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United States v. Diaz-Lara

United States District Court, D. Alaska

November 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
YEIMY DIAZ-LARA, ANNA LARA-ZELAYA, Defendants.

          FINAL REPORT AND RECOMMENDATION [1] TO DENY MOTION TO SUPPRESS [DOC. 83]

          DEBORAH M. SMITH CHIEF U.S. MAGISTRATE JUDGE

         I. INTRODUCTION

         Defendant 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. 89).[2]

         The 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.

         The defense motion is now ripe for consideration. For the reasons below, the Court recommends the District Court DENY the motion to suppress.

         II. STATEMENT OF FACTS

         On July 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).

         The 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).

         The 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).

         It also 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 46-62).

         1. Confidential Sources (Doc. 85-2 at 46-48)

         Two 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.”

         2. Controlled Purchases (Doc. 85-2 at 48-49)

         Law 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.

         3. Physical Surveillance (Doc. 85-2 at 49-51)

         After 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.

         4. Undercover Agents (Doc. 85-2 at 52)

         An 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 ...


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