FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 04-10041

v. D.C. No.  CR-01-01696-RCC GONZALEZ, INC. dba GOLDEN STATE

TRANSPORTATION, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, District Judge, Presiding

Argued and Submitted

December 7, 2004—San Francisco, California

Filed June 22, 2005

Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge D.W. Nelson

7425
COUNSEL

Bruce M. Ferg, (argued); Paul K. Charlton and Christina M.

Cabanillas (on the briefs), Office of the U.S. Attorney, Tucson, Arizona, for the plaintiff-appellant. 

William Kirchner (argued) and Walter Nash (on the briefs),

Nash & Kirchner, P.C., Tucson, Arizona; Jefferson Keenan

(on the briefs) and Michael Piccarreta (argued), Piccarreta &

Davis, P.C., Tucson, for the defendants-appellees. 

OPINION

D.W. NELSON, Circuit Judge: 

The government appeals the district court order granting in

part defendants’ motion to suppress evidence obtained as a

result of wiretaps at the Los Angeles headquarters of Gonzalez, Inc., dba Golden State Transportation (GST). We consider below whether the district court erred by: (1) conducting

a hearing pursuant to Franks v. Delaware, 438 U.S. 154

(1978); (2) finding that the wiretap issued for the company

headquarters failed to meet the statutory necessity requirement; and (3) granting standing to Antonio and Francisco

Gonzalez to challenge all conversations intercepted under the

invalidated wiretap order. We conclude that each of the district court’s rulings was correct, and thus we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal involves a multi-year investigation into an

alleged conspiracy to smuggle aliens into the United States

UNITED STATES v. GONZALEZ, INC. 7429
using a public bus company, GST. Although the government

received and acted upon reports of alien smuggling at GST as

early as May 1996, a sustained federal investigation into the

alleged smuggling ring facilitated by GST did not begin until

1999. At that time, GST had bus terminals in nine western

states. 

Initially, the investigation focused on GST’s Arizona operations. During this stage, federal agents employed several traditional investigative methods. For example, agents used pole

cameras to conduct about 25,000 hours of video surveillance

at the Tucson and Phoenix bus terminals and at a Tucson

motel believed to be an alien safe house. In addition, agents

in parked cars conducted 2,000 hours of physical surveillance

near the two terminals. Undercover agents were widely used

to gain an understanding of what occurred inside the terminals

and on the buses. Two undercover agents became GST bus

drivers, and one of these agents later worked at the Tucson

terminal selling bus tickets and handling baggage. Undercover

agents also posed as both undocumented aliens on GST buses

and as smugglers at GST terminals. Other undercover agents

infiltrated an alien-smuggling organization by picking up

aliens near the border and taking them to the Tucson terminal.

As a result of these successful efforts, agents engaged in, and

even recorded, many conversations implicating GST employees in alien-smuggling activities. The government also

recruited confidential informants (CIs) from GST’s past and

current employees, including a current dispatcher at the Tucson terminal and a bus driver. These CIs provided company

documents and valuable information to aid the government

investigation. Finally, the government also utilized pen registers and trap-and-trace devices to gather information in the

Arizona-centered investigation. 

After this intensive investigation into the activities at the

Phoenix and Tucson terminals, the government applied for a

wiretap order of these terminals’ telephones (hereafter “Terminal wiretap”). On April 2, 2001, the district court issued an

7430 UNITED STATES v. GONZALEZ, INC.
order authorizing the Terminal wiretaps. After this authorization, the government conducted immigration stops of approximately thirteen GST buses departing from the terminals to

generate chatter among the suspected conspirators. The government intercepted a phone call made by Francisco Gonzalez, the founder and vice president of GST, from the

company’s headquarters on Blake Avenue in Los Angeles.

During this call Francisco discussed the immigration stops of

GST buses from the Tucson and Phoenix terminals. On May

4, 2001, the government applied for, and was granted, a 30-

day extension of the Terminal wiretap. During this extension

the government intercepted an additional telephone conversation between Francisco and a Phoenix terminal employee

where Francisco inquired if the terminal had “been bothered

anymore,” presumably by immigration. 

