Stanford Law School - Robert Crown Law Library

Filed 1/25/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S137137
v.
Ct.App. 2/8 B173851
AVELINO LEON et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA207150

Defendants Avelino Leon and Victor Aceves were arrested as part of an
investigation into the Arellano-Felix drug trafficking organization, which was
“believed by law enforcement agencies to be one of the most violent drug
trafficking organizations in the Republic of Mexico.” (U.S. v. Hodoyan-Palacios
(S.D.Cal. 1998) 993 F.Supp. 789, 790.) Defendants seek to suppress the contents
and all fruits of five wiretaps that were instituted as part of the investigation,
claiming that the wiretaps violated California law (Pen. Code, § 629.52, subd. (d))
and the Fourth Amendment in that the government’s affidavits in support of the
applications failed to establish necessity for the wiretaps.
Both the superior court and the Court of Appeal determined that the
wiretaps were lawful and denied defendants’ motion to suppress. (Pen. Code, §
629.72.) We affirm.
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BACKGROUND
The five wiretaps at issue here—wiretap Nos. 00-02 and 00-04, wiretap No.
00-02 extension No. 1, and wiretap No. 00-39 extension Nos. 1 and 2—were part
of a multiagency task force investigation of a major Mexico-based narcotics
trafficking organization that culminated in the arrest of 23 people in the United
States. The arrests included narcotics suppliers, importers, distributors,
transporters, and customers. Approximately 214 kilos of cocaine, 1,150 pounds of
marijuana, $1.2 million in United States currency, and numerous firearms
(including assault weapons) were seized.
Evidence obtained from the wiretaps was used to prosecute defendants
Avelino Leon and Victor Aceves in state court. After the superior court denied
their motions to suppress the contents of the wiretaps and any evidence seized
therefrom (Pen. Code, § 629.72), Leon pleaded no contest to possession with
intent to distribute in excess of 20 kilos of cocaine and was sentenced to 17 years
in prison. Aceves pleaded no contest to conspiracy to sell in excess of 10 kilos of
cocaine, as well as use of a false compartment in a motor vehicle with intent to
conceal controlled substances, and was sentenced to 15 years, eight months.
Wiretap No. 00-02
The Los Angeles County District Attorney’s application for wiretap No.
00-02, dated January 25, 2000, was supported by an affidavit from Stephen P.
Diederich, a special agent with the federal Drug Enforcement Administration. The
application described “Target Telephone #1” as a prepaid cell phone subscribed to
by one Guillermo Rodriguez of 4727 W. 17th Street in Lawndale and requested
authorization to intercept communications by Rodriguez, Leon, Aceves,
unidentified males Nos. 1 and 2, and other coconspirators. Special Agent
Diederich stated that Guillermo Rodriguez was an “unidentified person” and that
the Lawndale address was a fictitious address—although defendants Leon and
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Aceves did reside at 4727 W. 149th Street in Lawndale. Diederich explained that,
in his experience, high-level drug traffickers frequently use prepaid cell phones
because no identification is required, the phones can be thrown away at any time,
and the replacement phone cannot be traced back to the user.
The affidavit described an ongoing investigation using wiretaps into a
Mexican-based drug trafficking organization with associates in Los Angeles. The
investigation had resulted in the arrests of several conspirators and the issuance of
arrest warrants for other fugitives. A prior wiretap on a discarded prepaid cell
phone (wiretap No. 99-32) had revealed numerous contacts during the period of
April to June 1999 between narcotics traffickers from the Los Angeles-based
distribution network and an unidentified male, who was believed to be a top-
ranked United States-based manager for the organization. Special Agent
Diederich believed that Target Telephone #1 was being used by the holder of the
discarded cell phone that was the subject of the prior wiretap (No. 99-32), or by a
person playing a similar role in the organization, because the phones had dialed
more than two dozen numbers in common. Prior intercepts of conversations
involving those common numbers related to the manufacturing of
methamphetamine, money laundering, and illegal border crossings.
The affidavit declared that a wiretap was necessary in order to achieve the
objectives of the investigation—namely, obtaining direct evidence to convince a
jury beyond a reasonable doubt of the full scope, extent, and personnel of the
narcotics trafficking conspiracies; the identity and role of all suppliers of narcotics
to the identified conspirators; the identity and role of the main customers of the
identified conspirators; the stash location where the narcotics were stored before
distribution; the organization’s method of distributing narcotics; and the
management and disposition of proceeds generated by the organization’s narcotics
trafficking. Special Agent Diederich then listed the investigative techniques he
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had already used or had considered using in the investigation and explained why
these techniques were not likely to succeed in identifying all members of the
organization and establishing beyond a reasonable doubt the full scope of the
conspiracy. These techniques included the use of a confidential informant; the
conduct of physical surveillance; the use of pen registers, trap-and-trace devices,
toll analysis, and telephone subscriber information; search warrants and trash
searches; and witness interviews, grand jury subpoenas, and grants of immunity.
Diederich noted, in particular, that he had been unable to identify the true user of
Target Telephone #1 or to locate the target telephone’s physical whereabouts.
Special Agent Diederich also explained that, based on his training and
experience, leaders of narcotics trafficking organizations often do not physically
handle the narcotics. Because high-level traffickers issue logistical instructions by
telephone (and thus avoid contact with the narcotics), law enforcement would be
able to discover, through the interception of Target Telephone #1, when narcotics
shipments arrive and which cell heads are to receive those shipments.
Los Angeles County Superior Court Judge Larry P. Fidler approved the
application on January 25, 2000, finding probable cause to believe that the target
subjects had committed, were committing, and were about to commit offenses
involving the importation, possession for sale, transportation, and sale of cocaine
(and conspiracy to commit these offenses) (Pen. Code, § 629.52, subd. (a));1
probable cause to believe that communications concerning these crimes had been,
were being, and would be made over Target Telephone #1, and that information
concerning those crimes would be obtained through the interception (§ 629.52,
subds. (b), (c)); and that normal investigative procedures had been tried and had

