State v. Hebeishy

2022 UT App 134THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SADAT AHMED HEBEISHY,
Appellant.
Opinion
No. 20200463-CA
Filed December 8, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 161900099
Emily Adams and Benjamin Miller, Attorneys
for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUSTICE JILL M. POHLMAN authored this Opinion, in which JUDGE
GREGORY K. ORME and JUSTICE DIANA HAGEN concurred. 1
POHLMAN, Justice:
¶1 Sadat Ahmed Hebeishy entered a conditional guilty plea
to one count of pattern of unlawful activity, reserving his right to
appeal the district court’s denial of his motion to suppress
evidence obtained through two wiretaps. He now appeals,
arguing that the wiretap applications failed to meet the necessity
1. Justices Jill M. Pohlman and Diana Hagen began their work on
this case as members of the Utah Court of Appeals. They both
became members of the Utah Supreme Court thereafter and
completed their work on this case sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 3-108(4).
State v. Hebeishy
requirement of section 77-23a-10(1)(c) of Utah’s Interception of
Communications Act. We affirm. 2
BACKGROUND
¶2 The Titanic Crip Society (TCS) is a small criminal street
gang that has been operating in Weber County, Utah, since at least
the 1990s. In 2015, law enforcement observed an increase in the
number of crimes being committed by members of TCS and that
the gang was recruiting juveniles who were participating “in
fairly serious criminal offenses.” Within a few months, an officer
(Officer) of the Ogden Police Department who was assigned to the
FBI’s Safe Street Gang Unit Task Force began investigating TCS.
As part of his investigation, Officer reviewed police reports,
photographs, audio recordings, witness statements, and
interview notes.
¶3 Officer’s investigation revealed that TCS’s organization is
made up of “big homies and little homies.” Big homies are the
“shot callers” who “manag[e] the affairs of the gang” while taking
“a hands-off approach” to the criminal conduct. The big homies
direct the little homies in “their behavior and their conduct within
the organization,” and the big homies utilize the little homies “to
recruit actively and often.” Officer identified Sadat 3 and his
brother, Tamer Hebeishy, as big homies within TCS.
2. This case is a companion case to State v. Pickett, 2022 UT App
135, and State v. Tamer Hebeishy, 2022 UT App 136, both of which
also issue today.
3. Because Tamer and Sadat Hebeishy share the same last name,
we refer to them by their first names, with no disrespect intended
by the apparent informality.
20200463-CA 2 2022 UT App 134State v. Hebeishy
The First Wiretap – Tamer’s Mobile Phone
¶4 In November 2015, Officer applied for a wiretap warrant
on Tamer’s mobile phone. In a 180-page affidavit supporting
the application, Officer identified three investigatory objectives
of the wiretap: (1) to document and confirm the identities of
TCS members, including those in positions of management;
(2) to “[d]issolve or . . . severely disrupt” TCS’s criminal
operations; and (3) to obtain “gang-specific intelligence” to aid
in “preventing, managing, or suppressing future criminal
behavior(s).” In the affidavit, Officer asserted that the wiretap
was “necessary” because of the difficulty in dismantling a
gang with TCS’s organizational structure. He explained: “There
is a recurring theme which suggests TCS shot callers,
including Tamer and Sadat Hebeishy, encourage and direct the
criminal behavior of younger (often juvenile) and subordinate
members. Thus, the shot callers mitigate their own risk of
incarceration. This makes the dismantlement of the organization
a difficult task, as the gang’s leaders are free to repetitively recruit,
groom, and manipulate new and impressionable members.”
(Cleaned up.)