On May 30, 2001, the government applied for a wiretap of

GST’s Blake Avenue office in Los Angeles, which the district

court granted (hereafter “Blake Avenue wiretap”). Special

Agent Richard Hill of the U.S. Border Patrol, supplied an affidavit in support of this application. A key purpose of the

Blake Avenue wiretap was to intercept incriminating evidence

linking Francisco, his son Antonio Gonzalez, and others in the

Blake Avenue office to the alleged alien-smuggling ring. At

the time, Antonio was the president and chief operating officer of GST. According to Hill’s affidavit, prior to the Blake

Avenue wiretap, the government had intercepted only two

telephone calls from Antonio, which merely “indicate[d] that

Antonio was aware of law enforcement action in which

undocumented aliens were removed from [GST] buses and

that he conversed with his father [(Francisco)], brother and

managers regarding the corporate activities.” In contrast, the

government had intercepted “[s]everal calls” from Francisco

during which he “discussed the movement of people on his

buses and routinely asked about intervention from immigration and local law enforcement.” 

On either July 13 or 14, 2000, long before the government

requested any wiretaps as part of this investigation, one of the

UNITED STATES v. GONZALEZ, INC. 7431
government’s CIs, a GST bus driver, visited the Blake Avenue office unannounced and engaged Francisco in conversation while wearing a wire. During the conversation, the

informant questioned Francisco about a recent company

memorandum requiring drivers to check for undocumented

aliens on their buses. Francisco insinuated that the memorandum did not refer to the prearranged smuggling of undocumented aliens from Tucson, but rather to unauthorized aliens

who may sneak onto GST buses coming over the border. The

same CI returned, at the government’s request, to the Blake

Avenue office to speak with Francisco again that same day.

This time the CI more directly questioned Francisco about the

smuggling of aliens using GST buses. Neither of these

recorded conversations was reported in any of the government’s affidavits supporting any of its wiretap requests. 

As acknowledged in the Hill affidavit, the government conducted limited investigation into activities at the Blake Avenue office before seeking the Blake Avenue office wiretap.

This brief investigation included: five-days of pen registers on

the office’s telephones; an equally brief use of trap-and-trace

analysis of the telephones; limited physical surveillance; and

a preliminary inquiry attempting to place an undercover agent

at one of the company’s “Los Angeles offices,” which might

have included the Blake Avenue office. 

Agent Hill’s affidavit for the Blake Avenue wiretap stated

that “[p]hysical [s]urveillance has been attempted at the headquarters but was not successful” because the building’s layout

and proximity to a residential neighborhood precluded agents

from gathering this evidence. The affidavit also deemed further physical surveillance impractical based on “what may

have been a counter-surveillance effort” in which agents were

once briefly followed by a vehicle after leaving the surveillance site. 

Despite the success of video surveillance earlier in this

investigation, the Blake Avenue affidavit stated that a pole

7432 UNITED STATES v. GONZALEZ, INC.
camera or other video surveillance of the office was not

attempted because any effort would fail to “reveal the corporate transactions relating to illegal activities occurring inside”

the building. 

Agent Hill also claimed in his affidavit that “[u]ndercover

agents have been used extensively throughout this investigation,” but goes on to make clear that none of these agents

infiltrated the Blake Avenue building. Despite the fruitful evidence produced by undercover agents in the terminal investigation, Agent Hill averred that prior to the Blake Avenue

wiretap application only a lone attempt was made to infiltrate

“one of [GST’s] Los Angeles offices.” The affidavit does not

indicate whether this infiltration attempt was focused, like the

earlier efforts, on a terminal in the Los Angeles area or on the

Blake Avenue office itself. On the face of the affidavit, the

repeated description of this infiltration attempt as being targeted to “one of the Los Angeles offices” as opposed to “the

Los Angeles office” or even the “Blake Avenue office” makes

it impossible for an issuing court to have concluded that this

infiltration attempt was focused on the Blake Avenue office.1

Based on the record created in the Franks hearing, we do

know that one undercover agent was able to speak with Francisco, but could not engage him in a discussion of illegal

activity. According to the affidavit, undercover agents had

less success speaking to Antonio and had only been able to

engage in “minimal contact such as greetings” with him.

