United States v. Castillo-Garcia , 117 F.3d 1179 ( 1997 )

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
July 14, 1997
TO: All recipients of the captioned opinion
RE: 96-1259, USA v. Castillo-Garcia
June 30, 1997
Please be advised of the following correction to the captioned decision:
There is a typographical error on page 35 of the opinion. In the second
sentence of the paragraph beginning “This fact, . . .” the phrase “had ever been
tried” should be “had even been tried.”
Please make the correction.
Very truly yours,
Patrick Fisher, Clerk
Susie Tidwell
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 30 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
CEFERINO CASTILLO-GARCIA, also
known as Pini, JESUS SAUL
BUJANDA-IBARRA, ISMAEL
ARMENDARIZ-AMAYA, VICTOR
JULIA AVILA, Jr., LARRY PINO,
APOLONIO PORTILLO-
RODRIGUEZ, ALONSO MORENO,
THOMAS McCULLOCH, ALBERTO
AVILA, also known as Jesus Javalera, No. 96-1259
JACK GIRARD, also known as Jacko,
JOANNE AYERS, and JAIME
OLIVAS-SANCHEZ,
Defendants-Appellees,
and
JEFFERY SAMUEL PINO, RAY
GUTIERREZ, also known as Guero,
DOUG TIERNEY, JOHN SHERIDAN,
and MATT HILTON,
Defendants.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 94-CR-371-ALL)
John M. Hutchins, Assistant United States Attorney, Denver, CO, argued the
cause for the appellant. Henry L. Solano, United States Attorney, Denver, CO,
and David M. Gaouette, Assistant United States Attorney, Denver, CO, assisted
on the brief.
Virginia Grady, Assistant Federal Public Defender, Denver, CO, argued the cause
for appellee Ismael Armendariz-Amaya. Michael G. Katz, Federal Public
Defender, Denver, CO, assisted on the brief.
Harvey A. Steinberg, Denver, CO, argued the cause for appellee Jesus Saul
Bujanda-Ibarra. Susan Fuller, Denver, CO, assisted on the brief.
Argued March 18, 1997.
Before PORFILIO, EBEL, and HENRY, Circuit Judges.
EBEL, Circuit Judge.
After obtaining and executing five separate but related telephone
wiretapping orders, the government secured evidence sufficient to indict eighteen
members of an alleged drug conspiracy. In a pre-trial order, however, the district
court suppressed all evidence obtained pursuant to four of the five wiretapping
orders, on the grounds that the government had not demonstrated sufficient
“necessity” for those wiretaps. Pursuant to 18 U.S.C. § 2518(10)(b) (1994), the
government now appeals the district court’s suppression order. We exercise
jurisdiction under 18 U.S.C. § 3731 (1994), affirm in part, and reverse in part.
BACKGROUND
-2-
During the summer of 1994, Denver Police detective Stephen F. Barnhill
(working as a special federal officer “deputized” by the FBI) was told by a
confidential informant that Rosario Portillo-Rodriguez 1 was running a large
cocaine distribution operation out of two houses located on Raritan Street in
Denver. United States v. Castillo-Garcia, 920 F. Supp. 1537, 1541 (D. Colo.
1996). The confidential informant claimed to have obtained 22 kilograms (almost
50 pounds) of cocaine from Rosario Portillo-Rodriguez over the past year.
Detective Barnhill impounded 1.25 of those kilograms.
Based on that information, and after a month of collecting additional
evidence against Rosario Portillo-Rodriguez, Detective Barnhill applied for a
warrant to wiretap three phone numbers assigned to Rosario Portillo-Rodriguez’s
home telephone, cellular telephone, and pager. The application noted certain
difficulties which had thwarted the government’s attempts to conduct visual
surveillance of Rosario Portillo-Rodriguez and the Raritan Street houses.
Specifically, the application alleged that one of the Raritan Street houses was set
too far back from the street to be observed, that the residential nature of the
Raritan Street neighborhood rendered surveillance officers conspicuous, and that
it was difficult to tail Rosario Portillo-Rodriguez because he owned and drove
nine different vehicles and frequently went to construction sites located in remote
1
Rosario Portillo-Rodriguez is not a defendant in the present proceeding.
-3-
locations with limited traffic access. In addition, the application documented a
fruitless year-long attempt by a confidential informant to determine the ultimate
source of Rosario Portillo-Rodriguez’s drugs. Finally, the application enumerated
certain reasons, discussed Part III, infra, why other normal investigative
techniques would be unlikely to succeed if tried. On August 19, 1994, United
States District Judge Sparr issued a warrant authorizing interceptions of
communications from these three phone numbers [the “First Wiretap”]. The First
Wiretap began immediately, and terminated on September 17, 1994.
During the period from August 19, 1994, to September 17, 1994, by
eavesdropping on calls to and from Rosario Portillo-Rodriguez’s home telephone,
cellular telephone, and pager, the FBI learned the identities of several other
suspected members of Rosario Portillo-Rodriguez’s suspected cocaine distribution
operation. Equipped with this information, the government began visually
surveilling at least one of Rosario Portillo-Rodriguez’s suspected drug suppliers:
defendant-appellee Ceferino Castillo-Garcia. On September 5, 1994, however,
Ceferino Castillo-Garcia phoned Rosario Portillo-Rodriguez and told him that he
“saw them watching.”
Subsequently, on September 22, 1994, the government applied for a warrant
to wiretap two more telephone numbers: one subscribed to in the name of Fidela
Armendariz, and one subscribed to in the name of Anita Pino. Neither of these
-4-
two individuals, however, were targets of the government’s investigation. Rather,
the government sought these wiretaps because Ceferino Castillo-Garcia had on
several occasions placed drug-related “business” calls to Rosario Portillo-
Rodriguez from each of the two targeted phone numbers. 2 In response to this
application, Judge Sparr issued Warrant 94-WT-7, authorizing electronic
eavesdropping on phone numbers (303) 431-4345 and (303) 292-1131 [the
“Second Wiretap”].
Also on September 22, 1994, the government applied for a warrant to
wiretap two phone numbers assigned to digital paging devices. One pager was
subscribed to in the name of Ruben Martinez; the other in the name of Raul
Ferrnandez. Once again, neither of these two individuals were the targets of the
government’s investigation. Rather, the government sought to wiretap the “Ruben
Martinez” pager because it overheard Ceferino Castillo-Garcia (phoning from
Juarez, Mexico) instruct Rosario Portillo-Rodriguez to “take down the ‘beeper
number’ in case an opportunity arises,” and then provide the pager number
assigned to Ruben Martinez. The government understood this instruction to mean
that Rosario Portillo-Rodriguez should page Ceferino Castillo-Garcia at Ruben
Martinez’s pager number if Rosario Portillo-Rodriguez wanted any more cocaine
2
The government was able to determine the phone numbers from which Ceferino
Castillo-Garcia’s calls were placed by consulting “trap and trace records” for Rosario
Portillo-Rodriguez’s wiretapped phone number.
-5-
or marijuana while Ceferino Castillo-Garcia remained in Mexico. The
government sought to wiretap the “Raul Ferrnandez” pager because, on several
occasions, Rosario Portillo-Rodriguez left messages on that pager requesting
return phone calls. The government suspected that Rosario Portillo-Rodriguez
and Jaime Olivas-Sanchez (a suspected intermediary between Rosario Portillo-
Rodriguez and other sources of cocaine and marijuana) were using the “Raul
Ferrnandez” pager. In response to this application, Judge Sparr issued Warrant
94-WT-8, authorizing electronic eavesdropping on phone numbers (303) 251-1594
and (303) 609-1931 [the “Third Wiretap”].
