to distribute heroin. The application was supported by a 42-page, 79-paragraph, affidavit of Agent Senecal. Judge Sanders granted the application on November 10, 1988, authorizing interception in accordance with § 2518(5) and, in no event, for more than 30 days. The wiretap was conducted from November 14, 1988 to December 13, 1988.

Defendants contend the fruits of the digital pager interceptions should be suppressed pursuant to 18 U.S.C. § 2518(10)(a) because: the July 7, 1988 affidavit⁵ that supported the government's application contained false and misleading statements; the interceptions should not have exceeded 30 days; and the government failed to record the interceptions on tape, wire, or other comparable devices in accordance with § 2518(8)(a).

Defendants contend the court should suppress the intercepted telephone communications because: the government relied on the fruits of the...