United States District Court, M.D. Georgia, Macon Division
T. TREADWELL UNITED STATES DISTRICT COURT.
Jose E. Ordaz Avalos moves to suppress evidence obtained
through a wiretap. Doc. 102. For the reasons that follow,
Avalos' motion is DENIED.
and six codefendants are charged with Conspiracy to Possess
with Intent to Distribute more than 50 grams of
methamphetamine. Doc. 1. The evidence against Avalos and
the others is based, in part, on information obtained through
two wiretap orders on cell phones used by codefendant Albruce
30, 2018, the Court entered a wiretap order authorizing the
recording of calls and texts occurring on (478) 250-2454
("TT#1"). Doc. 118 at 4. Probable cause for the
issuance of this wiretap order was based on recorded
telephone calls and text messages from two confidential
informants to this telephone number to set up the
confidential informants' purchase of crystal
methamphetamine. Id. Intercepts on TT#1 began on May
31, 2018 and concluded on June 28, 2018. Id. at 29.
1, 2018, the Government learned that Green, as drug
traffickers tend to do, was transitioning from TT#1 to
another cell phone. Id. Specifically, a confidential
informant told agents that he recently received another cell
phone number for Green, (478) 733-4778 ("TT#2").
Id. TT#2 was subscribed to "Tim Jacksom,"
737 Newbert Avenue, Macon, Georgia. Id. at 37. On
July 31, 2018, the Government obtained a wiretap order
authorizing the calls and texts occurring on
TT#2. Probable cause for this wiretap was
provided by the affidavit of Larry Cole, a Drug Enforcement
Agency Task Force Officer. Id. at 14. Cole's
affidavit was based on information obtained from the wiretap
of TT#1 and recorded telephone calls and text messages from a
confidential informant to TT#2. Id. at 4, 17-18, 32,
34-36. Intercepts over TT#2 began on August 1, 2018 and ended
on August 28, 2018. Docs. 103 at 3; 133.
August 3, 2018, a series of calls and texts were intercepted
between TT#2 and Avalos' cell phone number, (678)
927-7308. Docs. 102 at 2; 116 at 4. The discussion involved
the purchase of crystal methamphetamine for $5, 000.00.
Id. These intercepts were made pursuant to the July
31, 2018 wiretap order for TT#2.
now moves to suppress the evidence obtained pursuant to the
wiretap of TT#2. Doc. 102. First, Avalos argues that all
evidence intercepted through the wiretap of TT#2 must be
suppressed because Agent Cole's affidavit failed to
establish the necessity for the wiretap as required by 18
U.S.C. § 2518(1)(c). Id. at 4-8. Second, Avalos
argues that the Government did not minimize the recordings on
TT#2 as required by 18 U.S.C. § 2518(5). id. at
8-9. However, Avalos says he "has not received the
minimization reports described by Agent Cole in his TT#2
affidavit" and thus he has filed "this initial
motion to preserve the legal issue for future litigation and
reserves the right to particularize this motion upon receipt
of supplemental discovery and after an evidentiary
hearing." Id. at 9. Avalos originally requested
an evidentiary hearing on his motion as a whole, but he later
withdrew the request. Id. at 10.
MOTION TO SUPPRESS STANDARD OF REVIEW
party discusses the appropriate standard of review, which
here is somewhat nuanced. Generally, a defendant moving to
suppress evidence seized pursuant to a warrant bears the
initial burdens of production and persuasion. United
States v. de la Fuente, 548 F.2d 528, 533 (5th Cir.
1977) (citations omitted). "In passing on the validity of the
warrant, consideration may be given only to information
brought to the attention of the [issuing judge]."
United States v. Lockett, 674 F.2d 843, 845 (11th
Cir. 1982) (citations omitted). "Here, all of the
evidence furnished to the [judge] is included in [Cole's]
affidavit." Id. Thus, the Court looks within
the four corners of Cole's affidavit to determine whether
the requisite necessity for the wiretap existed.
Notwithstanding his general, and now withdrawn, request for
an evidentiary hearing, Avalos makes no effort to allege
facts that would require a Franks hearing to resolve
his challenge to the necessity for the wiretap.
Franks, 438 U.S. at 155.
minimization challenge implicates a different standard of
review. In "some well-defined situations the ultimate
burden of persuasion may shift to the government upon an
initial showing of certain facts by the defendant." de
la Fuente, 548 F.2d at 533. For example, if a
defendant alleges evidence was seized in a warrantless
search, the Government must justify the search and typically
an evidentiary hearing is necessary. Id. Although
the Court has found no Eleventh Circuit decision addressing
the appropriate standard of review for a minimization
challenge, by analogy it is apparent that, as in a challenge
to a warrantless search, the Government bears the ultimate
burden of establishing minimization. While Cole's
affidavit acknowledges the need for minimization (Doc. 118 at
61-65), it obviously cannot discuss what the Government
actually did to minimize the yet-to-be intercepted calls and
texts. Clearly, evidence outside the four corners of the
affidavit is needed to do that. Only the Government has that
evidence, and the Government has the burden to produce it.
argues the Government's application did not establish
necessity because (1) it failed to establish that other
investigative techniques, such as pen registers, trash
searches, grand jury or administrative subpoenas, witness
interviews, and the execution of search and arrest warrants,
were employed prior to seeking the wiretap for TT#2; and (2}
the investigative techniques that law enforcement already
employed were both effective to achieve the goals of the
investigation without a wiretap and were not too dangerous to
employ. Docs. 102; 125.
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,
An order authorizing a wiretap must be supported by a an
affidavit establishing not only probable cause but also the
necessity for the order, shown with "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); United States v. Van
Horn, 789F.2d 1492, 1496 (11th Cir. 1986).
necessity, "[s]ection 2518 does not 'foreclose
electronic surveillance until every other imaginable method
of investigation has been unsuccessfully attempted';
however, it does require the Government to show why
alternative measures are inadequate for 'this particular
investigation.'" United States v. Perez,
661 F.3d 568, 581 (11th Cir. 2011) (citations omitted).
"The affidavit need not. . . show a comprehensive
exhaustion of all possible techniques, but must simply
explain the retroactive or prospective failure of several
investigative techniques that reasonably suggest
themselves." Van Horn, 789 F.2d at 1496.
argues that "[b]ecause law enforcement failed to exhaust
multiple investigative techniques capable of achieving the
goals of the investigation (to wit: the arrest of Albruce
Green and discovery of his methamphetamine source), the
wiretap for TT#2 was not 'necessary.'" Doc. 102
at 6. Avalos states that law enforcement knew where Green
lived, knew the location from which he sold methamphetamine
(722 Newburg Avenue, Macon, Georgia), and had overwhelming
evidence that Green sold narcotics to confidential informants
and others. Id.; Doc. 125 at 2. He argues that this
knowledge should have led law enforcement to execute arrest
and search warrants at the Newburg Avenue address. Doc. 102
overlooks, however, that the objectives of the investigation
were broader than arresting Green and discovering his
methamphetamine source. Special Agent Cole described the
Identifying local wholesale distributors and members of their
organization, determining the breadth of the Middle
Georgia-based organization's operations, their method of
acquisition and distribution of narcotics, specifically
methamphetamine, the identity of their associates and
co-conspirators, the nature and scope of their illegal
activities, the relationship between financiers,
transporters, supplies, and distributors of the controlled
substances, and the ...