¶5 Officer also detailed nearly twenty years of criminal
activity documented in police records, analyzed phone recordings
from the Weber County Jail, described evidence obtained from
previously seized mobile phones belonging to other TCS
members, and discussed an interview with Tamer and Sadat’s
brother, Sharif Hebeishy. Officer further explained that
“traditional investigatory methods have failed to realize the
dissolution of [TCS]” and that “those traditional methods which
have not been attempted are either unpractical, too dangerous, or
unlikely to result in the procurement of evidence to prosecute
fully the participants who engage in criminal conduct on behalf
and for the benefit of [TCS].” He then detailed the ineffectiveness
of eight investigatory techniques: physical surveillance, knock
20200463-CA 3 2022 UT App 134State v. Hebeishy
and talks, 4 undercover or covert operations, confidential
informants, trash covers, 5 controlled buys, searches and search
warrants, and pen registers. 6
¶6 The district court authorized the wiretap of Tamer’s mobile
phone on November 13, 2015. It found “probable cause to believe
that . . . [Tamer] and others” had and would continue to commit
crimes, and “probable cause to believe that particular
communications concerning [those crimes would] . . . be obtained
through” a wiretap of Tamer’s phone. The court also determined
that “normal investigative procedures ha[d] been tried and
failed,” were “unlikely to succeed,” or were “too dangerous”
based on “the specified objectives of this criminal investigation.”
Thus, the court concluded that the wiretap was “necessary to
achieve the listed objectives of this criminal investigation.”
¶7 Four days after the wiretap was approved, Tamer’s phone
was intercepted. Interception continued until the middle of
January 2016 pursuant to two orders extending the duration of the
initial wiretap.
4. Officer explained in his affidavits that a “knock and talk” is “a
commonly used expression” used by law enforcement “to
describe an investigative technique in which officers make contact
with suspected criminal offenders at their place(s) of residence.”
5. According to Officer, a “trash cover” is “a specialized technique
utilized by law enforcement” that “includes the covert
procurement and examination of the garbage which is abandoned
by the owners of a private residence.”
6. A “pen register” is “a device that records or decodes electronic
or other impulses that identify the numbers dialed or otherwise
transmitted on the telephone line to which the device is attached.”
Utah Code Ann. § 77-23a-3(14) (LexisNexis 2017).
20200463-CA 4 2022 UT App 134State v. Hebeishy
The Second Wiretap – Sadat’s Mobile Phone
¶8 In December 2015, Officer applied for a wiretap warrant on
Sadat’s mobile phone. Officer’s supporting affidavit was
substantially similar to his affidavit in support of the wiretap on
Tamer’s mobile phone, but there were a few differences. In
addition to identifying the same overall investigatory objectives,
Officer explained that an additional objective of the second
wiretap was to identify Sadat’s “specific role” within TCS and to
determine “his individual rights and/or responsibilities . . . as one
of the gang’s primary managers.” Officer also explained that law
enforcement had recently utilized other traditional techniques to
investigate Sadat, including installing an electronic monitoring
device on his vehicle, conducting physical surveillance at his
residence, and collecting trash from a garbage can in front of that
residence. Those techniques, however, failed to yield the evidence
needed to achieve law enforcement’s goal of acquiring evidence
of Sadat’s “position and influence” within TCS. Finally, the
affidavit contained a thirteen-page section on necessity similar to
that included in Officer’s first affidavit, detailing other
investigatory techniques that had been tried and failed, were not
likely to succeed, or were too dangerous. The district court
authorized the wiretap. 7
¶9 Sadat’s mobile phone was intercepted beginning in
December 2015 and continuing through January 2016.
The Motion to Suppress
¶10 Several months after collecting evidence through the
wiretaps, the State brought charges against Sadat and five other
7. The district court’s order authorizing the wiretap on Sadat’s
mobile phone is not in the record, but the parties agree that the
wiretap was authorized and neither contends that the order’s
absence from the record inhibits our ability to resolve this appeal.
