Opinion
S(3) 04 Cr. 219 (DAB).
June 8, 2005
MEMORANDUM ORDER
Before the Court is Defendant Ramiro Menendez' ("Menendez") pre-trial motions seeking suppression of evidence discovered as a result of Title III wiretap intercepts, and physical evidence seized in two difference searches on the day of Menendez' arrest. In the alternative, Menendez seeks a hearing on his motions, pursuant to Rules 12 and 41 of the Federal Rules of Criminal Procedure. Defendant Angelo Lisi ("Lisi") joins in Menendez' motion to suppress evidence discovered as a result of the wiretap intercepts.
For the reasons that follow, Defendants Menendez' and Lisi's motion to suppress is DENIED.
I. BACKGROUND
Defendants Ramiro Menendez ("Menendez") and Angelo Lisi ("Lisi") were indicted by a federal grand jury on March 9, 2004 in a one-count indictment along with Co-Defendants Gustavo Sierra, Alberto Sierra, Vilma Bido, and Lawrence Russell. The Indictment charged Defendants with distributing and possessing with intent to distribute, one kilogram and more of heroin from at least in or about December, 2003 through in or about February, 2004 in violation of 21 U.S.C. § 846. The investigation leading to the Indictment included three separate interceptions of wire communications, authorized by Judge John F. Keenan, United States District Judge for the Southern District of New York.
On April 27, 2004, the grand jury returned a Superceding Indictment, adding a second count charging Defendants and newly added Defendants Carlos Ekmeiro, Paul Pacheco and Richard Solbavarro with a money laundering conspiracy in violation of 18 U.S.C. § 1956(h). The grand jury returned a Second Superceding Indictment on May 6, 2004, adding Defendants Ekmeiro, Pacheco and Solbavarro to Count One and a new defendant, Martha Cobis, to Counts One and Two. A Third Superceding Indictment was returned on May 18, 2004, adding Defendant Kenyi Diaz-Perez to Counts One and Two.
An order of nolle prosequi was entered with respect to Defendant Ekmeiro on August 18, 2004.
Defendant Menendez has filed pre-trial motions for consideration by the Court. Defendant Lisi has joined in Menendez' motion to suppress the wire-tap evidence.
II. DISCUSSION
Menendez seeks suppression of wire tap evidence obtained through intereptions of his cellular phone ("Menendez Cellphone") and Defendant Gustavo Sierra's cellular phone ("Sierra Cellphone"). Defendant Lisi joins in this motion. Menendez also moves to suppress any evidence obtained by the Government in two separate searches which took place on February 20, 2004 in Miami, Florida. Defendants seek an evidentiary hearing on these issues.
A. Suppression of Wiretap Evidence
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., regulates the interception of wire, electronic and oral communications. The procedure for securing judicial authority to intercept communications is found in 18 U.S.C. § 2518. The applicant seeking to obtain judicial authorization for an interception must demonstrate that "there is probable cause that an individual is committing . . . a particular offense . . . [and that] normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or too dangerous." 28 U.S.C. § 2518(3). No part of the intercepted communications "may be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of [Title III]." 18 U.S.C. § 2515.
Menendez seeks suppression of the wiretap evidence obtained from his cellphone and the Sierra cellphone based on the following: (1) the telephone conversations were allegedly not minimized in accordance with the statutory requirements; (2) the tapes of the telephone conversations were allegedly not sealed in accordance with 18 U.S.C. § 2518(8)(a); and (3) the interceptions were unlawful because the wiretap application failed to establish with specificity the unavailability of alternative investigative techniques. The Government opposes Menendez' motion.
1. Standing to Challenge Title III Intercepts
As a threshold matter, the Court will consider the issue of whether Defendants Menendez and Lisi have standing to bring their respective challenges to the wiretap evidence. The Government contends that Defendant Lisi lacks standing to challenge the minimization procedures on both Menendez and Sierra Cellphones and that Menendez lacks standing to challenge the minimization procedures used for calls intercepted through the wiretap on the Sierra Cellphone.
Under Title III, only an "aggrieved person . . . may move to suppress the contents of any wire or oral communications intercepted pursuant to this chapter, or evidence derived therefrom. . . ." 18 U.S.C. § 2518(10(a). An "aggrieved person" is defined as "a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). "Standing to challenge evidence obtained through the use of electronic surveillance techniques requires a showing by a defendant that his or her voice was heard on the wire or that his or her telephone was tapped." United States v. Burford, 755 F.Supp. 607, 609 (S.D.N.Y. 1991) (citing United States v. Fury, 554 F.2d 552, 525 (2d Cir. 1977)).