To justify the lack of attempts to infiltrate higher-level jobs

within GST, including those at the Blake Avenue office,

Hill’s affidavit stated that GST immediately filled every highlevel job with people “closely connected to the Gonzalez fam1The appellees made a motion before this court to supplement the

record with evidence that this infiltration was decidedly aimed at a Los

Angeles bus terminal, and not at the Blake Avenue office. This motion

was denied. 

UNITED STATES v. GONZALEZ, INC. 7433
ily.” The evidence produced in the Franks hearing, however,

indicated that only one of the 25 people with offices at Blake

Avenue was a member of the Gonzalez family and at least

some high-ranking officials were hired after responding to

newspaper advertisements, suggesting that undercover work

could be fruitful. 

The affidavit in support of the Blake Avenue wiretap also

stated that “several current and ex-employees of [GST] ranging from dispatchers to managers have been interviewed” and

“provided valuable historical information” about GST. None

of these CIs, however, was identified as having worked at the

Blake Avenue office. Furthermore, the affidavit makes no

claim that federal agents ever tried to recruit CIs from the

Blake Avenue office before seeking the wiretap. 

Finally, Agent Hill’s affidavit dismissed as impractical a

handful of investigative techniques that had not been tried

before the Blake Avenue wiretap was sought. The affidavit

stated that trash runs were not utilized because the office trash

bin was inside a fence. Although Agent Hill’s affidavit stated

that “many of [GST’s] records may be held in [GST’s] headquarters,” the affidavit rejected the use of a search warrant at

the Blake Avenue office because such a search might “not

result in the discovery of sufficient evidence to show the

responsibility of Corporate officers and employees such as

Francisco and Antonio Gonzales.” At either location, the affidavit stated that use of search warrants or grand jury subpoenas would reveal the investigation to the targets. The affidavit

also rejected the use of grand jury subpoenas on the belief that

conspirators would likely avail themselves of their Fifth

Amendment privilege against self-incrimination. On June 16,

2001, the Blake Avenue wiretap was terminated. 

Both Antonio and Francisco Gonzalez worked in the GST

headquarters on Blake Avenue and Antonio had an office in

the building. Antonio and Francisco jointly owned the Blake

Avenue building, but had leased the building to Gonzalez,

7434 UNITED STATES v. GONZALEZ, INC.
Inc., dba GST, for a four-year term, which ended on May 31,

2001. The lease allowed a month-to-month continuance after

the four-year term ended. On July 31, 2002, Antonio and

Francisco terminated the lease. 

On August 15, 2003, Gonzalez, Inc. along with 10 individual defendants, including Antonio and Francisco, filed a joint

motion to suppress all evidence resulting from the Terminal

wiretap, its extension, and the Blake Avenue wiretap. Defendants alleged that the wiretap applications contained material

misrepresentations and omissions and, therefore, violated

Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, as amended, 18 U.S.C. §§ 2510-2522. The defendants requested, and were granted, a Franks hearing to determine whether the affidavits submitted in support of the

wiretap applications contained intentional or reckless misstatements or omissions of material fact regarding the necessity for the wiretaps. 

On November 25, 2003, the district court granted in part

and denied in part the defendants’ motion to suppress the

wiretap evidence. The court found that the Terminal wiretap

and its 30-day extension were authorized, but concluded that

the government had not met its burden of proving necessity

for the Blake Avenue wiretap, and therefore, that any evidence from that wiretap must be suppressed. The district court

did not explicitly find that there were any material misstatements or omissions in any of the wiretap affidavits that

negated the necessity for the wiretap orders. 