20200463-CA 5 2022 UT App 134State v. Hebeishy
TCS co-defendants (including Tamer). Sadat was charged with
one count of pattern of unlawful activity with gang enhancement
and one count of possession of a dangerous weapon by a
restricted person. Prior to trial, Sadat filed a motion to suppress
the evidence obtained from the wiretaps. He argued, in part, that
Officer’s wiretap applications failed to show necessity because
Officer did not personally “attempt[]” or “seriously consider[]”
several traditional investigatory techniques before seeking the
wiretaps and because his affidavits were based mostly on
“generalities and conclusory statements” about the
ineffectiveness of those techniques.
¶11 After briefing and oral argument, the motion was denied.
The district court rejected Sadat’s argument that the affidavits
were conclusory and lacked supporting facts, and it found that
Officer “described law enforcement techniques that had been
tried and failed, were not likely to succeed, or [were] too
dangerous to try.” Specifically, the court found that Officer
“explained with factual information how surveillance, jail phone
calls, witness interviews, search warrants, trash runs, confidential
informants or undercover informants, and pen register-type
information had been obtained and failed to fully identify and
stop the leaders and members of TCS from the commission of
criminal activity” and why those investigative techniques “were
not likely to succeed if tried again” or were “too dangerous to
try.” And based on those findings, the court determined that the
necessity requirement of Utah’s Interception of Communications
Act had been satisfied and that Sadat had failed to demonstrate
that the evidence obtained from the wiretaps should be
suppressed.
¶12 Sadat subsequently entered a conditional guilty plea to one
count of pattern of unlawful activity, reserving his right to appeal
the district court’s ruling on his motion to suppress. Sadat now
appeals.
20200463-CA 6 2022 UT App 134State v. Hebeishy
ISSUE AND STANDARD OF REVIEW
¶13 Sadat contends that the district court erred in denying his
motion to suppress evidence obtained through the two wiretaps.
More specifically, Sadat contends that the court incorrectly
determined that law enforcement had satisfied the necessity
requirement of Utah’s Interception of Communications Act.
¶14 The parties disagree over what standard of review applies
to this question. 8 Relying on the standard traditionally applied to
the review of denials of motions to suppress based on violations
of the Fourth Amendment, Sadat argues that we should review
this issue as a mixed question of law and fact, reviewing the
district court’s factual findings for clear error but affording no
deference to the district court’s necessity determination. The State,
in contrast, invites us to review the district court’s necessity
determination for an abuse of discretion, contending that we
should adopt the standard applied by the majority of federal
appeals courts in reviewing necessity determinations under the
federal wiretap statute. See United States v. Ramirez-Encarnacion,
291 F.3d 1219, 1222 n.1 (10th Cir. 2002) (collecting cases). We need
not resolve this dispute because, even reviewing the district
court’s necessity determination for correctness as urged by Sadat,
we discern no error by the district court.
ANALYSIS
¶15 The district court denied Sadat’s motion to suppress,
concluding that Officer’s applications demonstrated the necessity
required for the authorization of wiretaps of Tamer’s and Sadat’s
8. Utah appellate courts have yet to address the necessity
requirement in Utah’s Interception of Communications Act and
thus have had no occasion to articulate the appropriate standard
of review.
20200463-CA 7 2022 UT App 134State v. Hebeishy
mobile phones. Sadat challenges the court’s conclusion, arguing
that Officer failed to show that other more traditional
investigative procedures had been tried and failed or that other
investigative procedures reasonably appeared unlikely to succeed
or were too dangerous to be tried. We begin with a general
discussion of Utah’s Interception of Communications Act (the
Act), which to date has received limited attention from Utah
appellate courts. See generally Utah Code Ann. §§ 77-23a-1 to -16
(LexisNexis 2017 & Supp. 2022). We then address Sadat’s
challenge to the district court’s determination that Officer had
demonstrated necessity under the Act.
I
¶16 The Act generally prohibits the nonconsensual interception
and disclosure of wire, electronic, or oral communications. See
generally id. § 77-23a-2(4) (2017). 9 The Act, however, allows law
enforcement in certain criminal investigations to seek court
authorization to intercept and use such communications. See id.
