                          UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellant,

 v.
                                                              No. 99-1565
 CLIFFORD DIONE ARRINGTON, a/k/a                          (District of Colorado)
 Benzo, JOE WILLIE HIGHTOWER,                          (D.C. No. 98-CR-433-WM)
 LORENZO G. MARTINEZ, JOHN CEE
 EARLY, JUAN LUIS ESTRADA-
 GRANILLO, RICKEY KEESEE, a/k/a
 Ricki Aranda Taylor, REGINALD
 DORMAN, VINCENT RUFFIN,

           Defendants-Appellees.


                                        ORDER
                                   FILED June 16, 2000


Before SEYMOUR, Chief Judge, and LUCERO, Circuit Judge, and ELLISON, Senior
District Judge.*



       This matter is before the court on appellant’s petition for rehearing with suggestion

for rehearing en banc. The panel has voted to grant rehearing for the sole purpose of

deleting the term “roving interceptors” from the second sentence in the first full

paragraph on page 11 of the order and judgment filed on March 29, 2000. The petition in

       *
           The Honorable James O. Ellison, Senior District Judge, United States District
Court for the Northern District of Oklahoma, sitting by designation.
all other respects is denied. A revised order and judgment is attached to this order.

       The suggestion for rehearing en banc was transmitted to all of the judges of the

court who are in regular active service as required by Fed. R. App. P. 35. A poll was

taken pursuant to Fed. R. App. P. 35(f), and following that vote, rehearing en banc is

denied pursuant to Fed. R. App. P. 35(a).



                                                  Entered for the Court

                                                  PATRICK FISHER, Clerk of Court



                                                    By:

                                                          Keith Nelson
                                                          Deputy Clerk




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                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             JUNE 16 2000
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellant,

 v.
                                                             No. 99-1565
 CLIFFORD DIONE ARRINGTON, a/k/a                         (District of Colorado)
 Benzo, JOE WILLIE HIGHTOWER,                         (D.C. No. 98-CR-433-WM)
 LORENZO G. MARTINEZ, JOHN CEE
 EARLY, JUAN LUIS ESTRADA-
 GRANILLO, RICKEY KEESEE, a/k/a
 Ricki Aranda Taylor, REGINALD
 DORMAN, VINCENT RUFFIN,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, and LUCERO, Circuit Judge, and ELLISON, Senior
District Judge.**




       *
            This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
            The Honorable James O. Ellison, Senior District Judge, United States District
Court for the Northern District of Oklahoma, sitting by designation.
      This appeal involves the legality of wiretaps directed at an electronic paging device

and a cellular phone, both of which were used by defendant Clifford Arrington a/k/a

“Benzo.” The wiretaps resulted in an indictment returned November 18, 1998 and

superseded January 26, l999, wherein each defendant was charged with participating in a

drug trafficking conspiracy that allegedly ran from approximately May through November

1998. Each defendant is also charged with various other drug offenses. The trial court,

however, suppressed all evidence obtained pursuant to the wiretaps, on the ground that

“necessity” was not sufficiently demonstrated for the wiretaps because normal investigative

procedures would have yielded the information obtained. This Court exercises jurisdiction

pursuant to 18 U.S.C. §3731 and affirms the ruling of the district court.

                                    Factual Background

       In January, 1998, FBI Agent Todd Wilcox received information from a confidential

source (CS-1, later identified as Jeremiah Hodge) that a person named “Benzo” was selling

large quantities of crack cocaine in the Denver area. Agent Wilcox did not follow up on that

information until May 20, l998, when he supervised a controlled purchase of crack cocaine

between CS-1 and “Benzo.” Shortly thereafter, Benzo was identified as Clifford Arrington

(“Arrington”). Between May and August 18, l997, the date that the first wiretap order was

obtained for the electronic paging device, seven controlled purchases took place. During that

time, the names of Joe Willie Hightower (“Hightower”) and “Mike” came to the attention of


                                             2
Agent Wilcox, and he began to suspect that Hightower and Mike were at least two of

Arrington’s sources. This was based on information from the investigation and from another

confidential informant (CS-2, later identified as Clarence Fields). Pen register and trap and

trace devices were used after the third controlled purchase. During these first seven

controlled purchases, CS-1 attempted to introduce an undercover officer to Arrington, but

Arrington refused.