On December 19, 2003, the district court found that Antonio and Francisco Gonzalez had standing to challenge all

intercepted communications from the Blake Avenue wiretap.

The government timely appeals the suppression of evidence

from the Blake Avenue wiretap and the granting of standing

to Antonio and Francisco to challenge all intercepted calls

under the Blake Avenue wiretap.

UNITED STATES v. GONZALEZ, INC. 7435
DISCUSSION

[1] When Congress enacted the wiretapping provisions of

the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.

§§ 2510-2522, it intended to “make doubly sure that the statutory authority [for wiretaps] be used with restraint and only

where the circumstances warrant the surreptitious interception

of wire and oral communications.” United States v. Giordano,

416 U.S. 505, 515 (1974). Narrow construction of the

wiretapping provisions furthers Congress’ dual purposes for

the act of “ ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of

wire and oral communications may be authorized.’ ” Gelbard

v. United States, 408 U.S. 41, 48 (1972) (quoting S. Rep. No.

90-1097, at 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2122,

2153). 

[2] To enforce the privacy-centered purposes of these provisions, Congress created important statutory prerequisites for

obtaining wiretap orders, including the requirement that the

government must prove necessity before it may utilize the

unconventional method of wiretaps as an investigative tool.

Congress also granted standing for any aggrieved person to

move to suppress any evidence from a wiretap unlawfully

employed. Finally, the Supreme Court, in Franks, created a

route to invalidate wiretap orders if the affidavits supporting

them conceal or misrepresent material facts leading a judge

inappropriately to find necessity for a wiretap order. 438 U.S.

154. 

While the district court below did not find material misrepresentations or omissions in the preparation of the affidavit,

it concluded that the evidence presented within the four corners of the affidavit failed to establish the necessity for the

Blake Avenue wiretap. Accordingly, the district court ordered

that the evidence produced from this wiretap must be suppressed. 

7436 UNITED STATES v. GONZALEZ, INC.
I. The Defendants Made the Requisite Showing to

Warrant a Franks Hearing 

The government argues that the district court erred in granting a hearing pursuant to Franks to determine whether the

applications for the Terminal and Blake Avenue wiretaps contained material misrepresentations or omissions. We disagree.

This court reviews de novo a district court’s decision to grant

a Franks hearing, but reviews the court’s factual determination concerning misleading statements and omissions after

such a hearing under the clearly erroneous standard. United

States v. Shryock, 342 F.3d 948, 975 (9th Cir. 2003), cert.

denied, 541 U.S. 965 (2004); United States v. Tham, 960 F.2d

1391, 1395 (9th Cir. 1992); United States v. Ippolito, 774

F.2d 1482, 1484 (9th Cir. 1985). 

To obtain a Franks hearing, defendants must make a preliminary showing that the wiretap applications contained

material misrepresentations or omissions. Shryock, 342 F.3d

at 977; United States v. Bennett, 219 F.3d 1117, 1124 (9th

Cir. 2000). The defense filed 100 pages of attachments to support its claims of misrepresentations and omissions in the

wiretap affidavits. These documents made a sufficient offer of

proof to support defendants’ claims that the affidavits (1) misrepresented the limited use of pole cameras in this investigation; (2) misrepresented that further physical surveillance was

highly likely to be compromised; (3) inaccurately portrayed

the government’s CIs as having less access to GST’s key officers than they actually possessed; and (4) misrepresented the

ability of the government to place an undercover agent in the

Blake Avenue office. 

[3] The district court correctly determined that the defense

adequately pled that the misrepresentations and omissions

were made with the requisite state of mind. Our case law does

not require clear proof of deliberate or reckless omissions or

misrepresentations at the pleading stage. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985). Instead, at this stage

UNITED STATES v. GONZALEZ, INC. 7437
we simply require the defense to make a substantial showing

that supports a finding of intent or recklessness. Id. Given the

affiant’s key role in the investigation, we can conclude that he

knew or should have known the veracity of the challenged

statements in his affidavit because these statements all concerned the potential of traditional investigative techniques to

gather information on the role any individuals at the Blake

Avenue office played in the alleged conspiracy. 

