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United States v. Stepney

July 6, 2005



The opinion of the court was delivered by: Marilyn Hall Patel United States District Court Judge Northern District of California

Defendants Douglas Stepney and Kim Ellis, alleged to be members of a criminal street gang known as "Big Block," have been charged with conspiracy and numerous violations of federal drug and weapons laws. Currently before this court are several of defendants' pre-trial motions challenging various aspects of the federal and state investigations leading to their indictments. Defendants move to suppress all evidence obtained through electronic interceptions, and they seek disclosure of the identities of confidential informants relied upon in the six wiretap applications. In addition, defendants have moved to suppress the physical evidence obtained from three residential searches. Having considered the parties' argumentsand submissions, and for the reasons set forth below, the court rules as follows.


Defendants Stepney and Ellis have made three motions in the context of electronic interceptions in this case: (1) a motion for disclosure of the confidential informants relied upon in the wiretap affidavits, (2) a motion to suppress evidence obtained in the searches of Tyrice Ivy and Javon Fee, two persons not party to the present action, and (3) a motion to suppress the fruits of electronic interceptions conducted from June through September of 2001 on the grounds that the wiretap applications and affidavits contained false and misleading information, failed to establish probable cause, and failed to establish necessity for the wiretap.


Part of the evidence gathered by the government consists of intercepted electronic communications from three telephone lines, which government investigators obtained under the auspices of a warrant issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. sections 2510-2520. On April 22, 2003, this court denied defendants' motion to suppress the fruits of the electronic interceptions on grounds of facial insufficiency. See United States v. Stepney, CR 01-0344 MHP (N.D. Cal. Apr. 22, 2003) (Patel, J.). The detailed history of the Title III applications and affidavits at issue was enumerated in the prior order and is incorporated here by reference.

Suffice it to say for present purposes that the current motion to suppress concerns the following wiretap applications: (1) a June 6, 2001 application targeting Line A (cellular phone (415) 725-9491 used by Laprell Kent), (2) a June 21, 2001 application targeting Line B (cellular phone (415) 725-9391 used by Douglas Stepney), (3) a July 2, 2001 application for a thirty-day extension of the wiretap of Line A, (4) a July 16, 2001 application for a thirty-day extension of the Line B wiretap, (5) an August 3, 2001 application for a second thirty-day extension of the Line A wiretap, and (6) an August 16, 2001 application for a second thirty-day extension of the Line B wiretap and a wiretap targeting Line C (cellular phone (510) 610-3566 used by Douglas Stepney). FBI Special Agents Steven Patterson, Jennifer Wilson, and Edgar McConnell served as affiants for the Title III applications. Defendants claim that material misrepresentations and omissions of fact in the wiretap applications entitle them to an evidentiary hearing and suppression of the intercepted communications. They also move to suppress the communications on the grounds that the wiretaps violated Title III by failing to establish probable cause and necessity. Collectively, the parties have submitted several thousand pages of exhibits in support of their briefs on the motions to suppress the wiretap.


Title III sets forth procedures by which courts may issue warrants allowing law enforcement officials to intercept electronic communications as part of their investigation of criminal activity. See 18 U.S.C. §§ 2150-2520. In order to narrow the circumstances under which these intrusive investigative techniques may be used, Congress has imposed a number of procedural safeguards and required findings in the electronic surveillance warrant approval process.

First of all, Title III requires that each wiretap application 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). In satisfying the necessity requirement, the government need not exhaust all alternative means of investigation but "neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective." United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985). See also United States v. Gonzalez, _ F.3d _, 2005 WL 1459569 at *9 (9th Cir. June 22, 2005) (suppressing evidence obtained based on a wiretap affidavit that "showed that law enforcement did not first attempt, without success, traditional investigative methods that may have been potentially productive") (internal quotations omitted). Where the government seeks an extension of a wiretap, the application must satisfy the same showing of necessity required for the original order. See 18 U.S.C. § 2518(5); United States v. Brone, 792 F.2d 1504, 1506-07 (9th Cir. 1986). An extension application must additionally "set[] forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results." 18 U.S.C. § 2518(1)(f).

In addition to demonstrating necessity, wiretap applications must establish probable cause to believe that (1) an individual is committing, has committed, or is about to commit specified offenses, (2) communications relevant to that offense will be intercepted through the wiretap, and (3) the individual who is the focus of the wiretap investigation will use the tapped phone. See 18 U.S.C. § 2518(3)(a)-(d); United States v. Meling, 47 F.3d 1546, 1551-52 (9th Cir. 1995). Probable cause to issue a wiretap is evaluated in terms of a totality of the circumstances test. See United States v. Tham, 960 F.2d 1391, 1395 (9th Cir. 1992). Wiretap authorizations should be upheld where there is a "substantial basis" for the findings of probable cause. Meling, 47 F.3d at 1552.

A defendant may challenge a district court's approval of a wiretap for lack of probable cause or necessity. See Lynch, 367 F.3d at 1159. A district court judge has considerable discretion in issuing a wiretap. United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986). Review of a court's decision to issue a wiretap authorization order, including findings of probable cause and necessity, is therefore deferential. Id.; United States v. Lynch, 367 F.3d 1148, 1159 (9th Cir. 2004).

