United States v. Guerrero

1

UNITED STATES OF AMERICA, v. AMADOR MAGALLON GUERRERO

No. 3:19-cr-00118

United States District Court, M.D. Tennessee, Nashville Division

September 11, 2023

MEMORANDUM AND ORDER

WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE

Pending before the Court are four motions to suppress evidence file by Defendant Amador Magallon Guerrero: (1) Motion to Suppress Illegally Obtained Statements (Doc. No. 249); (2) Motion to Suppress Evidence Stemming from Illegal Search of Mr Guerrero's Two Cell Phones (Doc. No. 250); (3) Motion to Suppress Evidence Obtained Pursuant to Facebook Warrant (Doc No. 253); and (4) Motion to Suppress Evidence Obtained Pursuant to Illegal Wiretaps on Target Telephones 1 AND 2 (Doc. No. 256). The Government responded to the motions. (Doc. Nos. 320, 322, 313, 315).

First because Guerrero does not challenge probable cause as to the Facebook Messenger evidence, and the Government responded that it will not introduce any evidence from Facebook other than the Facebook Messenger evidence (Doc. No. 313), the Motion to Suppress Evidence Obtained Pursuant to Facebook Warrant (Doc. No. 253) is therefore MOOT.

The Court held an evidentiary hearing on the remaining motions on January 26, 2023 and February 1, 2023, and the parties filed post hearing briefs. (See Doc. Nos. 348, 351, 362 (sealed), 366 (sealed)).^[1] For the reasons stated herein, Defendant's motions to suppress evidence (Doc. Nos. 249, 250, 256) are DENIED.

I. BACKGROUND

The Drug Enforcement Agency (“DEA”) was first alerted to Guerrero through intelligence from a confidential source in August 2017, but the investigation of Guerrero and others for federal drug and money laundering crimes did not begin until June 2018. (Doc. No. 316 ¶ 13). The investigation broadly concerned a multi-celled drug trafficking organization that was suspected of distributing narcotics in the Middle District of Tennessee. The objectives of the investigation included identifying local wholesale distributors and members of their organization, determining their method of acquisition and distribution of narcotics, and the identity of their associates and co-conspirators. (Id. ¶ 50). In connection with its investigation, DEA agents sought and obtained wiretaps on two cellphones utilized by Guerrero through two successive applications in August and September 2018, both of which were approved by the Chief Judge of this court (“Issuing Judge”) in a separate, sealed matter.

On April 24, 2019, a Grand Jury returned an eight-count indictment against Defendant Amador Magallon Guerrero and four others. (See Doc. No. 3). Guerrero is charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine (Count I), conspiracy to distribute possess with intent to distribute one kilogram or more of heroin (Count II), distribution of 50 grams or more of methamphetamine (Count III), distribution of cocaine (Count IV), attempted possession with intent to distribute 500 grams or more of cocaine (Count V), possession with intent to distribute 100 grams or more of heroin (Counts VI and VII), and conspiracy to commit money laundering (Count VIII). (Id.).

Guerrero was arrested on May 2, 2019, at his home in Madison, Tennessee, and brought to the Estes Kefauver federal building in Nashville, Tennessee, where he was questioned by DEA agents for approximately two hours before he was booked and arraigned. (Id. at 19). While in the custody of the DEA agents, Guerrero purportedly waived his Miranda rights, and consented to the search of two cellular phones.

Now before the Court are Guerrero's motions to suppress evidence obtained from the wiretaps, statements made on May 2, 2019, and the evidence obtained from the search of his cell phones. (Id. at 19-21, 34-35)

II. MOTION TO SUPPRESS WIRETAP EVIDENCE

Guerrero moves to suppress all evidence obtained from the government's Title III wiretap of his cell phones and information derived therefrom on the basis that the affidavits supporting the wiretap applications failed to establish a necessity for the interception of the defendant's electronic communications. (See Doc. No. 256). The Government argues that in both instances DEA Special Agent Ganon Hicks (“SA Hicks”) considered non-wiretap techniques prior to applying for wiretap authority and informed the issuing court as to the reasons for his belief that such non-wiretap techniques had been or likely would be inadequate. (See Doc. No. 315).