§§ 77-23a-2(3)–(4), -8, -10. In its findings that precede the
substantive text of the Act, the Utah Legislature explains that
because “[o]rganized criminals make extensive use of wire and
oral communications in their criminal activities,” “[t]he
interception of such communications to obtain evidence of the
commission of crimes or to prevent their commission is an
indispensable aid to law enforcement and the administration of
justice.” Id. § 77-23a-2(3). Yet, “[t]o safeguard the privacy of
innocent persons,” the legislature has approved the
nonconsensual interception of wire or oral communications “only
when authorized by a court of competent jurisdiction” pursuant
to the requirements of the Act. See id. § 77-23a-2(4). If a defendant
contends that a communication was “unlawfully intercepted,” the
9. Because there have been no substantive changes to the relevant
statutory provisions, we cite the current version of the Utah Code
for the reader’s convenience.
20200463-CA 8 2022 UT App 134State v. Hebeishy
defendant may move to suppress the contents of the
communication on that basis. 10 Id. § 77-23a-10(11)(a)(i).
¶17 One of the Act’s requirements is referred to by the parties
as the necessity requirement. It requires that an application for a
wiretap order “include . . . a full and complete statement as to
whether other investigative procedures have been tried and failed
or why they reasonably appear to be either unlikely to succeed if
tried or too dangerous.” Id. § 77-23a-10(1)(c). And the judge who
issues a wiretap order must find, based on the facts submitted by
the applicant, that “normal investigative procedures have been
tried and have failed or reasonably appear to be either unlikely to
succeed if tried or too dangerous.” 11 Id. § 77-23a-10(2)(c). Because
the necessity requirement is framed in the disjunctive, law
enforcement may establish necessity by showing any one of the
10. The Act allows any “aggrieved person in any trial, hearing, or
proceeding in or before any court” to move to suppress an
unlawfully intercepted communication. See Utah Code Ann. § 77-
23a-10(11)(a) (LexisNexis 2017). An “aggrieved person” is defined
in the Act as “a person who was a party to any intercepted wire,
electronic, or oral communication, or a person against whom the
interception was directed.” Id. § 77-23a-3(1). The State does not
contest Sadat’s standing to challenge the wiretap on Tamer’s
mobile phone. Thus, we assume that Sadat is an “aggrieved
person” under the Act for the purpose of both wiretaps.
11. In addition to the necessity requirement being satisfied, a court
must also determine that there is probable cause to believe that
(1) “an individual is committing, has committed, or is about to
commit a particular offense,” (2) “communications concerning
that offense will be obtained through the interception,” and (3) the
place where the communications are to be intercepted is leased
by, listed in the name of, or commonly used by the targeted
individual. Id. § 77-23a-10(2)(a), (b), (d). Sadat does not contend
that these other requirements were unmet.
20200463-CA 9 2022 UT App 134State v. Hebeishy
three. See State v. Martinez, 896 P.2d 38, 40 (Utah Ct. App. 1995)
(holding that the “disjunctive ‘or’ . . . delineates alternative ways”
to meet a statutory requirement).
¶18 Finally, as noted above, the issue of whether a wiretap
application satisfies the necessity requirement of section 77-23a-
10(1)(c) of the Act appears to be one of first impression in Utah
appellate courts. However, Utah’s necessity requirement is
“substantially identical” to the necessity requirement in the
federal wiretap statute, see United States v. Quintana, 70 F.3d 1167,
1169 (10th Cir. 1995) (comparing Utah Code Ann. § 77-23a-10(1)(c)
with 18 U.S.C. § 2518(1)(c)), 12 and the federal necessity
requirement has been extensively analyzed by the federal courts.
Accordingly, the parties have relied on federal law in support of
their arguments, and we will refer to federal law to the extent it
aids in our review of the district court’s application of the Act. See
State v. Bradshaw, 2006 UT 87, ¶ 11, 152 P.3d 288 (observing that
federal law may be “instructive and aid us in our efforts to
interpret the Utah statute” where the Utah statute is modeled after
the federal statute).