On October 7, 1994, the government applied for a warrant to wiretap
Ceferino Castillo-Garcia’s home telephone number. In the application, the
government presented evidence that both Ceferino Castillo-Garcia and Ismael
Armendariz-Amaya had made drug-related “business” calls from this number. In
response to this application, Judge Sparr issued Warrant 94-WT-10, authorizing
electronic eavesdropping on phone number (303) 477-2721 [the “Fourth
Wiretap”].
Finally, on October 21, 1994, the government applied for a warrant to
wiretap a telephone number subscribed to in the name of “M. Olivas.” In the
application, the government presented evidence that Jaime Olivas-Sanchez had,
on several occasions, phoned Rosario Portillo-Rodriguez from the “M. Olivas”
-6-
phone number to discuss several drug purchases which Jaime Olivas-Sanchez was
attempting to broker for Rosario Portillo-Rodriguez. In response to this
application, Judge Sparr issued Warrant 94-WT-11, authorizing electronic
eavesdropping on phone number (303) 937-1365 [the “Fifth Wiretap”].
During September and October, 1994, the “Second through Fifth Wiretaps”
were all executed. Castillo-Garcia, 920 F. Supp. at 1542-43. All wiretapping was
completed by October 30, 1994, by which time about 3500 telephone
conversations had been intercepted. United States v. Castillo-Garcia, No. 94-CR-
371, slip op. at 2 (D. Colo. May 23, 1996) (unpublished order & mem.).
Based largely on information obtained through the five wiretaps,
indictments were brought against eighteen named defendants on eight counts.
Castillo-Garcia, 920 F. Supp. at 1540. A group of these defendants--not including
original target Rosario Portillo-Rodriguez--moved to suppress the wiretap
evidence, on the grounds that the government had not demonstrated the
“necessity” for the wiretaps required by 18 U.S.C. § 2518(1)(c) (1994). On
March 25, 1996, U.S. District Judge Nottingham, who had not issued any of the
warrants, granted the defendants’ motion to suppress the evidence obtained
pursuant to the Second through Fifth Wiretaps. Id. at 1548-52. Judge
Nottingham denied the motion to suppress evidence obtained pursuant to the First
Wiretap. Id. at 1547-48.
-7-
The government then moved for reconsideration, arguing that even if there
was no “necessity” for the Second through Fifth Wiretaps, the evidence obtained
from those wiretaps should not be suppressed because, in executing the wiretaps,
the FBI relied in good faith on a facially valid warrant issued by U.S. District
Judge Sparr. See United States v. Castillo-Garcia, No. 94-CR-371, slip op. at 4, 5
(D. Colo. May 23, 1996) (unpublished order & mem.).
Judge Nottingham denied the government’s motion for reconsideration,
noting that the government had not raised the “good faith exception” issue in the
initial proceeding. United States v. Castillo-Garcia, No. 94-CR-371, slip op. at 5-
8 (D. Colo. May 23, 1996) (unpublished order & mem.). In dicta, however, Judge
Nottingham opined both that the “good faith exception” to the exclusionary rule
does not apply to statutory wiretap situations, id. at 8-13, and that even if it did,
the FBI did not act in good faith here. Id. at 13. Thus, Judge Nottingham
affirmed his original order suppressing the evidence obtained from the Second
through Fifth Wiretaps. Id. at 21.
The government now appeals the suppression of the evidence obtained from
the Second through Fifth Wiretaps.
DISCUSSION
I.
-8-
In its published opinion in the present case, the district court provided a
concise overview of the legal framework for FBI wiretapping. As the court
explained:
Electronic eavesdropping by law enforcement officials is governed
by the federal wiretap statute, title III of the Omnibus Crime Control
and Safe Streets Act of 1968, as amended. [18 U.S.C. §§ 2510-22(1994 & Supp. 1996)]. To assure the privacy of oral and wire
communications, title III establishes a three-tiered procedure for
obtaining authorization to intercept wire or oral communications.
First, a duly-authorized law enforcement officer must obtain approval
from the Attorney General of the United States or a specially
designated assistant attorney general in order to apply to a federal
judge for a wiretap. See 18 U.S.C. § 2516(1) (1994). Second, once
such approval is obtained, the officer must present a written
application for a wiretap to the judge. Third, the judge must make
certain enumerated findings and issue an ex parte order containing
specified elements. See 18 U.S.C. § 2518(1), (3)-(4) (1994). Strict
adherence to these procedural steps is a prerequisite to issuance of a
wiretap order.
United States v. Castillo-Garcia, 920 F. Supp. 1537, 1543 (D. Colo. 1996).
In the present case, the government complied with all three of these
procedural steps. Further, it is now uncontested that the government
demonstrated “probable cause” sufficient to support all five warrants issued by
Judge Sparr. As the district court noted, however, Title III contains a “necessity”
requirement--separate and distinct from its “probable cause” requirement--which
must be satisfied before a wiretap order may be lawfully issued. Id. at 1544
(citing 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994)). The purpose of the
“necessity” requirement is “to ensure that the relatively intrusive device of
-9-
wiretapping ‘is not resorted to in situations where traditional investigative
techniques would suffice to expose the crime.’” United States v. Edwards, 69
F.3d 419, 429 (10th Cir. 1995), cert. denied, 116 S. Ct. 2497 (1996) (quoting
United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)). Pursuant to this
“necessity” requirement:
Each application for an order authorizing or approving the
interception of a wire, oral, or electronic communication . . . shall
include . . . 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)(c) (1994).
Furthermore, before issuing a wiretap order, a district judge must
independently determine that the requested wiretap is necessary. United States v.
Mondragon, 52 F.3d 291, 293 (10th Cir. 1995). Specifically, the judge must be
convinced, inter alia, that “normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(3)(c) (1994). If the requirements of 18 U.S.C. §
2518(1)(c) (1994) and 18 U.S.C. § 2518(3)(c) (1994) are not each met, no warrant
should issue. In any event, evidence obtained in violation of 18 U.S.C. §
2518(1)(c) (1994) or 18 U.S.C. § 2518(3)(c) (1994) must be suppressed. See 18
U.S.C. § 2515 (1994) (“Whenever any wire or oral communication has been
intercepted, no part of the contents of such communication and no evidence
- 10 -
derived therefrom may be received in evidence in any trial, hearing, or other
proceeding . . . if the disclosure of that information would be in violation of this
chapter.”).
In the present case, Judge Nottingham found no fault with the issuance of
the First Wiretap order. However, after noting that 18 U.S.C. § 2518(1)(c) (1994)
requires in “each application . . . ‘a full and complete statement’ concerning the
efficacy of other investigative procedures,” Castillo-Garcia, 920 F. Supp. at 1545(emphasis in original), Judge Nottingham found that the “necessity requirement”
was not met with respect to the Second through Fifth Wiretap orders issued by
Judge Sparr. In particular, Judge Nottingham observed that entire paragraphs of
affidavits attached to the warrant applications “consist of ‘boilerplate’ language
which does not vary from one affidavit to the next.” United States v. Castillo-
Garcia, 920 F. Supp. 1537, 1543 (D. Colo. 1996); see also id. at 1554-65(reprinting pertinent language from warrant applications).
Judge Nottingham further found, as a factual matter, that:
[t]he apparent reason for this identity was . . . [that] the United States
never paused to give further renewed consideration to the efficacy of
. . . normal investigative procedures, . . . and it never really tried to
use any of these procedures. Instead, the investigation proceeded
from one wiretap to another.