It is clear that Menendez falls within the category of "aggrieved persons" who may move to suppress evidence obtained through wiretap interceptions. However, there is no evidence before the Court, other than the fact that Lisi is included as a defendant in the Indictment, that demonstrates that Lisi's voice was heard on the wires intercepted, or that his telephone was tapped. The Court's review of the Affidavits of Agents Coppersmith, Argento and Cuartas, (Gov't.'s Mem. of Law at Ex. B-D), reveals no mention of Lisi. Lisi has not submitted an affidavit stating that his voice was heard on the conversations intercepted. The Court therefore finds that Defendant Lisi lacks standing to make any challenge to the wiretap interceptions.
The Second Circuit has indicated that only a person with a possessory or proprietary interest in premises on which the subject telephones are located has standing to contest the minimization procedures used by law enforcement agents. See United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991);United States v. Fury, 554 F.2d, 522, 526 (2d Cir. 1977); see also United States v. Greyling, 2002 WL 424655, at *4 (S.D.N.Y. Mar. 18, 2002). Menendez lacks possessory or proprietary interest in the Sierra Cellphone and therefore cannot challenge the minimization procedures for calls intercepted over the Sierra Cellphone. Accordingly, the Court will only address Menendez' minimization challenge to the wiretap issued for the Menendez Cellphone.
2. Minimization
Menendez claims that the Government failed to comply with minimization requirements, contained in 18 U.S.C. § 2518(5), and that the evidence obtained through the interception of the Menendez Cellphone must therefore be suppressed.
Section 2518(5) provides that
Every order and extension thereof shall contain a provision that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject interception under this chapter. . . .
Judge Keenan's Orders contained such a provision. (Gov't.'s Mem. of Law at Ex. A.)
The Supreme Court stated in Scott v. United States that Title III "does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to `minimize' the interception of such conversations." 436 U.S. 128, 140 (1978). "Minimization in the context of a wiretap only requires a reasonable effort to minimize the interception of irrelevant calls." United States v. McGuinnes, 764 F.Supp. 888, 900 (S.D.N.Y. 1991) (citing United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert. denied, 417 U.S. 936 (1974)). "Minimization efforts are to be judged by a standard of reasonableness in the context of the entire wiretap, as opposed to a chat-by-chat analysis."McGuinness, 764 F.Supp. at 901. Reasonableness is determined by the facts and circumstances of each case. Scott, 436 U.S. at 140.
If the Government has made a prima facie showing of compliance with the statute, a defendant must overcome that showing by demonstrating "that a substantial number of nonpertinent conversations [have] been intercepted unreasonably." United States v. Pichardo, No. 97 Cr. 233, 1999 WL 649020, at *5 (S.D.N.Y. Aug. 25, 1999) (citing United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056 (1974)). Even if a substantial number of nonpertinent conversations had been intercepted, the statute is not violated and a hearing is not warranted as long as a "good faith effort to achieve minimization" is demonstrated by the Government. United States v. Cirillo, 499 F.2d 872, 881 (2d Cir.), cert. denied, 419 U.S. 1056 (1974).
Minimization is generally inapplicable to calls of less than two minutes in duration because they are "too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation." United States v. Capra, 501 F.2d 267, 275-76 (2d Cir. 1974). In addition, certain measures taken by the Government are helpful in establishing compliance with the minimization requirement. "These measures include: (1) maintenance of monitoring logs, (2) judicial supervision of the surveillance process through, e.g., the provision of periodic reports, (3) the provision of written and oral instructions to monitoring personnel concerning the legal requirements for minimization and log-keeping, and (4) supervision by the prosecutor." Pichardo, 1999 WL 649020, at *6 (internal citations omitted).
The Government has represented to the Court that it took the following measures to comply with the minimization requirement: it provided minimizing instructions to monitoring personnel; such personnel were required to read and sign instructions and maintain monitoring logs; and period reports were submitted to the court, including a report of the percentage of calls minimized. (Gov't.'s Mem. of Law at 6-7.)
Menendez argues that the minimization requirement has not been met and states that Defendant was recorded talking to friends and family members, talking about his dog and his car, talking about his diet, and talking to his lawyer and his lawyer's secretary despite the fact that the wiretap order stated that Defendant's right to counsel would not be violated. Defendant also lists the total number of call intercepted and the number of calls minimized in each report submitted to the court.
