UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 6, 2005
UNITED STATES OF AMERICA, PLAINTIFF,
DOUGLAS STEPNEY AND KIM ELLIS, DEFENDANTS.
MHP DEFENDANTS' MOTIONS TO SUPPRESS: TITLE III ELECTRONIC INTERCEPTIONS; SEARCHES OF 124 DOLPHIN COURT, 12 AVALON STREET #9, AND 117 NORTHRIDGE ROAD; SEARCHES OF TYRICE IVY AND JAVON FEE.
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.
PART I: SUPPRESSION OF WIRETAP EVIDENCE
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 impugned their statements to law enforcement or the accuracy of the affidavit.
3. Errors and Misrepresentations as to the Evidentiary Record
Describing previously intercepted phone calls coordinated through consenting informants, Agent Patterson interpreted phrases such as "little hard ones" and "bird" with the guidance of the cooperating informants. See June 6, 2001 Patterson Aff. ¶¶ 25, 32(b). Defendants' final Franks challenge to the first affidavit argues that these interpretations, taken in the context of other affidavits in which Patterson or his peers came to alternate interpretations for the same phrases, amounted to ends-driven material misrepresentations and unreasonable police work. Defs' Mot. at 32-33. As applied, this argument is unfounded.
In the context of shifting code language, Patterson's interpretation of "bird" and "little hard ones" was objectively reasonable in the context of the transcripts, and indeed his attestations relied upon guidance from confidential informants whose accuracy has not been impugned. See United States v. Collins, 972 F.2d 1385, 1411 (5th Cir. 1992) (holding that "an experienced agent is permitted to draw reasonable inferences and interpretations of statements in the context of a series of conversations and events"). Taken in context, as the government argues, "bird" could reasonably be a unit of money in one instance and a reference to a unit of narcotics in the other: "two birds and one stone," quoted as a price, could reasonably be understood to convey a different meaning than a warning to "get that shit out of the glove compartment, I've got a whole bird in there" upon learning that the police were in the neighborhood. See June 6, 2001 Patterson Aff. ¶ 32(b); July 2, 2001 Wilson Aff. ¶ 29. Furthermore, in terms of the affidavit's showing of probable cause, it is immaterial whether "little hard ones" referred to parcels of crack cocaine or powder cocaine-either one would render the intercepted call a drug negotiation. These differences in interpretation cannot be called misstatements made in reckless disregard for the truth.
4. Franks Disposition as to Line A
In sum, the court finds that at a few places in the affidavit targeting Line A, Patterson summarized or slightly understated the yield of past federal and state investigations, and the reliability of confidential informants. However, these flaws fall short of the final and most difficult requirement entitling a defendant to an evidentiary hearing, that the challenged statements must be necessary to the assessment of probable cause or necessity. See United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986). The issuing judge had before her an adequately detailed recitation of the information gathered against Kent and other interceptees, as well as the law enforcement methods used to date in investigating Big Block. Therefore, probable cause and necessity can be assessed from the face of the complete affidavit.
B. Challenge to the Application's Showing of Probable Cause
Defendants argue that the government lacked probable cause to tap Line A for three principal reasons. First of all, defendants contend that the June 6 application did not make a showing that Stepney was involved in criminal activity. Secondly, defendants seek suppression for lack of probable cause on the basis that the targeted phone was in use only a short time before the wiretap application and because the pen register analysis revealed low levels of calling activity between Kent and other persons suspected of arranging drug distribution. Defs' Mot. 33-35.*fn5
Defendants' first argument does not undermine the district judge's finding of probable cause. As a general rule, a wiretap application need only support a finding of probable cause as to one interceptee. See United States v. Martin, 599 F.2d 880, 884-85 (overruled on other grounds by United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984)) (holding that "[s]ection 2518(3)(a) permits a judge to issue an authorization order upon a showing that probable cause exists with respect to An individual; it does not expressly require a similar showing with respect to Each person named in the application"). As Kent was the primary user of Line A, the government's burden to show probable cause focused on his use of the phone for criminal activities, and under the clear rule of Martin, the FBI need not have established probable cause as to Stepney. See id. The court is bound to this rule based on the Circuit's interpretation of the plain language of section 2518(3)(a), even though the government's necessity for the Line A wiretap focused to a large extent on the import of intercepting communications with Stepney (for instance, to identify Stepney's narcotics supplier). This court is of the view that the principle enunciated in Martin is an uncomfortable fit where, rather than simply being an unnamed interceptee as was the case in Martin, the interceptee at issue served as an actual pillar for the government's justification of the wiretap. See Martin, 599 F.2d at 885. See also United States v. Ailemen, 986 F. Supp. 1228, 1235 (N.D. Cal. 1997) (Walker, J.) (distinguishing persons relevant to a necessity determination from other persons in the context of the identification required by section 2518(1)(c)). To waive the requirement that an affidavit satisfy probable cause as to a central rationale for the necessity wiretap diminishes the authority of the probable cause requirement. This is not currently the law of this Circuit, however, and this court is bound by Martin's clear holding. 599 F.2d at 885.
In any case, the court finds that Patterson did in fact make a showing of probable cause as to Stepney. He documented confidential informants' attestations that Stepney was a narcotics dealer, that Kent and Stepney used their telephones to communicate about sales and distribution, that Stepney had been seen in possession of narcotics over three hundred times, and that Stepney was obtaining three or four kilograms of cocaine per month from his supplier. See, e.g., June 6, 2001 Patterson Aff. ¶¶ 18, 21, 23, 24, 26, 29. As discussed, these informants were reliable bases for a showing of probable cause and much of their information about Stepney was corroborated by physical surveillance, evidence obtained through searches, and pen register analysis. Applying a totality of circumstances test for probable cause, the court finds that it was more probable than not that Stepney was committing the targeted offenses relating to narcotics trafficking and would be intercepted in the commission of those activities on Kent's phone. See 18 U.S.C. § 2518(3)(a)-(d); United States v. Meling, 47 F.3d 1546, 1551-52 (9th Cir. 1995); United States v. Tham, 960 F.2d 1391, 1395 (9th Cir. 1992).
As for their second argument, defendants are correct that Title III requires a showing of probable cause that the targeted phone line will be used in connection with the targeted offense. See 18 U.S.C. § 2518(3)(d). However, this provision should not be unmoored from its statutory context requiring a three-part finding of probable cause, namely that (1) an individual is committing or will commit an enumerated offense, (2) communications related to the offense will be obtained through such interception, and (3) the targeted phone line will be used in connection with the targeted offense. Id. at 3(a)-(b), (d).
Under the "totality of the circumstances" standard for probable cause, the specific information provided in the affidavit created a "fair probability that contraband or evidence of a crime will be found in a particular place," namely, Kent's electronic communications using Line A. See Illinois v. Gates, 462 U.S. 213, 238 (1983). It does so by establishing probable cause as to Kent's use of his cell phones to perpetuate criminal activity, his use of the targeted Line A as his cell phone of the moment, and his early use of Line A in a pattern consistent with a series of prior phones. See June 6, 2001 Patterson Aff. ¶ 35 (description of a call between CI# 4 and Kent, on the targeted telephone line, in which Kent described the availability and price of cocaine for sale); ¶ 22 (CI#2's allegation that Kent's mother coordinated drug transactions with Kent through contact between his cell phone and her home telephone line); ¶ 61 (showing frequent calling between Kent's series of cell phones and his mother's home phone, as well as between Kent's cell phones and Douglas Stepney's pagers, and reporting a toll register of twenty-one calls between the Line A target number and Kent's mother's home over a fourteen day period); ¶ 88 (describing that Kent had used three cell phones in the seven month period before the wiretap application). The fact that the period of toll register data for Line A was brief, and that the frequency of his calls during this period alone would not establish probable cause, does not defeat a "totality of the circumstances" reading of the affidavit that Kent used his rotating string of cell phones for the same purposes. This evidence satisfied the requirements of section 2518(d).*fn6 The privacy rights protected by Title III and by the Fourth Amendment belong to people, not to telephone lines. Reading probable cause as to Line A in the absence of the complete circumstances relating to Kent's use of his various phones would make probable cause analysis a hypertechnical exercise, rather than a "practical, common-sense" inquiry.
The wiretap affidavit established probable cause as to Line A. C. Challenge to the Application's Showing of Necessity In addition to the consequences of the alleged Franks omissions described above, defendants argue that the wiretap application failed to establish necessity because it relied on boilerplate language and did not fully exploit traditional methods that would have made the wiretap unnecessary. Specifically, defendants argue that the FBI did not fully pursue search warrants, confidential informants, physical surveillance, the use of undercover agents for surveillance and "buy-bust" or "buy-walk" transactions, toll register analysis, mail cover, trash cover, and financial investigations. Defs' Mot. at 27-31, 37-38.
The necessity requirement hinges on the practical standard that "the government need not pursue every alternative means of investigation," but that "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, 1486 (9th Cir. 1985). The necessity standard does not require a showing that all traditional law enforcement techniques have been tried and failed, but rather focuses on a commonsense assessment of the danger or limited potential of other methods. See United States v. Bailey, 607 F.2d 237, 241 (9th Cir. 1979) ("the necessity requirement is also to be interpreted in a practical and commonsense fashion"). Law enforcement need not prove that prior investigative efforts were utterly futile, but merely that prior efforts did not yield information about the full extent of the operation. See id. at 242. See also United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000) (holding that "the mere attainment of some degree of success during law enforcement's use of traditional investigative methods does not alone serve to extinguish the need for a wiretap"). The reviewing court is to use a standard of reasonableness in evaluating the government's showing of a good faith effort to use traditional law enforcement methods or its assertion as to the danger or inefficacy of such means. Ippolito, 774 F.2d at 1486.
The SFPD, FBI, and other federal agency efforts to investigate Big Block employed the full panoply of law enforcement measures. Patterson extensively and specifically documented these efforts in his affidavit supporting the wiretap application. See June 6, 2001 Patterson Aff. ¶¶ 12, 13, 70-102. Defendants are correct that an affidavit may not rely on "boilerplate assertions [that] are unsupported by specific facts relevant to the particular circumstances of [a] case and would be true of most if not all narcotics investigations." See United States v. Blackmon, 273 F.3d 1204, 1210-11 (9th Cir. 2001) (reviewing a wiretap statement of necessity in which each law enforcement technique was accompanied by a description of general limitations inherent to that technique). That is not the case here. While the application included some boilerplate language regarding the limitations of certain tactics, it also included an array of specific problems and experiences with prior investigations of Big Block. For instance, the affidavit described: threats made to confidential informants which foreclosed their willingness to testify, on-going criminal involvement by specific past informants that undermined their willingness to talk to law enforcement or rendered them less reliable, specific searches conducted pursuant to warrants that yielded evidence and some information, limitations of surveillance due to acute local awareness of law enforcement, a sight survey's diagnosis of the viability of a pole camera, the relationships among Big Block members stretching back into their childhoods which made undercover infiltration difficult, and the limitations of "buy-walk" techniques using available informants who were unwilling to testify in court. See June 6, 2001 Patterson Aff. ¶¶ 74, 75, 78, 80, 84, 85, 87, 91, 92, and 99.
