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United States v. Campos

United States District Court, District of Columbia

December 10, 2018




         Defendant Luz Irene Fajardo Campos (“Fajardo Campos” or “Defendant”), who resided in Mexico until the time of her arrest in this matter, has been charged with one count of conspiring to distribute cocaine, methamphetamine, and marijuana, knowing that those drugs would be imported into the United States, in violation of 21 U.S.C. §§ 959(a), 960(b) and 963. This indictment was the result of a long-term investigation that the Drug Enforcement Administration (“DEA”) had conducted regarding Fajardo Campos's alleged drug trafficking activities and connections to a notorious drug trafficking organization. As part of that investigation, on April 24, 2013, the government submitted an application to the United States District Court for the District of Arizona pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 211-25 (codified as amended at 18 U.S.C. §§ 2510-2522) (“Title III”), seeking authorization to intercept Fajardo Campos's electronic communications to and from her BlackBerry cellular telephones.[1] The federal district court in Arizona approved the government's application, and that court subsequently granted both extensions to the requested wiretap period and additional wiretap authorizations, such that the surveillance of Fajardo Campos's electronic communications extended over nearly 29 months.

         Before this Court at present is Fajardo Campos's motion to suppress the electronic communications that the government intercepted as a result of the Arizona federal court's orders. (See Def.'s Mot. to Suppress Intercepted Elec. Commc'ns (“Def.'s Mot.”), ECF No. 33.) Fajardo Campos argues that the interceptions of her communications should be suppressed for three independent reasons. First, she maintains that the government's applications did not establish that intercepting her electronic communications was “necessary” within the meaning of Title III. (See Id. at 14-20.)[2] Second, she argues that the interceptions took place at BlackBerry's servers in Texas, and therefore the Arizona federal court lacked territorial jurisdiction to issue the surveillance orders. (See Id. at 20-24.) Third, and finally, Fajardo Campos insists that the interceptions of her communications violated her Fourth Amendment rights because the government's applications did not sufficiently specify the communications that the government was seeking to intercept. (See Def.'s Reply in Supp. of Mot. to Suppress (“Def.'s Reply”), ECF No. 38, at 13-14.)

         For the reasons explained below, this Court has concluded that Fajardo Campos's motion to suppress must be DENIED. In short, this Court has determined that the government has shown that traditional law enforcements methods were insufficient to elucidate the entire scope of the alleged drug trafficking conspiracy-which satisfies Title III's necessity requirement-and that the federal court in Arizona had Title III “listening post” jurisdiction to authorize surveillance of Fajardo Campos's Blackberry messages. This Court also finds that the government's surveillance applications were sufficiently specific to satisfy the strictures of the Fourth Amendment. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. The Underlying Facts[3]

         In January of 2012, the DEA coordinated with the Federal Bureau of Investigation and the Internal Revenue Service to launch an investigation into a drug trafficking organization (“DTO”) that was operating in Mexico and in Tucson, Arizona, among other places. (See Aff. in Supp. of Application to Intercept Elec. Commc'ns (“Apr. 2013 Aff.”), ECF No. 37-2 ¶ 12.) According to investigators, “a leader of the Sinaloa Cartel[] ha[d] placed [Fajardo Campos] in charge of [this] DTO [which] operate[d] from Hermosillo, Sonora, Mexico, to southern Arizona and other places in the United States.” (Id. ¶ 13.) DEA agents utilized a variety of techniques to investigate the illegal organization-e.g., they worked with confidential sources (see id. ¶ 14), conducted pen register surveillance of Fajardo Campos's phone line (see id. ¶¶ 24-29), physically surveilled her associates when those associates visited the United States (see Id. ¶ 37), obtained a search warrant for an e-mail account she used (see id. ¶ 42), and secured authorization to place a geo-tracking device on an airplane that they believed she used to traffic narcotics (see Id. ¶ 43). The Mexican government was contemporaneously investigating Fajardo Campos's alleged drug trafficking activities, and shared some of its information with the DEA (see Id. ¶ 38), including certain transcripts of telephone calls recorded pursuant to a wiretap that a Mexican court had authorized and information regarding Mexico's surveillance of her (see Id. ¶ 50). Nevertheless, according to the government, these methods were ineffective to reveal the entirety of the DTO's membership and its operating methods and current activities, primarily because Fajardo Campos's inner circle was believed to be composed of family members, close friends, and long-standing associates (see Id. ¶ 32), and because her associates, who primarily operated in Mexico, were part of a violent cartel that had influence on Mexican government officials (see, e.g., id. ¶¶ 33, 36, 42). For these same reasons, the government also believed that other techniques that it had in its own investigative toolkit-such as search warrants, trash pulls, or undercover officers- likewise would be ineffective or prohibitively dangerous. (See Id. ¶¶ 33, 39-40, 46- 48.)