A defendant may also move to suppress intercepted communications based on misstatements or omissions in the affidavit supporting the Title III warrant. See Meling, 47 F.3d at 1553. A defendant must make a "substantial preliminary showing" that (1) the affidavit contains "intentionally or recklessly false statements or misleading omissions," and (2) the affidavit cannot support a finding of probable cause or necessity without the allegedly false information. See id.; United States v. Ippolito,774 F.2d 1482, 1485 (9th Cir. 1985). If the defendant succeeds in making this showing, the proper procedure is to conduct an evidentiary hearing (ex parte and in camera, if necessary) in order to ascertain whether the defendant "has made a threshold substantial showing of falsehood." United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (citing United States v. Kiser, 716 F.2d 1268, 1273 (9th Cir. 1983)) (internal quotation marks omitted). "In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Franks v. Delaware, 438 U.S. 154, 156 (1978). See also United States v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003).


Defendants have challenged the government's applications for three telephone wiretaps and four thirty-day extensions on the basis of material misrepresentations and omissions, lack of probable cause, and failure to show necessity. Co-incident with their motion to suppress the fruits of the wiretap, defendants also moved to disclose the identities of six confidential informants relied upon in the series of wiretap affidavits. Finally, defendants moved to suppress the fruits of the searches of Tyrice Ivy and Javon Fee, two persons not a party to the present action. The court will address these latter questions first, as defendants' motion to suppress relies in part on the outcome of these motions.

I. Motion for Disclosure of the Wiretap Informants Agent

Patterson's original affidavit to tap Line A, as well as four of the wiretap applications which followed, rely in part on information from six confidential informants, identified as CI#1 through CI#6. The wiretap affidavits attested that the informants were unwilling to testify against members of Big Block, and the government has confirmed that none of the six informants will be called as a witness at trial. June 6, 2001 Patterson Aff. ¶¶ 15-20; Gov't Opp'n to Discl. at 2. Defendants have moved for disclosure of the identities of each informant, arguing that all six were percipient witnesses to the crimes charged and therefore necessary to the defense. In addition, they seek disclosure of a long list of information relating to the government's contact with the informants, including all records and notes of interviews with the informants, payments made to the informants or other benefit exchanged, advisements given to the informants regarding their obligation to pay taxes on payments, copies of any written agreements between the informants and the government, promises of leniency or threats of legal proceedings made by the government, and debriefing reports relating to the informants. They also seek disclosure of each informants' personal and criminal history, including any presentence or state probation reports, documentation of the informants' mental health, and any prior testimony for the government.

A defendant does not have due process rights to disclosure of the identity of confidential informants who only provided information which, combined with other facts, gave officers probable cause for arrest.United States v. Marshall, 526 F.2d 1349, 1359 (9th Cir. 1975). See also McCray v. Illinois, 386 U.S. 300, 311 (1967) (holding that the Court had never approached the formulation of a federal evidentiary rule of compulsory disclosure "where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake"). A defendant has no Sixth Amendment right to confront an informant who is not called to testify against him. Marshall, 526 F.2d at 1359; McCray, 386 U.S. at 313-14.

However, a defendant may be entitled to informant disclosure if "the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61 (1957); United States v. Rangel, 103 F.3d 1501, 1505 (9th Cir. 1997). The defendant bears the burden to show more than a "mere suspicion" that the informant has relevant and helpful information, or information that will be essential to defendant's fair trial. United States v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993). Identification of an informant is not appropriate where the sole ground for disclosure is to challenge the existence of probable cause. United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986). If the information satisfies the "relevant and helpful" or "essential" standards, the court must weigh "the public interest in protecting the flow of information against the individual's right to prepare his defense." See Fixen, 780 F.2d at 1429 (quoting Roviaro v. United States, 353 U.S. 53 (1957)). Factors to consider include "the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors." Roviaro, 353 U.S. at 62.

Defendants argue that the balancing test weighs in favor of disclosure because the "highly detailed informant information" in the affidavits demonstrates that the wire informants were percipient witnesses to conduct that gave rise to the charges in the case. Def. Mot. for Discl. at 9. Defendants have not argued any specific charges in the indictment or claimed defenses that rely on the confidential informants. Indeed, the government has asserted that all charges in the indictment rest on evidence obtained during the wiretap, from testifying witnesses, or from cooperating defendants. Gov't Opp'n to Discl. at 5. The government contends that at most, the informants provided background information by which law enforcement determined the "manner and means" allegations in a minority of counts against the defendants. Id.

Though Patterson attested that the confidential informants witnessed acts constituting the crimes charged, defendants are not entitled to disclosure simply on the basis of confronting non-testifying witnesses. See Marshall, 526 F.2d at 1359; McCray, 386 U.S. at 313-14. Defendants have given this court no grounds to infer that the informants were sole witnesses or crucial witnesses to a charged crime, relevant witnesses to innocence or to a claimed defense, or government trial witnesses whom defendants will seek to impeach. See Ramirez-Rangel, 103 F.3d at 1505 (providing an in camera hearing where an informant was a percipient witness to an agreement which was dispositive of defendant's sentencing entrapment defense); United States v. Tornabene, 687 F.2d 314-16 (9th Cir. 1982) (informant was a key witness to claimed defense of entrapment); United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 19080) (per curium) (holding that a confidential informant's role as a percipient witness entitled defendant to disclosure of informant's identity, but that such disclosure need not take place prior to trial); Lopez-Hernandez v. United States, 394 F.2d 820, 821 (9th Cir. 1968) (holding that disclosure was required where informant was an eyewitness to the specific crime charged and relevant to defendant's entrapment defense); Singh v. Prunty, 142 F.3d 1157, 1158 (9th Cir. 1998) (holding that the benefits given to an informant in exchange for his testimony at trial should have been disclosed to defendants for the purpose of impeachment of the witness).

