Appellate Case: 20-2151 Document: 010110618767 Date Filed: 12/14/2021 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 14, 2021 TENTH CIRCUIT Christopher M. Wolpert Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2151 (D.C. No. 1:17-CR-02583-JCH-1) SERGIO DANIEL SAUZAMEDA, (D. N.M.) also known as David Luna-Gomez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-2151 Document: 010110618767 Date Filed: 12/14/2021 Page: 2
I. INTRODUCTION
A grand jury indicted Sergio Sauzameda on charges he, inter alia,
conspired to distribute methamphetamine and heroin, in violation of 21 U.S.C.
§§ 841, 846. In response to the indictment, Sauzameda filed a motion to
suppress, asserting the affidavit in support of a wiretap order for a relevant
cellular phone (“Romero Phone 4”) did not establish probable cause to intercept
voice communications. The district court denied the suppression motion and
Sauzameda entered into a conditional plea agreement. He agreed to plead guilty
to a two-count information charging both conspiracy to distribute and actual
distribution of methamphetamine, but reserved the right to appeal the district
court’s denial of his motion to suppress.
Sauzameda asserts the district court erred in concluding the wiretap order
for voice communications over Romero Phone 4 was supported by probable cause.
This argument is unconvincing. The affidavit in support of the wiretap order,
particularly the history of drug-distribution related communications over Romero
Phones 1 through 3, established a fair probability that voice communications over
Romero Phone 4 would relate to past, current, or impending drug offenses.
Accordingly, the district court correctly denied Sauzameda’s motion to suppress.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the order
of the district court.
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II. BACKGROUND
A. Legal Background
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the
“Act”), codified at 18 U.S.C. §§ 2510 to 2522, governs the issuance of orders
authorizing the interception of, inter alia, wire and electronic communications.
Interception and disclosure of such communications is generally prohibited. Id. §
2511. Upon a proper application, however, a federal judge may authorize such
interception to help prevent, detect, or prosecute serious federal crimes. Id. §
2516. Before authorizing a wiretap, Title III of the Act requires a judge to find
probable cause supporting issuance of the order. Id. § 2518(3)(a). In furtherance
of that requirement, Title III sets forth detailed requirements governing both the
application for a wiretap and any judicial order ultimately authorizing a wiretap.
See id. § 2518; see also Dahda v. United States, 138 S. Ct. 1491, 1495 (2018). A
wiretap application must be in writing, upon oath or affirmation, to a federal
“judge of competent jurisdiction.” 18 U.S.C. § 2518(1). It must include “a
particular description of the type of communications sought to be intercepted,” id.
§ 2518(1)(b)(iii), and “probable cause for belief that particular communications
concerning [an enumerated] offense will be obtained through such interception,”
id. § 2518(3)(b). It is this second requirement—that a wiretap application
establish probable cause to believe each type of communication sought to be
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intercepted will concern an enumerated crime—that is the narrow issue before the
court in this appeal. 1
The facts and circumstances set out in a wiretap application must establish
“probable cause to believe a particular offense has been, is being, or is about to
be committed, and that conversations related to the offense will be overheard” on
the subject telephone. United States v. Armendariz, 922 F.2d 602, 607 (10th Cir.
1990); see 18 U.S.C. § 2518(3)(a)–(b). Probable cause has the same meaning in
the wiretap context as it does in any other. Armendariz, 922 F.2d at 608. Thus, a
wiretap application must convince a judge “the facts and circumstances within the
officer’s knowledge,” as stated therein, are “based on reasonably trustworthy
information” and “sufficient to warrant a person of reasonable caution to believe
an offense has or is being committed.” Id. Whether probable cause exists is
evaluated by examining the “totality-of-the-circumstances” and involves “a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit . . . , there is a fair probability that . . . evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
Probable cause may be established through factual information about previously
monitored conversations over the subject telephone, telephone data linking the
1 See Appellant’s Reply Br. at 2 (“Mr. Sauzameda’s argument is that one of [the] two particular forms of communication [intercepted over Romero Phone 4]—phone calls—is unsupported by probable cause.”).
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subject telephone to drug-trafficking activity, statements from confidential
sources, physical surveillance, or other relevant evidence. See United States v.