[4] The defendants also adequately pled materiality. Each

of the alleged misrepresentations and omissions related to the

ability of customary investigative tools to produce the evidence sought by the government in its investigation into the

Blake Avenue office. Therefore, any finding of a material

misrepresentation or omission would undermine the government’s ability to prove the need for the Blake Avenue wiretap. Because the defendants made an adequate initial showing

of intentional or reckless material misrepresentations or omissions in the wiretap application, the district court did not err

in holding a Franks hearing. It is of no matter that the district

court ultimately decided, after an evidentiary hearing, that no

Franks violation occurred. This is, after all, the purpose of a

hearing. 

On appeal, the defendants urge us to conclude that the district court implicitly found a Franks violation with respect to

the Blake Avenue wiretap application. According to the

defendants, because the district court ultimately concluded

that the affidavit in support of the Blake Avenue wiretap

failed to establish necessity, the court implicitly found that the

affidavit contained material misrepresentations or omissions

in violation of Franks. The defendants speculate that the district court did not make this finding explicit out of a desire not

to malign the agent who wrote the affidavit. Although this is

a possible interpretation of the district court order, we are not

in the business of putting words in the mouth of the district

court to uncover a district court’s phantom finding. Therefore,

we will not graft an implicit finding of a Franks violation

7438 UNITED STATES v. GONZALEZ, INC.
onto the district court’s order. As an appellate court, our duty

to evaluate all supportable bases for affirming a district court

finding is triggered only when the finding itself has been

explicitly made. 

II. Necessity for the Blake Avenue Wiretap was not

Established

The government urges us to reverse the district court’s

determination that the application in support of the Blake

Avenue wiretap failed to establish necessity. We review de

novo whether a full and complete statement of the facts supporting a wiretap application was submitted in compliance

with 18 U.S.C. § 2518(1)(c). United States v. Canales Gomez,

358 F.3d 1221, 1224 (9th Cir. 2004); United States v.

McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002). Such review

includes an assessment of whether the affidavit attests that

adequate investigative tactics were exhausted before the wiretap order was sought or that such methods reasonably

appeared unlikely to succeed or too dangerous. United States

v. Lynch, 367 F.3d 1148, 1159 (9th Cir. 2004). However, we

review the issuing court’s ultimate decision to authorize a

wiretap for an abuse of discretion. Canales Gomez, 358 F.3d

at 1225; McGuire, 307 F.3d at 1197. 

In support of its argument regarding the district court’s

necessity finding, the government points to portions of the

district court’s order indicating that the court may have considered evidence produced in the Franks hearing to reach its

necessity conclusion. Only the evidence presented within the

four corners of the wiretap application can be used to evaluate

necessity. 18 U.S.C. § 2518(3)(c). We hold that based solely

on the statements in the affidavit, it was error for the issuing

judge to conclude that the government had met its burden of

establishing necessity for the Blake Avenue wiretap and thus

affirm the district court’s decision. 

[5] To obtain a wiretap, the government must overcome the

statutory presumption against this intrusive investigative

UNITED STATES v. GONZALEZ, INC. 7439
method by proving necessity. United States v. Blackmon, 273

