United States v. Lucio Camarillo ( 2011 )

FILED
NOT FOR PUBLICATION MAR 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30097
Plaintiff - Appellee, D.C. No. 2:09-cr-02023-EFS-1
v.
LUCIO JOAQUIN CAMARILLO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Court Judge, Presiding
Argued and Submitted January 14, 2011
Seattle, Washington
Before: GRABER and FISHER, Circuit Judges, and MARSHALL, Senior District
Judge.**
Defendant Lucio Joaquin Camarillo timely appeals the district court’s denial
of his motions to suppress and his motion for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). Defendant argues that the search warrant was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Consuelo B. Marshall, Senior United States District
Judge for the Central District of California, sitting by designation.
premised on an illegal wiretap and that the affidavit supporting the search warrant
omitted material information. We review a district court’s denial of a motion to
suppress de novo. United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010).
We review an issuing judge’s decision that a wiretap was necessary for abuse of
discretion. United States v. Canales Gomez, 358 F.3d 1221, 1225 (9th Cir. 2004).
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The wiretap warrant contained sufficient information for the issuing judge to
determine that the wiretap was necessary. See United States v. McGuire, 307 F.3d
1192, 1196 (9th Cir. 2002) (“This ‘necessity’ requirement can be satisfied by a
showing in the application that ordinary investigative procedures, employed in
good faith, would likely be ineffective in the particular case.” (citing United States
v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986))). The affidavit supporting the
wiretap warrant detailed unique difficulties in the investigation of the Camarillo
family, including Camarillo family members’ past refusals to cooperate with law
enforcement, difficulty locating family members’ residences, and specific
problems with conducting physical and electronic surveillance.
Defendant identifies three facts that were present in the affidavit supporting
the wiretap but omitted from the affidavit supporting the search warrant: (1) that
members of the Camarillo family tended not to store narcotics at their homes; (2)
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that physical surveillance of the Camarillo family members’ homes did not reveal
suspicious activity; and (3) that members of the Camarillo family were not
believed to keep written documentation of their drug trafficking. We have held
that an omission may provide the basis for a Franks hearing when: “(1) the
affidavit contains intentionally or recklessly false statements or misleading
omissions, and (2) the affidavit cannot support a finding of probable cause without
the allegedly false information.” United States v. Reeves, 210 F.3d 1041, 1044 (9th
Cir. 2000). The affidavit supporting the search warrant did not contain any
misleading omissions. Accordingly, the district court properly denied Defendant’s
motion to suppress and Defendant’s request for a Franks hearing.
AFFIRMED.
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