Apodaca, 820 F.2d 348, 350 n.2 (10th Cir. 1987). Evidence used to establish
probable cause for one device can be used to show a new device is being used for
a similar purpose. See United States v. Scurry, 821 F.3d 1, 16 (D.C. Cir. 2016);
see also id. (recognizing “drug traffickers frequently switch phones to avoid
police detection”). Ultimately, probable cause is a flexible standard and there is
no bright-line rule as to the type of evidence upon which a court may rely when
evaluating a wiretap application.
B. Factual Background
Drug Enforcement Agency Task Force Officer Adam Gaitan sought
interception of text and voice communications over Romero Phone 4. Gaitan’s
affidavit identified Orlando Romero as a convicted drug trafficker, the “highest
leader/organizer” in his trafficking organization, and a source of supply to other
dealers. R. Vol. I at 80. Gaitan also identified Romero’s mother and girlfriend as
fellow drug traffickers. Gaitan described the criminal investigation in detail,
beginning with information from a confidential source that Romero distributed
drugs in Albuquerque, New Mexico, for the “Los Padillas” gang and that he had
several different sources of supply.
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Gaitan confirmed Romero was selling controlled substances by purchasing
heroin and/or methamphetamine from Romero on four separate occasions over a
six-month period. During that period, Gaitan communicated with Romero, by
both text messages and voice calls, on four cellular phones to arrange the drug
transactions. In October 2015, Romero arranged a drug transaction using text
messages via a cellular phone (“Romero Phone 1”). In November 2015, Romero
arranged another drug transaction using text messages via a second cellular phone
(“Romero Phone 2”). In January 2016, Romero arranged a third drug transaction
using both text messages and a voice call via a third cellular phone (“Romero
Phone 3”). In February 2016, Romero discussed a future drug transaction using
text messages via Romero Phone 3. In March and April 2016, Romero arranged a
fourth drug transaction using text messages and voice calls via Romero Phone 3,
and a voice call via Romero Phone 2. Romero initiated every voice call to Gaitan.
In April 2016, Romero arranged a future drug transaction in a text
conversation using Romero Phone 4. Romero confirmed to Gaitan that he had
changed his phone number and Romero Phone 4 was his new number. Based on
this exchange and Romero’s use of three prior phone numbers, Gaitan concluded
Romero changed his phone number every two to three months. Due to multiple
factors, including the familiar wording and syntax, the drug-related subject
matter, the use of Gaitan’s undercover name, and a reference to a mutual friend,
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Gaitan concluded Romero also used Romero Phone 4 to facilitate drug
transactions. This comported with Gaitan’s training and experience in other drug
investigations that drug traffickers use a combination of voice and text
communications to direct the day-to-day activities of their organizations.
Gaitan supported his application with toll analysis of the calls and texts
sent to and received by Romero Phone 4. Over a three-week period, Romero
Phone 4 made and received a total of approximately 519 calls and 809 text
messages. Gaitan identified 122 calls and six texts made to or from a phone
believed to be used by Romero’s girlfriend. Romero’s girlfriend was previously
convicted in a drug trafficking conspiracy with Romero. Gaitan determined voice
communications between Romero and his girlfriend had occurred at a frequency
of more than thirty times per day over Romero Phone 3. Furthermore, Gaitan
identified thirty calls and five texts over Romero Phone 4 with Clayton Arellano.
Arellano was a large-scale heroin trafficker and member of the Los Padillas gang
according to corroborated information obtained from a confidential source.
Therefore, nearly one third of the voice calls made during that three-week period
were with a suspected drug trafficker. Finally, Gaitan discussed how multiple
phones were subscribed in the name of Romero’s mother, including Romero
Phone 3; the phone used by Romero’s girlfriend; and a third phone, which was
also in contact with Romero Phone 4. Gaitan noted it was reasonable to believe
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Romero’s mother used her name on the various phone lines to conceal the true
identity of the phone user and evade detection by law enforcement.