Defendants argue that testing the veracity of the representations made by the affiants regarding the credibility and reliability of the informants is essential to their challenge to the legality of the wiretap applications. Id. at 10. In their motion to suppress electronic interceptions, discussed later in this order, defendants have sought disclosure of the confidential informants in two contexts: to show that the informants were not credible, in order to attack the affidavits' completeness and probable cause, and to show that the informants provided the government with such strong sources of information that use of the wiretaps was unnecessary. Under clear Ninth Circuit law, however, disclosure for the sake of challenging a finding of probable cause is impermissible. See Fixen, 780 F.2d at 1439. This rule would apply equally to disclosure for the sake of attacking an affidavit for a material omission or for a showing of necessity, as it is based on the distinction between procedural rights and proving innocence. See McCray, 386 U.S. at 311 (refusing a rule of disclosure in a context "where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake"). See also Fixen, 780 F.2d at 1349-40 (upholding a district court's refusal for disclosure or an in camera hearing where the defendant believed that the police had lied about the existence or backgrounds of confidential informants). Without a showing that the indictment, rather than the wiretap affidavits' probable cause basis, relied on the informants' testimony or credibility, defendants have not carried their burden to show that the identity of the confidential informants is material or essential to their defense.

Even if this court deemed such information material and applied the Rovario balancing test, the circumstances of this case weigh against disclosure. The government's interest in protecting an informant's safety is a key factor to consider. See United States v. Sai Keung Wong, 886 F.2d 252, 255 (9th Cir. 1989). The public interest in this case weighs strongly in favor of protecting the informants named in the wiretap affidavits, particularly in light of the weak showing of relevance and materiality to the defense. Defendants here are charged with crimes of violence, and this court has personally observed a dramatic, credible fear for personal and family safety by two confidential informants in this case, known as informants A and B. In addition, the larger constellation of prosecutions relating to Big Block raised very serious witness safety concerns. The court takes judicial notice of the fact that Ray Jimmerson, a Big Block cooperating defendant, was shot to death in 2002. The state prosecution of alleged Big Block hit-man Soul Jacker was thwarted by the murder of an eyewitness's father-a fact brought to this court's attention by defendant Ellis in the context of another motion discussed herein. Nov. 16, 2004 Testimony of Paul Lozada; Def's Reply, Northridge Search, Exh. A. Though the court notes these facts subject to the extremely important caveat that Stepney and Ellis are not charged with either crime, they lend an appropriately solemn dose of local reality to the oft-quoted generalization made by another court that "especially" in narcotics cases, "the dangers of witness intimidation, subornation of perjury or actual injury to witnesses are great." United States v. Taylor, 707 F. Supp. 696, 703 (S.D.N.Y. 1989).

Despite these findings, and the holding of this court that defendants are not entitled to disclosure of the six wiretap confidential informants, this court recognizes the complex credibility issues in this case. In the context of a separate motion resolved in the present order, defendants strenuously argued credibility concerns relating to Officer Paul Lozada, the initial law enforcement contact for many confidential informants relied upon in the Big Block investigation. In addition, defendants have raised credibility concerns relating to confidential informants discussed herein as informants A and B, and indeed at an evidentiary hearing held in the context of two other motions discussed herein, these informants recanted their testimony to Officer Lozada. The court recognizes that these credibility concerns go to the heart of defendants' motion to suppress the wiretap. In the interests of cautiously protecting the accuracy of all proceedings before this court, including the wiretap affidavits, this court has agreed to in camera, ex parte review of the criminal histories of all six wiretap informants. In camera procedures or an in camera hearing "provides an equally acceptable accommodation of the competing interests of the Government and the accused. . . wherein the question is whether a law enforcement officer has lied. Through disclosure of the informant's identity to the trial judge, and such subsequent inquiries by the judge as may be necessary, the Government can be protected from any significant, unnecessary impairment of secrecy, yet the defendant can be saved from what could be serious police misconduct." Fixen, 780 F.2d at 1439-40. That procedure has been adopted here to balance the competing interests of witness safety and law enforcement accountability.

The results of the court's in camera review of these records need not be discussed in the abstract. Rather, the credibility of the informants will be discussed infra, in the context of defendants' specific challenges to the wiretap affidavits.

II. Motion to Suppress the Searches of Tyrice Ivy and Javon Fee Defendant

Stepney has challenged, on Fourth Amendment grounds, the government's use of evidence obtained in separate searches of Tyrice Ivy and Javon Fee. On July 19, 2001, an officer of the San Francisco Police Department stopped and searched Tyrice Ivy, finding a plastic bag containing a substance believed to be crack cocaine on his person. On June 22, 2001, an officer of the San Francisco Police Department stopped and searched Javon Fee, finding four chunks of a substance believed to be crack cocaine in his vehicle. Neither of these searches was conducted pursuant to a valid warrant. The yield from both searches was relied upon in the two wiretap extension applications for Line A. July 2, 2001 Wilson Aff. ¶¶ 53-54; Aug. 3, 2001 Wilson Aff. ¶ 29.

