United States District Court, M.D. Louisiana
RULING AND ORDER
W. DEGRAVELLES, JUDGE UNITED STATES DISTRICT COURT
the Court are three motions that seek to suppress evidence
obtained through the use of wiretaps (the “Wiretap
Motions”). The first Wiretap Motion, styled as a
“Motion to Suppress Evidence Seized Through Wiretaps,
” was filed by defendant Oscar Arturo
Machado-Galeana's current attorney, Martin E. Regan.
(“Machado-Galeana's Motion, ” Doc. 416). The
second Wiretap Motion, styled as a “Motion to Suppress
Wiretap Evidence, ” was filed by Machado-Galeana's
former attorney, Rusty M. Messer. (Doc. 419). The third
Wiretap Motion, styled as a “Motion to Suppress
Evidence Seized Through Wiretaps, ” was filed on behalf
of defendant Roy Martin Herrera Romero (collectively with
(“Romero's Motion, ” Doc. 395). The
Government opposes, (“Opposition, ” Doc. 435),
and, on April 11, 2017, the Court held a hearing on the
Wiretap Motions, (Doc. 450; see also Doc. 453
(“Hrg. Tr.”)). Machado-Galeana, Romero, and the
Government have also filed post-hearing memoranda in further
support of their positions. (Docs. 461, 457, and 460,
careful consideration of the law, the facts of this case, and
the parties' arguments, for the reasons set forth below,
the Wiretap Motions are DENIED.
The First Wiretap Application
November 2014, the Government filed an application to
intercept wire and electronic communications occurring over
cellular telephone number (225) 485-1386, used by Alexander
P. Nava. (See Doc. 435-1 at 1-2). Chief Judge Brian
A. Jackson approved the application, authorizing a thirty-day
period in which to intercept communications. (See
Id. at 12, 75). Attached to the application was the
supporting affidavit of Charles Scott Courrege, a Task Force
Officer with the Drug Enforcement Administration
(“DEA”). (Id. at 18). Courrege's
affidavit described the following background:
18, 2014, a cooperating source (“CS”) who has
provided information to the DEA since 2014 contacted an
undercover agent (“UC-1”), telling UC-1 that the
CS would introduce UC-1 to Nava, who was known to sell
methamphetamine and was looking for customers in the Baton
Rouge area. (Id. at 28-29). Later that day, the CS
phoned UC-1 and introduced Nava, and Nava told UC-1 that he
could supply UC-1 with “any quantity of methamphetamine
he wished to purchase.” (Id. at 29). Nava
quoted prices to UC-1 and told UC-1 to contact him at (225)
485-1386 if he wished to purchase methamphetamine.
(Id. at 29-30).
24, 2014, UC-1 called Nava and negotiated the purchase of an
ounce of methamphetamine. (Id. at 30-31). Nava
agreed to meet UC-1 at a gas station to conduct the sale, and
UC-1 and another undercover agent (“UC-2”) met
Nava at the gas station and conducted the sale. (Id.
at 31-32). Based upon information later obtained via
subpoena, during the sale Nava contacted a phone with
telephone number (225) 384-1879, for which Machado- Galeana
was listed as the subscriber. (Id. at 32). Agents
also later located a car that Nava had used during the
transaction; according to DMV information, at the time when
the car was located it was parked at Machado-Galeana's
residence near a car that Machado-Galeana owned.
(Id. at 31, 33).
9, 2014, UC-1 called Nava and negotiated the purchase of two
ounces of methamphetamine at the same gas station.
(Id. at 33). Before the meeting occurred, Nava
informed UC-1 that his “cousin” would deliver
methamphetamine on his behalf. (Id. at 34).
Machado-Galeana later arrived at the gas station and
conducted the sale. (Id.).
11, 2014, Magistrate Judge Stephen Riedlinger signed an order
authorizing the activation of a pen register on the (225)
485-1386 telephone. (Id. at 35).
28, 2014, Nava and UC-1 negotiated a sale of two ounces of
methamphetamine, plus an additional ounce to be paid for
later. (Id. at 36). UC-1 and UC-2 went to the gas
station, where Machado-Galeana later arrived and conducted
the sale. (Id. at 36-37).
August 18, 2014, Nava and UC-1 negotiated a sale of
methamphetamine. (Id. at 39). During the course of
their conversation, Nava texted UC-1 to say “U know? U
dealing with the cartel now? U still want to do it[?]”