II
¶19 Sadat contends that the district court erred in determining
that Officer’s applications for authorization to wiretap Tamer’s
12. An application to intercept wire, oral, or electronic
communications under the federal wiretap statute requires “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). Before issuing the wiretap order, a judge
must find, based on the facts submitted, 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.” Id. § 2518(3)(c).
20200463-CA 10 2022 UT App 134State v. Hebeishy
and Sadat’s mobile phones satisfied the Act’s necessity
requirement. In particular, Sadat contends that Officer’s affidavits
demonstrated other investigative techniques had proven
successful in the past, and that the district court erred in finding
Officer had adequately explained why those same techniques
were inadequate (or too dangerous) to achieve Officer’s stated
investigatory goals. We disagree with Sadat.
¶20 To satisfy the Act’s necessity requirement, Officer was
required to include with his wiretap applications “a full and
complete statement as to whether other investigative procedures
have been tried and failed or why they reasonably appear to be
either unlikely to succeed if tried or too dangerous.” Utah Code
Ann. § 77-23a-10(1)(c) (LexisNexis 2017) (emphasis added). The
district court correctly determined that Officer’s applications met
this statutory standard. Officer chronicled other investigative
procedures that had been used in the past as part of law
enforcement’s ongoing efforts to investigate TCS’s criminal
activity and explained why those same procedures reasonably
appeared to be unlikely to succeed in achieving Officer’s
investigatory goals.
¶21 To put his claims of necessity in context, Officer first
identified the three goals of his investigation: (1) to document and
confirm the identities of TCS members, including those in
management positions; (2) to dissolve or at least severely disrupt
TCS’s criminal operations; and (3) to obtain “gang-specific
intelligence” to aid in preventing or suppressing future criminal
behavior. The affidavit for the wiretap of Sadat’s phone included
the additional goal of discovering details about Sadat’s “specific
role” in the gang. Officer explained that “shot callers” like Tamer
and Sadat evade prosecution by hiding behind subordinate gang
members whom they direct to commit crimes on behalf of the
criminal enterprise. Thus, the affidavits made clear that Officer
hoped to dismantle TCS by developing prosecutable evidence
against its shot callers.
20200463-CA 11 2022 UT App 134State v. Hebeishy
¶22 As the district court determined, these are investigatory
goals that federal courts have often found warranted the use of
wiretaps because the goals were “not likely to be met by
traditional law enforcement techniques.” Indeed, “normal
investigative techniques . . . are sometimes insufficient to
determine the scope of the conspiracy or the nature of the
conspiracy leader’s on-going criminal activity.” United States v.
Bailey, 840 F.3d 99, 116 (3d Cir. 2016) (cleaned up); see also United
States v. Foy, 641 F.3d 455, 464–65 (10th Cir. 2011) (“[W]e have held
on numerous occasions that the law enforcement goal of
uncovering the size and scope of the conspiracy may justify the
authorization of wiretaps.”); United States v. Villarman-Oviedo, 325
F.3d 1, 10 (1st Cir. 2003) (approving wiretap authorization when
investigative goals involved “uncovering the full scope of the
potential crimes under investigation, as well as the identities of
those responsible for the unlawful manufacture, possession, sale
and distribution of narcotics in Puerto Rico” and “obtaining
evidence of the totality of offenses in which the targets of the
investigation were involved”); United States v. Johnson, 645 F.2d
865, 867 (10th Cir. 1981) (affirming the district court’s necessity
determination and stating that “[t]he FBI was properly concerned
. . . with identifying all of the members of the conspiracy, as well
as the precise nature and scope of the illegal activity”). Further,
the legislature recognized the value of wiretaps in disrupting
organized crime when it deemed wiretaps to be an “indispensable
aid to law enforcement and the administration of justice” given
the extensive use of wire and oral communications made by
“[o]rganized criminals.” See Utah Code Ann. § 77-23a-2(3)
(LexisNexis 2017).