Id. at 1543. Pursuant to 18 U.S.C. § 2515 (1994), Judge Nottingham therefore
suppressed all evidence obtained from those Wiretaps.
- 11 -
The government now argues that Judge Nottingham applied too stringent a
test of “necessity” under 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994).
II.
On appeal from a motion to suppress evidence obtained pursuant to a
wiretap, we accept the district court's factual findings unless clearly erroneous,
review questions of law de novo, and view the evidence in the light most
favorable to the prevailing party. United States v. Edwards, 69 F.3d 419, 428
(10th Cir. 1995), cert. denied, 116 S. Ct. 2497 (1996) (citing United States v.
Williamson, 1 F.3d 1134, 1135 (10th Cir.1993)). The question of whether the
government demonstrated sufficient “necessity” under 18 U.S.C. § 2518(1)(c)
(1994) to support the issuance of a wiretapping order is a question of law which
we review de novo. 3 United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir.
1995). However, “a wiretap authorization order is presumed proper, and a
defendant carries the burden of overcoming this presumption.” Id. Thus, under
our precedents, the defendants continue to carry the burden of persuasion on the
3
Because the application of the “necessity” requirement is a question of law
subject to de novo review, we note that Judge Nottingham, who found insufficient
“necessity” to support the Second through Fifth wiretapping orders, owed no
deference to Judge Sparr, who had found sufficient “necessity” to issue those
orders. Similarly, we owe no deference to either Judge Nottingham or Judge
Sparr in assessing whether the Second through Fifth Wiretaps were “necessary.”
- 12 -
legal question of whether the Second through Fifth Wiretaps were “necessary,”
despite having prevailed below. 4 As discussed supra Part I, a wiretap is
“necessary” only where “normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994).
As the district court noted, Congress did not intend the statutory phrase
“normal investigative procedures” to include electronic eavesdropping techniques.
Castillo-Garcia, 920 F. Supp. at 1545 (citing United States v. Bianco, 998 F.2d
1112, 1127 (2d Cir. 1993), cert. denied, 511 U.S. 1069 (1994); United States v.
Uribe, 890 F.2d 554, 556 (1st Cir. 1989); United States v. Lambert, 771 F.2d 83,
91 (6th Cir.), cert. denied, 474 U.S. 1034 (1985)). Rather, the Ninetieth
Congress, which enacted Title III, envisioned that
[n]ormal investigative procedure would include, for example,
standard visual or aural surveillance techniques by law enforcement
officers, general questioning or interrogation under an immunity
grant, use of regular search warrants, and the infiltration of
conspiratorial groups by undercover agents or informants.
4
As discussed supra, however, we accept the district court's factual findings
unless clearly erroneous and view the evidence in the light most favorable to the
defendants, who prevailed below. United States v. Edwards, 69 F.3d 419, 428
(10th Cir. 1995), cert. denied, 116 S. Ct. 2497 (1996) (citing United States v.
Williamson, 1 F.3d 1134, 1135 (10th Cir.1993)). Thus, the defendants are in a
somewhat better position than if they had not prevailed below .
- 13 -
Senate Comm. on the Judiciary, Report on the Omnibus Crime Control and Safe
Streets Act of 1968, S. Rep. No. 90-1097, at 79 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2190, and cited in Castillo-Garcia, 920 F. Supp. at 1545; see
also United States v. Mesa-Rincon, 911 F.2d 1433, 1444 (10th Cir. 1990) (relying
on above-quoted Senate Report language to require the government to exhaust
these four investigative techniques or to explain why exhaustion would be too
dangerous or futile, prior to initiating electronic visual surveillance).
The Ninetieth Congress noted that “[m]erely because a normal investigative
technique is theoretically possible, it does not follow that it is likely.” Id. (citing
Giancana v. United States, 352 F.2d 921 (7th Cir.), cert. denied, 382 U.S. 959(1965); People v. Saperstein, 140 N.E.2d 252 (N.Y. 1957), cert. denied, 353 U.S.
946 (1957)). It therefore emphasized that “[w]hat the provision envisions is that
the [government’s] showing [of necessity] be tested in a practical and
commonsense fashion.” Id. (distinguishing United States v. Ventresca, 380 U.S.
102 (1965)). 5 In this fashion, a court must undertake “a consideration of all the
facts and circumstances” in order to determine whether the government’s showing
of necessity is sufficient to justify a wiretap. Id.5
This court has always adhered to Congress’s intention that the
government’s demonstration of the necessity for instituting a wiretap be evaluated
in a practical and commonsense fashion. See, e.g., United States v. Nunez, 877
F.2d 1470, 1472 (10th Cir.), cert. denied, 493 U.S. 981 (1989); United States v.
Johnson, 645 F.2d 865, 867 (10th Cir.), cert. denied, 454 U.S. 866 (1981).
- 14 -
The “necessity” requirement of Title III is not an “exhaustion” requirement.
“In examining necessity challenges to wiretap orders, we have repeatedly held
that law enforcement officials are not required to exhaust all other conceivable
investigative procedures before resorting to wiretapping.” United States v.
Edwards, 69 F.3d 419, 429 (10th Cir. 1995), cert. denied, 116 S. Ct. 2497 (1996)
(internal quote marks and citations omitted). “Rather, that section of the statute
serves to insure that wiretapping is not used in situations where traditional
investigative techniques would suffice to expose the crime.” United States v.
Johnson, 645 F.2d 865, 867 (10th Cir.), cert. denied, 454 U.S. 866 (1981) (citing
cases). Thus, the government may obtain a wiretapping warrant without trying
any other methods of investigation, if it demonstrates that normal investigatory
techniques reasonably appear to be unlikely to succeed if tried, or to be too
dangerous to try. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994); United States
v. Mesa-Rincon, 911 F.2d 1433, 1444 (10th Cir. 1990). 6
In Mesa-Rincon, we noted that “[t]he legislative history of Title III
suggests . . . [reasonable investigatory] techniques that should be considered,”
6
Although Mesa-Rincon involved visual, rather than aural, electronic
surveillance, the Mesa-Rincon court adopted a “necessity” requirement for the
government’s use of clandestine television cameras by analogizing to the very
provisions of Title III at issue here. See Mesa-Rincon, 911 F.2d at 1442-43. The
Mesa-Rincon court predicated its analysis primarily on case law pertaining to
wiretapping, and on the same legislative history materials applicable to the
present case. See id. at 1442-45 .
- 15 -
911 F.2d at 1444 (emphasis added), and we then identified the four investigative
techniques specifically set forth by Congress in the Senate and House Report of
Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Id. (citing
S. Rep. No. 90-1097, at 101 7 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2190).
We now expressly hold what the court in Mesa-Rincon suggested and what
seems clearly to be contemplated by Title III. To obtain an electronic
surveillance order, the government must explain fully in its application what
investigative techniques have been tried against the target of the wiretap. 18
U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). If any of the four categories of normal
investigative techniques referred to in the legislative history of Title III have not
been tried, the government must explain with particularity why each of such
untried techniques would be either unsuccessful or too dangerous. Those
investigative procedures are: (1) standard visual and aural surveillance; (2)
questioning and interrogation of witnesses or participants (including the use of
grand juries and the grant of immunity if necessary); (3) use of search warrants;
and (4) infiltration of conspiratorial groups by undercover agents or informants.
In addition, if other normal investigative techniques such as pen registers or trap
and trace devices have not been tried, a similar explanation must be offered as to
7
Although the Mesa-Rincon court cited this quotation to page 101, the
quoted language actually appears at page 79 of S. Rep. No. 90-1097 (1968).