1
All further statutory references are to the Penal Code unless otherwise
indicated.
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failed or reasonably appeared either to be unlikely to succeed if tried or to be too
dangerous (§ 629.52, subd. (d)). The wiretap was approved for 30 days.
The Remaining Wiretaps
Based on the information obtained from wiretap No. 00-02, Special Agent
Diederich confirmed that Leon was the user of Target Telephone #1 and submitted
a new application (wiretap No. 00-04) for that cell phone, four other cell phones,
and two pagers. The affidavit disclosed that aerial surveillance in January 2000
had proved unhelpful, that the intercepted conversations had been “extremely
coded” and the participants had identified themselves for the most part only by
moniker, and that the identities of the users and the physical whereabouts of most
of the phones were unknown.
The affidavits for the remaining wiretap application extensions recounted
the progress of the investigation, including the seizure of eight kilos of cocaine
from a Los Angeles hotel and the seizure of $260,125 in cash at the Los Angeles
International Airport in January 2000, the seizure of 1,150 pounds of marijuana at
an Alhambra apartment in February 2000, and the seizure of 172 kilos of cocaine
in three separate incidents in April and May 2000. The affidavits also recited that
the seizures nonetheless had yielded little information as to the organization’s
source of supply or method of distribution; that the task force’s attempts at
physical and aerial surveillance had been detected and, on occasion, compromised;
and that Leon appeared to be coordinating a large shipment of narcotics in the near
future. On September 13, 2000, agents from the Drug Enforcement
Administration arrested 23 people, including Leon and Aceves.
DISCUSSION
“In general, California law prohibits wiretapping.” (People v. Zepeda
(2001) 87 Cal.App.4th 1183, 1195; see § 631.) The Presley-Felando-Eaves
Wiretap Act of 1988 authorized specified law enforcement officials to apply for a
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court order to intercept wire communications, but only where there was probable
cause to believe the target was involved in the importation, possession for sale,
transportation, manufacture, or sale of heroin, cocaine, PCP, or methamphetamine
in specified quantities, or in a conspiracy to commit those offenses. (Former §
629.02, subd. (a)(1), (2), added by Stats. 1988, ch. 111, § 2, p. 450.) In 1995, the
Legislature enacted section 629.50 et seq. in order “to expand California wiretap
law to conform to the federal law.” (Sen. Com. on Crim. Proc., Rep. on Sen. Bill
No. 1016 (1995-1996 Reg. Sess.) as amended Apr. 3, 1995, p. i.) Thus, the district
attorney or other specified individual could apply to the presiding judge of the
superior court (or a designee) for an order to intercept not only wire
communications but also “electronic digital pager” and “electronic cellular
telephone” communications. (Former § 629.50, added by Stats. 1995, ch. 971,
§ 10, p. 7395.) The new scheme also expanded the list of target crimes to include
murder, solicitation to commit murder, the commission of a crime involving the
bombing of public or private property, or aggravated kidnapping. (§ 629.52,
former subd. (a)(2), added by Stats.1995, ch. 971, § 10.) Subsequent amendments
added to the list of target crimes the participation in a criminal street gang
(§ 629.52, subd. (a)(3), amended by Prop. 21, approved Mar. 7, 2000) as well as
felonies involving weapons of mass destruction or restricted biological agents (id.,
subd. (a)(4), amended by Stats. 2002, ch. 605, § 3).
Under current section 629.52, the designated judge may authorize a wiretap
if there is probable cause to believe that an individual has committed, is
committing, or is about to commit one or more of the listed crimes (§ 629.52,
subd. (a)); there is probable cause to believe that communications concerning the
illegal activities will be obtained through that interception (§ 629.52, subd. (b));
there is probable cause to believe that the communications device will be used by
the person whose communications are to be intercepted (§ 629.52, subd. (c)); and
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“[n]ormal investigative procedures have been tried and have failed or reasonably
appear either to be unlikely to succeed if tried or to be too dangerous” (§ 629.52,
subd. (d) (section 629.52(d))).
Defendants do not challenge the issuing court’s finding of probable cause
as to any of the wiretaps. They complain only that the wiretap applications were
not supported by an adequate showing of necessity within the meaning of section
629.52(d), and that the evidence seized as fruit of the wiretaps must be suppressed
under section 629.72.2 Because defendants’ claim of constitutional error parallels
their claim of statutory error, we begin with their claim that the wiretap
applications failed to support Judge Fidler’s finding of necessity under section
629.52(d). (People v. Jackson (2005) 129 Cal.App.4th 129, 149 & fn. 38; see
generally People v. McKay (2002) 27 Cal.4th 601, 608, fn. 3.)
Our analysis of section 629.52 is necessarily informed by title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code
sections 2510-2520, which “provides a ‘comprehensive scheme for the regulation
of wiretapping and electronic surveillance.’ ” (People v. Otto (1992) 2 Cal.4th
1088, 1097.) As we have previously observed, Title III “establishes minimum
standards for the admissibility of evidence procured through electronic
surveillance; state law cannot be less protective of privacy than the federal Act.”
(Otto, supra, 2 Cal.4th at p. 1098.) With respect to necessity, the sole issue
presented here, state law and federal law employ identical language. Each

