US v . Santana CR-02-045-JD 09/06/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 02-45-01-JD
Opinion N o . 2002 DNH 164
Nelson Santana
O R D E R
The defendant, Nelson Santana, moves to suppress the
contents of telephone communications intercepted pursuant to
three court orders issued under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22, and
all evidence obtained from the interceptions. Santana also
requested a Franks hearing to address an inaccuracy in the
affidavit submitted in support of the April 2 7 , 2001, wiretap
application.1 The government objects to Santana’s motion.
A. Standing
As a preliminary matter, the government asserts that Santana
lacks standing as to two of the three wiretap orders. The
government contends that because Santana was not a listed
interceptee and no communications to or from Santana were
intercepted pursuant to the court’s orders issued on February 22
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See Franks v . Delaware, 438 U.S. 154 (1978).
and March 2 7 , 2001, Santana lacks standing to move to suppress
evidence obtained from interceptions authorized by those orders.
Santana moves to suppress pursuant to both the Fourth Amendment
and Title III,
18 U.S.C. § 2518(10)(a).
“Fourth Amendment rights are personal, and a proponent of a
motion to suppress must prove that the challenged governmental
action infringed upon his own Fourth Amendment rights.” United
States v . Kimball, 25 F.3d 1 , 5 (1st Cir. 1994). Under Title
III, any “aggrieved person . . . may move to suppress the
contents of any wire or oral communication intercepted pursuant
to this chapter, or evidence derived therefrom . . . .”
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U.S.C. § 2518(10)(a). “‘[A]ggrieved person’ means 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). Under either the Fourth
Amendment or § 2510(11), only a person whose conversations or
communications were intercepted or who had conversations of
others intercepted from his premises has standing to challenge
the legality of the wiretap. See United States v . Cruz,
594 F.2d
268, 273 (1st Cir. 1979); United States v . Salemme,
91 F. Supp.
2d 141, 382-83 (D. Mass. 1999), rev’d in part on other grounds,
225 F.3d 78 (1st Cir. 2000).
In this case, it appears to be undisputed that no
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conversations or communications to which Santana was a party were
intercepted pursuant to the wiretap orders of February 22 or
March 2 7 . Santana’s conversations with Alfred Nickerson, whose
telephone was the target of the April 27 wiretap order, were
intercepted on May 7 and May 9. Therefore, Santana only has
standing to challenge evidence obtained pursuant to the April 27
order.
B. Franks Hearing
Santana requested a Franks hearing to address a statement in
the affidavit submitted in support of the April 27 application.
New Hampshire State Trooper Robert L. Quinn is the affiant. The
disputed statement involves surveillance at an address in Nashua,
New Hampshire, that is identified as the home of Santana’s exwife. The apartment number stated in the affidavit, however, is
incorrect.
A hearing was held on September 4 , 2002. The court heard
the testimony of witnesses and argument of counsel, and the
surveillance notes at issue were submitted in evidence. The
court has also carefully considered the parties’ memoranda and
exhibits. Although the record shows that the surveillance and
communication of information from the surveillance was not done
with the care and attention to detail that might be expected,
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nothing suggests that incorrect information was included in the
affidavit knowingly and intentionally or with a reckless
disregard for the truth. See United States v . Rivera-Rosario,
2002 WL 1772934, Nos. 00-1545, 00-1546, 00-1575, 00-1577, 00-
1700, slip op. at 37 (1st Cir. Aug. 7 , 2002) (providing standard
for Franks hearing); United States v . Ranney,
298 F.3d 7 4 , 78
(1st Cir. 2002) (same). In addition, even if the part of the
affidavit pertaining to surveillance of the apartment were
disregarded, the remaining parts of the affidavit are sufficient
to establish probable cause. See
id.
Therefore, Santana did not make the strong preliminary
showing necessary to warrant a full Franks hearing. See, e.g.,
United States v . Manning, 79 F.3d 212, 220 n.6 (1st Cir. 1996).
Further, Santana had an opportunity at the hearing to present his
evidence that the affidavit was invalid. His counsel indicated
that he had no additional evidence to present. Therefore,
Santana’s motion to suppress based on the mistakes in Quinn’s
affidavit is denied.