Defendant acknowledges that he would have no standing to object to the introduction of this evidence against him at trial, as he has no constitutionally cognizable, objectively legitimate expectation of privacy in the persons of Ivy and Fee. See Salvucci, 448 U.S. at 92-93; Rakas, 439 U.S. at 143. To avoid this obvious constitutional hurdle, Stepney instead challenged the government's use of the evidence in its application to extend the authorization to maintain a wiretap of Stepney himself. This alternative avenue of constitutional ingress is similarly foreclosed by unambiguous, binding precedent. See United States v. Baker, 256 F.3d 855, 863 (9th Cir. 2001) (holding that a defendant lacks standing to challenge the validity of a search warrant "on the basis that tainted evidence from the [unconstitutional] search of [a third party] was included in the affidavit supporting the warrant") (citing Dearinger v. Rhay, 421 F.2d 1086, 1088 (9th Cir. 1970) (holding that defendant "does not have standing to urge the illegality of [a companion's] arrest, and the 'poisonous fruit' thereof, as a ground for challenging the warrant to search his home")).

Defendant's motion on this basis is therefore denied.

III. The June 6, 2001 Affidavit Targeting Line A

On June 6, 2001, District Court Judge Phyllis J. Hamilton approved the government's application for a wiretap of Line A, a cell phone used by defendant Laprell Kent. The wiretap investigation sought to reveal the scope, methods, financing, and key locations of Kent and other interceptees' drug distribution operation, the identities and roles of co-conspirators, and the source and nature of narcotics and currency involved. See generally June 6, 2001 Patterson Aff. ¶ 4(b)(i)-(ix). FBI special agent Steven Patterson's affidavit asserted probable cause to believe that Kent used the line to communicate with Stepney and other Big Block members in organizing drug distribution, acts of violence, and other illegal activities. Id. ¶ 3, 4(a), 34. Defendants challenge the accuracy and completeness of the Line A affidavit based on Franks error, lack of necessity, and insufficient probable cause. Defs' Mot. at 3-38.

A. Alleged Misrepresentations and Omissions Defendants argue that Patterson's June 6, 2001 affidavit was fraught with intentionally or recklessly false statements and material omissions falling into three approximate categories: understatement of the yield of prior state and federal investigations, omissions as to the reliability of confidential informants, and errors and misrepresentations of the evidentiary record. They argue that these errors undermined the showing of necessity and probable cause to tap Line A.

Five requirements must be satisfied before a defendant is entitled to an evidentiary hearing regarding misstatements and omissions: (1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause or necessity. See United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (quoting United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir. 1985), and stating the rule in the context of a challenge to probable cause); United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985) (holding that Franks errors can undermine findings of necessity as well as probable cause).

1. Understatement of the Yield of Prior State and Federal Investigations

In his affidavit, Patterson briefly summarized prior state and federal investigations of Big Block. First, he stated that two multi-agency task forces had investigated Big Block criminal activities, but that "[t]o date, little or no prosecutable evidence has been obtained for federal prosecution." June 6, 2001 Patterson Aff. ¶ 12. In addition, he disclosed that the SFPD had "conducted numerous searches" related to Big Block members and seized contraband, and by way of example, he specifically described one search and its evidentiary yield. Id. ¶ 13. Finally, he acknowledged three prior investigative efforts by name: the SFPD's Crime Response Unit to Stop Homicides (CRUSH), begun in 1995; an FBI task force begun in 1996; and a multi-agency task force to investigate drug trafficking in several San Francisco public housing projects, begun in 1999. Id. ¶ 102. He acknowledged the overall objectives, areas of primary success, and general limitations of each effort, stating that the prior investigations were incapable of "infiltrat[ing]" or "dismantling the upper tier" of the organization, or "prosecuting any members" of Big Block. Id.

Defendants argue that Patterson's description of prior investigations was so cursory and incomplete as to distort the success of traditional law enforcement methods in penetrating Big Block. Specifically, they argue that the evidentiary yield of a string of fruitful searches by the SFPD, as well as the organizational information about Big Block uncovered through several federal investigations, demonstrated the utility of traditional methods of law enforcement. Defendants also contend that Patterson knowingly failed to disclose the availability and efficacy of confidential informants working with SFPD Officer Paul Lozada, though he was aware of their contribution to past state investigations. Defs' Mot. at 3-33. Defendants request an evidentiary hearing to explore the scope, intentionality, and materiality of these omissions. Defs' Mot. at 59.

Attacking the affidavit's accuracy and showing of necessity, defendants have submitted evidence to this court that as of 2001, traditional methods of investigation pursued by state and federal authorities had obtained: narcotics and weapons contraband, paraphernalia with Big Block indicia, an organizational understanding of Big Block leadership and its relationship to other neighborhood drug leaders, and toll register data revealing frequent contact between persons suspected to be in the organization. Defs' Mot. at 4-12. They argue that even if evidence obtained through such means was outdated in 2001, it demonstrated the efficacy of search warrants, informant tips, and other traditional methods of law enforcement. Defs' Reply at 8. Though such evidence had triggered numerous arrests, defendants contend that it did not lead to prosecutions because of a "failure in prosecutorial will," inter-agency conflict, and wavering leadership in the United States Attorney's district office. Defs' Reply at 5.

