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United States v. York, 1:16-cr-00069-LJO-SKO-11
Defendants1 moved to suppress the results of the wiretap interceptions in this case, arguing thatthe affidavits submitted in support of the wiretap orders lacked probable cause and failed to show the exhaustion of other investigative techniques (necessity). Defendants also requested a Franks hearing, arguing that the Government intentionally or recklessly included false statements and omitted material information in their wiretap applications.
For the reasons set forth below, these motions are DENIED.
In June of 2014, the Fresno Police Department ("FPD") launched an investigation into the Dog Pound Gangsters ("DPG"), a criminal street gang operating in Fresno County. (Wiretap Affidavit No. 16-001, ECF No. 313-1 ("16-001") at 9; Indictment ¶¶ 2, 8.) The DPG was suspected of involvement with a number of recent murders and shootings, as well as ongoing human trafficking and credit card fraud schemes. (Id.) FPD officers ultimately met with other state and federal law enforcement agencies for assistance with the investigation. (Id.)
In early 2016, the FPD and the California Department of Justice Special Operations Unit launched a wiretap investigation into the DPG. (Complaint ¶ 74.) The initial wiretap affidavit, drafted by FPD homicide Sergeant Andre Benson, sought approval to intercept telephone calls for six target telephones. In the affidavit, which spanned over 200 pages, Sergeant Benson summarized the background of the DPG, the FPD's substantial attempts (and failures) to target the DPG and reduce its criminal activity in the community, and the FPD's probable cause and necessity for intercepting the initial six targets. (Affidavit in Support of Wiretap 16-001, ECF No. 313-2.2) The initial wiretap was authorized on February 15, 2016. (16-001 Order.) Thereafter, over the course of the next 65 days, agentsobtained 10 spinoff and renewal wiretaps. Each new wiretap application incorporated by reference all previous wiretap applications. During the investigation, agents intercepted the communications of more than 20 DPG members, associates, and co-conspirators, consisting of over 5,000 calls and/or texts related to DPG criminal activities. (ECF No. 2 ¶¶ 75, 94-762.) The following is a summary of the wiretap applications and authorizations that took place in this investigation:
Wiretap Number Target Telephone Number Target Subject Author Date and Affiant Signing Date and Judge 16-001 TT#1 (559) 369-8454 Tremayne Beard
02/15/2016
Andre Benson 2/15/2016
Arlan Harrell 16-001 TT#2 (559) 270-9612 Trenell Monson
02/15/2016
Andre Benson 2/15/2016
Arlan Harrell 16-001 TT#3 (559) 403-3376 Brandon Tucker
02/15/2016
Andre Benson 02/15/2016
Arlan Harrell 16-001 TT#4 (559) 546-2005
Steven Blackmon
02/15/2016
Andre Benson 02/15/2016
Arlan Harrell 16-001 TT#5 (559) 380-9497 Darrell Maxey
02/15/2016
Andre Benson 02/15/2016
Arlan Harrell 16-001 TT#6 (559) 417-6290 Kenneth Johnson
02/15/2016
Andre Benson 02/15/2016
Arlan Harrell 16-002 TT#7 (559) 248-6050 Trenell Monson
02/22/2016
Michael Szatmari 02/22/2016
Arlan Harrell 16-002 TT#8 (310) 365-5650 La France Brown 02/22/2016
Michael Szatmari 02/22/2016
Arlan Harrell 16-002 Extension TT#7 (559) 248-6050 Trenell Monson
03/23/2016
Michael Szatmari 03/23/2016
Arlan Harrell 16-003 TT#9 (559) 885-9977 Darrell Maxey
02/24/2016
Michael Szatmari 02/24/2016
Arlan Harrell 16-003 TT#10 (559) 349-3486 Rayquan Brown
02/24/2016
Michael Szatmari 02/24/2016
Arlan Harrell 16-003 TT#11 (559) 943-0572 Kiandre Johnson
02/24/2016
Michael Szatmari 02/24/2016
Arlan Harrell 16-003 TT#12 (559) 430-6871 Kenneth Wharry
02/24/2016
Michael Szatmari 02/24/2016
Arlan Harrell 16-004 TT#13 (559) 900-6013 Tremayne Beard
02/26/2016
Michael Szatmari 02/26/2016
Arlan Harrell 16-005 TT#14 (702) 480-4270 James York
03/02/2016
Michael Szatmari 03/02/2016
Arlan Harrell 16-005 TT#15 (559) 909-9941 James York
03/02/2016
Michael Szatmari 03/02/2016
Arlan Harrell 16-005 TT#16 (559) 548-5570 Davon Millro
03/02/2016
Michael Szatmari 03/02/2016
Arlan Harrell 16-006 TT#17 (559) 801-9466 UM 486 Daniel Sanchez
*Rejected* Arlan Harrell
The Court will discuss the details of the challenged wiretap affidavits and orders in its analysis of Defendants' motions to suppress.
On April 17, 2016, the Government filed a 258-page criminal complaint against 18 DPG members, associates, and co-conspirators. (ECF No. 2.) On May 5, 2016, a federal grand jury returned a 26-count indictment charging eighteen defendants, alleged to be members or associates of the DPG, with violating a variety of criminal statutes related sex trafficking and prostitution, conspiracy to commit access device fraud, and conspiracy to commit murder in aid of racketeering. (Indictment, ECF No. 127.)
The seventeen defendants whose communications were intercepted pursuant to wiretap orders argue that those communications should be suppressed, and any investigative leads based on those communications should be suppressed as fruit of the poisonous tree. Defendants also argue that they are entitled to a Franks hearing regarding material misstatements and omissions contained in the wiretap affidavits. The Government opposed all of Defendants' motions relating to wiretap suppression. (ECF No. 417.) Several Defendants filed reply briefs. (ECF Nos. 420, 427, 428, 437, 442, 445, 447.)
In evaluating the validity of a wiretap issued in state court, the Court applies both federal law and state law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") governs the use of electronic surveillance. 18 U.S.C. § 2516(2) governs the validity of state-issued wiretap orders, like those found in this case. 18 U.S.C. §§ 2515 and 2518 address when wiretap evidence must be suppressed and how and when a defendant may move to suppress such wiretap evidence.
Title III established the procedures by which law enforcement officials can obtain judicial authority to intercept wire and oral communications. The federal wiretap statute permits states to authorize the interception of wire communications. See 18 U.S.C. § 2516(2). State laws must meet the minimum standards of Title III. Section 2516(2) states, in pertinent part, that:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter . . . .
18 U.S.C. § 2516(2). California Penal Code § 629.50(a) authorizes a district attorney, or person designated to act as district attorney in the district attorney's absence, to apply for an order authorizing the interception of a wire or electronic communication.
Under Section 2515, "if the disclosure of [intercepted communications] would be in violation of this chapter," the communications must be suppressed upon a motion properly made under Section 2518(10)(a). See United States v. Giordano, 416 U.S. 505, 508 (1974). Section 2518 provides three bases for suppression, including suppression of the wiretap evidence on the grounds that it was "unlawfully intercepted." Here, Defendants contend that the communications were unlawfully intercepted pursuant to an invalid state wiretap order.
Sections 2515, 2516(2), and 2518 do not address what law governs admissibility of evidence obtained under state law procedures; section 2516(2) requires only that the wiretap order be obtained in conformity with state law. The Ninth Circuit has held that federal law governs the admissibility of wiretap evidence. "Evidence obtained pursuant to a state court wiretap authorization is not subject to suppression in federal court if that evidence was obtained in compliance with federal law." United States v....
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