2
Section 629.72 provides: “Any person in any trial, hearing, or proceeding,
may move to suppress some or all of the contents of any intercepted wire,
electronic pager, or electronic cellular telephone communications, or evidence
derived therefrom, only on the basis that the contents or evidence were obtained in
violation of the Fourth Amendment of the United States Constitution or of this
chapter. The motion shall be made, determined, and be subject to review in
accordance with the procedures set forth in Section 1538.5.”
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requires the judge, before authorizing a wiretap, to find that normal investigative
techniques “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); Pen. Code,
§ 629.52(d).)
The requirement of necessity is designed to ensure that wiretapping is
neither “routinely employed as the initial step in criminal investigation” (United
States v. Giordano (1974) 416 U.S. 505, 515) nor “resorted to in situations where
traditional investigative techniques would suffice to expose the crime.” (United
States v. Kahn (1974) 415 U.S. 143, 153, fn. 12.) The necessity requirement can
be satisfied “by a showing in the application that ordinary investigative
procedures, employed in good faith, would likely be ineffective in the particular
case.” (U.S. v. McGuire (9th Cir. 2002) 307 F.3d 1192, 1196.) As numerous
courts have explained, though, it is not necessary that law enforcement officials
exhaust every conceivable alternative before seeking a wiretap. (Id. at p. 1197;
see also Twenty-seventh Annual Review of Criminal Procedure, Investigation and
Police Practice: Electronic Surveillance (1998) 86 Geo. L.J. 1289, 1294-1295, fn.
420 [collecting cases].) Instead, the adequacy of the showing of necessity “ ‘is “to
be tested in a practical and commonsense fashion,”. . . that does not “hamper
unduly the investigative powers of law enforcement agents.” ’ ” (U.S. v. Oriakhi
(4th Cir. 1995) 57 F.3d 1290, 1298.) A determination of necessity involves “ ‘a
consideration of all the facts and circumstances.’ ” (United States v. Hyde (5th
Cir. 1978) 574 F.2d 856, 867, quoting Sen.Rep. No. 1097, 90th Cong., 2d Sess.
(1968), reprinted in 1968 U.S. Code Cong. & Admin. News pp. 2112, 2190.)
The finding of necessity by the judge approving the wiretap application is
entitled to substantial deference. (People v. Zepeda, supra, 87 Cal.App.4th at p.
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1204; accord, U.S. v. Martinez (1st Cir. 2006) 452 F.3d 1, 4; U.S. v. McLee (7th
Cir. 2006) 436 F.3d 751, 763; U.S. v. Butz (9th Cir. 1993) 982 F.2d 1378, 1383.)3
A. The Application for Wiretap No. 00-02
We begin our review of Judge Fidler’s findings of necessity by examining
the affidavits filed in support of the wiretap applications. (§ 629.50, subd.
(a)(4)(B); see United States v. Martinez (9th Cir. 1978) 588 F.2d 1227, 1231.) In
light of defendants’ arguments in this court, we need focus only on wiretap
application No. 00-02.4 The 23-page affidavit in support of this wiretap
application established probable cause to believe that communications involving
the importation, transportation, and sale of cocaine had been, were being, and
would be made over Target Telephone #1 by the target subjects and also
established the necessity for the wiretap.