In assessing the adequacy of Patterson's disclosures about past investigations, the first dispute between the parties concerns the governing standard. Defendants forcefully argue that the language of Title III's necessity requirement focuses on the success of prior investigations, not prior prosecutions. See Defs' Reply at 1-5; 18 U.S.C. § 2518(1)(c) (requiring a "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"). The court agrees that indeed, the purpose of Title III's necessity requirement is to prove to the issuing judge that such a significant intrusion into privacy is necessary in order to successfully investigate the targeted crime. However, it is equally obvious that criminal investigations are pursued not for the sake of edifying criminological research, but rather for the sake of crime control through prosecutions. In the context of Title III, therefore, the measure of a law enforcement technique's "success" must be in terms of evidence to further a prosecutorial case. See United States v. Borne, 972 F.2d 1504, 1506 (9th Cir. 1986) (finding necessity was satisfied where a wiretap affidavit concluded that no other investigative techniques would "allow the government to develop an effective case"); United States v. McGuire, 307 F.3d 1192, 1198 (defining an "effective case" as "evidence beyond a reasonable doubt, not merely evidence sufficient to secure an indictment"). See also United States v. Commito, 918 F.2d 95, 98 (9th Cir. 1990) (per curium) (finding necessity where traditional investigative measures confirmed the government's suspicions about the defendants' involvement, but "failed to produce evidence sufficient to bring federal indictments against [defendants]").

Patterson accurately captured this standard when he attested that prior investigations yielded "little or no prosecutable evidence." See June 6, 2001 Patterson Aff. ¶ 12. Defendants' extensive list of evidence obtained by law enforcement does not ultimately undermine the accuracy of this statement. See Defs' Mot. at 4-12. First of all, many of the searches that defendants list were probation searches, which, as the government argues, would likely have been barred at the time of the wiretap application. In a nearly identical context, the Ninth Circuit held that evidentiary yield from state searches could not have been considered material to a wiretap necessity determination, because the Circuit's rule that federal probation searches "could not be conducted as a subterfuge for a criminal investigation" would logically apply equally to state parole searches. See United States v. Fernandez, 388 F.3d 1199, 1236, n.22 (9th Cir. 2004). Secondly, while this court takes defendants' point that the traditional technique of police searches could yield admissible evidence in prosecuting certain defendants, they overstate the efficacy of this tactic at investigating and prosecuting Big Block as a conspiracy. The evidence submitted before this court does not contradict Patterson's assertion that search warrants and other traditional methods did not reveal the extent of the conspiracy or prove "sufficient to obtain the necessary evidence for a successful prosecution of the participants enumerated." See June 6, 2001 Patterson Aff. ¶ 73.

Furthermore, the government was not obligated to prosecute Big Block defendants individually or collectively prior to the present indictment. The government is correct that necessity cannot be undermined by demonstrating investigatory lapse or failure to prosecute using available evidence, whether those lapses are related to agency infighting, prosecutorial disorganization, or strategic determinations. The Patterson affidavit, as well as the subsequent affidavits at issue herein, specifically identified the operational goals of addressing Big Block as a criminal organization rather than an aggregate of individual drug sales or criminal incidents. See id. ¶¶ 4(b), 70. Law enforcement was entitled to base their claim of necessity on the need for information about the scope of Big Block's operation, the identity of Stepney's narcotics supplier, and the relative roles, methods, and locations of actors involved in Big Block's drug distribution. See June 6, 2001 Patterson Aff. ¶ 70(a)-(i). The Ninth Circuit has specifically held that the absence of information about a narcotics source and details about the methods and actors in a criminal conspiracy supports a finding of necessity. See United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) (holding that the assertion of the need for such information, combined with summary information about prior investigations, established necessity).

Defendants' theory, which asks this court to reject a finding of necessity because of the availability of piecemeal evidence regarding single incidents of contraband possession or sales by some defendants, would impede law enforcement's goal-indeed its duty-to prosecute the large-scale criminal enterprises which control many high-poverty communities, rather than merely peck at the "Hydra" of collective criminal action through single-incident prosecutions. See United States v. McGuire, 307 F.3d 1192, 1197-98 (9th Cir. 2002). While conspiracy investigations do not give license for degradation of suspects' privacy rights, "the government is entitled to more leeway in its investigative methods when it pursues a conspiracy." Id. at 1198. This argument justifies the government's failure to prosecute Stepney based on the evidence seized in an SFPD search of 12 Avalon Avenue, a decision which defendants argue undermined the affidavit's necessity showing. Defs' Mot. at 15. Defendants' supposition that Patterson eschewed this prosecution because his FBI operation was "geared towards obtaining a wiretap" may in fact be true, but it does not undermine the affidavit's necessity showing. The FBI was entitled to target Stepney as a leader in a conspiracy, and indeed the affidavit disclosed the search to the issuing judge. See June 6, 2001 Patterson Aff. ¶ 78 (specifically disclosing the 12 Avalon search in the affidavit).*fn2 Title III's necessity requirement cannot be applied to force prosecutions of single defendants-even those at the top of a criminal hierarchy-where a federal investigation targets indictments of the full list of actors in a conspiracy and the full range of crimes suspected. Nor can it be applied to compel taking small bites out of crime where the ongoing criminal activities are of a more massive nature.

However, defendants are correct that the government cannot now buttress Patterson's showing of necessity with the failure to actually prosecute defendants despite several years of fruitful searches, arrests, and informant interviews. See Defs' Rep. at 4-5; Gov't Opp'n at 5. Whatever the reasons for government's failure to prosecute, or at least successfully prosecute, Big Block defendants-whether due to prosecutorial goals, lapse of will, or incompetence-such delays do not create an independent justification for necessity. To hold such would offer invasions of those targeted individuals' privacy rights as a reward for prosecutorial strategy, or indeed prosecutorial abdication. While Patterson was not obliged to pursue individual prosecutions using available evidence, the affidavit's showing of necessity cannot rest on the relatively unscarred records of Big Block defendants throughout a period of neighborhood crime and violence.