Defendants' specific critiques are also insufficient to defeat the affidavit's showing of necessity. First of all, they argue that the FBI's use of mail and trash covers in the years prior to the wiretap was half-hearted and pretextual, in contrast to aggressive use of mail covers in the past. Defs' Mot. at 27, 30-32. This argument is ultimately unpersuasive, because Patterson did disclose the specific, past use of mail covers, and he reasonably identified the limitations of this tactic at achieving anything more than simple confirmation of associations between persons and residences. See June 6, 2001 Aff. ¶¶ 100-01. No evidence to the contrary about the yield of past mail covers has been submitted to this court. As for defendants' argument that trash covers were self-defeating and paltry, the court agrees that the single effort at a trash cover cited by Patterson was far from a heroic effort. See id. at 101 (describing that agents turned away from a planned trash cover twice in a single day because of a spotter and failing to return). However, the wiretap was geared towards a higher level of Big Block investigation, namely the scale, methods, actors and roles, and such information could not be obtained by gathering the residue of contraband from a dumpster shared by an apartment block. See id. As discussed, the FBI and United States Attorney were entitled to pursue investigation and prosecution of the gang as a conspiracy, and they need not implement every traditional method of law enforcement prior to seeking a wiretap. See Bennett, 219 F.3d at 1122. There is no showing in this record that the use or lack of use of trash covers, even considered in combination with other traditional techniques, precluded a reasonable finding of necessity by the issuing judge.
Similarly, whether conceived of as a material omission or a flaw in the government's necessity showing, the availability of financial investigations could not negate the affidavit's showing of necessity. Financial investigations might provide small windows onto single defendants' criminal income and the scale of Stepney's enterprise, but they would have contributed little to the wiretap's express goals of unearthing the actors, methods, and contraband suppliers associated with Big Block as a criminal organization. The fact that Patterson failed to mention past FBI experiences with financial investigations, but then employed the method to investigate Stepney after the wiretap, does not change this basic principle. See Defs' Exh. V, 78603.
Defendants also argue that Patterson understated/omitted the yield and potential of past live and video surveillance efforts, and that his investigation strategically eschewed the use of such surveillance for purposes of clearing the wiretap application. See Defs' Mot. at 28. Defendants demonstrate that the government put video and undercover officer surveillance in place immediately after the Line A wiretap was issued, indicating that Patterson's "faith" in the method only "lapsed" pending the finding of necessity for the wiretap. Defendants show that shortly after the wiretap application for Line A was approved, the FBI created an undercover squad that defendants describe as "more effective." See Defs' Exh. IV at 39223-63; Defs' Mot at 29. Obtaining the wiretap did not relieve the government of continuing to use other legitimate law enforcement techniques in parallel with the electronic surveillance. Yet, in this case and as discussed in the context of later affidavits, infra, the reports of that undercover squad revealed little if any activity that could be construed as incriminating or criminal. See id. Similarly, video surveillance records submitted to the court simply documented vehicle movement, and physical surveillance records documented the extreme sensitivity of the local community to law enforcement, with agents reporting numerous persons, including children, looking into their cars. Defs' Exh. IV at 39265-79. Patterson ultimately disclosed the installation of surveillance equipment in subsequent wiretap applications/reports, undermining the suggestion that his initial aspersions on this method were reckless or manipulative, or that the issuing judge would have deemed electronic interceptions unnecessary if she had known of the method's use. Gov't Exh. VI, 050649-67.
Nothing in this court's extensive record indicates that surveillance initiated before, during, and after the wiretap was effective at documenting or intercepting criminal activities. The failure to employ surveillance-even in the context of a failure to use mail and trash covers or financial investigations-would not have overcome the affidavit's showing that law enforcement had tried a plethora of law enforcement methods and needed a wiretap in order to marshal sufficient admissible evidence to support a conspiracy prosecution. See generally Bailey, 607 F.2d at 241 (holding that law enforcement need not employ all methods). Furthermore, law enforcement need not prove that prior law enforcement efforts were utterly futile, but merely that prior efforts did not yield information about the full extent of the operation. See id. at 242. See also United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir. 2000) (holding that "the mere attainment of some degree of success during law enforcement's use of traditional investigative methods does not alone serve to extinguish the need for a wiretap").
While Patterson's operation could always have continued down the path laid by the six prior years of investigative progress, the issuing judge was not unreasonable in her determination that it was necessary to resort to a wiretap to fill the large gaps in the evidentiary record and solidify the government's understanding of a complex network of criminal activities and actors. Through interviews with confidential informants and a confidential witness, infiltration and surveillance by confidential informants, numerous searches by state and federal law enforcement, more than seven months of pen register analysis, limited physical surveillance, and the scattered use of other methods the FBI satisfied the Title III necessity requirement. See generally June 6, 2001 Patterson Aff. ¶¶ 14-102. The use of "burn phones," local sensitivity to law enforcement and countersurveillance, the close and long-established relationships among Big Block members, and, most importantly, witness intimidation, created barriers to penetration of Big Block using traditional law enforcement. Though fragmented into various operations over a long period, this investigative history strongly distinguishes the first Patterson affidavit from the most recent wiretap opinion issued by the Ninth Circuit, in which the court rejected a finding of necessity where law enforcement had relied on five days of telephone analysis, brief physical surveillance, and a preliminary inquiry into placement of an undercover agent. United States v. Gonzalez, --- F.3d ----, 2005 WL 1459569 (June 22, 2005, 9th Cir.). Because they have not shown that portions of the affidavit must be excised based on deliberate misrepresentations or material omissions, the wiretap affidavit for Line A established necessity.
IV. The June 21, 2001 Affidavit Targeting Line B
Agent Patterson's June 21, 2001 affidavit targeted Line B, a cell phone used by Stepney. See June 21, 2001 Patterson Aff. ¶ 3. The affidavit incorporated his Line A affidavit by reference, and much of the Line B affidavit is a verbatim restatement of the general assertions, Big Block history, yield from prior investigations, confidential informant network, and informant testimony regarding Stepney's leadership enumerated in the original affidavit. The affidavit excised some assertions and information specific to Kent's role and activities, added a few new specifics about Stepney, and described the yield of information from the Line A wiretap. See id. ¶ 18 (describing a confidential informant's attestation that he had witnessed Stepney in possession of cocaine on more than three hundred occasions); ¶¶ 27-39 (summarizing calls intercepted to date on Line A).
Defendants challenge the June 21 affidavit on the Franks, probable cause, and necessity grounds enumerated above. Defs' Mot. at 38. In addition, they argue that the Line B application contained three independent grounds for a Franks hearing or suppression: (1) failure to disclose the successes of federal investigations into Michael Gregory and Jesus Diaz, suspected to be Stepney's narcotics suppliers; (2) errors and misstatements regarding intercepted calls and toll register data for Line B which undermine the application's showing of probable cause, and (3) omissions regarding encryption technology that was shielding some calls between Nextel subscribers and therefore undermining the means for the Line A wiretap to achieve its goals. Defs' Mot. at 38-42.
Defendants first contend that Patterson's affidavit omitted the successes of federal investigations into Michael Gregory and Jesus Diaz, men later alleged to be Stepney's drug suppliers. Defendants have argued*fn7 that Patterson and the FBI were independently investigating Gregory for two years prior to the wiretap application, and government evidence confirms that several months before the June 6 and 21 wiretap applications were submitted, the FBI had one source of information that Stepney occasionally purchased narcotics from Gregory at a certain location. See Defs' Mot. at 38-39; Patterson Sealed Dec. at ¶¶ 3-5. Yet the government submitted affidavits of several FBI agents who attested that they had not made the link between Gregory and Big Block or Stepney at the time of the affidavit. See Govt's Exh. I, McMillan Decl. ¶ 8; Skeels Dec. ¶ 8. Perhaps it was a matter of incompetence or miscommunication, but this court's review of the evidence indicates that Gregory was only positively identified as a Big Block drug source through a confidential informant after the wiretap had long been completed. Patterson Sealed Dec. at ¶¶ 3-5. In addition, the affidavit expressed the FBI's specific interest in discovering the identity of a supplier identified by CI#1 as a "Mexican" who sold Stepney three to four kilograms of cocaine per month, a piece of information that would direct the FBI's attention away from Gregory as Stepney's sole or most significant supplier. June 6, 2001 Patterson Aff. ¶ 21.
As for Jesus Diaz, defendants have submitted evidence to show that a certain cell phone number targeted for pen register analysis contacted Stepney's cell phone on June 12, 2001, however no evidence before this court makes the link between this number and the man later identified as Jesus Diaz, or between this number and Stepney's source of drug supply.*fn8 See Defs' Exh. II at 000338 (identifying the phone number 415-794-6454 as a targeted line for pen register analysis and noting a call between that number and Stepney's cell phone on June 12, 2001). Government evidence attests that Diaz was linked to Big Block through interviews with cooperating defendants in the present action in September, 2002. See Soloman Dec. at ¶ 3; Oct. 18, 2004 Patterson Dec. ¶ 6. The affidavit did not misrepresent or strategically omit contemporaneous knowledge of Jesus Diaz's identity or role as Stepney's principal supplier.
As in the case of the Line A wiretap, defendants argue that errors and unreasonable interpretations of interceptees' conversations constituted Franks errors. They hone in on Patterson's interpretation of one intercepted call made June 8, 2001, in which Douglas Williams told Kent that he had the "'gangster crankster' that Kent and 'B' wanted." See June 21, 2001 Patterson Aff. ¶ 32, n.9. Patterson interpreted the reference to "B" to mean Stepney, aka "Boobie." Id. Defendants believe that Williams was referring to one of the several other Big Block defendants with "B" nicknames, because Williams stated during the call that he did not mean "Boo," but rather "B." See Defs' Mot. at 40-41; Defs' Exh. IX, 01299-300. Even if this single footnote were a material underpinning of Patterson's probable cause showing, two facts render defendants' argument unpersuasive. First of all, the affidavit offered evidence of a call the same day in which Kent, the listener in the June 8 call at issue, referred to Stepney as "B." See id. ¶ 31. Secondly, the following day, Williams phoned Kent, who handed the phone to Stepney to coordinate a pick up of "that other shit that I was hollering about at you." See id. ¶ 33. Whatever Kent and Williams actually meant to communicate, Patterson's interpretation was not unreasonable.
Defendants also attack the fact that Patterson's affidavit overstated the phone traffic between Kent's Line A and the target Line B. Agent Patterson has admitted that his June 21 affidavit incorrectly lists 196 calls made between May 22, 2001 and June 14, 2001, and he has asserted that the correct count was 194 calls between the slightly longer period of May 22, 2001 and June 17, 2001. See Patterson Dec. ¶ 58. Defendants' research indicated that in order to reach a count of 194 for the period of May 22 to June 17, 2001, nine calls had to be double-counted. See March 4, 2005 Broderick Dec. ¶¶ 8-9. In addition, defense analysis revealed that the actual number of calls made between the two lines during the shorter period identified in the affidavit was 157, thirty-eight of which were between one and ten seconds and seven of which were zero seconds. See July 27, 2004 Broderick Dec. ¶¶ 18-21. While the court agrees with defendant that the misstated register and date range was indeed error, it was not material, as required by Franks. See generally Meling, 47 F.3d at 1554-55 (defining materiality in this context to be evidence sufficient to show that the demonstrated deceptions would have precluded the issuing judge's finding of probable cause). The fact that 157 calls were placed between lines A and B in just over three weeks is a substantial contribution to Patterson's probable cause showing. Nor is it a material omission that seven of the calls recorded amounted to non-contact between the men, or that nearly a third of their calls were only long enough to exchange a few sentences of conversation. See Defs' Mot. at 42; July 27, 2004 Broderick Dec. ¶ 18. Requiring a mapping of all calls' duration in toll register analysis would be unduly onerous, and the ultimate showing of heavy phone traffic between the two men is not undermined by defendants' findings.
