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United States v. Ordaz Avalos

United States District Court, M.D. Georgia, Macon Division

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE E. ORDAZ AVALOS, Defendant.

          ORDER

          MARC T. TREADWELL UNITED STATES DISTRICT COURT.

         Defendant Jose E. Ordaz Avalos moves to suppress evidence obtained through a wiretap. Doc. 102. For the reasons that follow, Avalos' motion is DENIED.

         I. BACKGROUND

         Avalos and six codefendants are charged with Conspiracy to Possess with Intent to Distribute more than 50 grams of methamphetamine.[1] 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 Green.

         On May 30, 2018, the Court entered a wiretap order authorizing the recording of calls and texts occurring on (478) 250-2454 ("TT#1").[2] 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.

         On June 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.[3] 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.[4] 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.

         On 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.[5]

         Avalos 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.[6] Id. at 10.

         II. MOTION TO SUPPRESS STANDARD OF REVIEW

         Neither 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).[7] "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.

         Avalos' 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.

         III. NECESSITY

         Avalos 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.

         "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, 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).

         Regarding 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.

         Avalos 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 at 6.

         Avalos overlooks, however, that the objectives of the investigation were broader than arresting Green and discovering his methamphetamine source. Special Agent Cole described the objectives as:

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 ...

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