With the standard governing necessity firmly established, the second core disagreement between the parties is whether Patterson was generally required to provide greater detail regarding the scope and successes of past investigations. The rule of this Circuit is that "[b]ald, conclusory statements without factual support are not enough. . . .The affidavit [read in its entirety] must show with specificity why in this particular investigation ordinary means of investigation will fail." Commito, 918 F.2d at 97 (citing United States v. Martinez, 588 F.2d 1227, 1231 (9th Cir. 1978) and United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985)) (internal quotations omitted). However, in the context of a "practical and commonsense reading of the affidavit," a "few conclusory statements" regarding law enforcement alternatives do not invalidate "many assertions that are supported by specific probative facts." Commito, 918 F.2d at 97.

Applying the Commito standard of a balanced, holistic reading of the affidavit, the court finds that the affidavit's summary acknowledgment of past investigations was not, on its face, so cursory as to falsify or mislead with respect to the general history of investigating Big Block. Defendants are correct that Patterson did not describe prior state and federal investigations at length, but he did summarize past efforts' successes and limitations. See June 6, 2001 Patterson Aff. ¶¶ 12-13, 102. The affidavit enumerated six confidential informants relied upon by the government, specific knowledge of Big Block members and activities gained from confidential informant and witness interviews, surveillance revelations about Big Block members' movements, contraband seized pursuant to state law enforcement searches, and telephone analysis demonstrating regular contact between the interceptees. See id. ¶¶ 14-69. These specifics about the investigations made up twenty-nine pages of a sixty-five page affidavit.

The affidavit also adequately balanced summary and specificity in the context of specific law enforcement techniques. For instance, Patterson made a generalized reference to "numerous searches" conducted in the past, but paired that with descriptions of three particular searches. See June 6, 2001 Patterson Aff. ¶¶ 13, 78 (disclosing searches and seizures on February 16, 1997 and December 29, 2000). This was adequate to place the issuing judge on notice that prior searches had yielded physical evidence and seizures of contraband. Under Commito, affidavits may not rest merely on boilerplate padding, but at the other end of the spectrum, they need not labor through a piece by piece recitation of an investigation or law enforcement technique's entire history. See generally 918 F.2d at 97.

The same reasoning applies to the affidavit's failure to describe the full extent of Lozada's past and current informant network. In the context of an affidavit which revealed that six confidential informants had provided the FBI with important insights into Stepney and Kent's narcotics trade, it would not have overcome the district judge's finding of necessity to know of additional informants from whom SFPD Officer Lozada had obtained information in the past. In the specific case of Curtis Holden, a Lozada informant and former Big Block leader, this is particularly true, because the court's record indicates that Holden refused to cooperate with the federal investigation. See Defs' Mot. at 15; Gov't Exh. I, June 6, 2001 Patterson Aff. Under Seal Re: Interceptee Curtis Holden.*fn3

Defendants make much of Patterson's failure to mention or summarize the content of a Big Block organizational understanding developed as early as 1997. See Defs' Mot. at 12-13; Defs' Exh. V at 081114, 106259. Though out of date at the time of the wiretap application in 2001, defendants argue that an organizational chart developed by the FBI indicated the capacity of law enforcement to penetrate Big Block by utilizing paid informants and without resorting to electronic interceptions. As a general matter, defendants are correct that outdated evidence would have been pertinent to any estimation of the success of prior investigations, even where delays in prosecution precluded the utility of such evidence. See Defs' Rep. at 8. Disclosure of outdated evidence obtained through prior investigations would have cast light on the efficacy of traditional law enforcement investigative techniques, because the necessity standard focuses on whether other investigative procedures "have been tried and failed." See 18 U.S.C. § 2518(1)(c) (emphasis added). If past investigations yielded important evidence and insights into the conspiracy, then they would indicate the relative successes of different law enforcement techniques.

This kind of information about principal actors and interrelationships may have been material to the affidavit, as the need for a wiretap to penetrate and understand Big Block as a conspiracy was a bedrock of the affidavit. However, an organizational chart is at best an attempt to piece together snippets of information, some reliable, some unreliable, and reveals nothing about the source of the information on which it is based. It would have added little to probable cause showing nor relieved the necessity of the wiretap. Defendants present no evidence to suggest any admissible sources of information about the organization, such as unnamed informants who were willing to testify against Big Block. See June 6 , 2001 Patterson Aff. ¶ 92. If informants had provided organizational information but were unwilling to accept the personal risk of public testimony, then they did not constitute admissible evidence making a wiretap unnecessary, and omissions pertaining to these past informants were immaterial. See Borne, 972 F.2d at 1506 (finding necessity satisfied where a wiretap affidavit concluded that no other investigative techniques would "allow the government to develop an effective case").