3
Although the parties agree that we review deferentially the issuing judge’s
determination that the wiretap was necessary, they disagree as to the precise
formulation of the standard of review. Defendants, for the first time in this
proceeding, urge us to follow the Eighth Circuit, which has held that the necessity
finding predicate to the issuance of a wiretap order under 18 United States Code
section 2518(3)(c) is a factual determination reviewed for clear error. (U.S. v.
Jackson (8th Cir. 2003) 345 F.3d 638, 644.) The Attorney General argues instead
that the necessity finding should be reviewed for abuse of discretion, citing the
rule followed in the majority of federal circuits (see U.S. v. Ramirez-Encarnacion
(10th Cir. 2002) 291 F.3d 1219, 1222, fn. 1, citing cases), the Court of Appeal
(People v. Zepeda, supra, 87 Cal.App.4th at p. 1204), and the courts of other states
(e.g., State v. Cisneros (Wash.Ct.App. 1992) 821 P.2d 1262, 1264). Because our
decision would be the same under either formulation, we need not decide here
precisely how to phrase the deference due a judicial finding of necessity under
section 629.52(d). (See U.S. v. Smith (4th Cir. 1994) 31 F.3d 1294, 1298.)
4
Leon makes no independent challenge to the other wiretap applications; he
argues summarily only that those subsequent filings suffer from “essentially the
same” defects as the affidavit in support of wiretap No. 00-02 to the extent they
reiterate its analysis or, to the extent they contain new information, are the tainted
fruit of the prior wiretap. Aceves, who simply joins in Leon’s arguments on the
merits, likewise makes no separate challenge to the other wiretap orders.
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The affidavit began by recounting an investigation begun in 1997 into the
Arellano-Felix drug trafficking organization, which engaged in the transportation
of multi-ton quantities of cocaine from Mexico into the United States. The
investigation resulted in the arrest in June 1998 of Jorge Castro, a high-ranking
member of the organization, and other coconspirators, as well as the seizure of
3,500 kilos of cocaine and over $15 million in proceeds. Unfortunately, even after
the arrests, many of the distribution cells to which Castro had delivered cocaine
remained intact. Through wiretaps on a since-discarded target telephone, the task
force had discovered that an unidentified person was in contact with narcotics
traffickers from the Los Angeles-based distribution network cells that used to
receive cocaine from the Castro organization and with numerous Mexico-based
telephone numbers known to be used by members of the Arellano-Felix
organization. Based on its investigation, the task force believed the unidentified
person who had used the discarded target telephone was a top-ranked United
States-based manager for the Arellano-Felix organization, with responsibilities
that paralleled those formerly held by Castro. Although the discarded target
telephone was deactivated for lack of payment in July 1999, the task force
believed, based on the large number of telephone numbers in common, that Target
Telephone #1 was being used by the same person or a close associate.
The affidavit also noted that Target Telephone #1 was a prepaid cell phone
and had been purchased by someone providing a fictitious address and possibly a
fictitious name. High-level drug traffickers frequently use prepaid cell phones
because no identification is required for activation, the phone can be discarded at
any time, and law enforcement will be unable to track down the user’s new
telephone.
The discussion of the necessity for the wiretap was set forth in a separate
section of the affidavit consisting of 20 numbered paragraphs. The affidavit stated
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that normal investigative techniques had failed, appeared reasonably unlikely to
succeed if tried, or were too dangerous to achieve the objectives of the
investigation, “that is, to obtain direct evidence that will convince a jury beyond a
reasonable doubt of [¶] a. The full scope, extent and personnel of the narcotics
trafficking conspiracies to which I believe [the target subjects] belong; [¶] b. The
identity and role of all suppliers of narcotics to the identified conspirators; [¶] c.
The identity and role of the main customers of the identified conspirators; [¶] d.
The stash location where the narcotics are stored before distribution; [¶] e. The
organization’s method of distribution of narcotics; and [¶] f. The management and
disposition of proceeds generated by the organization’s narcotics trafficking.” The
affidavit then listed the investigative techniques the task force had used or had
considered using, with an explanation as to why each was unlikely to succeed in
identifying all members of the organization and establishing beyond a reasonable
doubt the full scope of the conspiracy:
As to undercover agents and confidential informants, the affidavit stated
that a confidential informant could not be introduced at that time because the true
user of Target Telephone #1 and the phone’s physical whereabouts were unknown.
Nor, for the same reasons, would it be useful to introduce an undercover agent.
When the user of Target Telephone #1 was identified, the task force would
consider the use of a confidential informant or undercover agent. Such a person,
however, would be unlikely to assist in achieving the goals of the investigation,
inasmuch as members of a large narcotics trafficking organization generally deal
only with known and trusted individuals; the organization’s structure is
compartmentalized such that suppliers, transporters, distributors, customers, and
money launderers do not even know each other; and the organization could
become suspicious merely by having an unknown person attempt to engage the
organization.
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As to physical surveillance, the affidavit reiterated that the user of Target
Telephone #1 and the phone’s whereabouts were unknown and therefore could not
be subjected to physical surveillance. The task force had conducted limited
physical surveillance of defendants’ residence, but “nothing significant was
observed.” Special Agent Diederich also stated, based on his training and
experience with over 100 narcotics investigations as an agent with the Drug
Enforcement Administration, that physical surveillance alone, without wiretap
intercepts, could not achieve this investigation’s objectives. Although physical
surveillance can be useful in confirming the fact of meetings and other interactions
among participants, such observations are generally insufficient to prove their
purpose or their content. Moreover, inasmuch as narcotics traffickers run trivial
errands most of the time, it was highly likely that blanket surveillance would be
detected by the target prior to the pickup or delivery of any significant amount of
narcotics, which would compromise the larger investigation. High-level narcotics
traffickers, such as the ones here, use sophisticated countersurveillance driving
techniques to thwart surveillance. Wiretap intercepts, by contrast, would permit
the task force to assemble surveillance for specific meetings and to conduct the
surveillance at the meeting place, not at the target’s home, which further reduces
the risk that the surveillance would be detected.
As to pen registers, trap-and-trace devices, toll analysis, and subscriber
information, the affidavit explained that these measures, at best, could provide
only a list of the telephone numbers called and the identity provided to the
telephone provider but not the content of or the parties to the calls. Inasmuch as
toll records had already been used to establish the connection between the
discarded target telephone and Target Telephone #1, little more could be gained
by these methods of investigation without the assistance of a wiretap. The
affidavit also stated that narcotics traffickers often use fictitious information or the
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assistance of unwitting persons as subscribers for their telephones in order to
thwart investigation into their illegal activities—and pointed out that such false
information had indeed been given for Target Telephone #1.
