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United States of America v. Juan Jose Lara-Caneda (1

April 26, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JUAN JOSE LARA-CANEDA (1), DAVID ALEXANDER FOSTER (7), DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER DENYING DEFENDANTS' MOTIONS TO SUPPRESS WIRETAP EVIDENCE

On April 29, 2011, Defendant David Alexander Foster ("Foster") filed a motion to suppress wiretap evidence. On May 2, 2011, Defendant Juan Jose Lara-Caneda ("LaraCaneda") filed a motion to join Foster's motion to suppress wiretap evidence. The Government filed its opposition on May 9, 2011. Lara-Caneda filed another motion to suppress wiretap evidence on November 28, 2011.For the reasons discussed below, Defendants' motions to suppress wiretap evidence are DENIED.

I. BACKGROUND

The wiretap investigation in this case consisted of two separate periods of interception under Misc. No. 09MC390-JTM. The first period began with the application and order dated May 15, 2009, which resulted in the interception of two cellular telephones, one subscribed to by Francisco Caneda ("Target Telephone #1"), and another subscribed to by Robert Turner ("Target Telephone #2"). The second period began with the application and order dated July 9, 2009, which resulted in the continued interception of Target Telephone #2, and the new interception of a cellular telephone subscribed to by Tammisha M. Jackson ("Target Telephone #3").

There was another wiretap investigation in this case under Misc. No. 07MC239-BEN. This period of interception involved a cellular telephone subscribed to by Dana Byers ("Target Telephone #4").

II. DISCUSSION

A. Standing

Foster and Lara-Caneda assert that they have standing to challenge the wiretap evidence from Target Telephone #1, Target Telephone #2, and Target Telephone #3. Lara-Caneda also asserts that he has standing to challenge the wiretap evidence from Target Telephone #4.

A defendant may move to suppress evidence obtained through electronic surveillance "only if his privacy was actually invaded; that is, if he was a participant in an intercepted conversation, or if such conversation occurred on his premises." 18 U.S.C. §§ 2518(10)(a) and 2510(11); United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (citing Alderman v. United States, 394 U.S. 165, 176 (1969)).

Lara-Caneda was a party to the intercepted conversations from Target Telephone #1 and Target Telephone #4. But Lara-Caneda was not a participant in any of the intercepted conversations from Target Telephone #2 or Target Telephone #3. Thus, Lara-Caneda only has standing to challenge the wiretap evidence from Target Telephone #1 and Target Telephone #4.

As for Foster, he only participated in the intercepted conversations from Target Telephone #2 and Target Telephone #3. Accordingly, Foster only has standing to challenge the wiretap evidence from those two telephones.

B. Necessity

Foster and Lara-Caneda argue that the wiretap applications for the targeted telephones failed to meet the "necessity" requirement of 18 U.S.C. §§ 2518(1)(c) and 2518(3)(c).

An application for an order authorizing a wiretap 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." 18 U.S.C. § 2518(1)(c); see also 18 U.S.C. § 2518(3)(c). This showing of "necessity" is required before a district court can issue a wiretap order. United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988). When reviewing necessity, a "common sense approach" is used to evaluate the reasonableness of the government's good faith efforts and decision on whether or not to use traditional investigative tactics. United States v. Rivera, 527 F.3d 891, 902 (9th Cir. 2008). The government may establish necessity for a wiretap by showing that traditional investigative procedures (1) have been tried and failed; (2) ...


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