Defendants also argue that the encryption technology blocking some interceptions of Nextel to Nextel cellular telephones undermined the June 21, 2001 application's showing of probable cause. Defs' Mot. at 41-42 (citing United States v. Giordano, 416 U.S. 505, 530 (1974) for the proposition that affidavits should enable reviewing courts to realistically appraise the probability that relevant conversations will be overheard in the future). Patterson acknowledged this issue in his affidavit, noting that the FBI was unable to intercept all of Kent's calls to other Nextel subscribers and estimating that the problem would be overcome within thirty days. See June 21, 2001 Patterson Aff. n.5. Defendants are correct that one target of the affidavit was calls made between Kent and Stepney's cell phones (which this court assumes without confirmation are both Nextel phones), however, the affidavit also tracked pen register data for Stepney's contact with other phone numbers linked to Big Block activities, including Kent's home phone number, Kent's pager, Margie Hendricks's home, and Holden's pager. Id. ¶¶ 62, 69. Furthermore, the affidavit discussed a specific incriminating call intercepted between Stepney and Williams (using Kent's Line A cell phone) and paired it with pen register data that Stepney and Williams further communicated the following days. See June 21, 2001 Patterson Aff. ¶¶ 33-35. This information supported a reasonable inference that Stepney communicated with suppliers and dealers other than Kent via phone. Finally, the affidavit stated without contradiction by the defense that the encryption technology blocked only some of the subscriber to subscriber calls. The yield of the Line A wiretap belies defendants' argument that Patterson was obligated to disclose that "no communications of the kind that had been anticipated had been overheard." Defs' Mot. at 41 (citing Giordano, 416 U.S. at 530).
Defendants' final attack on the Patterson June 21 affidavit is SFPD officers' seemingly strange decision not to conduct a consensual search of Williams' car, which was later revealed through the Line A wiretap to have contained incriminating evidence. See June 21, 2001 Patterson Aff. ¶¶ 30, n.8, 60(d); Defs' Exh. IX, 01297-299 (transcript of a conversation in which Williams told Kent that he was "scared to fucking death" that Officer McMillan would take Williams up on his permission to search the car, and Williams "woulda had to break" because he "was dirty in the whole nine"). This court agrees with defendants that the SFPD's decision not to conduct a consent search of a known, visibly-nervous individual on parole due to unspecified "security concerns" would not normally support a finding that searches were of limited investigative value. Yet this court's review of the record indicates that the request to search Williams' car began as a parole search that, as discussed, was likely to be deemed an illegitimate means for gathering evidence to prosecute Big Block. See Section III(A)(1), supra; United States v. Fernandez, 388 F.3d 1199, 1236, n.22 (9th Cir. 2004) (holding that federal probation searches cannot be conducted "as a subterfuge for a criminal investigation"). Even if this court were to reject this basis for asserting necessity, the affidavit nevertheless established, as discussed in reference to Line A above, that a wiretap was necessary in order to uncover the tentacles, methods, stash locations, actors, and narcotics sources in the Big Block organization. In addition, the affidavit reasonably asserted that the wiretap to date confirmed that Kent's distribution network was "well-established," making the penetration of that network by undercover agents "extremely unlikely." See June 21, 2001 Patterson Aff. ¶ 60(f).
In summary, Patterson's affidavit supports a finding of probable cause that Stepney used Line B as his cell phone, used his cellular phone for frequent contact with other alleged Big Block members, engaged in a drug distribution enterprise, and coordinated drug transactions with Kent via phone. The application also supported a finding of necessity, specifically that traditional methods of law enforcement had not revealed the scope or methods of the Big Block drug trade, the locations of its primary activities, or the sources of its currency or narcotics.
V. The July 2, 2001 Affidavit to Extend the Line A Wiretap
On July 2, 2001, Special Agent Jennifer Wilson filed an affidavit and application to extend the wiretap of Line A. Her affidavit incorporated the original affidavit by reference, and the extension application itself also repeated much of the original content verbatim. Wiretap extension applications are subject to the same probable cause and necessity requirements of an original application. See 18 U.S.C. § 2518(5). The issuing court must make the "same findings" for an extension order as for an original order. United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986). The extension affidavit must also "set forth the results thus far obtained from the interception, or a reasonable explanation for the failure to obtain such results." 18 U.S.C. § 2518(1)(f); Brone, 792 F.2d at 1506. The purpose of this latter requirement is to "permit the court realistically to appraise the probability that relevant conversations will be overheard in the future." United States v. Giordano, 416 U.S. 505, 532 (1974).
Defendants argue that in addition to incorporating the flaws in the affidavit for Line A, the Wilson affidavit unreasonably misinterpreted a prior intercepted call between Kent and Big Block co-defendant Terrence Webb, failed to establish probable cause as to Stepney's involvement with criminal activity, failed to establish probable case that discussions of criminal activities would be intercepted, and failed to satisfy the necessity standard for a wiretap extension. Defs' Mot. at 45-50. Each of these arguments is unpersuasive. They call the court's attention to small issues under a magnifying glass, while losing sight of the overall content of the affidavit.
Wilson's affidavit established probable cause as to Kent through the combination of the first Patterson affidavit's recitation as to Kent's involvement in Big Block narcotics sales and her own summary of phone calls intercepted along Line A. These calls included discussions of meetings for narcotics exchanges, threats of retaliatory gang violence, payment owed for drugs, and an offer of sex as payment for a commodity, probably narcotics.*fn9 July 2, 2001 Wilson Aff. ¶¶ 12-56. The affidavit also described the interception of a call, placed shortly after a shooting on June 25, 2001, in which Kenny Adams told Kent that Adams had just shot two men. Id. ¶ 55. The SFPD pursued the information obtained from the interception to arrest Adams and search his residence. Id. at ¶ 56. Wilson's affidavit solidly and conclusively established probable cause to believe that extending the wiretap of Line A would reveal communications relating to narcotics trade and violence, thus satisfying the independent probable cause requirements of 18 U.S.C. section 2518(5) for extension applications. The affidavit's thorough recitation of the yield of the first month of Line A interceptions adequately apprised the issuing judge of the conversations intercepted on Line A, and it established the probability that conversations relating to narcotics transactions and retaliatory gang violence would continue to be revealed through future continuation of the wiretap. See 18 U.S.C. § 2518(1)(f); Brone, 792 F.2d at 1506; Giordano, 416 U.S. at 532.
As for necessity, Wilson's affidavit incorporated the first Line A application's showing of necessity and augmented the showing with additional rationales. Describing intercepted calls, Wilson attested that the first Line A wiretap confirmed the interceptees' extreme sensitivity to police. Id. ¶ 63(1)-(3). In addition, she noted that physical surveillance continued to have "minimum investigative value" because of the non-criminal appearance of much of the activity revealed by the wiretap to be related to narcotics dealing. Id. ¶ 63. The affidavit reiterated the investigations' ongoing goals of uncovering Stepney's sources of supply, as well as Big Block's source of firearms, and Wilson noted the inability of undercover agents to reveal such protected information. Id. ¶ 58, 66. Wilson also claimed necessity based on the need to uncover the location of a stash house referred to by interceptees as "Shoreview." See id. at ¶ 62. Through incorporation of Patterson's affidavit and her own additions, Wilson's affidavit recited the specific limitations of prior law enforcement investigations of Big Block, the on-going investigative needs and specific goals of the FBI investigations, and specific barriers to marshaling evidence for prosecution posed by other methods. The July 2, 2001 application thus satisfied the necessity requirement.
Defendants' specific attacks on the affidavit do not change this overall showing. First of all, defendants argue that Wilson deliberately misstated the meaning of a call on Line A in which Webb told Kent that he "tried to run up there with 240" but that police were checking cars in the alley. See Defs' Mot. at 45-46; July 2, 2001 Wilson Aff. ¶ 29. Kent responded that Webb should "get that shit out of the glove compartment, I've got a whole bird in there." Id. The parties dispute whether "240" signified the Nissan 240 Z-X that Webb and Kent shared or $240, the usual price of one-half ounce of cocaine. Similarly, they dispute whether "bird" meant $100, as Agent Patterson had indicated in his earlier affidavit, or a kilogram of cocaine, as Agent Wilson asserted. Defendants' alternative interpretation of the conversation is plausible, and indeed it was inconsistent for FBI agents to interpret the terms "240" and "bird" to mean different things in the context of the same series of Big Block affidavits. Defs' Mot. at 45. Yet this, as with any conversation, must be considered in context. No matter how it was interpreted, the call communicated Kent's concern that the police would find contraband or other incriminating content if they searched the car.
Defendants' own arguments reveal that the language used by the interceptees was successfully elusive and anything but clear: defendants' own interpretation of bird to mean $100 is extrapolated from the cocaine price "two birds and two stones," interpreted to mean $240 by a confidential informant relied upon by Wilson. With $240 validated as the street price of a common unit of cocaine, Wilson's interpretation was realistic and reasonable. See generally Collins, 972 F.2d at 1411. Whether Webb was saying he tried to run up there with his car or with a half ounce of cocaine but turned back due to police searches, he conveyed a police warning to Kent to which Kent responded that something was in the glove compartment that needed to be removed immediately. Wilson's interpretation that the object in the glove compartment was more incriminating than money is especially plausible in the context of a call made just over one hour later, in which Kent warned an unidentified male, "[t]hey" (interpreted by Wilson to refer to police) "are coming up the hill right now. That's why you don't ride around with hella shit in the car." July 2, 2001 Wilson Aff. ¶ 30. Placed in their rightful context, Wilson offered a reasonable interpretation of the call that could not satisfy the deliberate and reckless standard required for Franks misstatements. See generally Meling, 47 F.3d at 1553. Furthermore, even were the court to excise this paragraph based on knowing or reckless distortion of drug code, the Wilson affidavit nevertheless established probable cause as to Kent's use of Line A to facilitate drug trafficking through numerous other interceptions described in the affidavit, as enumerated above.
Defendants also argue that probable cause was not established as to Stepney. As discussed, the affidavit need not demonstrate probable cause as to all interceptees named in a wiretap affidavit. See United States v. Martin, 599 F.2d 880, 884-85 (9th Cir. 1975) (overruled on other grounds by United States v. De Bright, 730 F.2d 1255, 1256 (9th Cir. 1984)) (interpreting section 2518(3)(a) to focus on the showing of probable cause with respect to a single individual and holding that the statute "does not expressly require a similar showing with respect to Each person named in the application"). As explained supra, this court finds that the Martin rule-which admittedly is a simple matter of statutory interpretation-is a poor fit for a context such as the current one, where the most significant showing of necessity for penetrating the conspiracy is made as to Stepney. However, that is the law of this Circuit and the plain language of section 2518(3), giving this court no basis for applying an additional probable cause requirement to Stepney or other interceptees. Probable cause as to Kent satisfied the Line A extension's showing probable cause.
The court therefore finds that the July 2, 2001 wiretap application was not undermined by misstatements or material omissions and satisfied the Title III requirements of probable cause and necessity.