         Consequently, on April 24, 2013, government investigators requested authorization from the federal district court for the District of Arizona to intercept electronic communications (i.e., text messages, emails, BlackBerry Messenger messages, and the like) that were made from a particular BlackBerry device that Fajardo Campos was using (referred to in the application as “Target Device #1”). (See Application for Interception of Elec. Commc'ns (“Apr. 2013 Appl.”), ECF No. 37-2 at 17-25.) In this application and the attached affidavit, the government detailed its investigative efforts to date and explained why it believed it needed to supplement these efforts with electronic surveillance. (See generally id.; Apr. 2013 Aff.) In addition, it provided technical details about how the interceptions would occur; specifically, the government explained that Fajardo Campos's communications would be “captured through RIM/Blackberry Corporation's server located in Texas[, ]” and then automatically sent to a DEA server in Virginia. (Apr. 2013 Aff. ¶ 10(a).) From there, the communications would be “automatically forward[ed] . . . to specialized equipment located at the DEA Tucson, Arizona Division, where the messages are first received and reviewed by law enforcement agents and/or foreign language interpreters under law enforcement supervision.” (Id.; see also Id. ¶ 10(d) (explaining that “[a]ll monitoring of the interceptions over the TARGET DEVICES will be performed in Tucson, Arizona”).) The government further represented that agents reviewing the intercepted communications would employ “minimization” procedures, and that communications that were not relevant to the investigation would not be shared with the investigative team. (See Id. ¶¶ 52-53.)

         On April 24, 2013, based on representations that the communications would “first be heard and minimized” in the District of Arizona (Order Authorizing Interception of Elec. Commc'ns, ECF No. 37-2, at 5), and upon finding that “normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ, ” (id. at 4), the Arizona federal district court issued an order granting the Title III wiretap application and authorizing the interceptions of Target Device #1 for a period of no more than 30 days (see Id. at 5). This same court granted two extensions of the surveillance thereafter (see Def.'s Mot. at 6-7), and then, on July 29, 2013, that court also approved the government's request to monitor a different BlackBerry device-Target Device #7- that government investigators believed Fajardo Campos was using in lieu of the Target Device #1 (see Id. at 7).

         The government requested and received eight extensions of the court's authorization to intercept communications over Target Device #7 before seeking approval to intercept communications over Target Device #17, which the government believed Fajardo Campos began using in lieu of Target Device #7. (See Id. at 7-9.) The court granted and extended this approval six times (see Id. at 9), and the government then requested and received authorization to resume interceptions of Target Device #7; the court subsequently extended that authorization ten times as well (see Id. at 11-13). Then, on August 3, 2015, the Arizona federal court authorized the government to intercept communications over a fourth BlackBerry device that it believed Fajardo Campos was using-Target device #60. Finally, on September 2, 2015, the government ceased all interceptions of Fajardo Campos's devices. (See Gov't's Resp. to Def.'s Mot. (“Gov't Opp'n”), ECF No. 36, at 3.)

         In each of the Title III wiretap applications that were submitted to the federal court in Arizona, the government detailed the progress of its investigation and averred that continuing interceptions were necessary in order to determine the full scope of the DTO. (See, e.g., Aff. in Supp. of Application to Intercept Elec. Commc'ns (“Aug. 2015 Aff.”), ECF No. 37-3, at 54-241, ¶¶ 70-202 (detailing results of alternative investigative techniques).)

         B. The Current Proceedings

         On August 30, 2016, a federal grand jury in the District of Columbia returned an indictment charging Fajardo Campos with one count of conspiring to manufacture and distribute five kilograms or more of cocaine, 500 grams or more of methamphetamine, and 1, 000 kilograms of marijuana for importation into the United States in violation of 21 U.S.C. §§ 959(a), 960(b) and 963. (See Indictment, ECF No. 1.) Fajardo Campos filed the instant motion to suppress the wiretap evidence on August 30, 2018. (See Def.'s Mot.)[4]

         As noted above, in her suppression motion Fajardo Campos asserts that the government's applications did not establish that intercepting her electronic communications was “necessary” within the meaning of Title III, because other less intrusive means of gathering evidence were available to law enforcement officers (who were in fact using such alternative methods with success). (See Id. at 14-20.) In addition, she argues that the Arizona federal court lacked territorial jurisdiction to issue the Title III surveillance orders because the interception occurred at Blackberry's servers in Texas, when her messages were first copied and then forwarded to ...

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