(Id.). After UC-1 and UC-2 arrived at the gas
station, Nava called UC-1 and asked UC-1 to follow him to
another location. (Id. at 40). Nava and
Machado-Galeana then arrived at the gas station, and UC-1 and
UC-2 followed them to a convenience store, where the sale was
ultimately conducted. (Id. at 40-41).
September 2, 2014, Nava and UC-1 negotiated a sale of
methamphetamine, which occurred at the same convenience store
in the presence of Nava and Machado-Galeana. (Id. at
41-45). During the sale, UC-1 used an undercover vehicle that
had a “trap, ” i.e., a hidden
compartment used to conceal drugs and money, installed in the
trunk; he later asked Nava to let him know if Nava was
“interested in [a] trap install.” (Id.
September 24, 2014, UC-1 contacted Nava and arranged to pay
for methamphetamine that had previously been
“fronted” to UC-1. (Id. at 45). UC-2 met
Nava at the gas station, provided Nava with money owed, and
discussed future methamphetamine sales. (Id. at
addition to this background, Courrege's affidavit
contained a section discussing why a wiretap was necessary,
i.e., why “normal investigative
techniques” had failed to fully achieve the
investigation's objectives, were unlikely to succeed if
tried, or were too dangerous to be tried. (Id. at
respect to confidential sources, Courrege represented that
confidential sources normally have “limited
information, either furnished by a subject or learned
secondhand from others, ” and that information provided
by confidential sources would not result in a successful
prosecution of all members of the drug trafficking operation.
(Id. at 53). The sole CS developed in the case
provided “valuable” information but did not have
“enough access” to Nava, the CS could not advise
agents about pending deliveries or the transportation of
methamphetamine, and the CS had “no involvement”
with narcotics trafficking. (Id. at 53-54). The CS
was a “mere acquaintance” of Nava's and was
not able to spend time around Nava to gain information or
meet other members of the organization. (Id. at 54).
The CS also had no information about money laundering
activities conducted by Nava's organization.
(Id. at 55). The CS was willing to testify at trial,
but, absent evidence gathered via wiretap, the CS's
testimony would be insufficient to convict all members of the
organization. (Id. at 55-56).
respect to controlled purchases, Courrege represented that
the controlled purchases that had already been performed were
useful, but they were “limited to what [was] occurring
only at the time and place of the controlled purchase.”
(Id. at 56-57). Controlled purchases provided
evidence against Nava, Machado-Galeana, and anyone who
assisted them during the purchase, but did not reveal
evidence identifying suppliers, locations where drugs were
kept or hidden, and methods of delivery or transportation.
(Id. at 56-57).
respect to physical surveillance, Courrege represented that
physical surveillance is generally used to “confirm
meetings and other suspected criminal activity, ” but
it provides insufficient evidence to prove the purpose of
these meetings and activities. (Id. at 57). However,
when physical surveillance is combined with a wiretap,
“the purpose of meetings takes on a new
significance.” (Id.). The subjects of this
investigation are “extremely cautious” and aware
of law enforcement surveillance, and they actively conduct
counter-surveillance and “heat checks” to
determine whether they are the subjects of physical
surveillance. (Id. at 57-58). Courrege provided a
few examples of “heat checks” and other
counter-surveillance that Machado-Galeana and other persons
associated with Nava had engaged in. (Id. at 58-60).
While conducting physical surveillance, officers had also
stopped a Ford F-150 truck associated with Machado-Galeana
but had obtained little useful information, and further stops
would risk alerting Nava and Machado-Galeana to the presence
of law enforcement. (Id. at 61). However, physical
surveillance conducted in conjunction with electronic
surveillance would “achieve the objectives of the
investigation and lead to the seizure of drugs and
assets.” (Id. at 62).
respect to undercover agents, Courrege represented that
undercover agents had successfully purchased large quantities
of drugs from Nava and Machado-Galeana. (Id. at 62).
However, there was “no evidence” that conducting
additional purchases through undercover agents would permit
agents to “move beyond” Nava and Machado-Galeana.
(Id.). Courrege noted particularly that Nava had
stated that he could provide up to ten pounds of
methamphetamine at a time and that intelligence gathering
after buys had been limited for similar reasons to those
previously described with respect to confidential sources.
respect to search warrants, Courrege represented that a
single search warrant to install a GPS device on a vehicle
had been executed during the investigation. (Id.).
