The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING MOTIONS TO SUPPRESS; DENYING MOTIONS FOR FRANKS HEARING
Before the Court are Defendants' Motions to Suppress (the "Motions to Suppress"), which are closely related to Defendants' Motions for a Franks hearing (the "Franks Motions"). Though various iterations of the Motions have been filed by individual, and individual groups of, Defendants to this lawsuit, all Defendants have joined in the pending Motions, which raise related issues.
The Motions to Suppress are made on the grounds that the wiretaps did not satisfy the showing of necessity required by 18 U.S.C. § 2518(1)(c). In essence, Defendants argue that the wiretap applications in question failed this requirement because, in relevant part: (1) the wiretap applications understated the scope and import of information provided by certain confidential informants; (2) the wiretap applications understated the contemplated capability of existing informants to mine more information on the F13 organization; and (3) the wiretap applications, individually and collectively, made affirmative misrepresentations as to the amount of information already obtained by law enforcement. On the basis of these arguments, Defendants request the suppression of some or all of the intercepted communications or, in the alternative, a Franks hearing to determine whether material omissions or misstatements were made in the affidavits accompanying the government's wiretap applications.
18 U.S.C. § 2518(1)(c) provides that the government's wiretap application must 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." The Ninth Circuit has interpreted this statutory provision to impose a "necessity" requirement, in light of "the statutory presumption against this intrusive method" of information gathering. See United States v. Gonzalez, 412 F.3d 1102, 1112 (9th Cir. 2005). The Ninth Circuit has adopted: a 'common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success. Though the wiretap should not ordinarily be the initial step in the investigation, . . . law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.
United States v. Canales Gomez, 358 F.3d 1221, 1225-26 (9th Cir. 2004) (internal quotation marks and citations omitted).
This Court therefore proceeds first by reviewing de novo "whether the application for wiretapping was submitted in compliance with 18 U.S.C. § 2518(1)(c)" and then reviewing "the issuing court's decision that the wiretaps were necessary for an abuse of discretion." See United States v. Garcia-Villalba, 585 F.3d 1223, 1228 (9th Cir. 2009) (quoting United States v. McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002)). In so doing, this Court must "employ a 'common sense' approach to evaluate the reasonableness of the government's good faith efforts to use traditional investigative tactics or its decision to forego such tactics based on the unlikelihood of their success or the probable risk of danger involved with their use." Id. (quoting United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005)).
1. "Full and Complete Statement"
Starting in March of 2005, the government submitted wiretap applications on thirteen occasions, seeking the authority to intercept wire communications from 14 telephones. Defendants argue, on an individual and collective basis, that all of the wiretap applications omitted information material to Judge Schiavelli's determination of necessity and, in so doing, failed to comply with the requirement of a full and complete statement of why existing investigative techniques were insufficient.
The Court rejects Defendants' claim that "general allegations" in a warrant affidavit alone demonstrate the government's non-compliance with the requirements of section 2518(c). Indeed, Defendants construct a straw man when they argue that the government "must do more than 'merely characterize a case as a gambling conspiracy or drug conspiracy that is in general tough to crack.'" (Dkt. 1151 at 5:19-21 (citing United States v. Abascal, 564 F.2d 821, 825-26 (9th Cir. 1977)).) After reviewing with great care the voluminous affidavits that accompanied the government's wiretap applications, as well as the lengthy transcript from the hearings on this matter, the Court concludes that the government's affidavits were far from conclusory. Rather, the government provided Judge Schiavelli with information about the extent of the confidential informants' prior infiltration of the F13 organization, as well as their ability, if any, to infiltrate the organization in the future. The government identified the specific techniques already used by law enforcement and the deficiency of those efforts. And, finally, the government expressed its belief that the criminal scheme engaged in by Defendants, and other F13 members, was expansive and complex, so as to evade the government's scrutiny absent wiretaps. To the extent that Defendants consider it necessary for the affidavit to explain why every traditional tool would be inefficacious, such a requirement is not supported by the law of this Circuit. See Garcia-Villalba, 585 F.3d at 1229 n. 2 (citing United States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004)). In other words, the affidavits in this case "did more than recite the inherent limitations of using confidential informants; [they] explained in reasonable detail why each confidential source or source of information was unable or unlikely to succeed in achieving the goals of the . . . investigation." See United States v. Rivera, 527 F.3d 891, 899 (9th Cir. 2008).
Defendants claim that the affidavits were insufficient in three particular respects. First, in their briefing, and at the hearing on this matter, Defendants faulted the government for understating the role played by CS2, a confidential informant referenced in the government's wiretap applications. Having reviewed all the materials submitted to Judge Schiavelli, including certain affidavits that the government submitted in camera, and having heard extensive testimony from the law enforcement officers who drafted the affidavits and had contact with CS2 during the relevant time period, this Court disagrees. The government had a strong interest in preserving CS2's safety when it neglected to include certain material information in the public affidavits it submitted to Judge Schiavelli. The government nonetheless described CS2's involvement in great detail in certain in camera affidavits, and Judge Schiavelli was materially apprised of CS2's capability prior to the issuance of the warrant.
Second, Defendants argue that CS8, a confidential informant referenced by the warrant affidavits, provided the government with "detailed information about the identity and criminal activity of those being targeted by the government's wiretap applications . . ." (See Dkt. 1151 at 7:6-8.) Defendants invite the Court to listen to a recorded conversation between government investigators and CS8 and, in addition, read the transcript of that recorded interview. See id. at 7:17-18; 7:24-25. According to Defendants, the government's affidavit in support of its wiretap applications understated the information obtained from CS8's interview by stating that: "CS8 recently provided very limited information concerning Florencia 13 members who are extorting prostitutes and transgenders in and around the area of Huntington Park, California. CS8 identified the monikers of two individuals who are suspected of leading the extortion efforts in that area. These two individuals have not been fully identified in this investigation . . . These confidential sources are unwilling or unable to successfully infiltrate the Florencia 13 organization. . . . These confidential sources are also at this time not willing to testify for fear of retaliation." (See id. at 6:25-7:5 (citing Joint Defense Exhibit, pages 781-82).)
Having reviewed the transcript of the government's interview with CS8, as well as the audio recording, the Court sees no error in the affidavit's description of CS8's role, let alone any error sufficient to show a lack of a full or complete statement relevant to Judge Schiavelli's determination of the necessity for a wiretap. Moreover, the Court recognizes that a summary of CS8's interview with government investigators was provided to Judge Schiavelli. From an ex post perspective, CS8 failed to provide critical information to investigators, including, most notably, the identity of members of the F13 organization.
Third, Defendants argue that the government possessed information, from previously intercepted calls, as to the location of Noe and Jose Gonzalez' places of business even though the affidavits in support of the wiretap applications for the first and second target telephones stated that "prolonged physical surveillance on Target Subjects would most likely be noticed, causing them to either become more cautious in their illegal activities, or flee to avoid further investigation and prosecution. Prolonged surveillance also poses a substantial threat to the safety of officers conducting the surveillance." (See Dkt. 1370 at 14-15.) The government's affidavit in support of state search warrants for Jose and Noe Gonzalez' places of business stated that methamphetamine and cocaine were being sold at the residence. The state search warrant affidavits also noted that government investigators had ...