- 16 -
why they also would be unsuccessful or too dangerous. We add pen registers and
trap and trace devices to this list because they possess a logical relationship and
close affinity to wiretaps and yet are less intrusive. Thus, unless the government
can show that they would be ineffective or dangerous they must be tried before
resorting to wiretaps.
Whether other normal investigative techniques must also be explored before
turning to wiretaps will depend on the unique circumstances of each investigation.
For example, it will often be the case that the government must consider first the
less intrusive technique of reviewing available public, private, or governmental
records pertaining to the suspects under investigation to see if the requisite
information needed to prosecute may be obtained in that way. However, we
articulate no general rule as to such other normal investigative techniques because
they are so dependent upon the nature of the investigation and the crimes being
investigated. Because the record in this case does not suggest to us any normal
investigative techniques other than those cited by Congress in the Senate and
House Report, plus pen registers, trap and trace devices, and telephone toll
records, we confine our analysis to those techniques.
In any event, generalities, or statements in the conclusory language of the
statute, are insufficient to support a wiretap application. The statements must be
factual in nature and they must specifically relate to the individuals targeted by
- 17 -
the wiretap. The district court here rejected “boilerplate” allegations contained in
some of the applications and as we discuss in Part III, infra, we agree with its
concerns in certain regards.
However, the government need not exhaust or explain its failure to exhaust
every conceivable investigative procedure before resorting to wiretapping. Mesa-
Rincon, 911 F.2d at 1444 (citing United States v. Apodaca, 820 F.2d 348, 350
(10th Cir.), cert. denied, 484 U.S. 903 (1987)). “Instead, we require the
government to prove exhaustion--either by attempt or explanation of why the
method would not work--of all ‘reasonable’ investigatory methods.” Id.Additionally, we note that where the government’s stated explanation for
its use, or failure to use, normal investigative techniques clearly encompasses
each of these categories and any other normal investigative techniques that may
be applicable to the circumstances, it is not necessary for the government formally
to address each category with an explanation. Mesa-Rincon, 911 F.2d at 1444.
Thus, the government’s failure explicitly to explain its failure to utilize one or
more specified categories of normal investigative techniques will not be fatal to
its wiretap application if it is clear, under the government’s recitation of the facts
of the case, that requiring the government to attempt the unexhausted and
unexplained normal investigative techniques would be unreasonable. See id. at
1445.
- 18 -
With these standards in mind, we proceed to analyze the five wiretap
applications at issue in the present case.
III.
As a threshold matter, we note that the district court denied the defendants’
motion to suppress evidence obtained via the First Wiretap (94-WT-4), and that
this decision has not been appealed. Nonetheless, because the Second through
Fifth Wiretap incorporate by reference the application for the First Wiretap, we
need to address it as well.
As discussed Part II, supra, we analyze each of the five wiretap
applications to determine whether “each application” contained “a full and
complete statement” demonstrating that (1) standard visual or aural surveillance;
(2) general questioning or interrogation under an immunity grant; (3) use of
regular search warrants; and (4) the infiltration of conspiratorial groups by
undercover agents or informants, each “have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18
U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). We also examine whether pen registers,
trap and trace devices, and review of telephone toll records were utilized. This
showing must be made with respect to the target of each proposed wiretap, and
must be stated with particularity.
- 19 -
First Wiretap (94-WT-4) (8/19/94):
The district court found that the government’s application for the First
Wiretap satisfied the requirements of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994).
Castillo-Garcia, 920 F. Supp. at 1547-48. We agree. The First Wiretap was
directed at three phone numbers used by Rosario Portillo-Rodriguez, who was
suspected of directing his organization’s drug distribution operations in Denver.
The government sought the wiretap in order to determine the source of Rosario
Portillo-Rodriguez’s drugs.
As the government explained in its application, standard visual and aural
surveillance of Rosario Portillo-Rodriguez’s suspected drug distribution operation
had been tried, but had failed due to the location of Rosario Portillo-Rodriguez’s
Raritan Street houses and garage in a quiet residential neighborhood, at a curve in
the road, and set back from the street behind another house. Id. at 1548. The
government had also attempted visual surveillance of Rosario Portillo-
Rodriguez’s activities outside the Raritan street houses, but these attempts had
failed to adduce any evidence because Rosario Portillo-Rodriguez frequented
construction sites located in remote locations with limited traffic access, and
drove nine different vehicles as a result of his connection with construction work.
Id.- 20 -
Further, the government had tried using a confidential informant to
discover the source of Rosario Portillo-Rodriguez’s drug supply. Id. at 1547.
However, that confidential informant had purchased more than twenty kilograms
of cocaine from Rosario Portillo-Rodriguez over the course of a year, but had
never been introduced to Rosario Portillo-Rodriguez’s suppliers. Id. The
government thus reasonably concluded that the attempted use of a confidential
informant to discover Rosario Portillo-Rodriguez’s suppliers had failed, and that
the use of an undercover law enforcement officer for the same purpose would be
no more likely to succeed. Id.In addition, the government had used trap and trace devices and pen
register data and had reviewed telephone toll records from Rosario Portillo-
Rodriguez’s three phone numbers. Id. at 1556 ¶ 40. However, after employing
these techniques for about a month, the government had still not discovered the
source of Rosario Portillo-Rodriguez’s drug supply. Id. at 1541, 1556 ¶ 40. The
government explained that these techniques had proven ineffective because they
did not enable the government to identify the individuals placing the calls to
Rosario Portillo-Rodriguez, nor did they reveal the nature or purpose of the
communications. Id. at 1556 ¶ 40. This attempt satisfies the government’s
obligation in this investigation to try trap and trace devices, pen register data, and
telephone toll records prior to resorting to wiretapping.
- 21 -
In its application, the government also explained that use of general
questioning or interrogation under an immunity grant was unlikely to succeed if
tried for four reasons: (1) no single person was familiar with the entire
conspiracy; (2) the interviewees would fear likely reprisals; (3) word of such
interviews might cause some subjects of the investigation (many of whom had
strong ties with the Republic of Mexico) to flee the United States; and (4) because
the government did not, as of August, 1994, know or suspect the identities of any
of Rosario Portillo-Rodriguez’s suppliers, culpable persons might receive grants
of immunity which would make their subsequent prosecution difficult. Id. at
1548. We agree with the district court’s conclusion that these assertions,
accompanied by the specific and particularized information contained throughout
the First Wiretap application, establish that the use of general questioning or
interrogation under an immunity grant was unlikely to succeed if tried. Id.Finally, the government explained that it eschewed the use of a regular
search warrant at Rosario Portillo-Rodriguez’s Raritan Street houses because it
did not expect that a search of the houses would produce any uncoded written
information which would identify the participants in Rosario Portillo-Rodriguez’s
cocaine distribution business. Id. at 1551. The district court was skeptical of the
government’s explanation, on the ground that the explanation ignored (and tended
to contradict) specific information known to the government which suggested that
- 22 -
Rosario Portillo-Rodriguez did maintain “a record of his drug customers and
outstanding debts in a small notebook.” Id. We do not share the district court’s
skepticism in this regard. Rather, we see no contradiction between information
suggesting that Rosario Portillo-Rodriguez maintained records of his drug
customers and outstanding debts, and the government’s hypothesis that Rosario
Portillo-Rodriguez did not maintain records which would reveal the names of his
drug suppliers. Our limited disagreement with the district court is immaterial,
however, because we agree with the district court’s ultimate conclusion--which
was not appealed--that the government’s application for the First Wiretap
demonstrated sufficient necessity to justify the Wiretap.