A. Background

The government obtained the wiretaps at issue through two successive applications in August and September 2018 (hereinafter “First Application” and “Second Application”). Each application was supported by a lengthy affidavit from SA Hicks, who was involved in the ongoing criminal investigation.^[2] The affidavits contain a summary of SA Hicks' background and qualifications,^[3] detailed information concerning the operation of the drug trafficking organization, the identities of individuals expected to be intercepted through the wiretap(s), a list of the crimes that the target subjects allegedly had committed or would commit (either directly or by aiding and abetting), a description of the information provided by and/or activities undertaken to support the investigation by multiple confidential sources, a description of any recorded discussions involving investigatory targets (consensual or otherwise), a telephone toll record analysis, a stated basis for the need for interception of wire communications, a description of the non-wiretap means undertaken in the investigation, a description of why certain investigative techniques were not undertaken, and information regarding minimization.

The Court has reviewed the wiretap applications and supporting materials in their entirety. Due to their length, the court will reference only the most relevant facts in this order.

1. First Affidavit

The First Affidavit states that the investigation of Guerrero began in June 2018. (First Affidavit, ¶ 13). The investigation in this case broadly concerned a Drug Trafficking Organization (“DTO”) with multiple cells distributing narcotics in the Middle District of Tennessee. (Id.). The objective of the wiretap was described as identifying the local and wholesale distributors and members of their organizations (including the target suspects), the method and acquisition and distribution of methamphetamine, heroin, and cocaine, the nature and scope of their illegal activities, the relationship between the financiers, transporters, suppliers, and distribution of the controlled substances, and the collection and distribution of monies which stem from the illegal drug activities are not likely to be achieved without the interception of Target Telephone 1. (Id. ¶ 50).

During the investigation preceding the First Affidavit, the government utilized two confidential sources to gather information (hereinafter “CS-1,” and “CS-2”). In addition to procuring evidence through confidential sources, the government undertook other traditional investigative techniques before filing the First Affidavit. For instance, it conducted a telephone toll analysis of Target Telephone 1, which demonstrated that Guerrero was frequently in contact with target suspect, Felix Cortez. (Id. ¶ 48). The government also attempted to conduct physical surveillance of Guerrero, with limited success. One attempt in July 2018 to conduct physical surveillance of Guerrero's residence had to be abandoned because Guerrero recognized the surveillance vehicle as one not normally seen in the neighborhood and walked over to examine it more closely. (Id. ¶ 55). As the vehicle continued to stay in the surveillance position, Guerrero again approached the vehicle requiring the agent in the vehicle to speak with Guerrero, thus eliminating that vehicle from the surveillance of a controlled purchase. (Id.). The government also installed a pole camera capable of observing Guerrero's residence, but this external surveillance was of limited value because Guerrero and visitors often parked at the rear of the house, out of sight of the street and the pole camera. (Id. ¶ 80). The government also attempted to use GPS tracking devices, with limited success. Two attempts in July 2018 to conduct surveillance using tracking devices installed on a target suspect's vehicle and on Guerrero's 2007 Chevrolet Cobalt provided only limited information as both the target suspect and Guerrero routinely change the vehicles they drive. (Id. ¶ 83).

The First Affidavit also states that various other investigative measures had been considered but not attempted, for the following reasons:

Pen Register: In SA Hicks' experience, pen registers and toll analysis are of limited value in investigating drug-trafficking organizations because the phones may be registered under fictious names or, for pay-as-you go phones, no name at all. (Id. ¶¶ 60-64)

Grand Jury Subpoenas: Based on SA Hicks' experience, grand jury subpoenas were premature in August 2018. Furthermore, not all of the members of the Middle Tennessee-based organization had been fully identified such that agents did not have the ability to serve grand jury subpoenas on those unidentified individuals. Additionally, SA Hicks believed that if the identified members of the conspiracy, their co-conspirators, and other participants were called to testify before the Grand Jury, they would most likely be uncooperative and invoke their Fifth Amendment privilege not to testify. Finally, service of grand jury subpoenas would alert target subjects to the investigation, causing them to be more cautious, and/or to flee, to threaten informants, or otherwise compromise the investigation. (Id. ¶¶ 65-66)

Confidential Sources: Although CS-1 and CS-2 had...