United States v. Randy Mondragon, United States of America v. Michael Fresquez, 52 F.3d 291, 10th Cir. (1995)
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Scribd Government DocsUnited States v. Randy Mondragon, United States of America v. Michael Fresquez, 52 F.3d 291, 10th Cir. (1995)
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Scribd Government Docs52 F.
3d 291
UNITED STATES of America, Plaintiff-Appellee,
v.
Randy MONDRAGON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael FRESQUEZ, Defendant-Appellant.
Nos. 93-4175, 93-4212.
United States Court of Appeals,
Tenth Circuit.
April 5, 1995.
McWilliams, Circuit Judge, dissented.
David J. Schwendiman, First Asst. U.S. Atty. (Scott M. Matheson, Jr.,
U.S. Atty., and Richard G. MacDougall, Asst. U.S. Atty., with him on the
brief), Salt Lake City, UT, for plaintiff-appellee.
James D. Gilson of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake
City, UT, for defendant-appellant Randy Mondragon.
Stephen R. McCaughey, Salt Lake City, UT, for defendant-appellant
Michael Fresquez.
Before KELLY and McWILLIAMS, Circuit Judges, and VRATIL,
District Judge.d
PAUL KELLY, Jr., Circuit Judge.
Mr. Fresquez and Mr. Mondragon appeal the denial of their motions to
suppress evidence obtained through electronic surveillance. Our jurisdiction
arises under 28 U.S.C. Sec. 1291 and we reverse.
Background
2
Messrs. Mondragon and Fresquez were charged in several counts of a multi-
count superseding indictment with various violations of 21 U.S.C. Sec. 841(a)
(1) and 18 U.S.C. Sec. 2, as well as 21 U.S.C. Sec. 843(b). The Defendants
moved to suppress all evidence obtained through the use of electronic
surveillance authorized by a state court wiretap order dated November 26,
1991. The district court denied these motions.
Both Defendants then pleaded guilty to charges of knowingly and intentionally
distributing approximately nine ounces of cocaine, reserving the right to appeal
the district court's denial of their motions to suppress. See Fed.R.Crim.P. 11(a)
(2). Messrs. Mondragon and Fresquez contend that neither the application for
the wiretap nor the supporting affidavit meets the necessity requirement of Utah
Code Ann. Sec. 77-23a-10(1)(c), which tracks the federal provision 18 U.S.C.
Sec. 2518(1)(c).
Discussion
4
"A wiretap authorization order is presumed proper," and the Defendants carry
the burden of overcoming this presumption. United States v. Nunez, 877 F.2d
1470, 1472 (10th Cir.), cert. denied, 493 U.S. 981, 110 S.Ct. 513, 107 L.Ed.2d
515 (1989). We review de novo whether the necessity requirement was met.
United States v. Armendariz, 922 F.2d 602, 608 (10th Cir.1990), cert. denied,
502 U.S. 823, 112 S.Ct. 87, 116 L.Ed.2d 59 (1991). We apply federal law in
our review of whether the evidence derived from the interceptions is
admissible. Armendariz, 922 F.2d at 607.
On October 25, 1991, a wiretap order was issued by a Utah state district court
pursuant to Utah Code Ann. Sec. 77-23a-10. This state provision substantially
mirrors 18 U.S.C. Sec. 2518, the federal statute outlining the procedures for
obtaining a wiretap. The wiretap order authorized the interception of
conversations from a mobile phone and residential phone, both listed in the
name of Barbara Quintana. The application for this wiretap order was
accompanied by an affidavit explaining that officers had exhausted alternative
investigative techniques. Four days later, a supplemental order for a wiretap on
a second mobile phone listed to Barbara Quintana was issued.
On November 26, 1991, a second supplemental wiretap order supported by a
second supplemental application and affidavit was issued authorizing the
interception of the number (801) 944-4108. The number was listed in the name
of Suzzanna Villarrell, the girlfriend of Junior Quintana, one of the targets of
the original wiretap order. This second supplemental order was requested
because information obtained through the original wiretap revealed that Junior
Quintana was moving to the residence which was listed with the pertinent
number.
7
Under Utah Code Ann. Sec. 77-23a-10(1)(c), each wiretap order must include
"a full and complete statement as to whether other investigative procedures
have been tried and failed or why they reasonably appear to be either unlikely to
succeed if tried or too dangerous." See also 18 U.S.C. Sec. 2518(1)(c). This
statement is known as the necessity requirement. See Nunez, 877 F.2d at 1472.