       In late July, Agent Wilcox began to prepare an affidavit to procure a warrant pursuant

to the federal wiretap statute, Title III of the Omnibus Crime Control & Safe Street Act of

1968, as amended, 18 U.S.C. §§2510-22 (1994) (“Title III”), authorizing interception of

electronic communications on Arrington’s pager. Senior Judge Weinshienk entered an order

authorizing the wiretap on August 18, l998. The affidavit included an eight page section

describing the “need for interception,” and Judge Weinshienk specifically found that the

government had shown necessity for the order.

       On October 7, 1998, Senior Judge Kane issued a Title III order authorizing

interception of wire communications on Arrington’s cellular phone. The order was based on

an affidavit filed by Agent Wilcox which was essentially the same affidavit used to procure

the order from Judge Weinshienk, plus information detailing controlled purchases and

investigative steps taken since that time. In this affidavit, Agent Wilcox related that

Arrington told CS-1 he could meet his supplier if CS-1 agreed to buy nine ounces of crack

cocaine for $5700. Agent Wilcox testified at the suppression hearing that he did not take


                                             3
that opportunity because he doubted the truthfulness of the offer, and because Arrington had

twice previously refused to introduce CS-1 to his source.

       On October 21, l998, Judge Weinshienk issued a second Title III order authorizing

interception of Arrington’s pager. Agent Wilcox’s affidavit contained the same information

as previously and detailed later controlled purchases and investigative steps. He disclosed

that he believed CS-1 was engaged in unauthorized drug transactions with Arrington.

       On November 6, 1998, Judge Kane issued the second Title III order authorizing

interception of wire communications on Arrington’s cell phone. The supporting affidavit

incorporated previous affidavits and added new potential interceptees as well as new

information gained since the previous order.        As with all prior orders, Judge Kane

specifically found that the government had shown necessity for the order.

       The defendants were indicted on drug charges relating to a drug trafficking

conspiracy. All defendants filed motions to suppress the wiretapping orders, arguing the

orders were facially insufficient, there was no probable cause for the orders, the government

had failed to minimize interception of nonpertinent communications, the showing of

necessity was insufficient, and materially false statements in the affidavits necessitated a

hearing.

       The trial court, which had not issued any of the warrants, ruled that there was

sufficient probable cause and minimization. He took the issue of necessity under advisement.

On November 22, l999, the trial court entered an oral ruling granting the motions to suppress.


                                              4
In making its ruling the trial court emphasized the comparative brevity of the investigation

prior to seeking the wiretap orders, the failure to undertake normal methods of investigation

with respect to Hightower, Vincent Ruffin (“Ruffin”), and Lorenzo Martinez (“Martinez”),

three suspected suppliers; the failure to make the $5700 buy in order to meet Arrington’s

supplier; the failure to disclose credibility problems with CS-1;           and,   the record

demonstrated that standard alternative methods would have succeeded without the wiretap.

The trial court found that the information from the first wiretap should be suppressed and

that this would have a “domino effect” on the subsequent taps, requiring suppression of

evidence from those wiretaps as well.        In a follow-up written order, the trial court

additionally noted that the FBI did not attempt trash runs on Arrington, pen registers and trap

and trace devices disclosed information that could have been pursued further, and mobile

tracking, roving interceptors, video surveillance and trash runs were inexplicably not

considered by the FBI.

       The government filed this appeal, arguing that the Title III applications sufficiently

showed the need for wiretapping, and that the court erred by not considering the good faith

exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104

S.Ct. 3405, 82 L.Ed.2d 677 (1984). The government further argues that the trial court erred

in failing to give deference to the findings of the judges issuing the wiretap orders, and that

the conclusion of the trial court amounts to improper use of hindsight or second guessing.