As to search warrants, the affidavit explained that they would not be
effective because the true user of Target Telephone #1 and the phone’s physical
location were unknown. Search warrants at this stage thus “could result in law
enforcement compromising the larger investigation with minimal results.” Once
the wiretap revealed the timing of cocaine deliveries and stash locations, the task
force would consider the use of search warrants. However, such searches alone
would not disclose the full scope of the organization’s criminal activities, the
methods used by members of the organization, or the identities of those involved.
Special Agent Diederich added that, in his experience, records kept by narcotics
conspirators are coded and difficult to interpret.
As to witness interviews, grand jury subpoenas, and immunity, Special
Agent Diederich declared, based on his training and experience, that these were
unlikely to advance—and, indeed, would likely impede—the investigation.
Narcotics dealers and customers are unwilling to talk to police or testify before
grand juries or at trial because of fears for their safety or for their own culpability.
Even when granted immunity, a member of the organization who was of sufficient
rank to provide meaningful testimony about the entire organization would be
unlikely to share it because of the fear of retribution against himself or his family.
For these reasons, Diederich believed that any attempt to contact a member of the
organization would likely cause that person to inform other members of the
organization and thus jeopardize the investigation.
As to trash searches, the affidavit reiterated that the true user of Target
Telephone #1 and the phone’s physical location were unknown. Once locations
were identified, the task force would consider the use of trash searches. However,
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even if trash could be removed without detection (and thus without compromising
the investigation), Special Agent Diederich declared, based on his experience, that
it would be unlikely to yield significant evidence. Narcotics traffickers go to great
lengths to destroy evidence that is possibly incriminating and frequently will
dispose of their trash at a site away from their residence.
As to consensual recordings, the affidavit stated that these techniques are
subject to the same limitations as confidential informants and undercover agents,
discussed above.
Special Agent Diederich concluded by emphasizing that, in his experience,
leaders of narcotics trafficking organizations rarely touch the contraband
themselves and coordinate the logistics of their criminal activities over the phone.
He therefore believed that the only viable means of building an effective case
against the target subjects was to intercept their telephone communications,
including those made over Target Telephone #1.
B. The Record Supported the Finding of Necessity for the Wiretaps
Within the Meaning of Section 629.52(d)
Defendants attack Judge Fidler’s finding of necessity on a number of
grounds. None has merit.
1. Boilerplate Allegations
Defendants complain first that the affidavit included “boilerplate”
discussion of the limitations of traditional investigative techniques and failed to
identify any ways in which the investigation into this drug trafficking conspiracy
differed from drug trafficking conspiracies generally. Although it is true that
“ ‘[g]eneralities, or statements in the conclusory language of the statute, are
insufficient to support a wiretap application’ ” (U.S. v. Cline (10th Cir. 2003) 349
F.3d 1276, 1280-1281), the affidavit here did not simply reiterate conclusory
language. It instead analyzed with particularity the limitations of each alternative
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investigative technique in achieving the goals of this investigation. That many of
those limitations are common to most drug conspiracy investigations does not
necessarily preclude a finding of necessity. (U.S. v. Thompson (8th Cir. 2000) 210
F.3d 855, 859.) In cases of this nature, the same reasons for futility of certain
investigative techniques will frequently recur. But “the fact that drug
investigations suffer from common investigatory problems does not make these
problems less vexing.” (U.S. v. Milton (8th Cir. 1998) 153 F.3d 891, 895.) There
is thus no requirement that the government establish that an individual narcotics
investigation differs in some particular way from an ordinary narcotics
investigation. “Necessity is a function of the specifics of the case, not its
uniqueness. If a seemingly ‘ordinary’ drug investigation requires a Title III
wiretap, and the government establishes that necessity with the particulars of a
given investigation, no more is needed. The ordinariness of the investigation does
not preclude a finding of necessity for the use of wiretaps to further the
investigation.” (U.S. v. Martinez, supra, 452 F.3d at pp. 5-6.)
Defendants’ reliance on United States v. Kalustian (9th Cir. 1975) 529 F.2d
585, which contained some contrary language in suppressing electronic
surveillance evidence in a gambling investigation, is misplaced. There, “no
mention was made of the defendants or the particular circumstances to be
investigated.” (United States v. Tufaro (S.D.N.Y. 1983) 593 F.Supp. 476, 489.)
Hence, “Kalustian teaches no more than that” an “affidavit composed solely of
conclusions unsupported by particular facts gives no basis for a determination of
compliance” with the necessity requirement. (United States v. Spagnuolo (9th Cir.
1977) 549 F.2d 705, 710; see also United States v. Williams (D.C. Cir. 1978) 580
F.2d 578, 588 [distinguishing Kalustian as involving “generalized and conclusory
statements that other investigative procedures would prove unsuccessful”].) By
contrast, the affidavit here described with particularity the problems with
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conventional investigative techniques, including those posed by the fact that the
identity of the user and the location of Target Telephone #1 were unknown.
Defendants’ reliance on U.S. v. Blackmon (9th Cir. 2001) 273 F.3d 1204, in
which a divided panel of the Ninth Circuit suppressed the fruits of a wiretap in a
narcotics investigation, is likewise unconvincing. In that case, the panel majority
found that the affidavit contained material misstatements, including untrue claims
that surveillance of Blackmon had been attempted and had failed and that
cooperating informants possessed only limited knowledge concerning the scope of
the criminal enterprise, and omitted any discussion of the potentially successful
use of informants, including one who had “special access” to Blackmon. (Id. at p.
1209.) Because of these defects, the court elected to review the affidavit, purged
of its misstatements, “de novo,” without deferring to the judicial finding of
necessity below. (Id. at p. 1211 (dis. opn. of Wardlaw, J.); see U.S. v. Yeje-
Cabrera (1st Cir. 2005) 430 F.3d 1, 8 [distinguishing Blackmon].) Here, however,
we have found (and defendants have conceded) that the judicial finding of
necessity below should be reviewed deferentially and that the affidavits contain no
material misstatements or omissions. Inasmuch as the Ninth Circuit has
subsequently explained that its holding in Blackmon “was premised on a finding
that the affidavits supporting the wiretap applications were plagued by material
misstatements and omissions” (U.S. v. Fernandez (9th Cir. 2004) 388 F.3d 1199,
1237), we do not find Blackmon persuasive here. (U.S. v. Canales Gomez (9th
Cir. 2004) 358 F.3d 1221, 1225 [distinguishing Blackmon on the ground that “[n]o
such misstatements are alleged in this case”]; accord, U.S. v. Martinez, supra, 452
F.3d at p. 6.)
2. The Relevance of the Conspiracy Allegations
Defendants argue next that section 629.52(d) does not set forth a lower
standard of necessity for conspiracy cases. We agree that a mere allegation “that a
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person is a member of a conspiracy . . . is not a sufficient reason to obtain a
wiretap” (U.S. v. Carneiro (9th Cir. 1988) 861 F.2d 1171, 1181), but the People
make no such argument here. They argue instead, correctly, that the fact of a
conspiracy is a circumstance to be considered, along with all the other facts and