Additionally, the judge must make a finding, based on the facts submitted by
the applicant, that "normal investigative procedures have been tried and have
failed or reasonably appear to be either unlikely to succeed if tried or too
dangerous...." Utah Code Ann. Sec. 77-23a-10(2)(c); see also 18 U.S.C. Sec.
2518(3)(c). The Supreme Court has emphasized that the government should
strictly adhere to the requirements of the wiretap statute. United States v.
Donovan, 429 U.S. 413, 440, 97 S.Ct. 658, 674, 50 L.Ed.2d 652 (1977). By the
very terms of the statute, Utah Code Ann. Sec. 77-23a-7, a failure to comply
with the statute's substantive requirements results in suppression of the
evidence obtained. See United States v. Mesa-Rincon, 911 F.2d 1433, 1436-37
(10th Cir.1990) ("The failure of the government to comply with the statutory
requirements for intrusive search techniques such as wiretaps and bugs results
in suppression of the evidence obtained."); see also 18 U.S.C. Sec. 2515.
The second supplemental application and affidavit submitted by the police
completely fail to address the necessity requirement. The documents do not
refer to any alternate investigative procedures either undertaken or considered
by the police. Nor do the documents incorporate by reference facts which
would fulfill the necessity requirement and which are admittedly contained in
the affidavit for the original wiretap order. Rather, the second supplemental
application incorporates only the facts concerning probable cause mentioned in
the first affidavit. See Second Supplemental Application, p 7 at 3. The second
supplemental order recites that the court reviewed the second supplemental
application and affidavit, but makes no reference to the prior applications or
affidavits.
The government argues that because the Tenth Circuit has held that the
necessity requirement "should be read in a common sense fashion," all of the
documents in these cases should be read as a whole. Nunez, 877 F.2d at 1472.
While we agree that a common sense approach should be utilized, we disagree
that such an approach can fill the void in this case. The common sense
approach was espoused in the context of the trial judge's factual determination
of whether other investigative techniques had been sufficiently utilized, not in
the context of the failure to include statutorily required information in the
wiretap application.
10
The government also relies on United States v. Dennis, 786 F.2d 1029 (11th
Cir.1986), in support of the argument that the necessity requirement is met. In
Dennis, however, the second application contained a statement that normal
investigative procedures appeared unlikely to succeed, and incorporated by
reference the first affidavit, which explained why normal investigative
procedures would not succeed. Since no such statement or incorporation by
reference appears in the application or affidavit at issue, Dennis is factually
inapposite.
11
Moreover, the fact that this was a supplemental order and that the judge had
seen previous applications and affidavits does not satisfy the necessity
requirement since the statute specifically states that "[e]ach application shall
include ..." the statement concerning alternate investigative procedures. Utah
Code Ann. Sec. 77-23a-10(1) (emphasis added); see also 18 U.S.C. Sec.
2518(1). The application or accompanying affidavit must contain, in writing,
either a statement concerning this information, or a statement incorporating the
information by specific reference. The second supplemental application and
affidavit contain no such information.
12
Additionally, the court failed to make a finding of necessity as is required. See
Utah Code Ann. Sec. 77-23a-10(2)(c); 18 U.S.C. Sec. 2518(3)(c). Indeed, the
wiretap application and accompanying affidavit were devoid of facts sufficient
to allow the judge to make such a determination. We have seen nothing to
indicate that any additional facts were brought to the issuing judge's attention at
the time this wiretap was requested. See Aguilar v. Texas, 378 U.S. 108, 109 n.
1, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964) ("It is elementary that in
passing on the validity of a warrant, the reviewing court may consider only
information brought to the magistrate's attention."), overruled on other grounds,
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In the
absence of record support we will not assume, as requested by the Government,
that because the issuing judge was the same for both orders, he recalled the
factual and legal bases for the first order at the time he granted the second
order, some thirty days later.
13
The necessity requirement "directly and substantially implement[s] the
congressional intention to limit the use of intercept procedures to those
situations clearly calling for [their] employment...." See Donovan, 429 U.S. at
433-34, 97 S.Ct. at 671. As a result, failure to satisfy this requirement requires
that the contents of the intercepted communications and the evidence derived
therefrom be suppressed. See id.; Utah Code Ann. Sec. 77-23a-7; 18 U.S.C.
Sec. 2515.
14
REVERSED.
15
Circuit Judge McWILLIAMS dissents.
Honorable Kathryn H. Vratil, United States District Judge for the District of
Kansas, sitting by designation