                                         Disposition


                                              5
                                     Standard of Review

       The standard of review on appeal of a motion to suppress evidence obtained pursuant

to a wiretap was discussed at length in United States v. Castillo-Garcia, 117 F.3d 1179, 1186

(10th Cir. 1997) as follows:

               On appeal from a motion to suppress evidence obtained pursuant to a
       wiretap, we accept the district court’s factual findings unless clearly erroneous,
       review questions of law de novo, and view the evidence in the light most
       favorable to the prevailing party. United States v. Edwards, 69 F.3d 419, 428
       (10th Cir. 1995), cert. denied, — U.S. —, 116 S.Ct. 2497, 135 L.Ed. 2d 189
       (1996) (citing United States v. Williamson, 1 F.3d 1134, 1135 (10th Cir.
       1993)). The question of whether the government demonstrated sufficient
       “necessity” under 18 U.S.C. §2518(1)(c) (1994) to support the issuance of a
       wiretapping order is a question of law which we review de novo. United
       States v. Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995). However, “a wiretap
       authorization order is presumed proper, and a defendant carries the burden of
       overcoming this presumption.” Id. Thus, under our precedents, the defendants
       carry the burden of persuasion on the legal question of whether the [] Wiretaps
       were “necessary,” despite having prevailed below. As discussed supra part I,
       a wiretap is “necessary” only where “normal investigative procedures have
       been tried and have failed or reasonably appear to be unlikely to succeed if
       tried or to be too dangerous.” 18 U.S.C. §§2518(1)(c), 2518(3)(c) (1994).

In a footnote to this passage, the Castillo-Garcia court notes that the judge hearing the motion

to suppress owes no deference on the issue of “necessity” to the judge issuing the wiretap

orders and that the appellate court owes no deference to either judge in making its

determination of necessity on appeal. Id. at 1186 n.3.

       The government, however, argues that this standard is internally inconsistent in that

the two parts of necessity review, that court-authorized wiretaps are “presumed proper,” but

that later reviewing courts should give them “de novo” scrutiny are difficult to reconcile.


                                               6
The government also argues that the deferential standard set forth in United States v.

Armendariz, 922 F.2d 602, 608 (10th Cir. 1990) should apply. In Armendariz, the court

reviewed de novo the question of whether a full and complete statement demonstrating

necessity was submitted in the application for order authorizing wiretap, and reviewed for

abuse of discretion the conclusion of whether the wiretap was necessary. Id. We find no

difficulty in reconciling the fact that a wiretap is “presumed proper” with the requirement of

a “de novo” review. Moreover, since our analysis necessarily centers on the question of

whether a full and complete statement demonstrating necessity was submitted in the

application, the review is de novo, and we do not reach the issue of whether there is a

conflict between Armendariz and Castillo-Garcia under the facts with which we are faced.

See Armendariz, 922 F.2d at 308.

                                     Motions to Suppress

                                           Necessity

       The decision of the trial court to suppress the evidence resulting from the wiretap

rested on the issue of “necessity,” and so also will this Court’s review. Title III requires that

an application for an order authorizing a wiretap include “a full and complete statement as

to whether or not other investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C.

§2518(1)(c). A judge may enter a wiretap order if he finds that “normal investigative

procedures have been tried and have failed or reasonably appear to be unlikely to succeed if


                                               7
tried or to be too dangerous.” 18 U.S.C. §2518(3)(c). “ The purpose of these requirements

is to ensure that the relatively intrusive device of wiretapping ‘is not resorted to in situations

where traditional investigative techniques would suffice to expose the crime.’” United States

v. Edwards, 69 F.3d 419, 429 (10th Cir. 1995)(quoting United States v. Kahn, 415 U.S. 143,

153 n.12, 94 S.Ct. 977, 983 n.12, 39 L.Ed.2d 225 (1974)). If an application is granted

without meeting the necessity requirement, the wiretap evidence must be suppressed.