Based on the information set out in Gaitan’s application, the district court
authorized the interception of wire and electronic communications over Romero
Phone 4 for a period not to exceed thirty days. During that period, agents
intercepted calls relating to drug trafficking, including such calls between Romero
and Sauzameda. Special Agent David Howell submitted an affidavit, based in
part on the drug-trafficking calls intercepted over Romero Phone 4, in support of
an application for an order authorizing the interception of wire and electronic
communications over Sauzameda’s cellular phone. Based upon evidence
collected during these wiretaps and the ongoing investigation, a grand jury
charged Sauzameda, Romero, and others with conspiracy to distribute
methamphetamine.
C. Procedural Background
Sauzameda moved to suppress the wiretap evidence on the ground that,
inter alia, the affidavit for Romero Phone 4 failed to establish probable cause to
support wire interception. 2 Sauzameda noted Gaitan’s affidavit did not identify
2 Sauzameda argued, both before the district court and in his opening brief on appeal, that because the wiretap order for Romero Phone 4 was unlawful, the spin-off order for a wiretap of his phone was fruit of the poisonous tree. See United States v. Giordano, 416 U.S. 505, 531-32 (1974); 18 U.S.C. § 2518(10). (continued...)
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any recorded calls discussing drug trafficking over Romero Phone 4. Sauzameda
acknowledged the affidavit established Romero had, in recent past practice, used
both calls and text messages to communicate with Gaitan about drug trafficking.
And he effectively conceded probable cause existed to support the interception of
electronic communications. He, nevertheless, asserted there did not exist
probable cause to intercept voice calls because Gaitan’s affidavit did not indicate
that any such calls had occurred over Romero Phone 4. R. vol. 1 at 66 (“While
affiant arguably established probable cause that [Romero Phone 4] was utilized to
facilitate drug trafficking activities through text messaging only, no evidence was
established to show [it] was utilized via wire communications (voice
communications).”).
The district court denied Sauzameda’s suppression motion. It concluded
Gaitan’s affidavit contained “sufficient information to establish separate,
independent probable cause for interception of both wire and electronic
communication over Romero Phone 4.” Id. at 405. The district court determined
the record of previous calls and text messages with Romero about drug trafficking
on multiple prior phones established reason to believe future drug-trafficking
2 (...continued) Because the government does not contest this assertion, and because the affidavit in support of the wiretap of Romero Phone 4 established probable cause to believe voice communications over that phone would involve drug trafficking, this court does not consider this matter further.
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communications would occur via both methods over new phones used by Romero.
The district court also indicated Gaitan’s affidavit sufficiently established
Romero’s girlfriend and Clayton Arellano were connected to Romero’s drug-
trafficking activity. Therefore, it determined the toll records “provide[d]
additional support that there was a fair probability that [Romero Phone 4] was
used for drug transactions.” Id. at 407. The district court concluded that
based on the totality of the evidence, viewed in a commonsense manner, the affidavit in support of the application to intercept Romero Phone 4 contained sufficient facts to warrant a person of reasonable caution to believe that evidence of narcotics crimes would be found through the interception of both wire and electronic communications over Romero Phone 4.
Id.
III. ANALYSIS
A. Standard of Review
As both parties recognize, this court reviews a “district court’s finding of
probable cause for a wiretap under the same standard used for a search warrant.”
Armendariz, 922 F.2d at 608. That is, this court reviews “de novo the district
court’s determination of probable cause.” United States v. Tuter, 240 F.3d 1292,
1295 (10th Cir. 2001). In so doing, however, this court gives “great deference to
the issuing judge’s finding of probable cause,” and “ask[s] only whether, under
the totality of the circumstances presented in the affidavit, the [issuing] judge had
a substantial basis for determining that probable cause existed.” United States v.
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Haymond, 672 F.3d 948, 958–59 (10th Cir. 2012) (quotation omitted). All
evidence is viewed in the light most favorable to the government. United States
v. Iiland, 254 F.3d 1264, 1268 (10th Cir. 2001).
B. Discussion
Sauzameda concedes Gaitan’s affidavit in support of the application for the
wiretap of Romero Phone 4 contained sufficient probable cause to intercept text
messages. His appellate arguments focus narrowly on whether the district court
erred in ruling those same facts established probable cause to intercept phone
calls. Gaitan’s affidavit, however, established probable cause by providing
information Romero had used, and would continue to use, his frequently changing
cellular phones in the same manner as previous cellular phones—to facilitate his
drug-distribution activities by both phone calls and text messages. The
information about the investigation, undercover purchases, recorded
conversations, and other investigative efforts was sufficient to warrant a person of
reasonable caution to believe Romero and others were distributing drugs, and
communications about drug trafficking would be intercepted over Romero Phone
4.