circumstances, in determining whether conventional investigative techniques have
failed, are unlikely to succeed if tried, or are too dangerous to try. For example,
persons involved in a conspiracy almost invariably will discuss their plans,
methods, and goals with other members of the conspiracy. A solitary criminal, on
the other hand, is unlikely to discuss the crime with others. Concerted action,
moreover, “increases the likelihood that the criminal object will be successfully
attained and decreases the probability that the individuals involved will depart
from their path of criminality.” (Callanan v. United States (1961) 364 U.S. 587,
593; accord, People v. Zamora (1976) 18 Cal.3d 538, 555-556.) And, “[u]nlike
individual criminal action, which comes to an end upon the capture of the
criminal, collective criminal action has a life of its own. Like the Hydra of Greek
mythology, the conspiracy may survive the destruction of its parts unless the
conspiracy is completely destroyed. For even if some or many of the conspirators
are imprisoned, others may remain at large, free to recruit others eager to break the
law and to pursue the conspiracy’s illegal ends.” (U.S. v. McGuire, supra, 307
F.3d at pp. 1197-1198.) Thus, in many cases, the existence of a conspiracy will
suggest not only that there will be communications in order to plan the crime, but
that such planning will occur almost exclusively during such communications.
Furthermore, the existence of the conspiracy may not only increase the likelihood
any given crime will succeed, but also the likelihood the criminal enterprise will
survive the arrest of less than all of its participants—which is precisely what
occurred when the government made its first round of arrests of members of the
Arellano-Felix drug trafficking organization. In sum, the existence of a
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conspiracy, while not determinative, is an important factor in analyzing the
necessity for a wiretap. (Cf. Scott v. United States (1978) 436 U.S. 128, 140
[“when the investigation is focusing on what is thought to be a widespread
conspiracy more extensive surveillance may be justified in an attempt to determine
the precise scope of the enterprise”].)
In this case, no one disputes that telephones were the primary means of
communication among the conspirators. “It would have been difficult if not
impossible by means other than wiretap to determine the scope of the conspiracy
or to develop enough evidence to successfully prosecute the conspirators.” (U.S.
v. Carrillo (D.Colo. 2000) 123 F.Supp.2d 1223, 1245; accord, U.S. v. Khan (9th
Cir. 1993) 993 F.2d 1368, 1370, 1375.)
3. Failure to Exhaust or Otherwise Justify the Failure to Attempt Normal
Investigative Techniques
Defendants then argue that the government failed to exhaust several
investigative techniques. As they concede, however, the adequacy of the showing
concerning other investigative techniques is “ ‘to be tested in a practical and
commonsense fashion,’ [citation] that does not ‘hamper unduly the investigative
powers of law enforcement agents’ ” (U.S. v. Smith, supra, 31 F.3d at p. 1297) and
that “ ‘does not mandate the indiscriminate pursuit to the bitter end of every non-
electronic device’ ” (U.S. v. Bennett (9th Cir. 2000) 219 F.3d 1117, 1122). The
government “ ‘need only lay a “factual predicate” sufficient to inform the judge
why other methods of investigation are not sufficient.’ ” (U.S. v. Williams (3d Cir.
1997) 124 F.3d 411, 418.) We cannot say that Judge Fidler acted unreasonably in
finding that normal investigative techniques had failed or were unlikely to succeed
if tried in this case.
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(a) Confidential Informants
Defendants, pointing to a sealed portion of the affidavit that indicated the
existence of a confidential informant, fault the affidavit for failing to explain why
the investigation could not proceed through that informant. Yet defendants fail to
explain how the informant could even have identified the user of Target Telephone
#1, whose identity and location were unknown, without raising suspicion. As the
affidavit explained, members of the organization could be “alarmed by an
informant simply approaching one of them and could become concerned that the
organization was under investigations.” More generally, the affidavit recited that
large-scale narcotics organization are compartmentalized in order to protect the
organization and that confidential informants therefore would not be successful in
identifying the full nature and scope of the organization. (U.S. v. Canales Gomez,
supra, 358 F.3d at p. 1226.) Under these circumstances, the government could
reasonably have concluded that attempting to connect the informant to this part of
the organization would have aroused the suspicions of other participants, thus
endangering both its informant and the investigation, without providing sufficient
information to achieve its goals. (U.S. v. Carter (D.C. Cir. 2006) 449 F.3d 1287,
1294; U.S. v. Guerra-Marez (5th Cir. 1991) 928 F.2d 665, 671.)
(b) Pen Registers
Defendants complain that the affidavit merely identified the limitations of
pen registers and similar techniques and therefore could not establish necessity for
a wiretap. We disagree. “[A]lthough the affidavit’s assertions of inadequacy
‘might appear boilerplate, the fact that drug investigations suffer from common
investigatory problems does not make these problems less vexing.’ ” (U.S. v.
Thompson, supra, 210 F.3d at p. 859.) Moreover, the affidavit stated that the task
force had already compared toll records for Target Telephone #1 with the
discarded target telephone, which had provided the basis for their suspicion that
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the users were the same or close associates, and announced that the task force
intended to initiate a pen register on Target Telephone #1. Because these alternate
techniques had not (and could not) identify the persons making or receiving the
communications, the contents of the conversations, or whether the
communications were in furtherance of the drug operation, they “could not
significantly advance” or “achieve the objectives of the investigation.” (U.S. v.
Carrillo, supra, 123 F.Supp.2d at p. 1241; see also U.S. v. Decoud (9th Cir. 2006)
456 F.3d 996, 1007.)
(c) Search Warrants
Defendants once again fault the affidavit for relying on limitations that
would apply to “ ‘most if not all narcotics investigations.’ ” What defendants
overlook, however, is that the affidavit also explained why those generic
limitations applied to this investigation. In particular, defendants do not challenge
Special Agent Diederich’s statement that “[a]t this time, I know of no locations at
which to [execute] search warrants,” given that the stash locations, the timing of
deliveries, the identity of the user of Target Telephone #1, or the user’s location
were all unknown. Defendants also challenge the affidavit’s failure to discuss the
possibility of searching their residence, which was known to the task force—yet
offer nothing to suggest that probable cause existed to search their residence. (See
U.S. v. Carrillo, supra, 123 F.Supp.2d at p. 1237.) More importantly, defendants
fail to grapple with the affidavit’s concern that a search conducted prematurely
could compromise the larger investigation while providing minimal results. (U.S.
v. Carter, supra, 449 F.3d at p. 1294; U.S. v. Smith, supra, 31 F.3d at p. 1299.)
(d) Physical Surveillance
Defendants characterize the affidavit’s analysis of physical surveillance as
“stating that it is just too bothersome to follow a suspect around while he does
‘trivial errands’ ” and assert that “[b]lanket surveillance may be inconvenient and
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costly, but it can be done and does work.” Yet, as the affidavit discloses, limited
surveillance had already been conducted at defendants’ residence without success,
and the task force knew of no other locations at which to conduct surveillance,
especially since the identity and whereabouts of the user of Target Telephone #1
were unknown. Moreover, the affidavit’s reference to “trivial errands” was