Castillo-Garcia, 117 F.3d at 1185.

       Nonetheless “necessity” is not an “exhaustion” requirement. “In examining necessity

challenges to wiretap orders, we have repeatedly held that law enforcement officials are not

required ‘to exhaust all other conceivable investigative procedures before resorting to

wiretapping.’” Edwards, 69 F.3d at 429 (quoting United States v. Apocada, 820 F.2d 348,

350 (10th Cir. 1987)). “Instead, we require the government to prove exhaustion -- either by

attempt or explanation of why the method would not work-- of all ‘reasonable’ investigatory

methods.” United States v. Mesa-Rincon , 911 F.2d 1433, 1444 (10             th
                                                                                  Cir. 1990). The

government’s failure, however, to deal with one or more specified categories of normal

investigative techniques “will not be fatal to its wiretap application if it is clear, under the

government’s recitation of the facts of the case, that requiring the government to attempt the

unexhausted and unexplained normal investigative techniques would be unreasonable.”

Castillo-Garcia, 117 F.3d at 1188. The statute’s requirement of “necessity” must be “read

in a common sense fashion.” United States v. Nunez, 877 F.2d 1470 (10th Cir. 1989). The


                                                8
court must consider all the facts and circumstances to determine whether the government’s

showing of necessity is sufficient. Castillo-Garcia, 117 F.3d at 1187.

       The focus of the reviewing court’s inquiry regarding necessity has been described in

detail in Castillo-Garcia, 117 F.3d at 1187:

       To obtain an electronic surveillance order, the government must explain fully
       in its application what investigative techniques have been tried against the
       target of the wiretap. 18 U.S.C. §§2518(1)(c), 2518(3)(c) (1994). If any of the
       four categories of normal investigative techniques referred to in the legislative
       history of Title III have not been tried, the government must explain with
       particularity why each of such untried techniques would be either unsuccessful
       or too dangerous. Those investigative procedures re: (1) standard visual and
       aural surveillance; (2) questioning and interrogation of witnesses or
       participants (including the use of grand juries and the grant of immunity if
       necessary); (3) use of search warrants; and (4) infiltration of conspiratorial
       groups by undercover agents or informants. In addition if other normal
       investigative techniques such as pen registers or trap and trace devices have
       not been tried, a similar explanation must be offered as to why they also would
       be unsuccessful or too dangerous.

       Utilizing this analysis, we now turn to the affidavit in support of the first wiretap

application which was drafted by Agent Wilcox. Wilcox devotes approximately eight pages

of his affidavit to the “need for interception.” He recognizes other investigative alternatives

such as use of information from confidential sources, introduction of an undercover officer

or officers, interviews of subjects, calling witnesses before the Federal Grand Jury,

surveillance, analysis of pen register data and toll records, review of police records and

search warrants. He concludes that “the continuation of conventional techniques reasonably

appear unlikely to succeed if pursued further,” and that “although surveillance may lead to

potential drug stash houses, continued physical surveillance is unlikely to succeed, however,

                                               9
in establishing conclusively the roles of the unnamed co-conspirators, or otherwise provide

admissible evidence with regard to this investigation because it is not possible to determine

the full nature and scope of the aforementioned offenses by the use of physical surveillance.”

He points out that CS-1 has been unable to obtain direct information regarding Arrington’s

supplier because the supplier refused to meet anyone new. He states, generically, that pen

register, trap and trace, and toll record information had been gathered, but that these methods

have “been used to a point of diminishing returns,” further interviews are not likely to be

helpful, no witnesses have been brought before the grand jury in order to avoid alerting other

co-conspirators, and a search warrant is unlikely to result in detailed information.

