United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS WIRETAP EVIDENCE (Doc. 258)
GEORGE CARAM STEEH, District Judge.
Now before the court is defendant Danny Juarez's motion to suppress the fruits of the wiretap used to intercept telephone conversations and evidence on the grounds that (1) the government failed to establish the "necessity requirement" by failing to show that traditional investigative techniques were insufficient, and (2) the government failed to properly minimize non-incriminating calls. A hearing on the motion was heard on May 11, 2015. At that time, the parties sought leave to file supplemental briefs, which this court granted, and the parties have now done so. Having duly considered all of the written submissions and oral argument, and for the reasons set forth below, defendant's motion shall be denied.
I. Factual Background
Defendant Danny Juarez has been indicted along with twenty-two others of federal narcotics charges arising out of a multi-national conspiracy involving multi-kilograms of cocaine transported from Mexico to points in the United States including California, Michigan, Ohio and Maryland. (Doc. 168). Defendant is charged with transporting and/or distributing cocaine, loading and unloading cocaine and cocaine proceeds, and repackaging and/or storing cocaine. Id. at ¶ 5. Defendant seeks to suppress evidence obtained through a wiretap issued by a San Bernardino Superior Court Judge on January 24, 2012. The wiretap investigation began on that same day and continued for 30-days.
In connection with the wiretap application, Detective John DeBets, a 29-year veteran of the Los Angeles County Sheriff's Department, submitted an affidavit to intercept the wire communications of a cell phone used by defendant. In his affidavit, he identifies defendant as a suspected courier of a major drug organization and overseer of the stash of drugs and illicit proceeds. (Doc. 258, Ex. 2 at ¶ 20(c)). At the time that Detective DeBets submitted his affidavit, the investigation had resulted in the arrest of a number of individuals, the seizure of large quantities of narcotics, the seizure of large sums of illicit proceeds, and the seizure of narcotic related contraband consistent with drug trafficking. Id. at ¶ 32. Although the investigation had yielded the seizure of 33 kilograms of cocaine in Barstow, California in December, 2011, id. at ¶¶ 92-93, investigators had not identified most of the conspirators in California, id at ¶ 20, and in his affidavit, Detective DeBets stated that the wiretap was necessary to identify how the cocaine was being imported, where the narcotics and illicit proceeds were stored, and the day-to-day operations of the organization. Id. at ¶¶ 27, 61. In Detective DeBets' affidavit, he discussed in great detail the investigative steps taken and the evidence collected to that point of the investigation, and explained why those traditional investigative techniques actually employed, or those not used, were or would be insufficient.
A. Governing Law
Although the warrant in question was issued by a California state court, federal law governs defendant's motion to suppress. See United States v. Shields, 978 F.2d 943, 945-46 (6th Cir. 1992) (federal law governs question of validity of state issued search warrant in a federal criminal prosecution); United States v. Kelley, 596 F.Supp.2d 1132, 1141 (E.D. Tenn. 2009) (relying on decisions of the Eighth, Seventh, Second, First and Third Circuits holding that federal law governs the admissibility of evidence obtained as the result of state-authorized wiretaps).
B. The Necessity Requirement
Defendant argues that the government failed to exhaust traditional investigative techniques before applying for a wiretap in violation of 18 U.S.C. § 2518(1)(c). The Title III "necessity requirement" mandates that an application for a wiretap order contain "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." United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (quoting § 2518(1)(c)). "The purpose of the necessity requirement is to ensure that a wiretap is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Rice, 478 F.3d 704, 710 (6th Cir. 2007) (internal quotation marks and citation omitted). The necessity defense also ensures that a wiretap not be impermissibly used as the "initial step in [a] criminal investigation." United States v. Giordano, 416 U.S. 505, 515 (1974). But there is no need that a wiretap be only used as a last resort. United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir. 1975).
In order to comply with the necessity requirement of Title III, "the government is not required to prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted." United States v. Alfano, 838 F.2d 158, 163 (6th Cir. 1988). Rather, "[a]ll that is required is that the investigators give serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators' belief that such non-wiretap techniques have been or will likely be inadequate." Id. at 163-64 (internal quotation marks and citation omitted). In order to satisfy the necessity requirement, the government cannot rely on a purely conclusory affidavit unrelated to the case, but must set forth enough factual specificity to show that the wiretap is not being employed as the initial step in a criminal investigation. United States v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977). But the burden on the government to show necessity is not a heavy one. Id. "[C]onsiderable discretion rests with the issuing judge in deciding whether other investigative methods might be successfully employed." Id. (internal quotation marks and citations omitted).
"Because the necessity requirement is a component of Title III, and because suppression is the appropriate remedy for a violation under Title III, where a warrant application does not meet the necessity requirement, the fruits of any evidence obtained through that warrant must be suppressed." Rice, 478 F.3d at 710. However, "a wiretap authorization order is presumed proper, and a defendant carries the burden of overcoming this presumption." United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995); see United States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir. 1979) ("It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression.") District courts are to give great deference to the authorizing court. United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000).
Defendant argues that the government's affidavit, submitted to the authorizing court, was comprised merely of boilerplate language and lacked the factual underpinnings necessary to satisfy the necessity requirement. A careful review of the affidavit, however, reveals that it sets forth a factual basis for its proffer that ordinary investigative techniques have been and will be insufficient or dangerous, and satisfies the requirements of § 2518(1)(c). Significantly, as the government avers in its response, the investigation was not undertaken merely to determine if defendant was engaged in narcotics distribution, but to identify and disrupt a high-volume pipeline of narcotics with conspirators in Mexico and throughout the United States. As identified in Detective DeBet's affidavit, the purpose of the wiretap was (1) to identify the identification of key personnel of the drug trafficking organization, (2) to discover the identity and role of all of the target subjects' suppliers of illegal narcotics, (3) to discover the identity of the target subjects' suppliers of illegal narcotics, (4) to discover the stash locations where the organization's supplies of illegal narcotics are kept prior to distribution, (5) to discover the management and disposition of proceeds generated in the organization, (6) to discover the methods and routes used by the organization to import illegal narcotics into the United States and to deliver the illegal narcotics to various states; and (7) to obtain evidence beyond a reasonable doubt against the target subjects and later identified conspirators. (Doc. 258, Ex. 2 at ¶¶ 27, 61).
In his affidavit, Detective DeBet explained why traditional investigative techniques were insufficient to meet these goals. Specifically, he explained that many of the traditional investigative techniques actually used or deemed ineffective were insufficient because of the necessarily covert nature of narcotics investigation. Detective DeBet explained that narcotics' evidence, such as the drugs themselves, records or cell phones used in furtherance of the conspiracy, are easily destroyed or discontinued in their use; thus, it is critical not to alert drug traffickers of the existence of a larger investigation. For this reason, relying on interviews, search warrants, and calling ...