merely to illustrate that without the wiretap, the task force would have to place the
known targets under blanket surveillance, which would make it “highly likely” the
surveillance would be detected and the investigation compromised. (See U.S. v.
Martinez, supra, 452 F.3d at p. 5; see generally U.S. v. Ashley (1st Cir. 1989) 876
F.2d 1069, 1075.)
(e) Trash Searches
Defendants’ contention that the affidavit failed to provide a specific,
particularized reason for rejecting this technique is belied by the affidavit itself,
which reiterates that the address of the user of Target Telephone #1 was unknown,
that narcotics traffickers go to great lengths to destroy incriminating evidence
(including carrying their trash away to a different site), and that trash removal by
law enforcement poses the risk of detection. Although defendants suggest that the
task force could have conducted a trash search of their residence, they have not
shown that there was a basis for believing significant evidence would be
uncovered though such a search. Defendants thus offer no basis for second-
guessing the relative risks and benefits of trash searches in this case. (U.S. v.
Canales Gomez, supra, 358 F.3d at p. 1224.)
(f) Interviews, Grand Jury Subpoenas, and Immunity
Defendants claim that the affidavit’s discussion of these techniques
“completely ignore[s] the possibility of a confession being obtained, perhaps
based upon a promise of leniency” as well as the potential of detaining a material
witness in custody, which “might solve the problem of tipping off others with
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specific information.” In truth, the affidavit considered the possibility that a high-
level member of the organization might provide information in exchange for
leniency but considered it unlikely “because of fear of retribution against himself
or his family.” Special Agent Diederich considered it more likely that the
conspirator who received such an offer would “inform other members of the
organization and thus jeopardize the investigation.” Neither a promise of leniency
nor the detention of a material witness in custody would alleviate these concerns.
Moreover, granting immunity to an organization member who was at a sufficiently
high level to provide significant information would “insulate highly culpable
members of the conspiracy from prosecution.” (U.S. v. Martinez, supra, 452 F.3d
at p. 5.) “The government’s desire not to alert any of the targets of the
investigation is reasonable.” (U.S. v. Carrillo, supra, 123 F.Supp.2d at p. 1236.)
4. Failure to Consider Aerial Surveillance or Witness Relocation
Finally, defendants claim the affidavit was deficient in failing to consider
two additional investigative techniques: aerial surveillance and witness relocation.
Before analyzing these techniques, we note at the outset that “courts are reluctant
to impose their hindsight upon law enforcement agencies, and the proponent of the
application need not establish that ‘every other imaginable mode of investigation
would be unsuccessful.’ ” (U.S. v. Guerra-Marez, supra, 928 F.2d at p. 670.) In
particular, “[a]fter-the-fact suggestions by defense attorneys as to how an
investigation might have been handled are entitled to little weight in the analysis
. . . . The fact that the government could have taken some different or additional
steps in its investigation does not demonstrate that the wiretap orders were issued
in error,” because “ ‘[t]he government need not exhaust or explain its failure to
exhaust every conceivable investigative procedure before resorting to
wiretapping.’ ” (U.S. v. Carrillo, supra, 123 F.Supp.2d at p. 1245.) Indeed,
Congress acknowledged that “[m]erely because a normal investigative technique
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is theoretically possible, it does not follow that it is likely.” (Sen.Rep. No. 1097,
supra, 1968 U.S. Code Cong. & Admin. News, at p. 2190.)
Neither of the techniques above was likely to have succeeded in fulfilling
the goals of the investigation. Aerial surveillance falls within the affidavit’s
category of “Physical Surveillance” and suffers from the same limitations and the
same risks as surveillance on foot or by automobile. Indeed, as recounted in the
application for wiretap No. 00-04, the task force did engage in aerial surveillance
on January 26, 2000. However, the helicopter lost the “visual” of the open trunk
because it had to orbit, and a member of the organization subsequently became
aware of the surveillance and employed countersurveillance techniques.
Knowledge of the physical surveillance, of course, only increased the necessity for
the wiretap. (U.S. v. Decoud, supra, 456 F.3d at p. 1007; U.S. v. Ashley, supra,
876 F.2d at p. 1075.) As to placing cooperating high-level members of the
organization into a witness relocation program, defendants have made no showing
that any such person had wanted not only to withdraw from the conspiracy but
also to relocate with his or her loved ones under a new identity. (U.S. v. Carrillo,
supra, 123 F.Supp.2d at p. 1236 [“The investigators had no basis to believe any of
the participants would be willing to cooperate”].) Accordingly, approaching a
member of the organization with an offer to enter a relocation program posed the
same risk of compromising the investigation as did approaching a member of the
organization with an offer of immunity. (See U.S. v. Gruttadauria (E.D.N.Y.
2006) 439 F.Supp.2d 240, 248.) In neither circumstance can the affidavit be
faulted for failing to identify these particular investigative techniques by name
instead of by category, nor have defendants offered any reason for second-
guessing law enforcement’s assessment of the relative risks and benefits of either
technique.
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As demonstrated above, the wiretap was not sought as the first step in this
investigation, nor did the government bypass viable alternative techniques in a
rush to use this extraordinary method of investigation. “Few threats to liberty
exist which are greater than that posed by the use of eavesdropping devices”
(Berger v. New York (1967) 388 U.S. 41, 63) but, as our Legislature has
recognized, that liberty must yield to the real needs of law enforcement in
appropriate circumstances. (See § 630.) None of defendants’ proposed
alternatives, taken singly or in combination, offered a realistic prospect of
exposing “the extent and structure of the conspiracy” without the assistance of
wiretaps. (U.S. v. Plescia (7th Cir. 1995) 48 F.3d 1452, 1463.) In short,
defendants have not shown that Judge Fidler acted unreasonably in concluding
that the affidavit supporting the application for wiretap No. 00-02 established
necessity for the wiretap.
C. Remaining Issues
Having rejected defendants’ claim that the wiretaps violated section
629.52(d), we reject as well defendants’ contention that the wiretaps violated the
Fourth Amendment, which rests on the same facts and legal standards discussed
above. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Accordingly, we
need not resolve the novel questions presented by the People’s petition for
review—namely, whether a defendant who has procured a cell phone under a false
name and for a criminal purpose can have a legitimate expectation of privacy in
conversations made and received on that telephone within the meaning of the
Fourth Amendment and, if not, whether Penal Code section 629.72 (which was
enacted by a two-thirds vote of each house of the Legislature) expanded the
universe of people who may challenge evidence seized as a result of a wiretap
beyond the categories defined by the Fourth Amendment. (See Leroy v. Great
Western United Corp. (1979) 443 U.S. 173, 181 [“As a prudential matter it is our
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practice to avoid the unnecessary decision of novel constitutional questions”];
Ashwander v. Valley Authority (1936) 297 U.S. 288, 346-347 (conc. opn. of
Brandeis, J.).)
DISPOSITION
The judgment of the Court of Appeal is affirmed.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Leon
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 131 Cal.App.4th 966
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S137137
Date Filed: January 25, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Robert J. Perry