Second Wiretap (94-WT-7) (9/22/94; extended 10/21/94):
The district court found that the government’s application for the Second
Wiretap, in contrast to its application for the First Wiretap, failed to satisfy the
requirements of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia, 920
F. Supp. at 1549-52. Reviewing this conclusion de novo, we disagree. The
Second Wiretap was directed against two phone numbers used by Ceferino
Castillo-Garcia, 8 who was suspected of being the intermediary between Rosario
8
As discussed in the BACKGROUND section, supra, neither of these phone
numbers were subscribed to in Ceferino Castillo-Garcia’s name. We consider the
relevance of this fact, however, to be minimal. Before seeking to wiretap these
two phone numbers, the government used trap and trace records to establish that
(continued...)
- 23 -
Portillo-Rodriguez and the ultimate source of the cocaine which Rosario Portillo-
Rodriguez was distributing in Denver. The government sought the wiretap in
order to determine where Ceferino Castillo-Garcia was obtaining his drug supply.
As the district court noted, the application for the Second Wiretap
incorporated by reference the application for the First Wiretap. See Castillo-
Garcia, 920 F. Supp. at 1557 ¶ 29. Pertinent to the “necessity” of wiretapping
Ceferino Castillo-Garcia, the First Wiretap application stated that: (1) the
government suspected Rosario Portillo-Rodriguez to be a member of a large drug
conspiracy; (2) that some of Rosario Portillo-Rodriguez’s suspected co-
conspirators were from Mexico and several of them were related to each other,
making penetration of the alleged conspiracy difficult; (3) that unindicted and at-
large members of the conspiracy were unlikely to co-operate with the FBI if
contacted; (4) that one confidential informant (“CW-1") working with the FBI
could not penetrate the alleged conspiracy any further because CW-1 dealt only
with Rosario Portillo-Rodriguez; (5) that pen registers and “trap and trace”
devices, which identify telephone numbers called or called from, provided
insufficient information as to the identities of people using those telephone
8
(...continued)
they were in fact being used by Ceferino Castillo-Garcia to discuss drug
transactions with Rosario Portillo-Rodriguez. It does not appear that anyone
other than Ceferino Castillo-Garcia was targeted by the Second Wiretap. Indeed,
neither Fidela Armendariz nor Anita Pino, to whom the two phone numbers were
registered, were ever charged in connection with the present case.
- 24 -
numbers and the substance of those conversations; and (6) that the alleged
conspiracy operated on a 24-hour basis, rendering visual surveillance difficult and
costly. Castillo-Garcia, 920 F. Supp. at 1555-56.
In addition to the information incorporated by reference from the First
Wiretap application, the application for the Second Wiretap revealed three
additional facts pertinent to the necessity of wiretapping Ceferino Castillo-Garcia.
First, the Second Wiretap application disclosed that evidence adduced from the
First Wiretap indicated that Ceferino Castillo-Garcia was “clearly the
intermediary between Rosario Portillo[-Rodriguez] and the ultimate source(s) of
the cocaine.” Id. at 1557 ¶ 30. In addition, the Second Wiretap application
disclosed the existence of a second confidential witness (“CW-2”), who had
provided additional information to Detective Barnhill but had “indicated a
reluctance to testify in any proceeding . . . out of fear for CW-2's personal safety
and/or that of CW-2's family should CW-2's identity and cooperation be
revealed.” Id. at 1557 ¶ 32. Finally, the Second Wiretap application disclosed
that on at least one occasion, Ceferino Castillo-Garcia and Ismael Armendariz-
Amaya were tailed by visual surveillance officers, and that following that
occasion, Ceferino Castillo-Garcia had told Rosario Portillo-Rodriguez that
Castillo-Garcia had detected the surveillance. Id. at 1549, 1558.
- 25 -
The evidence regarding the extent to which Ceferino Castillo-Garcia was
subject to visual surveillance is ambiguous. Neither Detective Barnhill nor any
other law enforcement officer attested to having ever conducted or attempted
surveillance of Ceferino Castillo-Garcia. Indeed, on cross-examination at the
hearing on the defendants’ Motion to Suppress, Detective Barnhill admitted that
between the First Wiretap and the Fourth Wiretap, he undertook no investigatory
steps, other than the Wiretaps. This admission led the district court to find as a
factual matter that “after obtaining the First Wiretap, the Government undertook
no ‘normal investigation procedures’ before seeking any of the subsequent
wiretaps.” Id. at 1551 (emphasis added). Detective Barnhill did, however, testify
in his affidavit attached to the Second Wiretap application, that:
On September 5, 1994, the following occurred: At approximately
7:00 P.M., surveillance officers followed CEFERINO CASTILLO-
GARCIA and ISMAEL ARMENDARIZ-AMAYA from 6550 Benton
Street to a shopping center located at West 72nd Avenue and
Sheridan Boulevard. After a few moments, both individuals returned
to 6550 Benton Street, Denver, Colorado.
(Rec. V.6 at 20 ¶ 23(a)). Nowhere else in the record is there any reference to
visual surveillance of Ceferino Castillo-Garcia, Ismael Armendariz-Amaya, or any
other defendant in the present proceeding.
While Detective Barnhill’s statement could support an inference that both
Ceferino Castillo-Garcia and Ismael Armendariz-Amaya were subject to extensive
visual surveillance prior to the government’s request for a wiretap of Ceferino
- 26 -
Castillo-Garcia’s telephone, it could also support an inference that either Ceferino
Castillo-Garcia or Ismael Armendariz-Amaya was “tailed” only once. The district
court declined to resolve the extent to which visual surveillance of Ceferino
Castillo-Garcia actually occurred. See id. at 1549. Because we must view the
evidence in the light most favorable to the defendants, who prevailed below,
United States v. Edwards, 69 F.3d 419, 428 (10th Cir. 1995), cert. denied, 116 S.
Ct. 2497 (1996) (citing United States v. Williamson, 1 F.3d 1134, 1135 (10th
Cir.1993)), we must assume that visual surveillance of Ceferino Castillo-Garcia
was attempted only once, and then abandoned, and that no visual surveillance of
the other defendants in the present case was ever attempted.
Even under this assumption, however, we think the government’s aborted
attempt at visual surveillance of Ceferino Castillo-Garcia satisfies the “standard
visual and aural surveillance” prong of our test of necessity. In addition to his
affidavit testimony suggesting that Ceferino Castillo-Garcia was tailed on the
evening of September 5, 1994, Detective Barnhill also reported that Ceferino
Castillo-Garcia was overheard, shortly thereafter, telling Rosario Portillo-
Rodriguez that Ceferino Castillo-Garcia suspected the tail. See Castillo-Garcia,
920 F. Supp. at 1549. The district court found that Detective Barnhill’s affidavit
statement was:
based on two conversations between Rosario Portillo-Rodriguez and
Ceferino Castillo-Garcia overheard during the First Wiretap. On the
- 27 -
evening of September 5, 1994, Ceferino told Rosario that he ‘saw
them watching.’ The next day he told Rosario that he intended to
drive to Rosario’s location ‘to see if he . . . would be followed.’
Castillo-Garcia, 920 F. Supp. at 1549 (citations to the record omitted).
