United States District Court, D. Nevada
M. Navarro, Chief United States District Judge.
before the Court is the Sealed Motion to Suppress Evidence
Obtained Through Unlawful Wiretaps,  (ECF Nos. 1198-1203), filed by
Defendant Pastor Fausto Palafox (“Palafox”). The
Government filed an errata Response, (ECF No. 1342), and
Palafox filed a Reply, (ECF No. 1361). The Court held hearings on
March 5, 2019, (ECF No. 1537), and on April 4, 2019, (ECF No.
pending before the Court is the Government's Motion for
Leave to File Excess Pages, (ECF No. 1338), and Palafox's
Unopposed Motion for Leave to File Excess Pages, (ECF No.
pending before the Court is Defendant Ernesto Manuel
Gonzalez's (“Gonzalez”) Motion for Leave to
File or Join a Wiretap Suppression Motion for Lack of
Necessity Under 18 U.S.C. § 2518, (ECF No. 987). The
Government did not file a response. Defendants Albert
Benjamin Perez (“Perez”), Robert Alan Coleman
(“Coleman”), Garcia, Johnny Russell Neddenriep
(“Neddenriep”), Paul Jeffrey Voll
(“Voll”), John Chrispin Juarez
(“Juarez”), and Bert Wayne Davisson
(“Davisson”) filed Motions for Joinder, (ECF Nos.
994, 1018, 1023, 1029, 1079, 1087, 1111).
case arises from a long-term investigation into the alleged
criminal conspiracy of Vagos Motorcycle Club
(“Vagos”), an alleged motorcycle gang.
(Superseding Indictment, ECF No. 13). This investigation
resulted in a Superseding Indictment returned against Palafox
and 22 others. (Id.). As a part of the
investigation, the Government applied for and received
several orders authorizing the interception of many of the
defendants' phone lines. (See generally Exs.
A-Q, ECF Nos. 1198-1202). The first wiretap order, obtained
as an emergency wiretap application under California state
law, intercepted the phone line of Mario Enrique Ayala
(“Ayala”), an alleged member of the Vagos.
(See Ex. B at 00042-51, ECF Nos. 1198-1, 1198-2).
Thereafter, the Government sought and received two additional
California state law wiretap authorizations. (See
Exs. C, D, ECF Nos. 1198-1, 1198-2). Applications for these
wiretaps are supported by an affidavit executed by Sergeant
Erick Bennett (“Sgt. Bennett”), a police officer
with the San Bernardino Police Department Narcotics Unit.
(Id.). In August 2010, the Government applied for
the first of nine federal wiretap authorizations.
(See Ex. E, ECF Nos. 1198-3, 1198-4, 1198-5). The
federal applications include affidavits executed by Special
Agent Matthew Neal (“Special Agent Neal”) of the
Department of Homeland Security. (Id.). The last
wiretap authorization was secured in April 2011.
(See Ex. M, ECF No. 1202).
Investigative Background Relating to Wiretap
March 2010, the Drug Enforcement Agency (DEA) began its
investigation of Ayala. (Errata Resp. (“Resp.”)
6:21-7:5, ECF No. 1342). Special Agent Andrew Spillman
(“Special Agent Spillman”) of the California
Department of Justice assisted the DEA Riverside District
Office with a narcotics investigation where a confidential
reliable informant (“CRI”) posed as a narcotics
supplier of marijuana and cocaine. (Ex. A at 00008-10, ECF
No. 1198-1). The CRI sold 900 pounds of marijuana to Jesus
(Id. at 00010). Law enforcement followed
Tellez-Hernandez to an industrial building and procured a
search warrant for the location. (Id.). Law
enforcement executed the warrant, seized the marijuana,
recovered $700, 000, and arrested five suspects, including
Tellez-Hernandez, who was later released on bail.
(Id.). After his release, Tellez-Hernandez solicited
the CRI for 40 kilograms of cocaine in April 2010.
(Id.). In connection with the request,
Tellez-Hernandez introduced the CRI to Ayala. (Id.).
Ayala “identified himself to the CRI as the
‘Sergeant at arms' for the Vagos outlaw motorcycle
gang and that he was in fact the person that would be
purchasing the cocaine.” (Id.). Ayala
contacted the informant on several occasions to discuss the
purchase of cocaine and stated that he could provide the CRI
with heroin. (Id.). Ayala also indicated that he
would kill anyone the CRI wanted in order to show his loyalty
to the CRI. (Id.). Ayala gave the CRI his cellphone
number and the two later met and exchanged samples of cocaine
and heroin. (Ex. B at 00038-39, ECF No. 1198-1).
7, 2010, the informant met with Tellez-Hernandez and Ayala.
(Id. at 00039). During this meeting Tellez-Hernandez
asked the informant and Ayala to assist him in locating
Roberto Bautista (“Bautista”), the individual
Tellez-Hernandez suspected of being responsible for his March
arrest. (Id.). Tellez-Hernandez requested that the
CRI and Ayala help steal money and drugs from Bautista, and
kill him. (Id.). The CRI declined to assist
Tellez-Hernandez, but heard Ayala communicate his willingness
to help rob and kill Bautista. (Id. at 00039-40).