IV. The July 16, 2001 Affidavit to Extend the Line B Wiretap
Agent McConnell's affidavit to extend the Line B wiretap a second time contained several updates based on prior interceptions. It described several conversations coordinating exchanges and prices between Stepney and the unidentified male supplying Stepney with narcotics, a call between Stepney and Kent discussing a new supply of cocaine from Kent's source, and a call between Stepney and Big Block member Jerry Reynolds discussing the prices and values of narcotics. July 16, 2001 McConnell Aff. ¶¶ 13-21, 25. The affidavit also discussed other calls relating to a shooting involving Kenny Adams, retaliation against a Westmob gang member, a second homicide of a man related to Big Block, and a fully-automatic gun which Stepney gave to his supplier. Id. ¶¶ 23-28. Lastly, the affidavit relayed that one seizure of suspected crack cocaine was made based on information from the intercepted calls. Id. ¶ 30. To support its on-going claim to necessity, the affidavit noted that conversations revealed interceptees' acute awareness of police in their neighborhood, and that much remained to be determined in the Big Block operation, such as the location of an apartment the interceptees referred to as "Shoreview." Id. ¶¶ 34, 38.
The affidavit easily established probable cause to believe that Stepney was using his phone to coordinate narcotics trafficking. The conversations intercepted on Line B were largely uncoded and explicit. See, e.g., id. ¶ 13 (Stepney telling his supplier that he had "only cooked up about fifty (50) grams" of a recent purchase which was flawed, and stating "all this transporting and running around with this dope is not cool"); ¶ 15 (Kent telling Stepney that Kent's supplier will "have some dope for me tomorrow"); ¶ 16 (Stepney telling his supplier that he is "gonna break it down in rocks"); ¶ 22 (Adams telling Kent that he "just had to flat two men" just minutes after a shooting). The affidavit described over fifteen calls intercepted on Line B, all of which contained direct or indirect references to narcotics, violence, or weapons. Id. ¶¶ 12-28.
McConnell claimed further necessity on the basis of continuing gaps in the FBI's knowledge of Stepney and other Big Block member's activities, such as their source of cocaine supply, their source of firearms, locations of their stash houses, the amount and disposition of the proceeds of their narcotics activities, and the identities of apparent unknown co-conspirators intercepted on Line B. Id. ¶ 30(a)-(g). McConnell incorporated the Line B necessity rationale by reference, and he discussed additional techniques such as interviews with interceptees, search warrants, camera surveillance, pen registers, and undercover agents. Id. ¶ 31-40. He described reasonable limitations with each method, such as extreme sensitivity to police presence, local topography, the use of cryptic language to coordinate narcotics purchases, and the on-going problem of Nextel encryption barriers to electronic interception. Id. On its face, the McConnell affidavit established necessity to continue the wiretap.
Defendants argue several Title III infirmities. First of all, they argue that McConnell misrepresented his ignorance as to the Big Block stash houses, because two had already been searched, a third was known and could have been searched, and a fourth could be readily identified via physical surveillance. Defs.' Mot. at 50-51. The government has submitted evidence that, in fact, the government's knowledge of these locations was less certain, and FBI agents were justifiably waiting to fill out information on one location. Secondly, defendants contend that the affidavit failed to explain why authorization for video surveillance had not commenced and was not adequately advancing the government's goals. This issue is resolved by the fact that the government has submitted documentation of site and technical issues which delayed installation of a pole camera until after the affidavit issued, all of which was revealed in the government's ten-day reports. See Govt. Exh. IV, Line A First, Second, and Third Ten-Day Reports. Finally, defendants argue that McConnell materially omitted the government's progress on identifying Jesus Diaz as the man intercepted in many phone calls as Stepney's narcotics supplier. Defs' Mot. at 51. As discussed earlier in this order, the government provided uncontroverted evidence about the chain of events that led to the identification of Diaz by name in 2003, long after the wiretap investigation had been closed. See Soloman Dec. at ¶ 3.
Defendants have therefore not demonstrated Franks errors entitling them to an evidentiary hearing, and the affidavit satisfied the probable cause and necessity requirements of Title III.
V. The August 3, 2001 Affidavit to Extend the Line A Wiretap a Second Time
Agent Wilson's application to extend the Line A wiretap a third time added a litany of previously intercepted phone calls to the government's record of probable cause and necessity to continue the wiretap of Kent's cell phone. These included numerous calls discussing drug purchases, speculation about the perpetrators of a recent homicide, discussions of the presence of rival gang members in the neighborhood, requests for firearms, report of threats in response to territorial incursions by other drug sellers, requests to provide women as prostitutes, and comments that certain persons needed to be killed. Aug. 3, 2001 Wilson Aff. ¶¶ 12-45. One call discussing a drug hand-off was corroborated by police surveillance and a stop and search which yielded suspected crack cocaine. See id. ¶ 29.
Defendants raise several concerns about the August 3, 2001 application. See Defs' Mot. at 52-57. First of all, they argue that Agent Wilson's affidavit recklessly or intentionally stated that an intercepted phone call referred to "heat," which she interpreted to mean firearms, when in fact the transcripts made no such reference. Id. at 52. Defendants argue that this falsity undermined Wilson's showing of probable cause to suspect Stepney of involvement with firearms. Id. The government argues that Wilson's representation of the call was reasonable, because the tape of the call-as well as Agent's Patterson's log reviewing that call-contained a word sounding like heat. The court need not resolve this disputed recording for two reasons: there is no evidence, indeed no allegation, that Wilson intentionally or recklessly misrepresented the call, and whatever error she made in interpreting this call would not be material to Wilson's showing of probable cause based on more than thirty phone calls.
Defendants also contend that Wilson's assertion of probable cause was undercut by reckless or intentional exaggerations of the certainty of an allegation that Stepney purchased two kilograms of cocaine on a certain date based upon a version of events that was later rejected by the prosecution.*fn10
Id. at 53-54. As a first matter, the government has never rejected this purchase in its indictment, it merely omitted one person from its representation of the sale. See Aug. 31, 2001 Criminal Complaint Count 12; Third Superceding Indictment Count 33. At most, defendants are ultimately arguing that Wilson overstated the government's certainty of this transaction, basing their knowledge exclusively on intercepted phone calls rather than surveillance, seizure, or informant testimony. This argument is uncompelling both because of the call's context and its significance. Wilson asserted Stepney's involvement in the sale in the context of noting the government's on-going lack of information about Stepney's supplier, not in the context of asserting probable cause to tap Stepney's phone. Furthermore, defendants' argument cannot affect Wilson's showing of probable cause as to the on-going rationale for tapping Line A, which focused on probable cause at to Kent.
In addition to these arguments as to the affidavit's showing of probable cause, defendants again argue that law enforcement was strategically failing to pursue viable and obvious means of investigation in order to support its necessity arguments for continued electronic interceptions. Id. Wilson's affidavit made the following claims of on-going necessity, none of which are affected by defendants' arguments: the government was still unaware of Stepney's narcotics supplier, Big Block members' weapons suppliers, the location of Big Block stash houses, the amount of currency received by Kent and Stepney in payment for narcotics and the disposition of these funds, the full extent of the Big Block hierarchy and distribution network. See Aug. 3, 2001 Wilson Aff. ¶¶ 47(a)-(h). Far from being boilerplate, as defendants argue, Wilson's affidavit laid out specific bases of information the government had developed with respect to each of these questions. See also id. ¶¶ 47, 48-56 (outlining specific recent experiences with many standard law enforcement techniques, including particular incidents of law enforcement progress on uncovering Big Block sources of narcotics and firearms supplies). Wilson's inclusion of some boilerplate discussion of the limitations of standard investigative techniques did not doom her affidavit, as the document is to be read as a whole for its overall showing to meet the standard. See id. ¶¶ 48-56 (including some necessity language repeated from earlier affidavits in the case, but in every case, pairing general assessments of a method's efficacy with specific experiences using the method to investigate Big Block during the prior thirty-day period). See Commito, 918 F.2d at 97 (holding that a "few conclusory statements" regarding law enforcement alternatives do not invalidate "many assertions that are supported by specific probative facts").
Defendants also raise the specific Franks and necessity challenge that Wilson misstated the type of surveillance in use at the time of the affidavit. Defs' Mot. at 56. The yield and installation of video surveillance were disclosed to the district court in the government's ten-day reports before and after Wilson's extension application. See Gov't Exh. IV, Line A Extension Order and Reports. Wilson herself disclosed that a pole camera and video surveillance were in operation and had revealed Kent engaging in hand transactions. Aug. 3, 2001 Aff. ¶ 52. Furthermore, defendants' records of live, undercover surveillance spanning from July 13, 2001 through August 31, 2001 revealed nothing more than vehicle and passenger movements among various addresses, with predominantly benign or not-obviously criminal activities such as grocery shopping at Safeway, buying gas, and entering fast food restaurants or residences. Id. The only visibly incriminating actions observed over six weeks of surveillance were two transfers of small brown bags between vehicles on July 13, and 23, 2001. Id. at 39224, 39260. The issuing judge was on notice of the use of these methods, and nothing suggests that she abused her discretion in approving the extension based on the complete picture of necessity described above.
Defendants are not entitled to a Franks hearing to investigate alleged errors in Wilson's August 3, 2001 affidavit, and the interceptions made pursuant to the Title III order will not be suppressed.
VI. The August 16, 2001 Affidavit Targeting Line C and Extending Line B a Second Time
The sixth and final wiretap affidavit at issue targeted two phones used by Stepney: an extension of the government's Line B wiretap as well as a new wiretap authorization for calls made on Line C. This final affidavit was brief, resting primarily on the momentum of prior affidavits. In their briefs on the affidavit, the parties have mingled the two separate lines and even reversed Agent McConnell's representations of communications made on each line. For clarity, this court will refer to the lines separately, as McConnell's affidavit must meet the requirements of Title III for each phone line.
A. Probable Cause as to Line B
Agent McConnell's assertion of probable cause for the extension of the Line B wiretap relied on previous interceptions on that line. He described the following four conversations containing some measure of incriminating content: (1) Stepney's intercepted statement to a nearby party, before the phone line picked up to an unidentified recipient, "just know this nigga got my dope," Aug. 16, 2001 McConnell Aff. ¶ 14; (2) Stepney's statement to Aisha McCain that he was looking for somewhere to store his "work," believed to be narcotics, id. ¶ 15; (3) Stepney's statements to McCain that he didn't "give away his dope for free" and "Bitch don't got no money, don't get no dope. I don't give a fuck who it is," as well as his threat to "break [McCain's] motherfucking jaw," id. ¶ 17; (4) Stepney's request to Alvin Spade to deliver "sisnoda," believed to be baking soda used to chemically alter powder cocaine into crack cocaine, id. ¶ 20.
