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United States v. Driskel
filed*fn*: March 5, 1992.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
PAMELA DRISKEL, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Central District of California. D.C. No. CR-89-0838-KN-1. David V. Kenyon, District Judge, Presiding.
Before: Canby, Kozinski and Fernandez, Circuit Judges.
Pamela Driskel challenges the district court's denial of her motion to suppress evidence, basing her challenge on an allegedly improper warrant authorizing interception of telephone conversations implication her in a cocaine conspiracy.*fn1
Driskel's primary argument is that the affidavit in support of the warrant application did not establish that traditional investigative techniques would be ineffective, and thus that the district court improperly granted the request for a wiretap warrant. Driskel fails to overcome two big hurdles, however: First, the so-called "necessity requirement" does not require that every other investigative method be completely inadequate and that a wiretap be the only means of effectuating the investigation. Rather, the "necessity requirement means that the affidavit must set out a factual background that shows that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case." United States v Brone, 792 F2d 1504, 1506 (9th Cir 1986). The second hurdle is the standard of review: We will reverse a district court's determination of necessity only upon a showing of abuse of discretion. United States v Commito, 918 F2d 95, 98 (9th Cir 1990), cert denied, 112 S Ct 224 (1991).
The warrant affidavit here clearly sets forth reasons why ordinary investigative methods would likely be ineffective in this case. See Govt. ER 256-64. The district court, as was its prerogative, apparently accepted the affiant's explanations. Although Driskel spends much time in her brief postulating various other investigation methods that might have been used, "the fact that the [FBI] could have taken different or some additional steps in its investigation does not demonstrate that the district court abused its discretion in upholding the wiretap order." United States v Carneiro, 861 F2d 1171, 1178 (9th Cir 1988).
Driskel's fallback argument is that even if the initial 30-day warrant was valid, which we hold it was, the subsequent extensions of time were unjustified. We reject this argument as well. The district court found that probable cause existed to justify a wiretap in the first instance; the FBI agent submitted evidence that continued electronic surveillance would further the investigatory objective of rounding up the conspiracy. Again, we cannot say that the district court abused its discretion in believing him.
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