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United States v. Marquez

United States District Court, W.D. Washington, Seattle

August 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC MARQUEZ, et al., Defendants.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS WIRETAP EVIDENCE

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on Defendant Hector Hugo Garcia Gutierrez's Motion to Suppress Wiretap Evidence. Dkt. #434. For the reasons discussed herein, the Court DENIES Mr. Garcia Gutierrez's motion.

         II. BACKGROUND

         Mr. Garcia Gutierrez was arrested in November 2016 for his alleged involvement with a drug trafficking organization (“Reyes Garcia DTO”) operating in the Western District of Washington and elsewhere. See Dkts. #1 and #50. At the time of his arrest, Mr. Garcia Gutierrez was one of fourteen individuals charged with conspiring to distribute controlled substances, including methamphetamine, heroin, and cocaine. Dkt. #1 at 2. In a Second Superseding Indictment, Mr. Garcia Gutierrez was ultimately charged with one count of Conspiracy to Distribute Controlled Substances (Count 1), one count of Conspiracy to Commit Money Laundering (Count 2), four counts of Distribution of a Controlled Substance (Count 5, Count 9, Count 12, and Count 16), and seven counts of Possession of Controlled Substances with Intent to Distribute (Counts 19-23, Counts 25-26). Dkt. #374 at 1-11.

         Before bringing charges against Mr. Garcia Gutierrez, the government applied for a court order authorizing it to intercept the wire communications of telephone number (253) 259-4356 (“TT12”); the government supported this application with the affidavit of Special Agent (“SA”) Benjamin Gerrol. See Dkt. #434, Ex. A.[1] In its application, the government identified the following three objectives they hoped to accomplish through their wiretap investigation: (1) successful prosecution of the leaders and members of the Reyes Garcia DTO who operate in the Western District of Washington and elsewhere; (2) dismantling the Reyes Garcia DTO; and (3) identification and seizure of contraband, criminally derived assets, and the tools used by the Reyes Garcia DTO. Id. ¶ 14.

         The Court granted the requested wiretap order, and Mr. Garcia Gutierrez contends the information obtained through intercepted wire communications led to his eventual arrest in November 2016. See Dkt. #434 at 2-3. Mr. Garcia Gutierrez now argues that SA Gerrol's affidavit did not establish necessity, as required by Section 2518 of Title 18 of the United States Code, because, when the request was made, the government already had “substantial” evidence to meet its stated objectives. Id. at 3-4, 11. The government disagrees, and argues that SA Gerrol's affidavit established the requisite necessity and the Court did not abuse its discretion in making this determination and authorizing the requested wiretap. See Dkts. #466 at 7 and #485 at 1.

         III. STANDARD OF REVIEW

         In limited situations, Title III of the Omnibus Crime Control and Safe Streets Act (the “Act”) permits law enforcement officers to use wiretaps. United States v. Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017) (citing 18 U.S.C. §§ 2510-2522). However, Section 2518(1) of the Act requires law enforcement officials to apply for a court order to use wiretaps; Section 2518(1) sets forth the statutory requirements each application must satisfy. Id. Amongst other requirements, an 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.” § 2518(1)(c). A law enforcement official's sworn affidavit may satisfy this requirement. Rodriguez, 851 F.3d at 937. If an application meets Section 2518(1)'s requirements, one determination a judge must then make is whether, based on the facts submitted by an applicant, “normal investigative procedures have been tried and have reasonably failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” § 2518(3)(c). “Taken together, §§ 2518(1)(c) and (3)(c) require a showing of necessity before a district court can issue a wiretap order.” United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988). Wiretap evidence may be suppressed if a reviewing court determines this evidence was obtained in violation of the Act. Rodriguez, 851 F.3d at 937 (citing 18 U.S.C. § 2515).

         When reviewing a defendant's challenge to a court's issuance of an order authorizing a wiretap, reviewing district courts must conduct a two-step review. Id., at 937-38 (“[D]istrict courts should apply the Ninth Circuit's two-step approach when considering a motion to suppress wiretap evidence.”). Under this two-step review the reviewing court must first review, de novo, whether the application for a wiretap contains a full and complete statement of facts as required by Section 2518(1)(c). Id. at 938 (citing United States v. Gonzalez, Inc., 412 F.3d 1102, 1111- 12 (9th Cir. 2005)). If the reviewing court determines an application meets this requirement, it must then “review for ‘abuse of discretion the issuing judge's conclusion that the wiretap was necessary.'” Id. (quoting United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008)). “Only the evidence presented within the four corners of the wiretap application can be used to evaluate necessity.” Gonzalez, Inc., 412 F.3d at 1112.

         IV. ANALYSIS

         Under the standards governing this Court's analysis, the Court first considers, de novo, whether the government's application for a wiretap contained “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). If the court determines this requirement is met, it will then review, under an abuse of discretion standard, whether it was properly determined “on the basis of the facts submitted by the applicant [in the affidavits] that . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous.” 18 U.S.C. § 2518(3)(c).

         A. The Government's Wiretap Application Satisfies Section 2518(1)(c).

         The Court finds that SA Gerrol's affidavit, submitted to support the Government's wiretap application, satisfies Section 2518(1)(c), as it contains a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they ...


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