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 Saul Mendoza
Cabrera's Motion to Suppress Wiretap Evidence. Dkt. #262.
Mr. Mendoza Cabrera is charged with one count of Conspiracy
to Distribute Controlled Substances (Count 1) for his alleged
involvement in a drug trafficking organization (the
“Nava DTO”). See Dkts. #1 at 1-2, #65 at
1-2, and #158 at 1-2. Before bringing charges against Mr.
Mendoza Cabrera, the government applied for a court order
authorizing it to intercept the wire communications of
telephone numbers (253) 289-4831 (“TT28”) and
(206) 753-8350 (“TT39”); the government supported
this application with the affidavit of Drug Enforcement
Administration (“DEA”) Special Agent
(“SA”) Anthony D. DelVecchio. See Dkt.
#262, Ex. 1. The Honorable Ronald B. Leighton granted the
requested wiretap order. Mr. Mendoza Cabrera now argues SA
DelVecchio's affidavit did not establish necessity, as
required by Title 18, United States Code, Section 2518,
because, when the request was made, the government had
“ample other investigative opportunities available to
gain whatever information it felt was missing.”
Id. at 7. The government disagrees, and argues that
SA DelVecchio's affidavit established the requisite
necessity and the Court did not abuse its discretion in
making this determination and authorizing the requested
wiretap. Dkt. #268 at 2, 9-13. Because a different district
court judge must decide a motion to suppress wiretap
evidence, Mr. Cabrera's motion to supress was referred to
this Court. See United States v. Rodriguez, 851 F.3d
931, 937 (9th Cir. 2017) (“A different district court
judge must decide any motion to suppress wiretap evidence,
creating a second level of review in the district
court.”); also Dkt. #272. For the reasons
discussed herein, the Court agrees with the government and
DENIES Mr. Mendoza Cabrera's motion.
limited situations, Title III of the Omnibus Crime Control
and Safe Streets Act (the “Act”) permits law
enforcement officers to use wiretaps. Rodriguez, 851
F.3d at 937 (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.
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
Mr. Mendoza Cabrera makes little attempt to explain why the
government's wiretap application does not satisfy Section
2518(1)(c). See Dkt. #262 at 7-8. Mr. Mendoza
Cabrera merely concludes SA DelVecchio' affidavit fails
to meet the necessity requirement because the government
“failed to exhaust the ample other investigative
techniques” it allegedly had at its disposal.
Id. Notably, although Mr. Mendoza Cabrera contends
the government could have arrested Nava DTO members, searched
the homes of Nava DTO members, or subpoenaed documents and
grand jury testimony, he fails to explain why the
explanations provided by SA DelVecchio regarding these
investigative techniques do not satisfy Section 2518(1)(c).
Id. at 7.
de novo review of SA DelVecchio's affidavit, the
Court finds 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). In his affidavit, SA DelVecchio details
ten procedures used, and four procedures not used, to
investigate the Nava DTO. See Dkt. # 262, Ex. 1 at
58-107. SA DelVecchio explained the limitations posed by each
procedure used and why continued use of those procedures
alone was unlikely to meet the government's ultimate
objectives. Besides detailing these procedures, SA DelVecchio
also explained why the investigative techniques not used
(undercover officers, buy-bust operations and arrests,
interviews, and grand jury subpoenas) were unlikely to
succeed or were too dangerous. See Dkt. #262, Ex. 1
at 88, 92-94, 99-100, 102-03. The Court thus finds SA
DelVecchio's affidavit satisfies Section 2518(1)(c).
Court also finds that the issuing court did not abuse its
discretion in finding the requisite necessity to warrant the
issuance of a wiretap order. To determine if the issuing
judge properly determined the need for a Title III wiretap,
the Court must use “a ‘common sense approach'
to evaluate the reasonableness of the government's good
faith efforts to use traditional investigative tactics or its
decision to forego such tactics based on the unlikelihood of
their success.” Christie, 825 F.3d at 1068
(quoting Gonzalez, Inc., 412 F.3d at 1112).
Additionally, issuing judges are given
“‘considerable discretion in finding necessity,
particularly when the case involves the investigation of a
conspiracy, ' so our standard of review is
deferential.” Rodriguez, 851 F.3d at 944
(internal citations omitted). Considering SA DelVecchio's
affidavit, along with the government's objective of
identifying the scope of the Nava DTO in order to dismantle
it, the Court finds the issuing judge did not abuse his
discretion in finding the requisite necessity to authorize
the government's requested wiretap.
reviewed Mr. Mendoza Cabrera's motion, the
government's opposition thereto, and the remainder of the
record, the Court hereby finds and ORDERS Mr. Mendoza