United States v. Arevalo

112 F. Supp. 3d 1185, 2015 U.S. Dist. LEXIS 79380, 2015 WL 3796055
CourtDistrict Court, D. Kansas
DecidedJune 18, 2015
DocketNos. 13-10140-01, 13-10140-02, 13-10140-03
StatusPublished

This text of 112 F. Supp. 3d 1185 (United States v. Arevalo) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arevalo, 112 F. Supp. 3d 1185, 2015 U.S. Dist. LEXIS 79380, 2015 WL 3796055 (D. Kan. 2015).

Opinion

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief Judge.

The government has charged all the defendants (Manuel Torres Arevalo, Marisela Ramirez, Jorge Rodriguez-Maciel, Maria Rosario Diaz, and Victor Diaz) with conspiring to distribute 50 grams or more of methamphetamine (in violation of 21 U.S.C. §§ 846, 841). The government also charges that defendant Marisela Ramirez mutilated a Federal Reserve Note (18 U.S.C. § 333), and attempted the depredation of government property (18 U.S.C. § 1361).

This matter is before the court 'on two motions to suppress wiretap interceptions, filed on behalf of the defendants Arevalo, Ramirez, and Rodriguez-Maciel. The first motion (Dkt. 47) was, filed on behalf of all three defendants on December 9, 2013. The second motion (Dkt. 69), on behalf of Ramirez and Rodriguez-Maciel, was filed on June 2, 2014.

The defendants’ motions address different issues. The first motion challenges the -wiretaps on the grounds that the interceptions did not comply with the statutory requirements for “minimization,” that is, the requirement that intercepting officers try to avoid listening to innocent conversations. See 18 U.S.C. § 2518(5) (wiretaps “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception”). Under 18 U.S.C. § 2518(5), when law enforcement agents listen to a conversation in a foreign language “and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.”

The defendants agree that the validity of the wiretaps is determined by Kansas law. (Dkt. 69, at 2). Kansas law permits judges to authorize wiretaps, but the authority to intercept calls is limited to the judge’s territorial jurisdiction. State v. Adams, 2 Kan.App.2d 135, 576 P.2d 242 (1978). Under Kansas law, an' “interception” occurs when the police listening device actually intercepting is within its jurisdiction. State v. Gibson, 255 Kan. 474, 489, 490, 874 P.2d 1122 (1994). See United States v. Luong, 471 F.3d 1107, 1109 (9th Cir.2006). Thus, the interception happens where the tapped phone is located and where law enforcement-officers first overhear the calk United States v. Rodriguez, 968 F.2d 130, 136 (2nd Cir.1992).

The defendants allege that in the present action the calls were not intercepted within the territorial jurisdiction of Johnson County, Kansas, bécause “[a]fter the first thirty days, the calls were intercepted and monitored in St. Louis.” (Dkt. 47, at 1-2). According^ the-government, however, “all calls ... were initially intercepted, heard and recorded in Johnson County, Kansas.” (Dkt. 95, at 12).

Findings of Fact

The first two wiretap orders, TT1 (for “Target Telephone”) and TT2, were issued by á Johnson County District Judge on March 29, 2013. TT1 authorized interception of a prepaid cellular telephone issued to a “Heather -Lock” at 1052 Longwood Avenue, but actually used¡‘by defendant Arevalo. TT2 authorized interception of a prepaid cellular telephone issued to “David Lopez,” but also used by Arevalo. Both orders stated that the

interceptions ... will occur at the offices of the DEA Kansas City Office, located at 7600 College Boulevard in Overland Park, Johnson County, Kansas, regardless of where the telephone calls are placed lo or from, so that all interceptions will first be heard in the. DEA [1188]*1188office in Overland Park, Johnson County, Kansas.

In addition, both TT1 and TT2 required minimization of the intercepted communications, pursuant to Kansas law:

Conversations- will be minimized in accordance with K.S.A. 22-2516(5). These interceptions will also be minimized when it is determined, through voice identification, physical surveillance or otherwise, that neither Subject Inter-ceptees, nor their associates, when identified, are participants in the conversation unless it is determined during the portion of the conversation already overheard that the conversation is criminal in nature. Even if one or more associates, when identified, are a participant in the conversation, monitoring, will be minimized if the conversation- is not criminal in nature or otherwise related to the offens.es under investigation. It is understood that the agents will be permitted to spot check minimized conversations to ■ determine whether the conversation has -turned criminal in nature, and therefore, subject to interception that an expert or person otherwise fluent in that language will be available to monitor and to translate during the interception whenever possible, In the event -the translator/expert is not an investigative or law enforcement officer, the translator, whether a language trained support employee or someone under contract with the Government, will be under the direct supervision of an investigative or law enforcement officer authorized to conduct the interception. If however, such a translator is not reasonably available during the interception period, minimization may be accomplished as soon as practical after such interception. The following after-the-fact minimization procedures have been established for conversations: (1) All such foreign language conversations will be intercepted and recorded in their entirety; and (2) As soon as practicable after such interception, these conversations will be minimized by a translator under the guidance of an investigative or law enforcement officer authorized to ’ conduct the interception. '

Consistent with this order, the agents overseeing the wiretap arranged to have linguists in the Overland Park office to monitor the telephone calls.

On April 2 and 8, 2013, the same judge issued Amended Orders as to TT1 and TT2, based on information showing the use of the telephones. The Amended Orders contained identical language as to the place of interception and the requirement for minimization.- The TT1 authorization ended April 27, 2013. The TT2 authorization ended April 26, but was reauthorized the same day.

The Johnson County District Court authorized three additional interceptions during 2013:

Order Actual User Date Listed Customer

TT5 Pariete (aka Maciel) May 15 “Prepaid Customer”

TT6 Arevalo May 22 “Holly Nunez”

TT7 Maciel May 29 “Prepaid Customer”

Each of the additional orders contained similar requirements for interception and minimization.

Under the original minimization procedure, the intercepted calls were first heard “live” in Johnson County by Spanish-speaking monitors supervised by DEA agents or task force officers. If the communication was in Spanish, the linguists listened to or reviewed the communication, [1189]*1189and minimized it in accordance with the state court’s orders.

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Cite This Page — Counsel Stack

Bluebook (online)
112 F. Supp. 3d 1185, 2015 U.S. Dist. LEXIS 79380, 2015 WL 3796055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arevalo-ksd-2015.