United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
4, 2018, Defendant David Luna-Gomez (“Defendant”)
filed a Motion to Suppress Evidence Obtained as Fruit of an
Illegal Title III Wiretap (ECF No. 81). The Government argues
that Defendant's motion should be denied without an
evidentiary hearing. The Court, having considered the motion,
briefs, arguments, evidence, and applicable law, concludes
that Defendant's motion does not require an evidentiary
hearing, it can be resolved on the submissions of the
parties, and it should be denied.
20, 2016, Senior United States District Judge James A. Parker
authorized the interception of wire and electronic
communications over phone number (850) 503-8440
(“Romero Phone 4”), allegedly used by
co-defendant Orlando L. Romero, for a period of 30 days.
See Gov.'s Ex. 2 (“Romero Phone 4
Order”), ECF No. 86-2. Judge Parker's Order was
based on the Affidavit submitted by Drug Enforcement
Administration (“DEA”) Task Force Officer Adam
Gaitan. See Gov.'s Ex. 1 (“Romero Phone 4
Affidavit”), ECF No. 86-1. According to the Romero
Phone 4 Affidavit, Officer Gaitan believed the phone was
being used to facilitate offenses involving the distribution
of heroin and methamphetamine, among other narcotics and
money laundering offenses, and that Orlando Romero was the
highest leader/organizer for the drug trafficking
organization. See Id. ¶¶ 8-12.
interception of Romero Phone 4 ceased on or around June 14,
2016, Special Agent David Howell submitted an affidavit to
Senior Judge Parker in support of an application for an order
authorizing the interception of wire and electronic
communications over (505) 780-9298 (“Luna-Gomez Phone
1”). See Gov.'s Ex. 3 ¶¶ 5, 13,
114 (“Luna-Gomez Phone 1 Affidavit”), ECF No.
86-3. Senior Judge Parker issued an order on July 7, 2016,
authorizing the interception of wire and electronic
communications over Luna-Gomez Phone 1 for a period of 30
days. See Gov.'s Ex. 4 (“Luna-Gomez Phone
1 Order”) at 5, ECF No. 86-4.
federal grand jury returned a three-count indictment charging
Defendant Luna-Gomez with two counts: (1) conspiracy to
distribute 50 grams and more of a mixture and substance
containing methamphetamine from on or about May 23, 2015 and
continuing to on or about December 19, 2016; (2) conspiracy
to distribute 1 kilogram and more of heroin from on or about
June 1, 2016, and continuing to on or about June 22, 2016.
Defendant has moved to suppress evidence derived from the
interceptions of Romero Phone 4 and the spin-off
interceptions from Luna-Gomez Phone 1, arguing principally
that the affidavit supporting the interception of Romero
Phone 4 lacked the necessary information to establish
probable cause that voice communications related to
enumerated offenses would be intercepted on that phone.
passed Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. §§ 2510-2520,
(“Title III”), to prohibit all interceptions of
oral and wire communications, except those specifically
provided for in the Act, such as interceptions authorized by
court order in connection with law enforcement investigation
of the serious crimes listed in § 2516. See United
States v. Giordano, 416 U.S. 505, 514 (1974),
superseded by statute on other grounds as stated in
United States v. Anderson, 39 F.3d 331, 339 n.6 (D.C.
Cir. 1994)). Title III requires a judge to find probable
cause before issuing an order authorizing interception of
communications, “and it sets forth other detailed
requirements governing both the application for a wiretap and
the judicial order that authorizes it.” Dahda v.
United States, 138 S.Ct. 1491, 1494 (2018) (citing 18
U.S.C. § 2518).
2515 provides that no parts of any intercepted wire or oral
communication and no evidence derived therefrom may be
received at trial “if the disclosure of that
information would be in violation of this chapter.” 18
U.S.C. § 2515. Not every deficiency in a wiretap
application warrants suppression. United States v.
Foy, 641 F.3d 455, 463 (10th Cir. 2011). Section
2518(10)(a) sets forth the disclosures that are forbidden and
subject to motions to suppress evidence: (i) the
communication was unlawfully intercepted; (ii) the
authorizing or approval order was facially insufficient; or
(iii) the interception was not made in conformity with the
order of authorization or approval. Giordano, 416
U.S. at 524-25 (quoting 18 U.S.C. § 2518(10)(a)).
Supreme Court interpreted “unlawfully
intercepted” in subparagraph (i) to refer to
constitutional violations as well as “where there is
failure to satisfy any of those statutory requirements that
directly and substantially implement the congressional
intention to limit the use of intercept procedures to those
situations clearly calling for the employment of this
extraordinary investigative device.” Id. at
527. Subparagraph (ii) applies where an order is
“insufficient on its face, ” but it does not
cover every error that appears in an otherwise sufficient
order. Dahda, 138 S.Ct. at 1498 (quoting 18 U.S.C.
§ 2518(10)(a)(ii)). Subparagraph (ii) “covers at
least an order's failure to include information that
§ 2518(4) specifically requires the order to
contain.” Id. “And where the Government
fails to comply with conditions set forth in the authorizing
order, an aggrieved person may suppress its fruits under
subparagraph (iii) (as an ‘interception ... not made in
conformity with the order of authorization or
approval').” Id. at 1500.
judge's interception authorization order under Title III
“is presumed proper, and the defendant bears the burden
of overcoming this presumption.” United States v.
Killingsworth, 117 F.3d 1159, 1163 (10th Cir. 1997). In
the Tenth Circuit, a court reviewing a finding of probable
cause for a wiretap uses the same standard as for a search
warrant, determining “whether the facts and
circumstances within the officer's knowledge based on
reasonably trustworthy information are sufficient to warrant
a person of reasonable caution to believe that an offense has
or is being committed.” United States v.
Armendariz, 922 F.2d 602, 608 (10th Cir. 1990). Courts
give “great deference” to the issuing judge's
probable cause finding and consider only whether, under the
totality of the circumstances presented in the affidavit, the
judge had a “substantial basis” for determining
that probable cause existed. United States v.
Haymond, 672 F.3d 948, 958-59 (10th Cir. 2012) (internal
citations omitted). Courts should interpret affidavits
supporting warrants in a commonsense manner. United
States v. Ventresca, 380 U.S. 102, 109 (1965).
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV.
Title III requires an application for an order authorizing
the interception of “a wire, oral, or electronic
communication” in writing, upon oath or affirmation, to
a judge and must include, among other things:
(b) a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his
belief that an order should be issued, including (i) details
as to the particular offense that has been, is being, or is
about to be committed, (ii) except as provided in subsection
(11), a particular description of the nature and location of
the facilities from which or the place where the
communication is to be intercepted, (iii) a particular
description of the type of communications sought to be
intercepted, (iv) the identity of the person, if known,
committing the offense and whose communications are to be
18 U.S.C. 2518(1) (emphasis added). The judge may approve the
application if he determines on the basis of the facts in the
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained
through such interception;
(c) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous;
(d) except as provided in subsection (11), there is probable
cause for belief that the facilities from which, or the place
where, the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in
connection with the commission of such offense, or are leased
to, listed in the name of, or commonly used by such person.
Id. § 2518(3) (emphasis added).
amended Title III to prohibit the interception of
“electronic” as well as oral and wire
communications and to apply to conversations intercepted over
both cellular and cordless phones. Bartnicki v.
Vopper, 532 U.S. 514, 524 (2001) (citing Electronic
Communications Privacy Act of 1986, 100 Stat. 1848, and 1994