Menendez, however, has failed to demonstrate that the Government unreasonably intercepted a substantial number of irrelevant phone calls. He gives examples of types of conversation that may have occurred without referring to any specific conversation or phone call. As the Government states, merely identifying "non-pertinent topics of conversation" cannot establish that the telephone calls were irrelevant and should have been minimized because such conversations may have included relevant topics of conversation.
Accordingly, the Court finds that the Government has demonstrated a good faith effort to comply with the minimization procedures. Menendez has failed to meet his burden of demonstrating that the Government's efforts were unreasonable. Therefore, a hearing is not required and Menendez' motion to suppress the wiretap evidence on the ground that the Government violated the court order by failing to comply with minimization procedures is DENIED.
3. Sealing of the Tapes
Section 2518(8)(a) of Title 18 requires that "[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions."
Menendez argues for suppression of the wiretap evidence due to an alleged non-compliance by the Government with this requirement. The Government, in its response, states that "Menendez' claim is puzzling in light of the fact that the Government provided copies of all sealing orders for the Sierra Cellphone and Menendez Cellphone wiretaps more than a year ago as part of its initial discovery disclosures." (Gov't.'s Mem. of Law at 10.) The Government attached copies of these sealing orders to its memorandum of law. Defendant has not responded to this statement by the Government.
Based on the sealing orders provided by the Government, the Court finds that Menendez' motion to suppress the wiretap evidence on the ground that the wiretaps were not properly sealed is without merit and is DENIED.
4. Alternative Investigative Techniques
Menendez argues that the wiretap evidence must be suppressed because the wiretap application failed to establish with specificity the unavailability of alternative investigative techniques. Menendez claims that affidavits by law enforcement personnel support the argument that "conventional investigative techniques were working." Specifically, Menendez contends that the wiretap applications all contained the same boilerplate language without stating which investigative procedures had been tried and failed. He also claims that the affidavits by government agents reveal that at least one informant was active when the original application was issued, and three informants were documented in Agent Coopersmith's affidavit, dated January 13, 2004.
Section 2518(1)(c) requires that any application for interception of a wire, oral or electronic communication include "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. . . ." Similarly, the judge reviewing such an application must determine whether on the basis of the facts submitted, "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). In reviewing the issuance of a wiretap order, the issuing judge's determination of compliance with § 2518(1)(c) is entitled to substantial deference. See United States v. Torres, 901 F.2d 205, 231 (2d Cir.), cert. denied, 498 U.S. 906 (1990);United States v. Wilkinson, 754 F.2d 1427, 1433 (2d Cir.),cert. denied, 472 U.S. 1019 (1985).
Section 2518(1)(c) "is simply designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime."United States v. Kahn, 415 U.S. 143, 153, n. 12 (1974). The statute does not require that all normal investigative techniques be exhausted; rather it is only required that "the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods." United States v. Torres, 901 F.2d at 231; United States v. Young, 822 F.2d 1234, 1244 (2d Cir. 1987); United States v. Vasquez, 604 F.2d 1269, 1282 (2d Cir.), cert. denied, 444 U.S. 981 (1979). The Government's application "need only `provide some basis for concluding that less intrusive investigative procedures are not feasible.'"United States v. Pichardo, No. 97 Cr. 233, 1999 WL 649020, at *4 (S.D.N.Y. Aug. 25, 1999) (quoting United States v. Lilla, 699 F.2d 99, 103 (2d Cir. 1983)).
The Government has provided the Court with the affidavits of Special Agents Darren Argento, Dana Coppersmith and Mauricio Cuartas, which were submitted to Judge Keenan in support of the Government's applications for interception of communications made on the Menendez and Sierra Cellphones. These affidavits describe in detail the traditional investigative techniques that had been used, such as telephone toll records, pen registers, and interviewing witnesses. In their affidavits, the Agents explain why these methods could provide only limited information and could not reveal the scope of the conspiracy. They also explain that confidential informants had previously been used, as Menendez points out, but could no longer be used as confidential informants. The Agents also set forth reasons why physical surveillance, undercover agents, grand jury proceedings or search warrant would likely prove unsuccessful at that particular juncture of the investigation. (Argento Aff. ¶ 37; Coppersmith Aff. ¶ 55.)
Two of the informants were incarcerated at the time of the application and the third was no longer engaged in the narcotics business and had no present knowledge of the narcotics trafficking activity being investigated by the Government.
Based on the Government's affidavits, the Court finds that Judge Keenan had more than an adequate basis to conclude that the interceptions of the target Cellphones were necessary. Menendez' motion to suppress the wiretap evidence based on failure to comply with § 2518(1)(c) is DENIED.
