United States District Court, D. Alaska
FINAL REPORT AND RECOMMENDATION
TO DENY MOTION TO SUPPRESS [DOC. 83]
DEBORAH M. SMITH CHIEF U.S. MAGISTRATE JUDGE
Yeimy Diaz-Lara has filed a motion to suppress communications
obtained as the result of wiretap warrant 3:15-mc-00027 (Doc.
83). Defendant Anna Lara-Zelaya joined (Doc.
defense motion argues the wiretap was unlawful because the
affidavit supporting its application did not satisfy the
“necessity requirement” of 18 U.S.C. section
2518-that is, it did not show that law enforcement had
adequately pursued other investigative methods before seeking
authorization for the wiretap (Doc. 83 at 5-6). The
government filed a response in opposition (Doc. 103), in
which it argued the wiretap application showed necessity.
Because the parties rely upon the four corners of the
application and the accompanying affidavit for their
arguments, no evidentiary hearing was held.
defense motion is now ripe for consideration. For the reasons
below, the Court recommends the District Court DENY the
motion to suppress.
STATEMENT OF FACTS
30, 2015, Assistant United States Attorney Stephan Collins
applied for an order pursuant to section 2518 of Title 18 of
the U.S. Code, commonly referred to as the federal Wiretap
Act. The application sought authorization to intercept wire
communications to and from a specified cell-phone number
(Target Telephone), registered to one Darwin Diaz-Lara
(Darwin) (Doc. 85-1 at 2). The application was supported by
an affidavit sworn by a special agent of the Drug Enforcement
Administration (DEA) (Doc. 85-2).
affidavit submitted that probable cause existed to believe
that defendants Yeimy Diaz-Lara and Anna Lara-Zelaya and
others had conspired with Darwin to commit several
drug-trafficking related offenses (Doc. 85-2 at 3-4). This
affidavit outlined an investigation begun in February 2013,
more than two years before law enforcement applied for the
wiretap. It also alleged that the Target Telephone was being
used in connection with these offenses (Doc. 85-2 at 4).
application stated several discrete investigative goals of
the intended interception, specifically, discovery of (1) the
identities and methods of operation of all the individuals
who were supplying the drugs in question and who were
distributing the drugs and their proceeds; (2) the exact
locations at which the drugs and proceeds were obtained and
stored; and (3) the methods through which the proceeds were
laundered, distributed, and concealed (Doc. 85-2 at 5-6).
stated, “[b]ecause normal investigative procedures have
been tried and failed, or reasonably appear unlikely to
succeed if tried, or are otherwise too dangerous to try, this
application for authorization to intercept wire and
electronic communications is being sought to achieve these
investigative goals” (Doc. 85-2 at 6). The affidavit
identified no fewer than twelve other investigative methods
which had been attempted and failed or which the agent
believed were unlikely to succeed if tried. (Doc. 85-3 at
Confidential Sources (Doc. 85-2 at 46-48)
confidential sources (CS) were developed. One of these gave
vague background information regarding the trafficking but
was unable to assist law enforcement with purchase of
controlled substances from Diaz-Lara. The other had a
relationship with Darwin dating back to 2012 and was
currently bringing new customers to Darwin “which [the
confidential source] has done in introducing a DEA undercover
agent to [Darwin].” The affidavit noted, however,
“[d]ue to [the source's] current role . . . it is
very unlikely that [the source] will gain access to a
position that would allow other individuals to learn the
methods utilized by the [Darwin] organization.”
Controlled Purchases (Doc. 85-2 at 48-49)
enforcement had made five drugs purchases from Darwin,
totaling thirty-four ounces of illicit substances. The
affidavit noted that the sum of these purchases were very
costly to DEA. The most recent purchase had included an
attempt to identify other co-conspirators via electronic
surveillance. However, this attempt failed because Darwin
personally responded to the call within 20 minutes.
Physical Surveillance (Doc. 85-2 at 49-51)
tracking Darwin's vehicle via an installed GPS tracker
for months, agents identified his residence but not his
source for the drugs he sold. Surveillance also showed Darwin
to be practiced in evasive maneuvers following transactions.
The agent reasoned that physical surveillance also had
limited potential since it might show the location of a
meeting but not the topic or the role of the participants.
Undercover Agents (Doc. 85-2 at 52)
undercover agent (UC) was used for the purchase of drugs, but
the affidavit noted this came with financial cost and safety
risk. Law enforcement had no reason to think ...