__________________________________________________________________________________

Attorneys for Appellant:

Kenneth H. Lewis, Peter N. Priamos and Arthur Lewis for Defendant and Appellant Avelino Leon.

Sandra Uribe and Nancy Gaynor, under appointments by the Supreme Court, for Defendant and Appellant
Victor Aceves.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys
General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Kristofer Jorstad and
Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Kenneth H. Lewis
3580 Wilshire Boulevard, Suite 1045
Los Angeles, CA 90010
(213) 624-4904

Mary Sanchez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2364

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Opinion Information

Date:	Docket Number:
Thu, 01/25/2007	S137137

Disposition
Jan 25 2007	Opinion: Affirmed

Dockets
Sep 9 2005	Petition for review filed   appellant Avelino Leon
Sep 12 2005	3rd petition for review filed   respondent People
Sep 12 2005	2nd petition for review filed   appellant Victor Aceves
Sep 13 2005	Received Court of Appeal record
Oct 31 2005	Time extended to grant or deny review   to and including December 9, 2005, or the date upon which review is either granted or denied.
Oct 31 2005	Received Court of Appeal record
Nov 16 2005	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 28 2005	Filed letter from:   Atty Kenneth Lewis re: whether himself and Mr Priamos were retained to continue on this case, and the answer is yes. Mr. Lewis will be arguing the case when that time comes.
Dec 1 2005	Order filed   In the above-captioned matter, the People are designated as the petitioner in this court, and defendants are designated as the respondents in this court. The People are directed to file the opening breif on the merits, addressing all issues raised in all the petitions for review that were granted. (Cal. Rules of Court, rule 29.1(a)(6).)
Dec 9 2005	Order filed   Upon request of appellant Victor Aceves for Appointment of counsel, the California Apellate Project is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Dec 9 2005	Request for extension of time filed   Petitioner requesting to January 15, 2006, to file opening brief on the merits (to court for permission to file)
Dec 13 2005	Extension of time granted   On application of petitioner and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including January 15, 2006.
Jan 9 2006	Request for extension of time filed   to file opening brief/merits [respondent's] to 02-14-06
Jan 11 2006	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 14, 2006.
Feb 7 2006	Request for extension of time filed   Opening Brief/Merits to 3-16-06>>Respondent People Deputy Attorney General Mary Sanchez
Feb 17 2006	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 16, 2006. No further extensions of time are contemplated.
Mar 10 2006	Opening brief on the merits filed   Respondent People Deputy Attorney General Mary Sanchez
Apr 3 2006	Request for extension of time filed   Answer Brief/Merits to 5-10-06 Respondent Avelino Leon Attorneys Kenneth H. Lewis and Peter N. Priamos
Apr 7 2006	Extension of time granted   On application of respondent Avelino Leon and good cause appearing, it is ordered that the time to serve & file respondent's answer brief on the merits is hereby extended to and including 5/10/06.
Apr 7 2006	Request for extension of time filed   to file answer brief/merits to 5-10-06>>Respondent Victor Aceves Attorney Nancy Gaynor, CAP Staff
May 4 2006	Request for extension of time filed   answer brief on the merits to 6-12-06 Respondent Avelino Leon Attorneys Kenneth H. Lewis & Peter N. Priamos
May 10 2006	Request for extension of time filed   Answer brief/merits to 6-9-06>>Respondent Victor Aceves Nancy Gaynor, CAP Staff
May 15 2006	Extension of time granted   On application of respondent Victor Aceves and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 9, 2006. No further extensions of time are contemplated.
May 16 2006	Association of attorneys filed for:   Appellant Avelino Leon Attorney Arthur Lewis
May 22 2006	Extension of time granted   On application of respondent Avelino Leon and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 12, 2006. No further extensions of time are contemplated.
Jun 8 2006	Answer brief on the merits filed   Avelino Leon, appellant Kenneth H. Lewis, Peter N. Priamos & Arthur Lewis, counsel
Jun 8 2006	Request for judicial notice filed (granted case)   by Avelino Leon, appellant
Jun 8 2006	Request for extension of time filed   answer brief/merits to 7-10-06 Nancy Gaynor, Calilfornia Appellate Project
Jun 12 2006	Opposition filed   to request for Judicial Notice By: Supervising Deputy A.G. Mary Sanchez for respondent
Jun 13 2006	Extension of time granted   On application of respondent Victor Aceves and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 10, 2006. Absent a compelling showing of good cause, no further extensions of time will be granted.
Jun 26 2006	Note: Mail returned and re-sent   coyp of order dated 6/13/06 to Atty Arthur Lewis. Incorrect address in our docket.
Jul 10 2006	Answer brief on the merits filed   Appellant Victor Aceves CAP Staff Nancy Gaynor
Jul 24 2006	Request for extension of time filed   The People, respondent [to file reply brief to August 30, 2006] Mary Sanchez, Supervising Deputy A.G.
Aug 28 2006	Reply brief filed (case fully briefed)   Petitioner, The People Mary Sanchez, Supervising Deputy Attorney General (counsel)
Nov 7 2006	Case ordered on calendar   Wednesday, December 6, 2006, at 9:00 a.m., in Los Angeles
Nov 21 2006	Request for judicial notice denied   Leon's Motion for Judicial Notice, filed June 8, 2006, is denied.
Dec 6 2006	Cause argued and submitted
Jan 24 2007	Notice of forthcoming opinion posted
Jan 25 2007	Opinion filed: Judgment affirmed in full   Opinion By: Baxter, J. joined by: George, C.J.; Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Mar 29 2007	Remittitur issued (criminal case)
Apr 6 2007	Received:   Receipt for Remittitur from 2CA8
Oct 22 2009	Compensation awarded counsel   Atty Steiner - California Appellate Project

Briefs
Mar 10 2006	Opening brief on the merits filed
Jun 8 2006	Answer brief on the merits filed
Jul 10 2006	Answer brief on the merits filed
Aug 28 2006	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website