In addition to these calls, the affidavit summarized conversations following the execution of a search warrant on Aisha McCain's apartment (referred to herein as the "Alida Way search"), as well as conversations surrounding a search of alleged Big Block member Ray Jimmerson in the same apartment (referred to as the "Jimmerson search"). Defendants' concerns about the sixth and final wiretap affidavit emphasize McConnell's heavy reliance on these two searches, both of which were later deemed illegal by this court. See United States v. McCain, C-01-0344 (N.D. Cal. July 9, 2003) (Patel, J.) (finding the Alida Way search illegal as to Aisha McCain); United States v. Stepney, C 01-0344 (N.D. Cal. Jan. 16, 2004) (Patel, J.) (finding the Alida Way search unlawful as to Stepney). The affidavit relied on the searches in three ways. First of all, it directly described the physical evidence seized in the searches. Aug. 16, 2001 McConnell Aff. ¶¶ 22, 24. Secondly, it reported a summary of conversations on Line B in which Stepney told others that he had returned to McCain's apartment to collect cocaine that law enforcement did not find. Id. ¶ 23. Thirdly, the affidavit reported calls between Stepney and Ray Jimmerson discussing a second return to the apartment to collect hidden cocaine referred to as "a little pack" and "like a fiver." Id. ¶ 24. The affidavit stated that law enforcement arrested and searched Jimmerson while Stepney was on the telephone line. Id.
Defendants are correct that evidence obtained directly from the search of Aisha McCain's Alida Way apartment must be stricken from the affidavit's showing of probable cause. Under the law of this Circuit, it is "fundamental" that evidence obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a later search. See United States v. Wanless, 882 F.2d 1459, 1465 (9th Cir. 1989). See also United States v. Santa Maria, 15 F.3d 879, 883 (9th Cir. 1994) (holding that where probable cause for a search is based on evidence derived from a search deemed illegal, the evidence in the second search must be suppressed). This rule would categorically apply to McConnell's reports of evidence seized in the illegal searches, described in paragraphs 23 and 24 of the affidavit, and these paragraphs are hereby stricken from the application's showing of probable cause. The government's argument to the contrary relies on an Eleventh Circuit opinion which is inconsistent with the clear law of this Circuit and is factually-distinguishable from the present action. See United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988) (holding that wiretap interceptions need not be suppressed where a wiretap affidavit relied in good faith on publically-available information describing evidence seized in a search many years before, even though that search was later deemed illegal). McConnell's accounting of evidence seized in the search of the Alida Way apartment and of Jimmerson's person represents precisely the same question addressed by the Ninth Circuit in Wanless and its lineage: whether a search affidavit's showing of probable cause for a second search may rely on descriptions of evidence seized illegally in a first search. Under the law of this Circuit, the answer is clearly no. Wanless, 882 F.2d at 1465.
The more difficult question in this context, which has not been squarely addressed before, is whether the interceptions of Stepney and others discussing searches deemed illegal-as opposed to the affidavit's recitation of evidence seized in the searches-can substantiate probable cause for a later search (here, new electronic interceptions along Line B and Line C). This is a question of the "fruit of the poisonous tree" doctrine, by which the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality. See United States v. Pulliam, 405 F.3d 782, 785 (9th Cir. 2005).*fn11 The Alida Way and Jimmerson searches were "but for" causes of the telephone discussions about them, however, the Ninth Circuit has clearly held that "but for" causation is not the proper standard for applying the fruit of the poisonous tree doctrine. Id. at 1060. Rather, the inquiry should focus on "whether the police obtained the evidence 'by exploitation of the illegality.'" United States v. Jones, 608 F.2d 386, 390 (9th Cir. 1979). The FBI did not intercept the conversations by exploiting the illegal searches, because the agency had preexisting probable cause for intercepting Line B phone calls at the time of the searches (established by the first McConnell affidavit of July 16, 2001). Rather, the closest Forth Amendment analogy to capture the legal status of the Alida Way and Jimmerson searches is that they effectively constituted "leads" which generated subsequently discovered evidence, namely the intercepted conversations discussing the searches. See id. at 391.
Thus understood, these "illegally acquired lead[s]" were too "general and indirect" to deem the intercepted calls "fruits" of the illegal searches. See id. The court thus finds that the telephonic interceptions described in paragraphs 23 and 24 constituted free-standing evidence, too attenuated from the illegal search to warrant suppression.
Retaining the intercepted calls discussing the Alida Way and Jimmerson searches but suppressing those paragraphs of the affidavit that report the evidence seized from the searches, this court finds that the August 16, 2001 affidavit established probable cause to extend the wiretap of Line B. In total, the affidavit reported a few prior interceptions with expressly incriminating content: Stepney's comment that he was speaking with someone who had Stepney's "dope," a direct threat to McCain regarding a narcotics debt, a request that a person deliver some baking soda (used to chemically alter cocaine), and a general summary of telephone chatter discussing Stepney and Jimmerson's visits to Alida Way to recover cocaine not discovered by law enforcement. Though a paltry showing if taken alone, these calls are augmented by the affidavit's incorporation by reference of the prior affidavits' reports of Stepney's narcotics activities, which contextualize these Line B calls in a larger pattern of organizing narcotics trade via telephone. The court finds that the affidavit satisfied the standard for probable cause as to Line B, ultimately providing a substantial basis to believe that Stepney used his phone to contact his supplier and coordinate activities and payments related to narcotics.
B. Probable Cause as to Line C
The sixth and final Big Block affidavit made a slim statement of probable cause in relation to Line C. The entirety of the affidavit's reference to the line is the following three calls to or from Line C, intercepted along Kent's Line A phone: (1) a conversation between Kent and Stepney referring to "chizzo," "nizzie,""little dove," and "two and a half zips," all of which McConnell interpreted as cocaine type and quantity references, Aug. 16, 2001 McConnell Aff. ¶ 25; (2) Stepney's speculation with Kent as to the identities of informants working with the police, and Stepney's comment to Kent that he "took a loss" on the Alida Way search, id. ¶ 26; and (3) Stepney's statements to Kent that Stepney's fingerprints were "on everything" at McCain's apartment and that they have to find a new "spot," id. ¶ 27. McConnell did not reveal how the FBI became aware that Stepney was using Line C, but he reported two calls intercepted on Line B in which Stepney told Ellis and Jacks that he had a new phone number which he confirmed to start with "610." Id. ¶¶ 16, 18. For the reasons described above with respect to Line B, the affidavit's reports of conversations discussing the Alida Way and Jimmerson searches in paragraphs 26 and 27 of the affidavit do not warrant suppression. See id. ¶¶ 26, 27; Jones, 608 F.2d at 390.
Defendants challenge whether the three calls intercepted along Line C created probable cause for a new wiretap, and they raise the issue of whether the reported interceptions of Stepney's conversations along Line B and the incorporated content of prior affidavits can be incorporated into the affidavit's showing of probable cause. The affidavit incorporated by reference the content of prior affidavits, which clearly established current probable cause as to Stepney's involvement in targeted offenses. See 18 U.S.C. § 2518(3)(a). Prior affidavits' attestations as to Stepney's activities were not stale, as they established an ongoing pattern of conduct with no identifiable termination point, and they indicated that Stepney continued to use his telephones to commit targeted offenses. See also United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986) (holding that evidence supporting probable cause does not become stale where "there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises. . . . With respect to drug trafficking, probable cause may continue for several weeks, if not months, of the last reported instance of suspect activity") (internal citations and quotations omitted).
In addition to requiring probable cause as to Stepney himself, 18 U.S.C. section 2518(3)(b) required the government to make an independent showing of probable cause as to the likelihood of criminal activity using Line C. See 18 U.S.C. § 2518(3)(b) (requiring a court to find "there is probable cause for belief that particular communications concerning that offense will be obtained through such interception"). Title III requires an independent showing of probable cause as to each wiretap, and thus the probable cause established regarding Stepney's use of Line B for targeted offenses does not transfer to Line C. See 18 U.S.C. § 2518 (1) & (3)(b) (applying Title III requirements to "[e]ach application for an order authorizing or approving the interception of a wire, oral, or electronic communication" and requiring satisfaction of probable cause "for belief that particular communications concerning that offense will be obtained through such interception").
McConnell's only showing of probable cause to tap Line C is the three phone calls between Stepney and Kent, using Lines C and A respectively. The court finds that taken on their own, these calls barely established a "substantial basis" for probable cause for the wiretap of Line C. See United States v. Meling, 47 F.3d 1546, 1552 (9th Cir. 1995). Slim though its reporting was, the affidavit did provide indications that Stepney was using Line C to discuss narcotics (based on McConnell's reasonable interpretation of the coded terms such as "chizzo" and "two and a half zips") and the evasion of law enforcement (by identifying police informants and finding a new stash house after the police search of Alida Way). Aug. 16, 2001 McConnell Aff. ¶¶ 25-27. In addition, in satisfaction of the third probable cause requirement, the affidavit provided sufficient evidence to infer that Stepney was using Line C. See 18 U.S.C. § 2518(3)(d). The affidavit intercepted Stepney speaking with Kent from Line C, Stepney telling Ellis and Jacks that he had a new number, and Jacks confirming that the number began with "610." See Aug. 16, 2001 McConnell Aff. ¶¶ 16, 18, 25-27.
The affidavit thus established probable cause to believe that Stepney was using Line C to perpetuate targeted offenses.
C. Necessity as to both Lines B and C
McConnell's August 16, 2001 affidavit aggregated necessity assertions for the Line B extension or Line C wiretap. First of all, the affidavit enumerated the goals of the investigation to identify Stepney's source for cocaine, to identify Big Block's source for firearms, to enable the FBI to intervene to prevent violence, and to identify several unknown persons intercepted in incriminating conversations with Stepney. Aug. 16, 2001 McConnell Aff. ¶¶ 30-32. In addition, the affidavit reviewed a selection of traditional law enforcement techniques in a summary fashion. See id. ¶¶ 33-42. Lastly, the affidavit named one specific measure of law enforcement undertaken to substantiate necessity as to Line C in particular: a two-week period of telephone analysis of Line C.
Id. ¶ 28. A trap and trace device was initiated on Line C three days before the McConnell affidavit, but no results were included in his affidavit. Id. ¶ 29.
Defendants argue, and this court agrees, that the sixth and final wiretap application targeting Big Block represented a substantially weaker showing of necessity than that of prior affidavits. Its descriptions of relevant law enforcement experiences were brief and conclusory, rarely siting examples of specific experiences in the Big Block investigation which demonstrated the on-going limitations of traditional techniques. For instance, the affidavit stated that physical surveillance was not a useful technique due to local topography. Aug. 16, 2001 McConnell Aff. ¶ 36. Yet in the next sentence, the affidavit stated without elaboration that the FBI had installed a video camera and monitoring device atop a utility generator over two months before. Id. The affidavit lacked any statement of the surveillance yield from that camera-particularly when combined with the past period of electronic interceptions-or any reasons why it was not yielding useful evidence. Id. Each additional mention of the ongoing limitations of traditional law enforcement techniques was similarly conclusory and unspecific. See, e.g. id. ¶ 34 ("the confidential sources utilized in this investigation cannot provide complete and current information on the Big Block organization and their suppliers and distributors"); ¶ 40 (stating that pen and toll register analysis was being used, but only showed that "Stepney is calling numerous telephone numbers. Continued interception is the only means to learn what is said."); ¶ 41 (stating, without more specificity, that it was "extremely unlikely" that an undercover agent could infiltrate Big Block, and failing to describe any reasons that undercover drug buys or other transactions would not be of utility). The affidavit only updated the FBI's showing of specific barriers to traditional law enforcement with one specific experience during the prior thirty-day period: a description of one phone call in which Stepney told McCain to "watch [her] back" because the "Feds" were "out chasing us yesterday." Aug. 16, McConnell Aff. ¶ 39.
