United States v. Garcia

256 F. App'x 947

Opinion

MEMORANDUM

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The government appeals from the district court’s order suppressing evidence obtained from a wiretap. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we reverse.

The government obtained an order permitting it to intercept communications from a telephone used by defendant Juan Garcia. After Garcia was indicted, he filed a motion to suppress the evidence obtained from the wiretap. The district court, with a different judge now presiding over Garcia’s case, ordered a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). At the close of the hearing, although it did not find a Franks violation, the district court ordered the evidence suppressed for failure to meet the necessity requirement. This appeal timely followed.

We review the issuing judge’s decision that the wiretap was necessary for an abuse of discretion. United States v. Staves, 383 F.3d 977, 980 (9th Cir.2004). After reviewing the affidavit supporting the application, we cannot say that the issuing judge abused her discretion in granting the application. Accordingly, the district court erred in granting Garcia’s motion to suppress.

REVERSED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.