Although additional search warrants might provide “some
evidence” of criminal activity, they would not be
effective at achieving the overall goals of the
investigation. (Id. at 62-63). Particularly, search
warrants for locations used during the controlled purchases
might result in the arrests of Nava and Machado-Galeana, but
they would likely not result in the arrest of unidentified
suppliers. (Id. at 63). Based upon Courrege's
experience, Mexican nationals are “not likely” to
cooperate following arrest, and the arrest of Nava and
Machado-Galeana would probably not lead to the identification
of other members of the organization. (Id.). A
search warrant also might be rendered more effective in
conjunction with a wiretap: intercepted communications could
inform agents about the current location of contraband, and a
search warrant could follow immediately. (Id.).
Obtaining prior electronic communications is similarly an
inadequate substitute for real-time interception, as
information is received too late to make “adequate
enforcement decisions” and direct agents to specific
locations. (Id. at 64).
respect to interviews, Courrege represented that no known
members of the organization had been arrested, and interviews
would produce insufficient information concerning the
identities of all the persons involved in the conspiracy,
sources of drugs, financing of drug purchases, and the
identities of larger cocaine suppliers. (Id. at
64-65). Responses to interview questions would likely contain
“a significant number of half-truths and
untruths” that could divert or frustrate the
investigation. (Id. at 65). Interviews would also
risk alerting members of the conspiracy about the
respect to grand jury subpoenas, Courrege represented that
subjects called to testify may invoke their Fifth Amendment
privilege, grand jury immunity might foreclose prosecution of
the most culpable people, and most of the individuals
identified during the investigation participate in illegal
activities and would likely lie under oath. (Id.).
Courrege was not aware of any person who could be subpoenaed
to provide “significant and truthful evidence” to
prove the crimes identified, and the use of grand jury
techniques would alert conspirators to the existence of the
investigation and lead them to be “more
circumspect” in their conduct. (Id.).
respect to trash searches, Courrege represented that evidence
obtained from such searches would not be sufficient to
prosecute Nava and Machado-Galeana or their sources of supply
and co-conspirators. (Id. at 66). There are also
“great risks” associated with conducting trash
searches, as Machado-Galeana's residence is in a
high-crime neighborhood and neither Machado-Galeana's
house nor Nava's house provide adequate cover and
concealment to attempt trash searches. (Id.). The
convenience store is located in a shopping center; because
trash in shopping centers was often intermingled from several
business, a trash search of the convenience store is unlikely
to result in useful evidence. (Id.). Additionally,
if agents were discovered conducting a trash search, it might
be mistaken for illegal activity, and the investigation could
be compromised and agents might be placed in danger.
(Id. at 67).
respect to other investigative techniques, Courrege
represented that a GPS tracking device had been used in this
investigation, but GPS location information only alerts
agents that a vehicle may be located in an area used by
members of a criminal organization. (Id. at 67). It
does not inform the agents of who is present and what
activity is occurring. (Id.). Since the GPS tracking
device was installed in this investigation, the vehicle upon
which it was installed had traveled to Lafayette, Louisiana
and had not returned. (Id.). Machado-Galeana had
been observed driving four vehicles since the investigation
began, and the likelihood of agents being discovered
installing a tracking device was “great.”
(Id.). Some of the vehicles being used had temporary
registrations, and agents had not been able to establish
their use until after a drug sale. (Id.).
to Courrege, agents had also installed a closed circuit
television camera near Machado-Galeana's likely
residence, but it was not in a position to “capture the
exact apartment, ” and agents could only view parking
lots near the building. (Id. at 68). There was
“heavy” pedestrian traffic in the area, making it
difficult to determine who may be affiliated with the
organization. (Id.). All known transactions had
occurred away from the residence, and the camera only had an
outside view of the residence. (Id.).
second closed circuit camera had been installed near the
convenience store, but agents had been unable to determine
whether activity observed was illegal or the “nature of
the business inside.” (Id.).
respect to pen registers and other less intrusive forms of
electronic monitoring, Courrege represented that pen register
and trap and trace devices had been used in this
investigation and would be used on an ongoing basis.
(Id. at 69). However, these techniques provide lists
of phone numbers of incoming and outgoing calls, but they do
not establish the identities of all persons called or the
content of conversations described. (Id.).
Additionally, narcotics traffickers often purchase prepaid
phones that are not required to ...