Even assuming arguendo, as we must, that the evening of September 5,
1994, was the one and only time that Ceferino Castillo-Garcia was ever subject to
visual surveillance, we find it dispositive that, on that occasion, Ceferino
Castillo-Garcia detected the surveillance. 9 We think that Ceferino Castillo-
Garcia’s belief that he was being watched extensively, when considered with the
rest of the allegations contained in the First and Second Wiretap applications,
adequately established that standard visual and aural surveillance of Ceferino
Castillo-Garcia had been tried and failed and that future attempts to “tail”
Ceferino Castillo-Garcia would be dangerous and probably futile. See United
States v. Apodaca, 820 F.2d 348, 350 (10th Cir.), cert. denied, 484 U.S. 903(1987) (upholding wiretapping order where, as one factor in establishing
“necessity,” the government established that increased visual surveillance would
have increased the possibility of detection).
We think that the government’s application for the Second Wiretap also
satisfied the “undercover agents or informants” prong of our test. In addition to
9
There is no similar evidence tending to suggest that Ceferino Castillo-
Garcia’s companion of September 5, 1994, Ismael Armendariz-Amaya, ever
detected any surveillance.
- 28 -
incorporating by reference the material from the First Wiretap application which
detailed the year-long efforts of confidential informant CW-1 to determine the
source of Rosario Portillo-Rodriguez’s drugs, the application for the Second
Wiretap also detailed the similarly unsuccessful efforts of a second confidential
informant, CW-2. Further, the application for the Second Wiretap disclosed that
conversations intercepted pursuant to the First Wiretap indicated that Ceferino
Castillo-Garcia traveled to Juarez, Mexico to obtain cocaine and marijuana from
the ultimate source. In our view, the use of CW-1 and CW-2 to attempt to
determine the source of the drugs procured by Ceferino Castillo-Garcia and
distributed by Rosario Portillo-Rodriguez indicates that “undercover agents or
informants” had been tried and failed. Further, the information that the “ultimate
source” was probably located in the Republic of Mexico implied that future
attempts to use confidential informants for this purpose would probably be futile.
Similarly, the government’s application for the Second Wiretap also
satisfied the requirement here that it explore the normal investigative techniques
of pen registers, trap and trace devices, and telephone toll records. In addition to
incorporating by reference the material from the First Wiretap application which
detailed the use of these normal investigative techniques against Rosario Portillo-
Rodriguez’s telephone numbers, the application for the Second Wiretap also
referred to the use of pen registers, trap and trace devices, and telephone toll
- 29 -
records to investigate certain telephone numbers “known to be available to the
subjects of this investigation.” Id. at 1558 ¶ 37. The district court interpreted
this statement to mean that “the Government continued . . . to use pen registers or
trap and trace devices on the calls made from each intercepted number (in order
to show that the additional target telephones were used in negotiating drug
transactions). . . .” Id. at 1551 (emphasis added). If so, then pen registers or trap
and trace devices were used against the two phone numbers which were the
subjects of the Second Wiretap, but proved ineffective in assisting the
government to determine the identity of the “ultimate source” of the drugs.
In our view, the Second Wiretap Application also satisfactorily explains
why “general questioning or interrogation under an immunity grant” was not
attempted against Ceferino Castillo-Garcia. Based on the information it had
obtained from the First Wiretap, the government considered Ceferino Castillo-
Garcia to be “clearly the intermediary between Rosario Portillo[-Rodriguez] and
the ultimate source(s) of the cocaine.” Castillo-Garcia, 920 F. Supp. at 1557 ¶ 30.
As such, Ceferino Castillo-Garcia was presumably a very high ranking member of
the suspected conspiracy, and therefore a “culpable individual.” In its application
for the Second Wiretap, the government clearly stated that “if called to testify,
[Ceferino Castillo-Garcia] would likely invoke [his] Fifth Amendment privileges,
and furthermore, that it would be unwise to seek Grand Jury immunity for any of
- 30 -
the subjects named herein because it might foreclose prosecution of culpable
individuals.” Id. at 1558 ¶ 36. The government also noted in its application that
“interviews and attempts to develop witnesses would serve to alert the targets of
the [ongoing] investigation, cause them to become more cautious, and perhaps
prompt them to flee the jurisdiction to avoid further investigation or possible
prosecution, since many of the subjects involved in this cocaine distribution
enterprise have strong ties to the Republic of Mexico.” Id. at 1558 ¶ 35. In our
view, these statements satisfactorily support the government’s claim that
attempting to question Ceferino Castillo-Garcia--with or without an offer of
immunity--would have probably have been both futile and generative of undesired
consequences.
Finally, we think that under the government’s recitation of the facts of the
case, it would have been unreasonable to attempt the use of a regular search
warrant against Ceferino Castillo-Garcia. As just discussed, the government
clearly expressed in the application for the Second Wiretap its reasonable desire
not to alert any of the targets of its investigation. Id. Executing a regular search
warrant against Ceferino Castillo-Garcia would have alerted both him and his
associates of the existence of an ongoing investigation.
Because we find that each prong of our necessity test was satisfied by the
application for the Second Wiretap (94-WT-7), we reverse the district court’s
- 31 -
grant of the defendants’ Motion to Suppress evidence obtained from the Second
Wiretap.
Third Wiretap (94-WT-8) (9/22/94):
The district court also found that the government’s application for the Third
Wiretap failed to satisfy the necessity requirements of 18 U.S.C. §§ 2518(1)(c),
2518(3)(c) (1994). Castillo-Garcia, 920 F. Supp. at 1549-52. Reviewing this
conclusion de novo, we agree in part and disagree in part. The Third Wiretap was
directed against two phone numbers assigned to digital display paging devices:
one used by Ceferino Castillo-Garcia, and one used by Jaime Olivas-Sanchez,
who, like Ceferino Castillo-Garcia, was suspected of being “the intermediary
between Rosario Portillo[-Rodriguez] and other source(s) of cocaine and
marijuana.” 10 Castillo-Garcia, 920 F. Supp. at 1559 ¶ 30. The government sought
the Third Wiretap in order to determine where Ceferino Castillo-Garcia and Jaime
Olivas-Sanchez were obtaining their drug supplies.
10
Like the phone numbers at issue in the Second Wiretap, neither of the two
pager numbers which were subject to the Third Wiretap were subscribed to in the
names of the Third Wiretap’s targets. For the reasons discussed in footnote 9,
supra, however, we discount the relevance of this fact. It is uncontroverted that
the pager numbers at issue here were in fact being used by Ceferino Castillo-
Garcia and Jaime Olivas-Sanchez, who were the targets of the Third Wiretap.
- 32 -
As the district court noted, the application for the Third Wiretap
incorporated by reference the application for the First Wiretap. 11 See Castillo-
Garcia, 920 F. Supp. at 1559 ¶ 28. Further, the application for the Third Wiretap
was filed and ruled on by Judge Sparr concurrently with the application for the
Second Wiretap. See id. at 1542, 1557, 1559.
For the reasons discussed in our analysis of the Second Wiretap, we believe
that, as of September 22, 1994, the government had demonstrated sufficient
necessity to wiretap the communications of Ceferino Castillo-Garcia.
Accordingly, we think that the necessity to wiretap phone number (303) 251-
1594, a digital paging device allegedly being used by Ceferino Castillo-Garcia to
receive late-breaking drug purchase orders while traveling in Mexico to purchase
drugs, was sufficiently established. We therefore reverse the order of the district
court suppressing the evidence obtained from the wiretap of phone number (303)
251-1594.