Notably, Sauzameda does not argue there is insufficient probable cause to
establish Romero was a drug trafficker who used Romero Phone 4. This fact
itself weighs in favor of probable cause. See United States v. Barajas, 710 F.3d
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1102, 1108–09 (10th Cir. 2013). This admission, furthermore, means Gaitan’s
affidavit established that Romero Phone 4 was a place of criminal activity. See
United States v. Nunez, 877 F.2d 1470, 1473 n.1 (10th Cir. 1989); see also United
States v. Urban, 404 F.3d 754, 773 (3d. Cir. 2005). Gaitan’s affidavit
established, based on criminal history, surveillance, and corroborated information
from confidential sources, that Romero, Romero’s girlfriend, and Clayton
Arellano were drug traffickers. Gaitan also described purchasing either heroin or
methamphetamine directly from Romero on four separate occasions over a
six-month period. Gaitan detailed how each of those transactions was predicated
by communications about the drug transaction with Romero over a cellular phone.
During that period, Romero used four different cellular phone numbers, leading
Gaitan to conclude Romero switched his phone every two or three months. Of the
four cellular phones, Romero communicated via text on all four and via voice on
two prior to switching to Romero Phone 4. Romero initiated every voice call with
Gaitan. Based on his training and experience, and his direct experience with
Romero, Gaitan concluded Romero would use a combination of voice and text
communications to direct the day-to-day activities of his drug-trafficking
organization. Indeed, the text message exchange captured on Romero Phone 4
suggested Romero was no longer using the previous phones, but would instead be
using Romero Phone 4 to further his drug trafficking. These facts established that
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Romero Phone 4 would be used to facilitate drug trafficking and that, based on
Romero’s recent past practice, he would likely use the phone for voice
communications as well.
Gaitan’s conclusions were also supported by toll analysis. Over the course
of approximately three weeks, toll records from Romero Phone 4 showed nearly
152 calls, out of a total of 519 calls, between Romero and other drug traffickers,
i.e., Romero’s girlfriend and Clayton Arellano. Romero’s girlfriend, who was
responsible for 122 of those calls, was previously convicted in a conspiracy to
distribute controlled substances with Romero in 2012, lived with Romero at the
time of the investigation, and drove a newer luxury vehicle far beyond her and
Romero’s reported income. Furthermore, agents observed Romero’s girlfriend
conducting counter-surveillance at one of Romero’s suspected stash houses where
agents had recovered evidence of drug packaging in a trash pull. Gaitan’s
affidavit indicated Romero’s girlfriend called one of Romero’s previous phones at
a rate of over thirty times per day. Gaitan concluded Romero’s girlfriend’s
behavior was consistent with drug trafficking and, therefore, voice calls between
Romero and his girlfriend may then include conversations about drug trafficking.
Gaitan’s affidavit also established that Romero Phone 4 had voice
communications with Clayton Arellano. Gaitan linked Arellano to a multi-pound
methamphetamine distribution scheme in 2015 in which agents suspected
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Arellano supplied the drugs which were to be sold to an undercover officer. And
two sources of information identified Arellano as a multi-pound drug distributor
for the Los Padillas gang. The thirty calls with Arellano, over the three-week
period, were independent evidence supporting probable cause.
The recorded calls and texts between Romero and Gaitan, as well as the
heavy use of Romero Phone 4 and numerous communications—both calls and
texts—with Romero’s girlfriend’s and Arellano’s phones, reasonably established
that Romero was using Romero Phone 4 to communicate with others about drug
trafficking and that calls and texts about drug trafficking would be intercepted
over Romero Phone 4. Thus, probable cause existed for the interception of wire
communications over Romero Phone 4 and the wiretaps of both Romero Phone 4
and Sauzameda’s phone were lawful.
IV. CONCLUSION
For those reasons set out above, the order of the United States District
Court for the District of New Mexico denying Sauzameda’s motion to suppress is
hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge
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