C. Probable Cause
An application for a wiretap under 18 U.S.C. § 2518 may be
granted if the judge determines “on the basis of the facts
submitted by the applicant, that there is probable cause to
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believe (1) that an individual was committing, had committed, or
is about to commit a crime; (2) that communications concerning
that crime will be obtained through the wiretap; and (3) that the
premises to be wiretapped were being used for criminal purposes
or are about to be used or [are] owned by the target of the
wiretap.” United States v . Diaz, 176 F.3d 5 2 , 110 (2d Cir. 1999)
(paraphrasing §§ 2518(1)(b)(i), (3)(a), ( b ) , ( d ) ) .
The standard for probable cause for purposes of § 2518 is
the same as for a search warrant, and “probable cause for a
search warrant is established if the ‘totality of the
circumstances’ indicate a probability of criminal activity.” Id.
(quoting Illinois v . Gates, 462 U.S. 213 (1983)). See also
United States v . Barnard,
2002 WL 1827285, at *2 (1st Cir. Aug.
4 , 2002) (“Under the ‘probable cause’ standard, the ‘totality of
the circumstances’ disclosed in the supporting affidavits must
demonstrate ‘a fair probability that contraband or evidence of a
crime will be found in a particular place.” ) ; United States v .
Genao,
281 F.3d 305, 308 (1st Cir. 2002) (same). In addition,
the issuing judge’s determination of probable cause is entitled
to great deference and will be reversed only if there is no
substantial basis for the determination. See United States v .
Procopio,
88 F.3d 2 1 , 25 (1st Cir. 1996) (citing Gates,
462 U.S.
at 238-39).
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The court has carefully reviewed the affidavit in light of
Santana’s challenges to the existence of probable cause. The
court is satisfied that the affidavit sufficiently presented
facts showing probable cause to believe that Santana was
committing, had committed, or was about to commit the listed drug
related crimes and that communications concerning those crimes
would be obtained through the requested wiretap of the target
telephone subscribed to Alfred Nickerson. Therefore, the motion
to suppress is denied on the issue of the existence of probable
cause.
D. Necessity
“[A] wiretap application [must] 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.’” United
States v . Lopez, 2002 WL 1880282, No. 01-1390, slip op. at 4 (1st
Cir. Aug. 2 0 , 2002) (quoting United States v . Hoffman,
832 F.2d
1299, 1306 (1st Cir. 1987) quoting
18 U.S.C. § 2518(1)(c)). The
necessity requirement restricts wiretapping to situations where
traditional investigative techniques are not sufficient to expose
the criminal activity. See Rivera-Rosario,
2002 WL 1772934, slip
o p . at 34 (citing United States v . Kahn,
415 U.S. 143, 153 n.12
6
(1974)).
The necessity requirement, however, does not require the
government to exhaust all traditional investigative techniques.
See id. at 34-35. Instead, the government affidavit need only
show that the government made a reasonable good faith effort to
use traditional techniques and a reasonable likelihood that such
procedures would not be sufficient. See id.; see also United
States v . Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989). On review
of an authorization of a wiretap application in the context of a
suppression motion, the district court is to uphold the
authorization if “the issuing court could have reasonably
concluded that normal investigatory procedures appeared to be
unlikely to succeed.”
Id. at 1074.
Quinn’s affidavit submitted in support of the wiretap
application discussed the government’s investigative techniques
in detail. Quinn stated that no confidential informants or
agents had been able to make drug purchases from Nickerson or
Santana despite information that they had been engaged in drug
trafficking since the mid to late 1980s. He stated that there
were then no informants who could make a controlled buy. Quinn
stated that the government had used physical surveillance with
limited success and that further surveillance was not expected to
provide additional information and was likely to be detected. He
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also explained that a grand jury investigation, interviews of the
subjects and their associates, search warrants, and garbage
searches would be ineffective in the investigation. He stated
that pen register information and telephone tolls had been used
to verify telephone calls but could not identify the parties
participating in the calls. As such, the affidavit presented a
sufficient basis on which the issuing judge could have concluded
that further traditional techniques would not be likely to
succeed. See, e.g., Lopez, 2002 WL 1880282, slip o p . at 5 ;
Rivera-Rosario,
2002 WL 1772934, slip op. at 35-36.
Conclusion
For the foregoing reasons, the defendant’s motion to
suppress (document no. 28) is denied.
SO ORDERED.
Joseph A . DiClerico, Jr.
United States District Judge
September 6, 2002
cc: Bjorn R. Lange, Esquire
Mark A . Irish, Esquire
U.S. Probation
U.S. Marshal
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