Similarly, Patterson adequately disclosed past experiences with undercover penetration of Big Block. Defendants believe that he materially understated the availability and success of undercover agents by failing to discuss undercover officer Mia Chester's set up of a Big Block defendant in an apartment subject to surveillance. Defs' Mot. at 27-28. The operation indeed yielded pen register call data, but the effort had significant limitations and risks, and it ultimately proved to be a mild debacle. A domestic violence call to the apartment led to the exposure in full view of the neighboring command post apartment also rented by Agent Chester. In addition, the confidential witness linked to the investigation was put at high risk and the episode yielded no meaningful infiltration of Big Block or communications among Big Block members. See Skeels Dec. ¶¶ 2-6. This incident was a far cry from the deep and fruitful undercover penetration hidden from the court in United States v. Simpson, cited by defendants. See 813 F.2d 1462, 1471-73 (9th Cir. 1987). In that case, the undisclosed undercover agent "had obviously established a close friendship with [lead defendant], had been present on several occasions while [lead defendant] conducted business with other members of the alleged drug ring . . . and had become trusted enough to be permitted to identify potential drug purchasers." See id. at 1472. Such an omission, combined with duplicative characterizations about that agent, amounted to material, seemingly intentional deceptions of the issuing court. Id. By contrast, Agent Chester's surveillance in the present action was no more a success than a pen register, despite its significant costs. Patterson's omission of this endeavor was immaterial to the showing of necessity, indeed, it may only have bolstered the government's showing of good faith efforts at traditional law enforcement.

Defendants also argue that Patterson omitted mention of undercover officer Mark Hanley's controlled drug buys from Big Block members in 1998, as well as past SFPD undercover narcotics purchases. Defs' Mot. at 27. Hanley's controlled drug buys on two occasions were hardly a resounding success, as the officers were never able to identify the persons who made the sales, and the case was closed without an arrest. See Scoble Dec., Exh. A. Again, omission of this specific law enforcement effort, in the context of an affidavit that is ripe with specifics of many past investigations, does not satisfy the standards of recklessness or materiality.

The court thus finds that Patterson did summarize or occasionally understate the yield of past federal and state investigations, but that such omissions would not have changed the ultimate showing of necessity for the wiretap. Title III does not require that wiretap affiants recite a catalogue of all evidence-whether inadmissible, outdated, or confiscated-obtained by any measure of law enforcement. See generally Commito, 918 F.2d at 97-98. These omissions thus do not constitute error entitling the defendants to an evidentiary hearing. See Pedermo, 800 F.2d at 920 (holding that defendants must show that the challenged statements were necessary to the affidavit's satisfaction of the Title III requirements).

2. Omissions as to the Reliability of Confidential Informants

In addition to challenging omissions relating to confidential informants unnamed in the affidavit, defendants argue that Patterson committed Franks error by omitting information relating to the reliability of the named informants. Patterson's affidavit described six confidential informants in making a case for probable cause to conduct the wiretap. See June 6, 2001 Patterson Aff. ¶¶ 14-20. His descriptions were brief, disclosing simply how long each informant had been providing information, whether each one was a convicted felon, the general range and type of any compensation given for information, the basis for each informant's knowledge of any of the interceptees, whether he or she was willing to testify, and whether their information had led to arrests or convictions. Id. Defendants argue that Patterson sanitized these informants' records, deliberately and recklessly omitting facts that would undermine their reliability to support probable cause.

To establish probable cause, the information at the foundation of the affidavit must be credible, based on "information obtained in a reliable way." United States v. Landis, 726 F.2d 540, 543, cert denied, 467 U.S. 1230 (9th Cir. 1984). If past acts involving dishonesty discredit an informant's statements, probable cause must be analyzed without those statements. United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (citations omitted). Analysis of material omissions relating to a confidential informant's credibility turns not on whether the warrant conveyed the full scope and quantity of the crimes for which that person has been convicted, but instead specifically upon whether the informant has been convicted of a crime involving dishonesty or untruthfulness. See United States v. Elliott, 322 F.3d 710, 716 (9th Cir. 2003) (assessing the importance of an informant's conviction for forgery and noting that "when an informant's criminal history includes crimes of dishonesty, additional evidence must be included in the affidavit" to reestablish that informant's credibility); Reeves, 210 F.3d at 1045 ("Any crime involving dishonesty necessarily has an adverse effect on an informant's credibility."); United States v. Hall, 113 F.3d 157, 160 (9th Cir. 1997) ("What most impeached [the informant's] credibility was his false report to the police. That crime, more than his crimes carrying higher penalties, suggested the possibility that he would lie to the police to frame an innocent man."). Cf. Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997) (holding, with regard to Brady material, that "[t]he telling evidence that remained undisclosed included the length of Dunbar's record of burglaries, and, more important, his long history of lying to the police and blaming others to cover up his own guilt"). Though the entire scope of the wiretap informants' criminal histories are not irrelevant, it is the existence (or lack thereof) of events indicating their tendency for dishonesty that is most apposite here.

As discussed previously in this order, this court determined that disclosing the confidential informants' identities to the defense was not warranted. In the interests of caution, however, this court did conduct an in camera, ex parte review of the informants' criminal histories and FBI interview notes. Due to the defense's past history of speculative sleuthing into suspected confidential informants, their pattern of naming their guesses in public filings to this court, and this court's well-founded concern for the safety of informants involved in this case, this court will not divulge summaries of each informants' criminal histories. The record need only reflect that those informants labeled as "a convicted felon" had from one to four felony convictions, most of which were property or drug-related crimes.*fn4 This was a far cry from the record before the Ninth Circuit in Elliott, where the affidavit revealed only arrests, when in fact the informant had a record of fourteen felony convictions. See 322 F.3d at 713. As for those informants labeled "not a convicted felon," they were not unscathed by the reach of law enforcement-each one has a record of arrests and/or misdemeanor convictions.