The August 16, 2001 affidavit, more than any of the five before it, thus relied extremely heavily on its incorporation by reference of prior necessity attestations made to the issuing judge. Whereas Agent Wilson's application to extend the Line A affidavit described numerous specific experiences and failures using search warrants and surveillance within the prior interception period, the sixth and final affidavit simply stated the same general limitations with law enforcement techniques that would apply to most investigations. Compare Aug. 3 Wilson Aff. ¶¶ 48-56 (including some necessity language repeated from earlier affidavits in the case, but consistently pairing general assessments of a method's efficacy with specific experiences using the method to investigate the interceptees during the prior period) with Aug. 16, 2001 McConnell Aff. ¶¶ 33-42 (describing general limitations of law enforcement techniques that would be common to most criminal investigations and providing few case-specific experiences). See Ippolito, 774 F.2d at 1486 (holding that the necessity requirement is designed to "prevent the government from making general allegations about classes of cases and thereby sidestepping the requirement that there be necessity in the particular investigation").
As stated throughout this order, extension applications and each application for a new wiretap must make an independent showing of necessity for a wiretap, stating the specific failures of traditional law enforcement to achieve the investigatory objectives. See 18 U.S.C. § 2518(1)(c), (5). Furthermore, the Ninth Circuit has recently held that a later wiretap application in a series cannot "shoe-horn the significant investigatory work the government conducted" before applying for its earlier wiretaps into its showing of necessity for the subsequent application. The Circuit reasoned, [T]he government is not free to transfer a statutory showing of necessity from one application to another-even within the same investigation. This court has held that an issuing judge may not examine various wiretap applications together when deciding whether a new application meets the statutory necessity requirement. Each wiretap application must separately satisfy the necessity requirement.
United States v. Gonzalez, 2005 WL 1459569 at *10 (9th Cir. June 22, 2005). The reasoning in Gonzalez was not expressly confined to its factual setting. The case re-emphasized a long line of precedent within the Ninth Circuit, and indeed the language of the statute itself, requiring an independent showing of necessity at each juncture in a wiretap investigation. See generally id. at *7-8. If there was any doubt in the case law of this Circuit, Gonzalez made it utterly clear that the August 16, 2001 affidavit had to "separately satisfy the necessity requirement" to justify an additional thirty days of interceptions, as well as the tapping of an additional phone line. Id. at *10 (citing United States v. Carniero, 861 F.2d 1171, 1180-81 (9th Cir. 1988) and United States v. Brone, 792 F.2d 1504, 1507 (9th Cir. 1986)).
It would overstate the Ninth Circuit's opinion in Gonzalez, however, to interpret it as precluding an affidavit's incorporation by reference of relevant prior investigative efforts already described in a prior wiretap application. The particular factual context in Gonzalez involved two wiretaps of two separate locations and two separate sets of defendants within the same investigation of an interstate conspiracy. 2005 WL 1459569 at *1-2. The court's holding concerned a wiretap application that targeted a set of defendants against whom very little traditional investigative work had been directed. See id. at *2. The government's only claim to necessity relied on a prior necessity showing made against an earlier set of wiretap interceptees in another state. See id. The precedent cited in Gonzalez similarly considered affidavits targeting new defendants and only rejected or instructed reconsideration of necessity findings as to these new defendants. See United States v. Carneiro, 861 F.2d 1171, 1180-81 (9th Cir. 1986) (considering wiretap applications that targeted two new defendants in a conspiracy but relied on the investigative work performed as to only the first defendant targeted by a wiretap); United States v. Brone, 792 F.2d 1504, 1507 (9th Cir. 1986) (upholding a finding of necessity as to one defendant targeted by a first wiretap application, but remanding for reconsideration of whether subsequent applications established necessity to tap additional defendants' phones). In short, the wiretap applications before the Circuit in Gonzalez, Brone and Carneiro had failed to apply any meaningful investigative efforts to their intended target. Instead, those applications had sought to "transfer" a necessity showing from one investigative target to another, thus denying subsequent targets the protections of the Wiretap Act.
As applied to this case, it would represent an unwarranted and illogical extension of Gonzalez to hold that McConnell's affidavit could not incorporate by reference relevant statements of necessity made in prior wiretap applications within a single investigation of the same defendants for the same crimes committed in the same locale. When a series of wiretap applications targets the same defendant(s), facts incorporated from prior affidavits are squarely relevant to the Title III inquiry into "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." See 18 U.S.C. § 2518(1)(c). It would be a standard rooted in wasteful, empty formalism to ask affiants to repeat past catalogues of investigative efforts updated just weeks before. Indeed, in Brone, the Ninth Circuit held that an element establishing necessity in a prior order "may be a factor that weighs in favor of authorizing the tap." 792 F.2d at 1507 (remanding for consideration of necessity as to a later application targeting a new co-conspirator, but instructing that the first affidavit's showing that the defendants were wary of law enforcement was a factor that the court could consider in connection with the latter affidavit's showing of necessity).
The court thus finds that the August 16, 2001 affidavit properly incorporated by reference the necessity showing of prior affidavits in the same criminal investigation targeting Stepney and his Big Block associates. As discussed extensively in this order, Stepney and Big Block as an organization had been the target of nearly a decade of diverse law enforcement efforts which were adequately catalogued in the prior series of Big Block affidavits. Though each affidavit must make an independent showing of necessity, it would be illogical for this court to hold that the affidavits of June 21, July 16, and August 3 established necessity for the target of Stepney's Line B phone, but that only two weeks later than the last of these, such necessity had dissolved. McConnell's affidavit attested-and the record shows nothing to the contrary-that the investigation had still failed to uncover Stepney's narcotics supplier and the firearms supplier for Stepney and other Big Block members, among other investigative goals.
Similarly, once the affidavit established that Stepney was using Line C, the investigative lineage documented in the prior affidavits answered the Title III question of whether traditional investigative methods targeting Stepney and other Line C interceptees had been tried and failed or why they reasonably appeared to be unlikely to succeed or too dangerous. See 18 U.S.C. § 2518(1)(c). Stepney's comments to Big Block interceptees Ellis and Jacks that he was using a new phone indicated that he intended to use the phone for "business." See Aug. 16, 2001 McConnell Aff. ¶¶ 16, 18. The fact that Line C was not itself the target of long-term pen register and trap and trace analysis doesn't undermine this fact. The Line only came into service on July 27, 2001, and it was immediately targeted for a pen register. As discussed earlier in this order, defendants' practice of using "burn phones" to evade law enforcement cautioned against long-term trap and trace analysis-indeed the practice was among the many barriers to employing traditional law enforcement techniques to penetrate and prosecute Big Block.
McConnell's incorporation of these affidavits was not, therefore, a shoe-horning of distinct, past investigations into a new investigation. Rather, it simply marked what was a matter of commonsense: that the prior Line A and Line B affidavits' catalogue of many years of traditional law enforcement efforts targeting Big Block as a criminal conspiracy, with Stepney as its principal, was highly material to the necessity of a further wiretap of Line B and a new wiretap of Line C. This court cannot find that the district court judge who approved both the original wiretap of Line B as well as the application of August 16 abused her discretion in finding necessity as to either.
Defendants' motion to suppress the fruits of the Line A, B, and C wiretaps are thus denied.
PART II: DOLPHIN COURT, AVALON STREET, AND NORTHRIDGE ROAD SEARCHES
Defendant Douglas Stepney has moved to suppress the fruits of police searches conducted at 124 Dolphin Court and 12 Avalon Street #9 in San Francisco on the grounds that these searches were conducted pursuant to an invalid warrant. On the same grounds, defendant Kim Ellis has moved to suppress the fruits of police searches conducted at 117 Northridge Road in San Francisco. Both defendants argue Franks error, namely that the search warrants at issue made material misrepresentations and omissions with regards to the confidential informants relied upon in the warrant affidavits.
I. The Dolphin Court and Avalon Street Searches
A. The Warrant
On December 28, 2000, Magistrate Judge James Warren of the San Francisco Superior Court issued a search warrant for 124 Dolphin Court and 12 Avalon Street #9, two residences allegedly used by defendant to sell and store crack cocaine and store the proceeds of those sales. The sole basis for this warrant was an affidavit submitted by San Francisco Police Department ("SFPD") Officer Paul Lozada ("Lozada"), a narcotics investigator with a somewhat checkered history with the force and within the community at large.*fn13 Lozada's affidavit centered around the observations and knowledge of two confidential informants whom he claimed had informed him of defendant's illicit activities and the presence within these residences of contraband related to defendant's narcotics trade. According to Lozada's "Confidential Reliable Informant A" ("CRI-A"),*fn14
Douglas Stepney sells both cocaine powder and crack cocaine from his safehouse which is located at 124 Dolphin Court. . . . Douglas Stepney takes the money he obtains thru [sic] the drug sales and stores same within his residence located at 12 Avalon Street in San Francisco. Def. Mot., Exh. A, at 5. Lozada also disclosed that "[t]his CRI-A is a convicted felon. He/She does not have a criminal case pending and is receiving monetary compensation for his/her services." Id.
Lozada's "Confidential Reliable Informant B" ("CRI-B") on the Dolphin Court warrant provided similar, cumulative information:
He/She has purchased crack cocaine from [Stepney] at 124 Dolphin Court. These purchases were made over the last few months. He/She knows 124 Dolphin Court to be a safehouse for Douglas Stepney.
Id. at 6. Lozada provided a similar disclaimer regarding CRI-B's testimonial evidence, explaining that "[t]his CRI-B is a convicted felon. He/She does not have a criminal case pending and is receiving monetary compensation for his/her services." Id.
Other than the information provided by these two confidential informants, Lozada's affidavit was composed almost entirely of boilerplate discussions of his own qualifications as a narcotics agent and his knowledge of and expertise with gang activity and the narcotics trade.*fn15 However, the affidavit did provide some specific information regarding Douglas Stepney and the residences for which Lozada sought search warrants. Explained Lozada, [Y]our affiant knows Douglas Stepney to be an active narcotics dealer and leader of the "Big Block Gang Set." Your affiant also knows Douglas Stepney to associate with other drug dealers from the Hunter's Point area of San Francisco.... Your affiant also knows Douglas Stepney to have a high propensity for violence as [sic] is responsible for numerous gang related homicides and shooting incidents which have occurred over the last seven years. ...
Your affiant and officers Elmore, Labanowski, Kasper, & Alexander have conducted a surveillance of both 124 Dolphin Court and 12 Avalon Street. Within the last month, we have observed Douglas Stepney enter 124 Dolphin Court with a key. While conducting a surveillance of 12 Avalon Street, Douglas Stepney was seen entering the apartment building. Def. Mot., Exh. A., at 5 & 7.
B. The Confidential Informants
Defendant Stepney was able to identify CRI-A and CRI-B through independent research. He claims that the descriptions of these individuals in Officer Lozada's affidavit did not capture the full spectrum of their involvement in criminal activities and with the police. The government has admitted that CRI-B is Curtis Holden, an individual with an extensive criminal history involving theft, burglary, narcotics trafficking, and a host of other crimes. See generally Def. Mot., Exh. D (Rap Sheet of Curtis Holden); id. at Exh. E (Juvenile Rap Sheet of Curtis Holden). The details of Holden's sixteen-year involvement with crime are largely unimportant for purposes of evaluating his credibility, though several particular incidents involving dishonesty on Holden's part warrant note: In June of 1989, Holden was arrested for carrying false evidence of vehicle registration, see id. at 3, and in June of 1998 he was arrested on charges of making or alerting access card equipment with intent to defraud. See id. at Exh. F, at 4. In addition to credibility-related incidents, Holden has been convicted of two crimes constituting "strikes" under California law. Pl.'s. Mot., Exh. F (CLETS report for Curtis Holden). Defendant believes that these strikes "raise the inference" that Holden cooperated in this case in exchange for leniency on a potential third strike charge. Pl.'s Mot. at 12.