Law enforcement officials then contacted Bautista and warned
him of the murder plot. (Id. at 00040).
May 2010 Wiretap Application and Order
Agent Spillman sought the first wiretap, an emergency
request, on May 10, 2010. (Id. at 00042, 00052). The
Superior Court of California, County of San Bernardino
(“San Bernardino Court”) granted the request the
same day. (Id.). An application was then submitted
by the Assistant District Attorney for the County of San
Bernardino, two days later, seeking to extend the wiretap for
an additional 30 days. (See Id. at 00011). The
target telephone was the cellphone primarily used by Ayala
(“TT1”), and the target subjects were Ayala and
Tellez-Hernandez. (Id. at 00016-17). The objectives
of the investigation were, inter alia, to obtain
evidence against “the participants and/or conspirators
in the Conspiracy to Commit Murder and the Solicitation to
Commit Murder of Roberto Bautista.” (Id. at
00020). The San Bernardino Court granted the issuance of the
wiretap. (Id. at 00035).
June 2010 Wiretap Application and Order
9, 2010, Sgt. Bennett applied to continue the wiretap on
Ayala's phone. (Ex. C at 00062, 00065-66). The only
target telephone was the cellphone primarily used by Ayala.
(Id. at 00068). The application requested to
intercept the communications between Ayala and additional
co-conspirators, known and unknown. (Id. at 00066).
In addition to Ayala, the application identified
Tellez-Hernandez, Fred Alfonso Mendoza
(“Mendoza”), Charlie, Larry, and Oscar as target
subjects. (Id. at 00068-69). The objective of the
wiretap included determining the role of the target subjects
in the Vagos' criminal activity and their role in the
solicitation of Bautista's murder. (Id. at
00073-74). Law enforcement also sought to identify additional
Vagos members and the location of any evidence related to the
Vagos' alleged crimes. (Id.). In support of his
application, Sgt. Bennett summarized many of the intercepted
calls from the May 2010 wiretap. (Id. at 00078-93;
00119). Sgt. Bennett stated that these calls reflected,
inter alia, narcotics transactions and trafficking,
orders to assault an unidentified third party, Vagos
business, and a murder committed by a rival gang. (See
id.). The San Bernardino Court granted the issuance of
the wiretap. (Id. at 00130).
July 2010 Wiretap Application and Order
9, 2010, Sgt. Bennett applied to continue the interception of
calls to and from Ayala's cellphone for an additional 30
days. (Ex. D at 00211, ECF No. 1198-2). Sgt. Bennett
identified Ayala, Tellez-Hernandez, Mendoza, Charlie, Larry,
and Oscar as target subjects. (Id. at 00148). The
objectives of the wiretap were essentially the same as the
objectives of the June 2010 wiretap. (Id. at 00153).
The San Bernardino Court granted the issuance of the wiretap.
(Id. at 00210).
August 2010 Wiretap Application and Order
August 27, 2010, the first federal wiretap application was
approved by the United States District Court for the Central
District of California to intercept phones operated by Ayala,
Charles Randall Vaden (“Vaden”)
(“TT2”), and Defendant Andrew Eloy Lozano
(“Lozano”) (“TT3”). (Ex. E at 00221;
00317-331, ECF Nos. 1198-3, 1198-4). The application was
supported by an affidavit from Special Agent Neal, Department
Homeland Security. (Id. at 00247). The target
subjects included defendants Palafox and Lozano, along with
several other non-parties. (Id. at 00247-48).
Special Agent Neal stated that probable cause existed to
believe that the aforementioned individuals had committed, or
were committing, narcotics-related crimes for the benefit of
the Vagos. (Id. at 00258-61).
September 2010 Wiretap Application and Order
order extending the August 2010 wiretap was approved by the
Central District of California on September 28, 2010. (Ex. F
at 00332; 00439-53, ECF Nos. 1198-5, 1198-6). This wiretap
application sought to intercept calls to and from phones
operated by Vaden, Lozano, Robert Laguardia
(“TT4”), and Defendant John Siemer
(“Siemer”) (“TT5”). (Id. at
00358-59). The following defendants were listed as target
subjects: Palafox, Lozano, and Siemer. (Id. at
00364, 00370). The affidavit included information learned
from the August 2010 wiretap, and additional updates,
including the arrest of Ayala, altercations with rival gangs,
and plans to retaliate against a rival gang. (See,
e.g., id. at 00376-77).
now moves to suppress evidence obtained from the wiretaps and
requests a Franks hearing. (Mot. to Suppress
(“Mot.”) at i-ii, ECF No.