In all cases, however, it is not a surprise-nor is it legal grounds for unreliability-that all of the confidential informants have been arrested and/or convicted of crimes relating to narcotics, theft, and even violence. The affidavit disclosed that each of the informants had purchased narcotics from one or more interceptees or had personally observed narcotics transactions involving the wiretap targets, and this contact provided the basis of the informants' knowledge. Confidential informant reliability is to be understood in light of a "common-sense, practical" inquiry focused not on whether the informant had avoided any criminal activities, but on whether there is "'probable cause' to believe that contraband or evidence is located in a particular place." Illinois v. Gates, 462 U.S. 213, 230 (1983). Reliability is not to be singled out from credibility and "basis of knowledge" considerations, and this court finds that it would pit basis of knowledge against reliability to hold that informants who had observed and participated in criminal enterprise first hand, thus making them knowledgeable, were thus unreliable. See id. The court thus finds that the level of detail in the affidavit about the informants' records was adequate and did not represent a material sanitization of their criminal records.

As far as crimes of dishonesty, Patterson made no material omissions relating to the records of informants numbered 1, 2, 4, 5, and 6. Three of these confidential informants have nothing whatsoever in their arrest or conviction records that could be characterized as a crime of dishonesty. The two remaining informants faced arrests, but not convictions, for presenting false identification to a peace officer. However in each case, their records for providing accurate information yielding arrests or convictions (as stated in the affidavit) would easily outweigh this relatively minor blemish. See United States v. Patayan Soriano, 361 F.3d 494, 506 (9th Cir. 2004) ("The dissent also focuses on the fact that [the informant] was arrested for forgery, a crime of dishonesty, and argues that such a record of dishonesty requires that there be additional corroboration before probable cause can be established. . . . [Yet] there is no indication that [the informant] had a prior criminal record, or any history of unreliability in reporting criminal acts suggesting the possibility that he would lie to the police to frame an innocent man.") (internal quotation marks and citation omitted).

The case of CI#3 tests the outer margins of the Ninth Circuit's tolerance for informants' checkered histories. CI#3 was arrested for forgery in combination with the presentation of false identification to a police officer, and the informant did in fact have a prior criminal record accurately, but slightly understatedly, described as felony convictions. While the Ninth Circuit has indicated that a conviction for a crime involving some type of prevarication is undoubtedly more serious than a mere arrest for such an offense, see United States v. Patayan Soriano, 361 F.3d 494, 506-507 (9th Cir. 2004), even an arrest for a dishonesty crime can affect the credibility of a confidential informant. See Elliott, 322 F.3d at 714 (noting that the confidential informant in that case had on his record "an arrest for forgery, a crime of dishonesty that had not been disclosed in the affidavit."). In such a case, additional evidence must be included in the affidavit to bolster the informant's credibility or the reliability of the tip. Id. at 716. A prior arrest for dishonesty does not present an insurmountable barrier to reliance upon the informant's testimony in establishing probable cause. See id. (holding that the informant's "six reliable drug-related tips in the preceding three months was sufficient to overcome any doubts raised by his motives and prior criminal and personal behavior"); Reeves, 210 F.3d at 1044-45 (holding that three previous reliable tips were "sufficient to outweigh the doubts about the informant's credibility raised by the history of criminal conduct involving dishonesty").

As applied in this case, CI#3's blemish for an arrest relating to dishonesty is far less than the record before the Ninth Circuit in Elliott, where the affidavit at issue summarized an informant's criminal history as revealing "numerous arrests, but none for crimes related to false information to police or perjury" when in fact the informant had a prior conviction for forgery and fourteen felony convictions. 322 F.3d at 713. Not only was the Patterson wiretap affidavit literally correct, but it did not sanitize CI#3's record of fewer than five felony convictions to the point of materially misrepresenting that record. The affidavit bolstered CI#3's credibility with the general statement that information provided by him/her resulted in "a number of arrests and convictions" and that he/she was "not known to have provided false information." June 21, 2001 Patterson Aff. ¶ 17. On balance, the court holds that CI#3's arrests for forgery and presentation of false identification to a police officer, in the context of his/her arrest and conviction record as a whole, were not material omissions warranting evidentiary inquiry or suppression.

Even if the omission of CI#3's arrests for dishonesty-related crimes, in light of the informant's other prior convictions, was a material omission not adequately balanced by specific evidence of the informant's credibility, defendants would not be entitled to a Franks hearing on the matter. Even where a defendant makes a substantial preliminary showing of a misleading omission, he must also show that the "affidavit cannot support a finding of probable cause without the allegedly false information." Reeves, 210 F.3d at 1044. CI#3 provided cumulative information in terms of Kent's general role in Big Block narcotics trafficking. CI#1 and CI#4 had, like CI#3, revealed that they purchased crack cocaine from Kent and/or personally observed him sell it to others. See June 21, 2001 Patterson Aff. ¶¶ 15, 18. Another fact provided by CI#3, the fact that Kent used his cellular phone to discuss narcotics transactions, is also provided in the affidavit by CI#4. Id. ¶¶ 26-27, 31-32. The only area in which CI#3 provided information not established through other means is identification of Kent's previous cell phone number (415) 407-6820. Id. ¶ 25. However, this phone was not targeted in the affidavit itself, and the toll register analysis for the line is only one in a number of facts established by the affidavit which supports probable cause to tap the targeted line. As this court is not currently considering a motion challenging the warrant for the toll register, the court finds that the register data for Kent's former cell phone could stand, even without support from CI#3.

Therefore, this court is satisfied with Patterson's description of CI#3 simply as a "convicted felon" and finds that any omissions with respect to his arrest for dishonesty offenses were immaterial to the affidavit's showing of probable cause. None of the remaining informants had credibility blemishes that ...

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