¶23 Next, Officer detailed the traditional techniques that law
enforcement had used for nearly two decades to investigate TCS’s
criminal activities, which included shootings, assaults, other
violent crimes, and drug distribution. For example, Officer
described how law enforcement had previously used knock and
talks, confidential informants, trash covers, controlled buys, and
20200463-CA 12 2022 UT App 134State v. Hebeishy
searches in its efforts to uncover evidence of TCS’s criminal
activities. In chronicling this lengthy history, Officer described
instances where law enforcement was able to gather intelligence,
seize evidence, and, in some cases, make arrests that led to the
prosecution of some TCS members. But in most instances, law
enforcement’s success was limited to the seizure of small amounts
of drugs and paraphernalia with scant information discovered
about the gang. Through its efforts, law enforcement did not
“[d]issolve” or “severely disrupt” TCS’s criminal operations
because it was unable to hold shot callers like Sadat accountable
for the serious crimes committed at their direction.
¶24 Further, Officer explained in his second affidavit that
before obtaining the wiretap on Sadat’s phone, law enforcement
again tried other investigative techniques like installing “an
electronic monitoring device onto a vehicle registered and used
by Sadat,” “conducting physical surveillance at Sadat’s
residence,” and completing a trash cover operation where officers
“collected trash from a garbage can placed on the street in front of
[Sadat’s] residence.” Officer reported that these efforts “yielded
nothing of value” in his effort to prosecute Sadat for his part in
directing TCS’s criminal activities because, as a shot caller, Sadat
“avoids direct participation” in those activities.
¶25 Finally, Officer tied the stated goals and the investigative
history together by explaining why the traditional investigative
techniques, if employed again, appeared unlikely to produce
different results or evidence that would allow law enforcement to
achieve its goal of dissolving or severely disrupting TCS’s
criminal operations through prosecution of its shot callers.
Specifically, Officer detailed why “other investigative
procedures” used by law enforcement “reasonably appear[ed] to
be either unlikely to succeed if tried or too dangerous” in
achieving that goal. See id. § 77-23a-10(1)(c).
20200463-CA 13 2022 UT App 134State v. Hebeishy
¶26 Surveillance. Officer explained that physical surveillance
reasonably appeared unlikely to succeed in achieving the
investigatory goals because (1) the shot callers “distance[d]”
themselves from the criminal activity, meaning that surveillance
would not allow law enforcement to witness them committing
crimes and (2) surveillance would not capture the
communications between the shot callers and their subordinates
so as to establish their “culpability for the crimes committed by
others.” Thus, surveillance created “little chance” of disrupting
the gang’s criminal operations through prosecution of its
leadership.
¶27 Knock and talks. Officer described how law enforcement
had attempted to interview Tamer and Sadat and “many of [their]
gang associates” with little success because of a general
unwillingness “to entertain any form of consensual interaction
with police.” And although Officer agreed that knock and talks
could result in the discovery of evidence of some criminal activity,
he opined based on prior experiences that those efforts reasonably
appeared to be unlikely to produce the kind of information that
would establish Sadat’s position in the gang and evidence of the
direction he gave to junior gang members. After all, TCS members
were encouraged by those in positions of authority either to refuse
to speak to police or to deny involvement in criminal activity.
¶28 Undercover operations and confidential informants. Officer
explained that engaging in undercover operations or employing
confidential informants to try to disrupt the TCS organization was
impractical and unlikely to succeed. Among other things, Officer
described the relatively small size of the TCS gang and explained
that because of that size, it was “simply not practical” to introduce
an undercover operative. Officer also explained that TCS’s
preference for juvenile inductees, who are recruited by invitation
only, would make it particularly difficult to engage in an
undercover operation. Officer also discounted the use of
confidential informants given the tight-knit nature of the gang
20200463-CA 14 2022 UT App 134State v. Hebeishy
and the lack of a “suitable candidate.” Further, “information
pertaining to the gang’s day-to-day operations”—that is, the
information law enforcement needed to disrupt the
organization—was “well protected.”
