The opinion of the court was delivered by: DEBORAH BATTS, District Judge
Before the Court is Defendant Ramiro Menendez' ("Menendez")
pre-trial motions seeking suppression of evidence discovered as a
result of Title III wiretap intercepts, and physical evidence
seized in two difference searches on the day of Menendez' arrest.
In the alternative, Menendez seeks a hearing on his motions,
pursuant to Rules 12 and 41 of the Federal Rules of Criminal
Procedure. Defendant Angelo Lisi ("Lisi") joins in Menendez'
motion to suppress evidence discovered as a result of the wiretap
For the reasons that follow, Defendants Menendez' and Lisi's
motion to suppress is DENIED.
Defendants Ramiro Menendez ("Menendez") and Angelo Lisi
("Lisi") were indicted by a federal grand jury on March 9, 2004
in a one-count indictment along with Co-Defendants Gustavo
Sierra, Alberto Sierra, Vilma Bido, and Lawrence Russell. The
Indictment charged Defendants with distributing and possessing with intent to distribute, one kilogram and more of heroin from
at least in or about December, 2003 through in or about February,
2004 in violation of 21 U.S.C. § 846. The investigation leading
to the Indictment included three separate interceptions of wire
communications, authorized by Judge John F. Keenan, United States
District Judge for the Southern District of New York.
On April 27, 2004, the grand jury returned a Superceding
Indictment, adding a second count charging Defendants and newly
added Defendants Carlos Ekmeiro,*fn1 Paul Pacheco and
Richard Solbavarro with a money laundering conspiracy in
violation of 18 U.S.C. § 1956(h). The grand jury returned a
Second Superceding Indictment on May 6, 2004, adding Defendants
Ekmeiro, Pacheco and Solbavarro to Count One and a new defendant,
Martha Cobis, to Counts One and Two. A Third Superceding
Indictment was returned on May 18, 2004, adding Defendant Kenyi
Diaz-Perez to Counts One and Two.
Defendant Menendez has filed pre-trial motions for
consideration by the Court. Defendant Lisi has joined in
Menendez' motion to suppress the wire-tap evidence.
Menendez seeks suppression of wire tap evidence obtained through intereptions of his cellular phone ("Menendez Cellphone")
and Defendant Gustavo Sierra's cellular phone ("Sierra
Cellphone"). Defendant Lisi joins in this motion. Menendez also
moves to suppress any evidence obtained by the Government in two
separate searches which took place on February 20, 2004 in Miami,
Florida. Defendants seek an evidentiary hearing on these issues.
A. Suppression of Wiretap Evidence
Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. § 2510, et seq., regulates the interception of
wire, electronic and oral communications. The procedure for
securing judicial authority to intercept communications is found
in 18 U.S.C. § 2518. The applicant seeking to obtain judicial
authorization for an interception must demonstrate that "there is
probable cause that an individual is committing . . . a
particular offense . . . [and that] normal investigative
procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or too dangerous."
28 U.S.C. § 2518(3). No part of the intercepted communications "may be
received in evidence in any trial, hearing, or other proceeding . . .
if the disclosure of that information would be in violation
of [Title III]." 18 U.S.C. § 2515.
Menendez seeks suppression of the wiretap evidence obtained
from his cellphone and the Sierra cellphone based on the following: (1) the telephone conversations were allegedly not
minimized in accordance with the statutory requirements; (2) the
tapes of the telephone conversations were allegedly not sealed in
accordance with 18 U.S.C. § 2518(8)(a); and (3) the interceptions
were unlawful because the wiretap application failed to establish
with specificity the unavailability of alternative investigative
techniques. The Government opposes Menendez' motion.
1. Standing to Challenge Title III Intercepts
As a threshold matter, the Court will consider the issue of
whether Defendants Menendez and Lisi have standing to bring their
respective challenges to the wiretap evidence. The Government
contends that Defendant Lisi lacks standing to challenge the
minimization procedures on both Menendez and Sierra Cellphones
and that Menendez lacks standing to challenge the minimization
procedures used for calls intercepted through the wiretap on the
Under Title III, only an "aggrieved person . . . may move to
suppress the contents of any wire or oral communications
intercepted pursuant to this chapter, or evidence derived
therefrom. . . ." 18 U.S.C. § 2518(10(a). An "aggrieved person"
is defined as "a person who was a party to any intercepted wire,
oral or electronic communication or a person against whom the
interception was directed." 18 U.S.C. § 2510(11). "Standing to challenge evidence obtained through the
use of electronic surveillance techniques requires a showing by a
defendant that his or her voice was heard on the wire or that his