United States District Court, D. Arizona
V. Wake, Senior United States District Judge.
the Court is Defendant's Motion to Suppress Wiretap
Evidence (Doc. 1079), the Response (Doc. 1113) and the Reply
(Doc. 1127). The Court heard argument on the Motion on August
9, 2019, and received supplemental briefs from both parties.
Pima County wiretap was illegal because not validly
authorized by a designee of the Attorney General. Villa
v. Maricopa County, 865F.3d 1224 (9th Cir.
2017). The statute contains its own exclusionary rule and is
not dependent on the constitutional exclusionary rule. 18
U.S.C. § 2515. As to the federal court wiretap,
Defendant is plainly an “aggrieved person”
because she was “a person against whom the interception
was directed.” 18 U.S.C. § 2510(10).
Defendant lacks standing to assert the illegality of the Pima
County wiretap because the wiretap application was not
directed to her and none of her communications were
intercepted. Section 2515 provides “no part of the
contents of such communication and no evidence derived
therefore may be received in evidence in any trial . . . if
the disclosure of that information would be in violation of
this chapter.” This statutory exclusionary rule appears
to unqualifiedly prohibit admission of the fruits of the
interception if illegal. But the great weight of authority,
including Ninth Circuit authority, precludes Defendant from
challenging the later federal court wiretap obtained based in
part on the fruits of the earlier Pima County wiretap order
obtained in violation of Title III but for which she is not
an aggrieved person.
good faith exception to exclusion is a rule of constitutional
law that mitigates the constitutional exclusionary rule. No.
good faith saves the Pima County wiretap because the
violation of Title III is clear and literal. The Attorney
General's insufficient delegation of authority to all
assistant Attorneys General in Tucson could not have been in
good faith considering the plain language of the federal
statute. Contrary decisions of Arizona state courts were not
merely incorrect but also unreasonable. The purpose of
deterring the Arizona Attorney general from systemic, literal
violation of Title III is served, and necessarily so, by
application of the statutory exclusionary rule.
affidavit in support of the Pima County wiretap application
did not contain materially false statements, much less
deliberate or reckless misstatements. Though expungement and
setting aside of a conviction are technically different,
there was no material difference for purposes of the
assessing credibility of the confidential informant.
However, the omission of the confidential informant's
$100, 000 federal tax lien and its release as satisfied in
whole one month after the wiretap warrant was granted was
material to credibility. The government's proffer of the
confidential informant's accountant's explanation is
vague and fails to state substance and details that would
have been within his personal knowledge. His discussion of
inventory adjustment in an amended return is insufficient on
its face to explain the full $100, 000 reduction in tax
liability. The circumstances, including the temporal
proximity of the affidavit and the release of the tax lien,
allow an inference that the DEA agent knew about his tax lien
and status when he submitted the affidavit. The omission of
that highly relevant financial benefit from the government to
the confidential informant could invalidate the affidavit as
a material omission concerning the confidential
informant's credibility. A Franks hearing will
be ordered on this ground for challenge of the wiretap on
September 3, 2019, at 1:30 p.m.
wiretap application showed “on the basis of the facts
submitted by the applicant that . . . (c) normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be
dangerous.” 18 U.S.C. § 2518(3). The Ninth Circuit
requires a two-step analysis for compliance with section
2518(3). The authorizing court and this Court must first make
a de novo determination of whether the application
made “a full and complete statement of facts” as
to whether or not the investigative procedures had been tried
and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous.” United
States v. Rodriguez, 851 F.3d 931, 938 (9th Cir. 1917).
Contrary to the government's argument (Roc. 113 at 42),
this Court does not decide whether the authorizing court
abused its discretion in finding a full and complete
statement of the facts concerning necessity. This court
resolves that conclusion de novo. Rodriguez at 938.
Only then is it decided whether the authorizing court abused
its discretion in granting the warrant. The omitted facts
were cumulative or not material. Therefore, the omissions do
not invalidate the warrant.
Defendant explicitly challenged the first of three warrants,
but the deficiencies are the same in all three. So that
suffices as challenges to all three.
THEREFORE ORDERED that the tax lien release grounds of
challenge will be considered at the ...