¶29 Trash covers. Officer described how trash covers had been
used in the past but explained that the evidence gathered was
“inadequate in terms of preventing the perpetual criminal actions
taken by members of . . . TCS.” Officer also revealed that Tamer
was “aware of the technique,” making it even less likely to lead to
incriminating evidence.
¶30 Controlled buys. Officer explained that law enforcement
had, with some success, used controlled buys with members of
TCS to obtain evidence of drug offenses. But despite that “limited
and localized success” at bringing drug charges, controlled buys
did not reasonably appear likely to aid in the investigatory
goals—specifically, the dismantling of TCS through the
prosecution of the shot callers. Further, there was no intelligence
that TCS was currently distributing drugs since TCS’s primary
distributor was incarcerated.
¶31 Searches. Officer explained that prior searches, while
occasionally resulting in drug charges, had proven ineffective in
dissolving the organization. Despite occasional prosecutions for
drug-related offenses, the operation continued, and searches were
unlikely to produce evidence of TCS’s “structure and/or criminal
directive model of operation.”
¶32 Pen registers. Finally, Officer explained that the use of pen
registers would be “unlikely to provide any additional
information” because Officer already had similar data from jail
phone records, from the extraction of digital data from mobile
phones of subordinate members, and from “call detail records” of
Tamer’s mobile phone number. And Officer explained that pen
registers were not “a means by which essential information would
20200463-CA 15 2022 UT App 134State v. Hebeishy
be obtained.” See Utah Code Ann. § 77-23a-3(14) (LexisNexis
2017).
¶33 In sum, Officer’s fact-specific and detailed explanations
show that law enforcement’s investigative goal to “discover[] and
prosecute the entire leadership and membership of [TCS] and
discover the conspiracy between its members [was] a legitimate
investigative goal that was not likely to be met by traditional law
enforcement techniques.” Although traditional investigative
techniques may have been sufficient to bring charges against
some TCS members for some criminal activity, Officer
demonstrated necessity for the wiretaps of Tamer’s and Sadat’s
mobile phones given that those traditional techniques were not
reasonably likely to aid in the investigative goal of disrupting TCS
through the prosecution of its shot callers. See, e.g., United States v.
Encarnacion, 26 F.4th 490, 501 (1st Cir. 2022) (concluding that the
government had met the federal wiretap necessity requirement
where it had “plausibly explained why traditional means of
investigation, including those it had already attempted, were
insufficient to achieve the stated goals of the investigation”);
United States v. Braddy, 722 F. App’x 231, 235 (3d Cir. 2017)
(holding that “wiretaps were necessary to uncover the full scope
of the conspiracy” despite the fact that “traditional investigative
techniques may be sufficient to implicate some members of a
conspiracy”). Thus, we conclude that the district court correctly
determined that Officer had complied with the necessity
requirement of section 77-23a-10(1)(c) of the Act and did not err
in denying the motion to suppress.
CONCLUSION
¶34 In seeking authorization for wiretaps of the mobile phones
of Tamer and Sadat Hebeishy, Officer demonstrated that “normal
investigative procedures have been tried and have failed or
reasonably appear to be either unlikely to succeed if tried or too
20200463-CA 16 2022 UT App 134State v. Hebeishy
dangerous.” See Utah Code Ann. § 77-23a-10(2)(c) (LexisNexis
2017). Specifically, Officer showed that normal investigative
procedures would have been insufficient to achieve the
investigatory goal of severely disrupting TCS’s organization by
prosecuting its shot callers. Thus, the district court did not err in
denying the motion to suppress based on its conclusion that
Officer satisfied the necessity requirement of section 77-23a-
10(1)(c) of the Act. We affirm.
20200463-CA 17 2022 UT App 134