       Our concern here is the sufficiency of the affidavit with regard to reasonable

investigatory methods in light of the facts discussed in the affidavit.1 Agent Wilcox states

in his affidavit that (1) Arrington told officers he worked at Hightower and Shorty’s Used

Cars in Commerce City, Colorado; (2) Arrington drove automobiles registered to Hightower

and Shorty’s Used Cars to meetings with CS-1 for controlled purchases; (3) Arrington used

a cell phone for which the billing party was Joe Hightower ; (4) Arrington left a meeting with

CS-1 and went to the residence of Hightower; (5) Hightower was known by the FBI to have

consented to a search of his residence, and in 1996, cocaine, a gun and $13,425 in currency

were seized from Hightower’s business; (6) Hightower had an extensive record including

three arrests for possession of dangerous drug; (7) Hightower is the owner of Hightower and

       1
          Although this discussion emphasizes Hightower, the same is also true with other
potential suppliers as noted in the trial court’s oral ruling.
                                              10
Shorty’s Used Cars; (8) Hightower had been identified as a dealer of cocaine and crack

cocaine in the Denver area; (9) surveillance was conducted one time at Hightower and

Shorty’s Used Cars; and (10) numbers traced to Hightower or Hightower and Shorty’s

showed up numerous times on pen register records for Arrington’s phone numbers. Despite

the significant amount of information in the affidavit connecting Hightower to the

investigation, the statement of the need for interception completely fails to mention any

standard investigative methods that were considered with respect to Hightower, or any

reasonable investigative methods that would follow from the information included about

Hightower.

       The shortcomings of the affidavit with respect to reasonable investigative methods

that might have been suggested by the evidence that implicated Hightower were amplified

with the testimony of Agent Wilcox at the suppression hearing. Agent Wilcox admits no

attempts were made to (1) get a search warrant for Hightower’s house; (2) secure a statement

from Hightower; (3) conduct surveillance on him personally; (4) use mobile tracking devices

on him; (5) interview any of his relatives, friends or former employees; or, (6) investigate

his tax records.

       In light of the above facts, we do not find that the ultimate factual conclusion of the

trial court, that the government failed to adequately address its failure to resort to other

reasonable investigative methods, and that there was no demonstration that these reasonable

investigative methods were unlikely to succeed, was clearly erroneous. Moreover, because


                                             11
the “necessity showing” for the first wiretap was insufficient, we find that the necessity

showing for the subsequent wiretaps was insufficient as well. While much of the parties’

argument revolves around the government’s failure to make the $5700 buy which would have

led to a meeting with Arrington’s source, we do not consider that here because the offer was

not made until after the first wiretap order was obtained. Similarly, because of our

conclusion with regard to the affidavit, we do not reach the issue of the alleged

misrepresentations of Agent Wilcox.

                   The Good Faith Exception to the Exclusionary Rule

       The government argues that, even assuming the necessity determination was

erroneous, the trial court should have applied the good faith exception to the exclusionary

rule recognized by the Supreme Court in United States v. Leon,468 U.S. 897, 104 S.Ct. 3405,

82 L.Ed.2d 677 (1984). In Leon, the Court held that evidence obtained in objectively

reasonable reliance on a subsequently invalidated search warrant should not be excluded.

Leon, 468 U.S. at 922. The government concedes that the applicability ofLeon to the Title

III context is unsettled in this Circuit. See Castillo-Garcia, 117 F.3d at 1197 (declining to

reach the Leon issue where it had been untimely asserted in district court). The government

argues, however, that we should follow the reasoning of the court in United States v. Moore,

41 F.3d 370, 376-377 (8th Cir. 1994), wherein they adopted the Leon good faith exception

under Title III.

       Assuming without deciding that the Leon good faith exception does apply to Title III,


                                             12
we nonetheless find that it does not apply to these facts. Because we have found that Agent

Wilcox’s affidavit was insufficient due to his failure to discuss or pursue reasonable

alternative investigative methods which were suggested by the facts of the investigation, the

objective good faith requirement of Leon is not met. This simply is not a case of an agent

relying on a warrant erroneously issued by a judge. Rather, we have found that the agent

failed to meet Title III’s requirements for applications for orders authorizing wiretaps.

       The judgment of the trial court is affirmed.

                                   Entered for the Court

                                   James O. Ellison
                                   Senior District Judge




                                             13