11
As the district court noted, no copy of the application for the First Wiretap
was actually attached to the application for the Third Wiretap. See Castillo
Garcia, 920 F. Supp. at 1559 ¶ 28 & n.2. A copy of the application for the First
Wiretap was, however, attached to the application for the Second Wiretap. Id. at
1557 ¶ 29. Because the Second and Third Wiretap applications were ruled on by
Judge Sparr on the same day, id. at 1542, we are confident that, despite the
government’s clerical error, Judge Sparr was able to consider the relevant
material from the First Wiretap application in ruling on the Third Wiretap
application.
- 33 -
We substantially agree, however, with the district court’s analysis of the
lack of a showing of necessity for wiretapping the digital paging device assigned
to phone number (303) 609-1931, and used by defendant-appellee Jaime Olivas-
Sanchez. As the district court noted, Detective Barnhill swore in his affidavit
attached to the Third Wiretap application that “a variety of normal and routine
investigative techniques have been attempted during this investigation.” See
Castillo-Garcia, 920 F. Supp. at 1559 ¶ 28 (reprinting affidavit). Detective
Barnhill’s statement was technically true but largely misleading. The “variety of
normal and routine investigative techniques” that had been attempted during “this
investigation” consisted primarily of visual surveillance directed against just two
suspects: Rosario Portillo-Rodriguez, see id. at 1542-43, and Ceferino Castillo-
Garcia. (See Rec. V.6 at 20 ¶ 23(a); Aplt.’s Br. at 23). While criminal
background checks, pen registers, and trap and trace devices were apparently used
against suspect Jaime Olivas-Sanchez, no other “normal and routine investigative
techniques” were ever directed against him, or, indeed, against any suspect other
than Rosario Portillo-Rodriguez or Ceferino Castillo-Garcia. Castillo-Garcia,
920 F. Supp. at 1551-52.
This fact, standing alone, does not imply that the government lacked
necessity to wiretap Jaime Olivas-Sanchez’s digital paging device. As discussed
supra, such a wiretap would qualify as “necessary” under 18 U.S.C. §§
- 34 -
2518(1)(c), 2518(3)(c) (1994) ever where no “normal investigative techniques”
had even been tried, if all such techniques reasonably appeared either unlikely to
succeed if tried, or too dangerous to try. We thus proceed to examine whether the
government demonstrated in its application for the Third Wiretap the potential
futility or danger of attempting “normal investigative techniques” against Jaime
Olivas-Sanchez.
We agree with the district court that the factors set forth in the First and
Second Wiretap applications to establish “necessity” to wiretap Rosario Portillo-
Rodriguez’s and Ceferino Castillo-Garcia’s telephone numbers do not necessarily
establish “necessity” to wiretap telephone numbers used by the other defendants.
See Castillo-Garcia, 920 F. Supp. at 1551. In particular, we note that the First
Wiretap application describes the difficulty of visual surveillance of the Raritan
Street houses, and the difficulty of “tailing” Rosario Portillo-Rodriguez, who
owned nine cars and frequented remote construction sites. Id. at 1555-56 ¶ 39.
Similarly, the Second Wiretap application describes how visual surveillance of
Ceferino Castillo-Garcia was tried and detected. Id. at 1557-58 ¶ 34(a).
The Third Wiretap application, by contrast, relies on wholly conclusory
language which would apply to every member of every suspected drug conspiracy
to explain why visual surveillance of Jaime Olivas-Sanchez, which was never
attempted, would not have worked. The application says that:
- 35 -
Surveillance of [each member of the suspected conspiracy] designed
to identify all their distributors would require that their activities be
monitored on a 24-hour basis. It is unlikely that such a surveillance
operation could be conducted for more than a brief period of time
before it was discovered, possibly placing the entire investigation in
jeopardy. . . .
In your affiant’s experience, surveillance of these individuals has
been successful only to a limited degree, in that prior knowledge of
the subjects’s activities enabled surveillance officers to observe
meetings at known locations.
Id. at 1560 ¶ 34.
As the district court noted, nothing in this language is in any way
particularized to Jaime Olivas-Sanchez. See id. at 1549 (“In contrast to the First
Wiretap Affidavit, there is . . . no claim in the [Third] Wiretap application[]
concerning circumstances which made surveillance unusually difficult.”). Thus,
we think that the “standard visual and aural surveillance prong” of our test was
simply not established in the application for the Third Wiretap with respect to
Jaime Olivas-Sanchez. Further, we can see no reason, based on the government’s
recitation of the facts of the case, why such standard visual and aural surveillance
would not have worked against Jaime Olivas-Sanchez.
We have, of course, said that the “necessity” requirement “should be read
in a common sense fashion.” United States v. Nunez, 877 F.2d 1470, 1472 (10th
Cir.), cert. denied, 493 U.S. 981 (1989); see also Johnson, 645 F.2d at 867
(“affidavits in support of an application for a wiretap order . . . are to be read in a
- 36 -
practical and commonsense manner rather than hypertechnically”) (citing cases).
However, we have also made it clear that a “common sense approach” will not
rehabilitate the government’s failure to include statutorily required information in
a wiretap application. United States v. Mondragon, 52 F.3d 291, 293 (10th Cir.
1995).
Applying “common sense,” we note that wiretapping is normally the safest
and most efficacious way for law enforcement officers to gain useful information
about a suspected drug conspiracy. However, we have declined to deduce from
this “common sense” observation any per se rule that wiretapping is always
“necessary” when there is probable cause to believe that the suspects are engaged
in a drug conspiracy. See Mondragon, 52 F.3d at 293-94 (suppressing evidence
of drug conspiracy obtained pursuant to wiretapping warrant because “necessity”
for wiretap was not established in warrant application). Rather, we have said
that:
The necessity requirement directly and substantially implements the
congressional intention to limit the use of intercept procedures to
those situations clearly calling for their employment. As a result,
failure to satisfy this requirement requires that the contents of the
intercepted communications and the evidence derived therefrom be
suppressed.
Id. at 294 (citing United States v. Donovan, 429 U.S. 413, 433-34 (1977))
(internal punctuation and citations omitted).
- 37 -
Our approach to the “necessity” requirement of Title III is consistent with
the opinion of the Supreme Court in United States v. Giordano, 416 U.S. 505(1974). In Giordano, the Court described the congressional intent underlying
Title III as follows:
Congress legislated in considerable detail in providing for
applications and orders authorizing wiretapping and evinced the clear
intent to make doubly sure that the statutory authority be used with
restraint and only where the circumstances warrant the surreptitious
interception of wire and oral communications. These procedures
were not to be routinely employed as the initial step in criminal
investigation. Rather, the applicant must state and the court must
find that normal investigative procedures have been tried and failed
or reasonably appear to be unlikely to succeed if tried or to be too
dangerous.
Id. at 515.
In the present case, the Third Wiretap application simply failed to contain
any evidence, other than conclusory evidence that would apply to virtually all
drug conspiracy investigations, that “normal investigative procedures”--
particularly “standard visual and aural surveillance”--would have been unlikely to
succeed if tried against Jaime Olivas-Sanchez, or that such procedures were too
dangerous to try. Title III, however, requires that such evidence be stated “full[y]
and complete[ly],” 18 U.S.C. § 2518(1)(c) (1994), i.e. in a particularized manner.
We therefore affirm the order of the district court suppressing the evidence
obtained during the Third Wiretap from wiretapping phone number (303) 609-
1931.
- 38 -
Fourth Wiretap (94-WT-10) (10/7/94):
The district court found that the government’s application for the Fourth
Wiretap failed to satisfy the necessity requirements of 18 U.S.C. §§ 2518(1)(c),
2518(3)(c) (1994). Castillo-Garcia, 920 F. Supp. at 1549-52. Reviewing this
conclusion de novo, we disagree.
