United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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
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. 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.
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.
STANDARD OF REVIEW
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).
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
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).
The Government's Wiretap Application Satisfies Section
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 ...