The opinion of the court was delivered by: Hayes, Judge:
The following motions are pending before the Court: (1) the Motion to Suppress Wiretap Evidence and to Order the Government to Produce a Bill of Particulars filed by Defendant Michael Carey (ECF No. 57); (2) the Motion to Suppress Evidence filed by Defendant Adrian Madrid; (ECF No. 69) and (3) Amended Motion to Suppress filed by Defendant Adrian Madrid (ECF No. 78).
On February 23, 2011, the grand jury returned an indictment against Defendants Michael Carey, Jose Antonio Hernandez-Gutierrez, Adrian Madrid, Cuauthemoc Arturo ArmendarizSandoval, and Javier Lacarra for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 1).
In March 2010, the United States applied for an order authorizing the interception of wire communications over several phones, including (619) 740-9230 (hereinafter T-14). At the time of the application, T-14 was thought to be used by Ignacio Escamilla Estrada, a target in a FBI investigation. On March 5, 2010, the court authorized interception of T-14. From March 10, 2010 to March 17, 2010, agents repeatedly intercepted "drug-related" calls over T-14. (ECF No. 61-1 at 2). At some time during this one week period of monitoring, the agents concluded that the person using T-14 was not Ignacio Escamilla Estrada. The agents continued to monitor T-14 because almost all calls over T-14 were drug-related calls consistent with the criminal investigation underway.
An intercepted call on the morning of March 17, 2010 indicated that Madrid would be "coming down" with "invoices" on that day. (ECF No. 76-1 at 33.) In response to the call, investigators took up surveillance and observed Defendant Madrid arrive at an Irvine residence in a Jeep Cherokee. Armendariz backed a Toyota out of the residence's garage, and Defendant Madrid drove the Jeep Cherokee into the garage in its place. Two hours later, Defendant Madrid drove the Jeep Cherokee out of the garage and onto southbound Interstate 5.
Investigators informed an Orange County Sheriff's Deputy that the Jeep Cherokee could be involved with narcotics activity and instructed the deputy to develop independent cause for a stop of the vehicle in order to protect the overall investigation. The Sheriff Deputy took up position on the freeway to intercept the Jeep Cherokee. When the Jeep went by, the Sheriff Deputy pulled into traffic and followed the Jeep Cherokee for one and one-half miles. The Sheriff Deputy observed a broken tail light and stopped the Jeep Cherokee for a violation of Vehicle Code 24525(a).
The Sheriff's Deputy asked Defendant Madrid to exit the vehicle, frisked, and handcuffed him. The Deputy obtained consent to search the vehicle and utilized a narcotics detector dog to assist in the search. The dog alerted along the driver door panel, the rear quarter panel, and the entire rear cargo area. No drugs were discovered. Deputies discovered a black nylon bag in the rear compartment area which contained two large currency bundles of U.S. currency vacuum-sealed in plastic. The total amount seized was approximately $700,000. Deputies found two cell phones in the vehicle, including the phone that Defendant Madrid had been intercepted on earlier in the day.
On the same date, March 17, 2010, deputies obtained a search warrant for the Irvine residence. Armendariz was inside. Deputies discovered 17 kilograms of cocaine in a bedroom safe. Armendariz consented to a search of the Toyota, which contained three manufactured compartments and a false wall.
On or about March 17, 2010, Special Agent Christopher Melzer, the FBI lead investigator, learned that T-14 and associated individuals could be linked to a separate investigation being conducted by ICE and DEA. On March 19, 2010, Agent Melzer met with ICE and DEA agents and determined that there was no overlap between the two investigations other than the T-14 calls.
On July 7, 2010, an indictment was filed as a result of the Escamilla investigation, charging 43 individuals with conspiracy to conduct enterprise affairs through a pattern of racketeering activity. (United States v. Heredia, 10CR3044-WQH). In May and June 2011, defendants in the Escamilla case filed Motions to Suppress Wiretap Evidence. On August 24, 2011, the Court issued a written order in United States v. Heredia denying all the Motions to Suppress Wiretap Evidence. (ECF No. 808).
I. Motion to Suppress Wiretap Evidence (ECF No. 57)
a. Contentions of the Parties
Defendant Carey contends the Court should suppress all evidence obtained as a result of the wiretaps conducted on T-14 because the affidavits in support of the warrant application failed to demonstrate necessity. Defendant contends the order denying the motion to suppress wiretap evidence in the Escamilla case (10CR3044 ECF No. 808) does not apply to the Carey conspiracy. Defendant asserts the Government was required to make a separate showing of necessity for the new conspiracy once it concluded that T-14 was not used by Escamilla in order to continue intercepting calls on T-14. Defendant contends that there has been no showing that the ...