The Fourth Wiretap was directed against Ceferino Castillo-Garcia’s home
telephone number, which was subscribed to in Ceferino Castillo-Garcia’s own
name. It was predicated in part on information obtained in the earlier wiretaps.
The government sought the Fourth Wiretap on October 7, 1994, by which time
Ceferino Castillo-Garcia had stopped making many of his drug-related “business”
calls from the phone numbers which were subject to the Second Wiretap, and had
begun making such calls from his home phone number. The purpose of the
Fourth Wiretap was identical to the purpose of the Second Wiretap: to determine
where Ceferino Castillo-Garcia was allegedly obtaining his drug supplies.
As the district court noted, the application for the Fourth Wiretap
incorporated by reference the applications for the First and Second Wiretaps. See
Castillo-Garcia, 920 F. Supp. at 1561 ¶ 37 & nn.3 & 4. For the reasons discussed
in our analysis of the Second Wiretap, we believe that, as of October 7, 1994, the
government had demonstrated sufficient necessity to wiretap the communications
of Ceferino Castillo-Garcia. We do not think that Ceferino Castillo-Garcia could
- 39 -
defeat this showing of necessity simply by changing phone numbers.
Accordingly, we think that the government established sufficient necessity to
wiretap phone number (303) 477-2721. We therefore reverse the order of the
district court suppressing the evidence obtained from the Fourth Wiretap.
Fifth Wiretap (94-WT-11) (10/21/94):
The district court found that the government’s application for the Fifth
Wiretap failed to satisfy the necessity requirements of 18 U.S.C. §§ 2518(1)(c),
2518(3)(c) (1994). Castillo-Garcia, 920 F. Supp. at 1549-52. Reviewing this
conclusion de novo, we agree.
The Fifth Wiretap, which was applied for and granted on October 21, 1994,
was directed against a telephone number subscribed to under the name of “M.
Olivas,” and allegedly used by Jaime Olivas-Sanchez to conduct drug-related
conversations with Rosario Portillo-Rodriguez. The purpose of the Fifth Wiretap
was identical to one of the purposes of the Third Wiretap: to determine where
Jaime Olivas-Sanchez was allegedly obtaining his drug supplies.
As the district court noted, the application for the Fifth Wiretap
incorporated by reference the applications for the First and Third Wiretaps. 12 See
Castillo-Garcia, 920 F. Supp. at 1563 ¶ 30 & nn.5 & 6. For the reasons discussed
12
As in some of the earlier applications, the government explained that telephone
toll records, pen register and trap and trace devices had been utilized but that those
devices had not revealed the identities of further participants in the conspiracy.
Castillo-Garcia, 920 F. Supp. at 1565 ¶ 37.
- 40 -
in our analysis of the Third Wiretap, we believe that, as of September 22, 1994,
the government had not demonstrated sufficient necessity to wiretap the
communications of Jaime Olivas-Sanchez. We see nothing in the government’s
October 21, 1994 application for the Fifth Wiretap which adds anything to its
earlier inadequate showing. We therefore affirm the order of the district court
suppressing the evidence obtained from the Fifth Wiretap.
IV.
In concluding its Order granting the defendants’ Motion to Suppress
evidence obtained from the Second through Fifth Wiretaps, the district court said
the following:
It is evident the Government's approach here was to move swiftly
from wiretap to wiretap, without pausing to consider whether normal
investigative procedures could be used effectively, particularly in
light of any evidence obtained as a result of each succeeding wiretap.
The Government sought each succeeding wiretap solely because
defendants were suspected to be members of the conspiracy under
investigation. Such suspicion, while it may satisfy the probable
cause element of the wiretap statute, is an insufficient basis for a
wiretap. If the Constitution and the statutory procedures of title III
are to have any real meaning . . ., the Government must be held to a
standard above that which is revealed by the facts of this case.
Castillo-Garcia, 920 F. Supp. at 1552 (internal citations omitted).
Reviewing this conclusion de novo, we find that with respect to defendant-
appellee Ceferino Castillo-Garcia, the government did attempt certain “normal
- 41 -
investigative procedures,” sufficient to justify its subsequent recourse to
wiretapping. We agree with the district court, however, that no such techniques
were ever attempted against any of the other defendants in the present case, nor
was the government’s failure to do so explained in terms adequately
particularized to the facts of the case at hand. We further agree with the district
court’s admonition that, even within an ongoing investigation of a suspected drug
conspiracy, the government may not simply “move swiftly from wiretap to
wiretap.” Id. Rather, under Title III, it must always “paus[e] to consider whether
normal investigative procedures could be used effectively, particularly in light of
any evidence obtained as a result of each succeeding wiretap.” Id.; compare
United States v. Killingsworth, No. 96-6021 (10th Cir. June 30, 1997) (providing
an example of a wiretap application in full compliance with the letter and spirit of
Title III).
V.
Also before us is the government’s appeal of the district court’s denial of
its motion for reconsideration. United States v. Castillo-Garcia, No. 94-CR-371,
slip op. at 5-8 (D. Colo. May 23, 1996) (unpublished order & mem.). An appeal
of a district court’s denial of a motion to reconsider “raises for review only the
district court’s order of denial and not the underlying judgment itself.” Van
- 42 -
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506
U.S. 828 (1992) (citing cases). “Therefore, we review a denial of a motion to
reconsider only for an abuse of discretion.” Elsken v. Network Multi-Family Sec.
Corp., 49 F.3d 1470, 1476 (10th Cir. 1995).
Here, the district court found that “the Government raise[d] no new law or
facts” in its motion to reconsider, i.e. no arguments based either on newly
discovered evidence or on legal authority promulgated subsequent to the hearing
on the suppression motion. United States v. Castillo-Garcia, No. 94-CR-371, slip
op. at 8 (D. Colo. May 23, 1996) (unpublished order & mem.) (emphasis in
original). Indeed, the government apparently conceded that it had never raised
the “good faith exception” argument until after the defendants’ motion to
suppress had been granted. Id. at 5. As the district court noted, arguments raised
for the first time in a motion for reconsideration are not properly before the court
and generally need not be addressed. Burnette v. Dresser Indus., Inc.,
849 F.2d 1277, 1285 (10th Cir. 1988) (citing Eureka Carlisle Co. v. Rottman, 398
F.2d 1015, 1019 (10th Cir. 1968)). Thus, the district court did not abuse its
discretion when it denied the government’s motion to reconsider.
Normally, when a claim is “not considered or ruled upon by the district
court, we will not address it on appeal.” Id. We thus decline to reach the
question of whether, notwithstanding the plain language of 18 U.S.C. § 2515- 43 -
(1994), a “good faith exception” might permit the admission of wiretap evidence
obtained pursuant to a facially valid wiretapping order issued in violation of Title
III.
CONCLUSION
We REVERSE the order of the district court granting the defendants’
suppression motions with respect to the Second Wiretap (94-WT-7) and the
Fourth Wiretap (94-WT-10) We AFFIRM the order of the district court granting
the defendants’ suppression motion with respect to the Fifth Wiretap (94-WT-11).
We AFFIRM IN PART and REVERSE IN PART the district court’s order
granting the defendants’ suppression motion with respect to the Third Wiretap
(94-WT-8). Specifically, we affirm the district court’s order suppressing
evidence obtained from wiretapping phone number (303) 609-1931, but reverse
the district court’s order suppressing evidence obtained from wiretapping phone
number (303) 251-1594.
Finally, we AFFIRM the district court’s denial of the government’s motion
for reconsideration.
- 44 -