B. Suppression of Physical Evidence
Menendez moves to suppress physical evidence obtained from two separate searches which took place on February 20, 2004 in Miami, Florida. Menendez moves to suppress 5 kilograms of heroin found in a Ford Explorer he was driving but which had been rented in the name of Co-Defendant Lawrence Russell. He also seeks to suppress 3 kilograms of heroin found in a storage unit he rented in the Public Storage facility. Menendez requests a hearing to address the issues raised regarding the two searches.
1. Suppression of Evidence Found in Vehicle
As an initial matter, a defendant seeking to suppress evidence recovered in a warrantless search bears the burden of demonstrating that he had a reasonable expectation of privacy in the area searched. See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Osorio, 939 F.2d 38, 40 (2d Cir. 1991); United States v. Paulino, 850 F.2d 93, 96 (2d Cir. 1988). It is not only the owner of a vehicle that may have a Fourth Amendment privacy interest in the vehicle that is protected against governmental invasion; a borrower of the vehicle can also possess such an interest if he can show, among other things, a legitimate basis for being in it, such as permission from the owner. See United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991), cert. denied, 603 U.S. 943 (1992). However, a legitimate expectation of privacy cannot be established by demonstrating mere occupancy or control of a vehicle, because a vehicle may have been stolen. Ponce, 947 F.2d at 649.
Defendant conclusorily states that he had an expectation of privacy in the vehicle he drove. However, the rental receipt establishes that the car was rented by Lawrence Russell; Menendez is not mentioned.
Menendez has set forth no other facts or support for his alleged expectation of privacy. The Court finds that Menendez' showing is insufficient and therefore, he lacks standing to challenge the search of the vehicle.
Even if Menendez had standing to challenge the search, the Court also finds that the search of the vehicle was lawful because there was probable cause to believe that the vehicle contained contraband. "[P]olice may search an automobile and the containers within it when they have probable cause to believe contraband or evidence is contained [therein]." California v. Acevedo, 500 U.S. 565, 680 (1991). Interception of communications on the Menendez Cellphone gave law enforcement officers probable cause to believe that the rental car driven by Menendez contained narcotics. While in the rental car, Menendez made references to the narcotics contained in the car. Based on this information, the Agents had probable cause to search the vehicle and any containers within the vehicle suspected to contain contraband. Accordingly, the Court DENIES both Menendez' motion to suppress the evidence seized from the rental car and his request for a hearing.
2. Suppression of Evidence Found in Storage Unit
Defendant Menendez moves to suppress evidence found in a storage unit rented by him. He argues that there were "no exigent circumstances attending that negated the agents obtaining a search warrant." Menendez however concedes that the Government had probable cause to search the unit, "given the prior seizure of drugs in the car" and the fact that canines trained in narcotics detection had alerted to the possible presence of narcotics in the storage unit. He also concedes that he signed a Spanish consent form freely and voluntarily, consenting to the search of his storage unit. Nevertheless, Defendant argues that the consent form is "legally insufficient to establish a free and voluntary consent" because it failed to advise him of his right to refuse, his right to counsel and right to stop the search.
"A warrantless search does not violate the Fourth Amendment if the owner or lawful custodian consents to the search." United States v. Arbalaez, No. 98 Cr. 941, 1999 WL 980172, at *4 (S.D.N.Y. Oct. 27, 1999) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) and United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995)). The Government bears the burden of demonstrating that "consent [to search] was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth, 412 U.S. at 248. In order to determine if the consent was given voluntarily, the court must examine all the surrounding circumstances. United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1988). "[K]nowledge of the right to refuse consent is not a requirement." Garcia, 56 F.3d at 422.
In this case, Menendez has stated that he freely and voluntarily gave consent to search the storage unit, and that he was not threatened or forced in any way. The Court finds that there is no need for a hearing where Defendant has failed to specify any contested issues of fact concerning the validity of the search of the storage unit, and in fact, has conceded that he consented to the warrantless search, freely and voluntarily.See e.g., United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005) ("[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.").
III. CONCLUSION
For the foregoing reasons, the Court finds that Defendant Lisi lacks standing to challenge the wiretap interceptions. Defendant Menendez' motion to suppress wiretap evidence is DENIED. His motion to suppress physical evidence seized from searches of the rental car and his storage unit is also DENIED.
The next status conference date is set for July 11, 2005 at 11:00 AM. In the interests of justice, time has already been excluded until that date.
SO ORDERED.