The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
ORDER DENYING DEFENDANT CHAVEZ'S MOTION TO SUPPRESS WIRETAP EVIDENCE [Doc. No. 77.]
Before the Court is Defendant Jose M. Chavez's motion suppress wiretap evidence on grounds that the April 18, 2011 wiretap affidavit (1) fails to establish probable cause; and (2) fails to establish necessity. [Doc. No. 77.] For the reasons below, the motion is DENIED.
This case involves charges of conspiracy, racketeering, illegal drug distribution, extortion, and money laundering in connection with the Mexican Mafia prison gang and several affiliated Sureno street gangs operating in northern San Diego County. On November 19, 2012, Chavez filed the present motion to suppress, [Doc. No. 77], and on January 18, 2013, he filed a two-page supplemental brief in support thereof. [Doc. No. 83.] The Government filed an opposition brief, addressing both Chavez's initial motion and his supplemental brief, on January 28, 2013. [Doc. No. 87.] The Court heard oral argument on February 6, 2013. [Doc. No. 6.]
"Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510--2520, allows law enforcement agencies to conduct electronic surveillance of suspected criminal activities." U.S. v. Garcia-Villalba, 585 F.3d 1223, 1227 (9th Cir. 2009). But "[t]his authority is not a blank check." Id. Before law enforcement may resort to a wiretap, they must submit affidavits showing, inter alia, probable cause and necessity. Id. The present motion contends the Government failed to make these required showings in the April 18, 2011 wiretap affidavit.
Chavez argues that the April 18 affidavit fails to establish probable cause as to Telephone 12 because the affidavit "do[es] not identify the individuals actually making and receiving telephone communications" on that phone. [Doc. No. 83 at 3 (Chavez Supplemental Memorandum).] According to Chavez, "[b]ecause this particular number was also used by Chavez's cell mate . . . without more information, these records are scarcely probative." [Id.]
Chavez's argument mistakes the need for probable cause as to a specific phone for probable cause for a specific individual using the phone. "Nothing in Title III requires . . . identification of the person committing the offense . . . the authority to intercept [need not] be limited to those conversations between a party named in the order and others, since at least in some cases, the order might not name any specific party at all." U.S. v. Kahn, 415 U.S. 143, 157. "[W]hen there is probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identifiable, a wire interception order may, nevertheless, properly issue under the statute." Id.
The April 18 affidavit establishes probable cause as to Telephone 12. The affidavit targets conspiracy, drug dealing, racketeering, extortion, and money laundering in Centinela State Prison and elsewhere by Sureno gang members in connection with Mexican Mafia member Rudy Espudo. The phone had been smuggled into Centinela State Prison. Intercepted calls over Telephone 12 reference drug smuggling and dealing both inside and outside Centinela State Prison, reference payments of the proceeds from that activity to Espudo and other Mexican Mafia members, and coordination with West Side gang members involved drug dealing, theft, and other activities related to the alleged payments to the Mexican Mafia. [See, e.g., April 18 Affidavit at ¶¶ 45-46.]
In challenging probable cause as to Telephone 12, Chavez only focuses on the portions of the affidavit that specifically mention him. But the affidavit must be read as a whole. See, e.g., U.S. v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977) ("the affidavit,read in its entirety . . ."). The April 18 affidavit comprises approximately 40 pages of illustrative and supporting information, including incorporated experience and training of the affiant, Agent Zeman, a multitude of other intercepted calls on other targeted phones involving many of the same individuals targeted by the Telephone 12 wiretap, and the entirety of these allegations provide ample support for a finding of probable cause.
"To establish that a wiretap is necessary, the application must provide 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.'" U.S. v. Shryock, 342 F.3d 948, 975 (9th Cir. 2003) (quoting 18 U.S.C. § 2518(1)(c)). "The issuing judge must then determine whether 'normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.'" Id. (quoting 18 U.S.C. § 2518(3)(c)). "Together, ...