Holden also appears to have run afoul of the law immediately prior to the day on which he agreed to provide Officer Lozada with the information that formed the basis for Lozada's affidavit. On December 13, 2000, police arrested Holden for allegedly taking a vehicle without the owner's consent, a felony in California. See id. at Exh. D, at 6. The charges were dismissed that day for lack of evidence -- thus sparing Holden the risk of a "third strike" felony. Id. at 12. Six days later, on December 19th, Lozada met with Holden and obtained the information cited in the application for search warrant. See id. at Exh. B, at 4. Defendant believes that police may have agreed to dismiss charges in exchange for his cooperation in the SFPD investigation of Douglas Stepney. Id. at 12-13.
As for CRI-A, the government provided defendant with a redacted rap sheet for CRI-A pursuant to this court's requests. Based on investigations stemming from the document, defendant ascertained-and testimony confirmed-the identity of the person Officer Lozada attests was CRI-A. See Bevan Dec., Exh. A. His/her identity has not been revealed publicly for reasons of his/her safety, and for present purposes CRI-A will not be referred to by name. Relevant for present purposes, CRI-A's criminal history reveals that he/she has been convicted twice, both times for "narcotics-related" offenses, and has never been convicted for a crime involving dishonesty. See Bevan Dec., Exh. A; Pl. Opp., at 7-8. CRI-A was once arrested for a crime involving dishonesty and subversion of justice, though that arrest came after December 2000, and thus after CRI-A's information had been used to obtain the warrant at issue here. See Bevan Dec., Exh. A, at 3.
C. The Franks Proceeding
Based on defendant Stepney's preliminary showing of credibility concerns with Officer Lozada and both of his confidential informants, this court granted defendant an evidentiary hearing on the accuracy of the Lozada affidavit. After issuing an arrest warrant to ensure one witness's reluctant appearance, this court conducted an evidentiary hearing, with testimony from Officer Lozada, Curtis Holden, and CRI-A. Officer Lozada testified that, pursuant to his police academy training and common practice, he did not enumerate the precise criminal history of CRI-A and CRIB in his affidavit but did bring their full criminal histories to his meeting with the magistrate judge. He testified regarding his "recollection" that the magistrate judge glanced through both informants' rap sheets before issuing the warrant. On cross-examination by defendant, Lozada confirmed defendants' speculation about the identity of CRI-A, and he testified that he/she had made all representations asserted in his affidavit. He testified that CRI-A confirmed Douglas Stepney's picture. Though he paid the informant for information in the amount of approximately a few hundred dollars over a five-year period, he stated that he provided pending case consideration rather than monetary compensation in most instances. By contrast, Officer Lozada stated that he gave Curtis Holden "a couple thousand dollars" over a seven-year period.
Curtis Holden testified that he began as an informant to Officer Lozada in 1991 or 1992 but only began receiving cash compensation for information provided much later, for approximately a three-year period. He admitted that he was a cocaine dealer for much of the 1990s and that Officer Lozada was aware of some of those activities.
CRI-A also testified at the hearing. He/she identified "Boobie" (Douglas Stepney's nickname) from a photographic lineup, but testified that he/she did not recognize 12 Avalon Street or 124 Dolphin Court from apartment photographs. He/she denied meeting Officer Lozada on or about December 14, 2004, receiving any money for cooperation, or making any of the statements attributed to CRI-A in the affidavit. He/she denied ever seeing Stepney in possession of a firearm or selling drugs, or ever entering the apartments on Dolphin Court or Avalon Street. He/she denied ever providing information whatsoever to Officer Paul Lozada.
II. The 117 Northridge Road Search A
The Warrant On May 19, 2000, Magistrate Judge Wallace P. Douglas of the San Francisco Superior Court issued a search warrant for 117 Northridge Road, a residence shared by defendant Ellis and his mother where defendant allegedly stored firearms and narcotics. The basis for this warrant was an affidavit submitted by San Francisco Police Department Officer Lozada, the narcotics investigator also involved in the Dolphin Court search. Lozada's affidavit centered around the observations and knowledge of two confidential informants whom he claimed had informed him of defendant's illicit activities and the probable presence within Ellis's residence of contraband related to his narcotics trade. According to Lozada's CRI-A for the Northridge Road search, The [CRI-A] knows Kim Ellis to reside at 117 Northridge Road with his mother. . . . He/She knows Kim Ellis to be a large scale narcotics dealer in the Hunter's Point area. The [CRI-A] has seen Kim Ellis in possession of large quantities of crack cocaine packaged for sales over the last few years. The [CRI-A] also has seen Kim Ellis in possession of numerous firearms on many occasions during the last few months. He/she has made these observations while inside of 117 Northridge Road, as well as other locations within the Harbor Road area. . . Within five days of the [sic] 05/07/2000, he/she saw Kim Ellis in possession of a firearm at 117 Northridge Road.
Lozada Aff., Exh. A, at 12. Lozada also disclosed that "CRI-A is a convicted felon. . . .The CRI-A is receiving monetary compensation for his/her services. The CRI-A does not have any criminal cases pending." Id. at 11. Subsequently, CRI-A was revealed to be Curtis Holden, the same informant labeled as CRI-B in the Dolphin Court affidavit.
Lozada's CRI-B provided similar information, though it did not contain any specific reference to the Northridge Road residence:
He/She knows Kim Ellis to be actively engaged in large scale narcotics trafficking. The [CRI-B] also told your affiant that he/she knows Kim Ellis to associate himself with known drug dealers from the Hunter's Point gang set and to be an active member within the Harbor Road-Big Block gain set. The [CRI-B] added that within seven days from the listed date, he/she observed Kim Ellis in possession of crack cocaine packaged for sales. The [CRI-B] made this observation at a specific location within the Harbor Road area of San Francisco. Id. at 14. Lozada provided a similar disclaimer regarding CRI-B's testimonial evidence, explaining that "[t]his CRI-B is a convicted felon. He/She does not have a criminal case pending and is receiving monetary compensation for his/her services." Id. at 13. Defendant subsequently discovered the identity of CRI-B, whose identity has been sealed by this court.
Other than the information provided by these two confidential informants, Lozada's affidavit is composed primarily of boilerplate discussions of his own qualifications as a narcotics agent and his knowledge of and expertise with gang activity and the narcotics trade. However, the affidavit does provide some specific information regarding Kim Ellis and the Northridge Road residence. Explained Lozada, From contact and arrests, your affiant knows Kim Ellis to be an active gang member within the Harbor Road-Big Block Gang Set. . . . Your affiant is also aware of Kim Ellis being named in numerous shooting incidents between numerous gang factions within the San Francisco area. Other sources who wish to remain anonymous told your affiant that they have seen Kim Ellis in possession of a semiautomatic pistol. ...
Your affiant and Officer Alexander conducted a surveillance of 117 Northridge Road within the last month. During the course of our surveillances, your affiant observed Kim Ellis enter and exit from the location with a key.
Def. Mot., Exh. A., at 12-13.
B. The Confidential Informants
Defendant Ellis argues that the descriptions of them in Officer Lozada's affidavit do not begin to describe the full spectrum of the informants' involvement in criminal activities and with the police. As discussed supra, CRI-A, or Curtis Holden, has a record that includes two arrests for dishonesty-related crimes, a well as two crimes constituting strikes under California law. Defendant argues that these strikes raise the inference that Holden cooperated in this case in exchange for leniency on a potential third strike. Pl.'s Mot. at 13. In addition, defendant believes that Holden's long-term relationship with Officer Lozada further undermines his credibility as an informant.
The government originally resisted disclosing the identity of CRI-B, due to the fact that he/she might be put at personal risk were her/his identity revealed. The prosecution thus filed only a redacted version of the informant's criminal history, and stated that CRI-B has never been convicted for a crime involving dishonesty, and has not been convicted of any crimes in the last 13 years. See Pl.'s Opp., at 2; Bevan Dec. See also Lozada Aff., Exh. A ¶ 6. Based on independent investigation, defendant learned the identity of the CRI-B referenced in the warrant.
C. The Franks Proceeding
After determining that defendants were entitled to a hearing to determining the reliability of information provided in the affidavit and warrant at issue here, the court conducted a Franks hearing to investigate the basis of the warrant. After issuing an arrest warrant to insure CRI-B's reluctant appearance, this court took testimony from CRI-B, as well as from Officer Lozada and Curtis Holden. Testimony from CRI-A and CRI-B was taken before a closed courtroom and sealed.
According to the Supreme Court, "[t]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967) (citations omitted). When reviewing a motion to suppress, the important question for this court is not "whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched." United States v. Salvucci, 448 U.S. 83, 92-93 (1980). The standard is an objective one; the individual's expectation of privacy must be not only subjectively held but also objectively "legitimate." Rakas v. Illinois, 439 U.S. 128, 143 (1979).
"A search warrant, to be valid, must be supported by an affidavit establishing probable cause." United States v. Stanert, 762 F.2d 775, 778 (9th Cir. 1985), as amended, 769 F.2d 1410. Probable cause is established by a search warrant affidavit where the "totality of the circumstances" creates a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "To credit a confidential source's information in making a probable cause determination, the affidavit should support an inference that the source was trustworthy and that the source's accusation of criminal activity was made on the basis of 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 an informant's history of criminal acts involving dishonesty renders his/her statements unworthy of belief, probable cause must be analyzed without those statements." Reeves, 210 F.3d at 1044 (citing United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997)). Though an affiant may "sanitize" an informant's criminal history by "replacing clearly identifying details with a more general description of the relevant facts," this sanitization must not obscure the "material essence" of the informant's record. Id. at 1046.
In order to challenge the reliability of an affidavit used as the basis for a search warrant, 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 without the allegedly false information." United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000) (citations omitted). See also United States v. Elliott, 322 F.3d 710, 714 (9th Cir. 2003). If the defendant succeeds in making this showing, the "proper procedure" is for the court to conduct a hearing (ex parte and in camera, if necessary) in order to ascertain whether the defendant "has made a threshold substantial showing of falsehood." Reeves, 210 F.3d at 1044 (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 Elliott, 322 F.3d at 714.
I. The Dolphin Court and Avalon Street Searches
A. Standing "[C]apacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas, 439 U.S. at 143. A residential location need not be a defendant's own home in order to create a legitimate and objectively reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 96 (1990); Minnesota v. Carter, 525 U.S. 83, 90-91 (1998). Defendants have the burden of establishing that a search violated their reasonable expectation of privacy in a particular place. See United States v. Singleton, 987 F.2d 1444, 1447 (9th Cir. 1993). Satisfaction of this burden should be based on evidence presented by both parties, rather than exclusively on the government's theory of the case. Id. at 1449.
