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United States v. Luna-Gomez

United States District Court, D. New Mexico

October 22, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
DAVID LUNA-GOMEZ, aka Sergio Sauzameda, Defendant.

          MEMORANDUM OPINION AND ORDER

         On June 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.

         I. BACKGROUND

         On May 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.

         After 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.

         A 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.

         II. STANDARD

         Congress 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).

         Section 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)).

         The 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.

         A 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).[1] Courts should interpret affidavits supporting warrants in a commonsense manner. United States v. Ventresca, 380 U.S. 102, 109 (1965).

         III. LEGAL ANALYSIS

         “The 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 intercepted;….

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 affidavit that

(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).

         Congress 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 ...


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