1198). The Court held hearings as to the instant Motion to
Suppress on March 5, 2019, (ECF No. 1537), and on April 4,
2019, (ECF No. 1560).
and the other defendants who filed joinders to Palafox's
Motion, assert that they have standing to suppress the
evidence derived from the Government's 12 wiretap
applications. (Mot. 18:3-19:13, ECF No. 1198); (Min. Order,
ECF No. 1476) (granting motions for joinder to Palafox's
Motion to Suppress). The Government concedes that some of the
defendants have standing, but that their standing correlates
to each defendant's status as either the user of the
target telephone, an intercepted user, or as a target
subject. (Resp. 14:12-16, ECF No. 1342). However, the
Government argues that because no defendant was identified as
a user of a target telephone, an intercepted user, or a
target subject in the May 2010 wiretap, no one has standing
to challenge the application. (Id. 15:19-22).
Additionally, the Government contends that only Lozano has
standing to challenge the June and July 2010 wiretap
applications because he was the only defendant that was
intercepted pursuant to those wiretaps. (See Id.
replies that co-defendant Lozano has joined the Motion to
Suppress, and that the Court should issue a ruling on the
Motion based upon Lozano's standing. (Reply 3:10-13, ECF No.
1361); (Lozano's Mot. for Joinder, ECF No. 1243).
Standing is governed by 18 U.S.C. § 2518(10)(a), which
Any aggrieved person in any trial, hearing, or proceeding in
or before any court, department, officer, agency, regulatory
body, or other authority of the United States, a State, or a
political subdivision thereof, may move to suppress the
contents of any wire or oral communication intercepted
pursuant to this chapter, or evidence derived therefrom, on
the grounds that
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it
was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the
order of authorization or approval.
aggrieved person is one that was a party to the intercepted
wire, “or a person against whom the interception was
directed.” 18 U.S.C. § 2510(11). The rule of
standing under Section 2518(10)(a) is no broader than that of
the Fourth Amendment. See United States v. Taketa,
923 F.2d 665, 676 (9th Cir. 1991) (“The Supreme Court
has read the statutory language to extend standing no further
than the normal reach of fourth amendment standing.”)
(citing Alderman v. United States, 394 U.S. 165,
175-76 (1969)). A defendant may move to suppress wiretap
evidence if his privacy was “actually invaded.”
United States v. King, 478 F.2d 494, 506 (9th Cir.
1973). An invasion of privacy occurs when the defendant is
either a participant in the call or the interception occurred
on the defendant's premises. Id. A defendant
does not have standing where he is only a subject of the
conversation. See generally Light v. United States,
529 F.2d 94 (9th Cir. 1976).
no defendant was a user of a target telephone, an intercepted
user, or a target subject of the May 2010 wiretap, and thus,
there is no aggrieved person who may move to suppress its
contents. As to the June and July 2010 wiretap applications,
Lozano was the only defendant identified as an intercepted
user. Thus, only Lozano has standing to challenge the June
and July 2010 wiretaps. Given that Lozano has joined the
Motion, the Court will address whether said wiretaps must be
the remaining wiretap authorizations, the Court finds that
the following defendants have standing to challenge one or
more of the wiretap orders because they were either an
intercepted user, user of a target telephone, or target
subject-and joined Palafox's Motion to Suppress. (Min.
Order, ECF No. 1476); (see Resp. 15:1-19).
Palafox, Lozano, Juarez
Palafox, Lozano, Campos, Juarez
Palafox, Lozano, Campos, Juarez
Palafox, Lozano, Campos, Juarez, Gonzalez, Voll
Palafox, Lozano, Gonzalez, Juarez
Palafox, Lozano, Juarez
April 1, 2011
Palafox, Lozano, Juarez
April 29, 2011
Palafox, Lozano, Campos, Juarez
State and Federal Wiretaps
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 the
present 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.
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).
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, Palafox
contends that the communications were unlawfully intercepted
pursuant to invalid wiretap orders. (See Mot.
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.
Homick, 964 F.2d 899, 903 (9th Cir. 1992) (citing
United States v. Chavez-Vernaza, 844 F.2d 1368, 1372
(9th Cir. 1987)). Therefore, although the validity of the
wiretap is governed by both federal and state law, it will
only be suppressed if it was obtained in violation of federal
law. Id.; see also Chavez-Vernaza, 844 F.2d
at 1373 (“[W]e have consistently stated that the
admissibility of evidence obtained in violation of state law
turns on whether a federal right has been infringed, not on
the presence or absence of federal involvement at the
evidence-gathering stage of an investigation”);
United States v. Hall, 543 F.2d 1229, 1235 (9th Cir.
1976) (“[W]iretap evidence obtained in violation of
neither the Constitution nor federal law is admissible in
federal courts, even though obtained in violation of state
law . . . ”). Accordingly, the challenged wiretap
applications-both state and federal-are subject to the
authority conferred under Title III for law enforcement
agencies to conduct electronic surveillance of suspected
criminal activities “is not a blank check.”
United States v. Garcia-Villalba, 585 F.3d 1223,
1227 (9th Cir. 2009). The Government must generally satisfy
two requirements before a district court will issue a wiretap
order-probable cause and necessity. Id.