Douglas Stepney possessed a legitimate expectation of privacy in the 124 Dolphin Court and 12 Avalon St. #9 residences. Stepney resided at both apartments and paid rent for each of them during the period of time at issue here. See Stepney Dec. ¶¶ 2-4 & 10. He had keys to both apartments and kept personal belongings in each of them. See id. at ¶¶ 6-7 & 13-14. Stepney's connections to the residences at issue are thus sufficiently strong to confer upon him standing to contest these searches. See Rakas, 439 U.S. at 143; United States v. Stepney, CR-01-0344 MHP (January 16, 2004) (Defendant's Motion to Suppress Fruits of the Search of Alida Way).
B. The Warrant
Stepney challenges the Dolphin Court warrant on two grounds. First, he argues that the affidavit's description of both confidential informants misstated or materially omitted important aspects of their criminal histories, impugning the reliability of the affidavit and its showing of probable cause. This court granted a Franks evidentiary hearing to explore this issue, and it revealed contradictory testimony between the affiant, Officer Lozada, and CRI-A. Stepney's second argument for suppression is that this contradiction reveals that one of the two is lying, throwing the affidavit's reliability into fatal disarray.
Stepney argues that the bare statement offered by Officer Lozada that each of the confidential informants is "a convicted felon" and "does not have a criminal case pending" so neatly minimized each of these confidential informants' decades-long criminal histories as to meaningfully obscure the "material essence" of their criminal records and the impact of their prior conduct on their credibility. See Reeves, 210 F.3d at 1046. Ninth Circuit precedent on material omissions of a confidential informant's criminal record has focused not upon whether the description of a confidential informant conveys 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."); 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); 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 informants' criminal histories is not irrelevant, it is the existence (or lack thereof) of events indicating their tendency for dishonesty that is most significant here.
CRI-A had not been arrested or accused of any crime indicative of dishonesty before the date of Officer Lozada's affidavit. See Bevan Dec., Exh. A. The concerns of perfidy that animated the Ninth Circuit decisions in Reeves, Elliott, and Hall, among others, are thus inoperable here. See, e.g., Reeves, 210 F.3d at 1045. In addition, there is no indication from CRI-A's criminal record that CRI-A may have received any type of unreported assistance from the police with any recent or pending criminal matter at or near the time of CRI-A's provision of Stepney-related information to Officer Lozada. See Bevan Dec., Exh. A. As for CRI-A's overall record, six arrests and two convictions is well within the boundaries of the impression that the phrase "convicted felon" might convey, particularly when neither of the offenses for which CRI-A was convicted constituted a particularly serious violent crime. Though the reduction of these several arrests and convictions to the phrase "convicted felon" represented a "sanitization" of CRI-A's precise history, it did not obscure the "material essence" of CRI-A's history so as to convey a misleading impression of the individual's reliability. Reeves, 210 F.3d at 1046. Lozada's affidavit stated that CRI-A "has given your affiant information in the past that was accurate and reliable in all instances" would also bolster the showing of reliability made by the affidavit. Def. Mot., Exh. A., at 4. See Reeves, 210 F.3d at 1045 (holding that the fact that an informant has consistently provided accurate information to the police functions as "important countervailing evidence" of the information's veracity). The court thus finds that the affidavit's representation of CRI-A's criminal history does not undermine the reliability of the affidavit.
Applying the same analysis to Curtis Holden, CRI-B in the Dolphin Court affidavit, Holden has a sixteen year criminal history involving theft, burglary, narcotics trafficking, and other crimes. See generally Pl.'s. Mot., Exh. A (Rap Sheet of Curtis Holden); id. at Exh. E (Juvenile Rap Sheet of Curtis Holden). Holden was arrested on two occasions for acts of dishonesty: In June of 1989, he was arrested for carrying false evidence of vehicle registration, and in June of 1998 he was arrested on charges of making or alerting access card equipment with intent to defraud. Pl.'s Mot., Exh. E at 3; Exh. F at 4.*fn16 In addition to these credibility-related incidents, defendant believes that Holden's two prior "strike" offenses "raise the inference" that Holden cooperated in this case to avoid SFPD assistance in pursuing a third strike charge. Pl.'s Mot. at 13. See also Pl.'s. Mot., Exh. F (CLETS report for Curtis Holden). The timing of Holden's disclosures to Officer Lozada--a mere one day after his arrest for a third felony--also tend to impugn his credibility as an informant. Summarizing Holden simply as a "convicted felon" who "does not have any criminal cases pending" indeed stretched the outer boundaries of truthfully representing the "material essence" of his credibility.
However, the Ninth Circuit has instructed that convictions or inferences of dishonesty must be weighed against other indicia of reliability, including prior information leading to arrests and/or convictions. Reeves, 210 F.3d at 1045 (finding that a CRI's provision of "truthful and reliable information to police that led to three other search warrants, narcotics arrests and convictions significantly bolsters his/her credibility and the reliability of the information provided"). Applying that standard, CRI-A's credibility-related arrests must be balanced against Officer Lozada's attestation, confirmed in the Franks hearing, that CRI-A had provided information leading to ten successful prosecutions, as well as five arrests of major narcotics dealers in the months preceding the affidavit. Lozada Aff., Exh. A, at 11. By analogy to Reeves, where the credibility shadow cast by a charge for giving false information to a law enforcement officer was offset by the provision of accurate information on three occasions, the taint of CRI-A's dishonesty-related charges is offset by her/his reliable past disclosures to Officer Lozada.
Therefore, upon review of the confidential informants' criminal histories in comparison with the affiant's reliability representations in the affidavit, the court finds that the warrant did not contain material misrepresentations or omissions warranting suppression. At the Franks hearing on the warrant, however, CRI-A denied that he/she had ever given information to Officer Lozada about Stepney or any other person. CRI-A was visibly frightened during testimony, insisting with emphatic but fear-induced persistence that he/she had never spoken with Officer Lozada. In direct conflict with this testimony, Officer Lozada testified as to the frequency of his meetings with the informant, the content of his/her information, and the veracity of the affidavit. His testimony was corroborated to some extent by a one page summary of payments made to informants including CRIA. Based on the credibility of the witnesses and their conduct during testimony, the court finds that CRI-A recanted his/her conversations with Officer Lozada out of fear of reprisals. Despite Officer Lozada's own tainted history for credibility,*fn17 the court finds that it was CRI-A, rather than the officer, who gave false testimony to the court. No similar concerns were raised with respect to Holden, whose testimony at the Franks hearing supported the reliability of Officer Lozada's representations in the affidavit.
Finding that no portions of the search warrant for the Dolphin Court and Avalon Way apartments warrant exclusion, probable cause to search the residences was established. CRI-A explained to Officer Lozada that Stepney was engaged in dealing cocaine from Dolphin Court, and that he was storing the money obtained through these sales at 12 Avalon Street #9, and CRI-B's attestations described narcotics sales in the apartment. See Def. Mot., Exh. A, at 4-7. Defendant's motion to suppress the fruits of the warrant for Franks errors and lack of probable cause is denied.
II. The Search of Northridge Road
For the purposes of the present motion, the government has conceded Ellis's standing to contest the legality of the search of 117 Northridge Road.
B. The Warrant
Like Stepney, Ellis contests the reliability of Officer Lozada's warrant based on the criminal histories of the confidential informants he relied upon. In addition, he argues that contradictory testimony at the Franks hearing between Officer Lozada and confidential informant B on the search warrant affidavit impugned the truthfulness of persons on whom the affidavit's showing of probable cause relies.
Defendant in the present action made a substantial preliminary showing that Officer Lozada's affidavit contained misleading omissions or intentionally or recklessly false statements. See Reeves, 210 F.3d at 1041. Specifically, defendant argued that the bare statement offered by Officer Lozada that each of the confidential informants was "a convicted felon" and did "not have a criminal case pending" so neatly minimized each of these confidential informants' decades-long criminal histories as to obscure the "material essence" of their criminal records and the impact of their prior conduct on their present credibility. See Reeves, 210 F.3d at 1046. As discussed, though the entire scope of Holden and CRI-B's criminal histories are not irrelevant, it is the existence (or lack thereof) of events indicating their tendency for dishonesty that is most apposite here.
Holden's criminal record, as discussed, does contain blemishes relating to dishonesty, and Officer Lozada did omit important information regarding Holden's incentives to testify. However, this court finds that these errors and omissions were outweighed by his long and specific history of providing accurate information to Officer Lozada. Furthermore, the consistency of Officer Lozada and Holden's testimony at the Franks hearing supports the reliability of his statements in the warrant.
CRI-B, by contrast, has a disturbing past relating to dishonesty. See Bevan Dec., Exh. A. The concerns of credibility that animated the Ninth Circuit decisions in Reeves, Elliott, and Hall, among others, are extremely relevant in her/his case. See, e.g., Reeves, 210 F.3d at 1045. Although there is no indication from CRI-B's criminal record that he/she may have been receiving any type of unreported assistance from the police with any recent or pending criminal matter, defendant Ellis has submitted a record indicating false testimony to a San Francisco jury in a homicide prosecution that led to exculpation of the defendant, an incident that was widely reported in the local news. In addition, CRI-B had a beleaguered history of involvement with the police and the criminal courts, which the mere description of CRI-B as a "convicted felon" did not fully capture. See Bevan Dec., Exh. A (listing a long history arrests before December 2000); Pl.'s Opp., at 2 (acknowledging that CRI-B has been convicted for four felonies and arrested on numerous occasions). By summarizing CRI-B as a "convicted felon," with no disclaimer as to false and internally inconsistent jury testimony that constituted a minor public scandal, the Northridge Road affidavit so obscured the "material essence" of CRI-B's history so as to convey a materially misleading impression of the individual's reliability. See Reeves, 210 F.3d at 1046. The court finds that even if Officer Lozada's descriptions were not intentionally misleading, they satisfy the standard for recklessly false statements or misleading omissions under Reeves and Elliott. Id. at 1044; Elliott, 322 F.3d at 714.
If the standard for informant reliability is to mean anything at all, holding law enforcement to any level of disclosure about their informants, CRI-B's representations in the affidavit cannot stand. All references to CRI-B in the Northridge Road search warrant affidavit are stricken from the showing of probable cause to search.
Probable cause must therefore stand on Officer Lozada's own knowledge and surveillance of Ellis, as well as Holden's testimony that Ellis was a "large scale narcotics dealer" who Holden had observed "in possession of large quantities of crack cocaine packaged fro sales" and "numerous firearms." Lozada Aff., Exh. A at 12. As for the situs of the search, Northridge Road, probable cause must stand on Holden's attestation that he made these observations while inside the residence, including one sighting of Ellis in possession of a firearm at the residence within five days of his meeting with Lozada. Id. Under the "totality of the circumstances" standard enunciated in Gates, the specific information provided by this informant would have created a "fair probability that contraband or evidence of a crime will be found in a particular place," namely, 117 Northridge Road. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
For the reasons stated above, IT IS HEREBY ORDERED that:
1) Defendant Stepney's motions to suppress the fruits of the searches of Javon Fee and Tyrice Ivy are DENIED.
2) Defendants' motions for disclosure of the confidential wiretap informants is DENIED.
3) Defendants' motion to suppress the fruits of electronic interceptions of Line A, B, and C, is DENIED.
4) Defendant Stepney's motion to suppress the fruits of the searches of 124 Dolphin Court and 12 Avalon Street #9 is DENIED.
5) Defendant Ellis's motion to suppress the fruits of the search of 117 Northridge Road is DENIED.
IT IS SO ORDERED.