F.3d 1204, 1207 (9th Cir. 2001); Ippolito, 774 F.2d at 1486

(citing Giordano, 416 U.S. at 515; United States v. Bailey,

607 F.2d 237, 241 n.11 (9th Cir. 1979)). Together, 18 U.S.C.

§ 2518(1)(c) and (3)(c) comprise the necessity requirement

for wiretap orders. According to 18 U.S.C. § 2518(1)(c), the

government may establish necessity for a wiretap by any of

three, alternative methods. The government may show that

traditional investigative procedures (1) have been tried and

failed; (2) reasonably appear unlikely to succeed if tried; or

(3) are too dangerous to try. See also United States v. Smith,

31 F.3d 1294, 1298 n.2 (4th Cir. 1994). 

This circuit has interpreted these necessity provisions to

require a “full and complete statement of specific allegations”

establishing the necessity of the wiretap sought. Blackmon,

273 F.3d at 1207 (citing Ippolito, 774 F.2d at 1486). When

reviewing necessity we employ a “common sense approach”

to evaluate the reasonableness of the government’s good faith

efforts to use traditional investigative tactics or its decision to

forego such tactics based on the unlikelihood of their success

or the probable risk of danger involved with their use. Blackmon, 273 F.3d at 1207; United States v. Commito, 918 F.2d

95, 98 (9th Cir. 1990). 

A. Normal investigative procedures had not been

adequately utilized

The district court below concluded that the government did

not appropriately utilize traditional investigative methods

before requesting the Blake Avenue wiretap. The district

court found that before the order was sought “[n]o independent verification of any significance was really done to indicate why the wiretaps at the Blake Office were necessary.”

We agree. Read in the most generous light, the Hill affidavit

submitted in support of the Blake Avenue wiretap contended

that only the following investigative methods targeted at the

Blake Avenue office were tried before a wiretap was sought:

7440 UNITED STATES v. GONZALEZ, INC.
(1) five-days-worth of pen register analysis; (2) an equally

short use of trap-and-trace analysis; and (3) limited physical

surveillance of the Blake Avenue office. As discussed below,

this limited use of traditional methods does not establish that

normal tools were sufficiently exhausted before the government requested a wiretap. 

First, the affidavit revealed that for five days the government used pen registers, which recorded calls dialed from the

target telephones at the Blake Avenue office, and trap-andtrace devices, which recorded the incoming calls to these telephones. As these devices simply record numbers dialed or

received, they are inherently unlikely to reveal the kind of

information the government was seeking on the scope of the

conspiracy. We have held that the use of pen registers alone

is insufficient to establish necessity for a wiretap. Carneiro,

861 F.2d at 1183 n.16. In addition, this court has also refused

to condone a wiretap order when the supporting application

only established that law enforcement pursued traditional

investigative methods that were unlikely to produce pertinent

evidence before seeking the wiretap. Id. at 1183. 

Second, the Hill affidavit indicated that limited physical

surveillance of the Blake Avenue office was tried, but abandoned because agents “were unable to detect any activities

consistent with the evidence previously gathered in the investigation because of the layout of the building and its location

near a residential neighborhood.” The affidavit also stated that

agents were once “followed by a vehicle in what may have

been a counter surveillance effort.” In Blackmon, this court

rejected the notion that a single incident of failed physical surveillance could establish that any subsequent surveillance

could be ruled out as likely to be unsuccessful or too dangerous to pursue. 273 F.3d at 1209. 

Third, Agent Hill averred that prior to the Blake Avenue

wiretap application one attempt was made to infiltrate “one of

[GST’s] Los Angeles offices,” but the affidavit does not indiUNITED STATES v. GONZALEZ, INC. 7441
cate whether this infiltration attempt was focused, like every

other infiltration discussed, on a bus terminal or if the attempt

was targeted at the Blake Avenue office itself. The description

of this attempt in the affidavit, as being targeted to “one of the

Los Angeles offices” as opposed to “the Los Angeles office”

or even the “Blake Avenue office” made it impossible for the

issuing judge to conclude that this infiltration attempt was

focused on the Blake Avenue office.

In its affidavit, the government also argues that the limited

information produced by the Terminal wiretap linking Antonio and Francisco to the alleged conspiracy justify the Blake

Avenue wiretap. The fact that traditional investigatory tactics

directed at GST’s Arizona activities — or even the extraordinary measure of wiretapping phones in Arizona bus terminals

— did not produce sufficient evidence linking GST employees working out of the Los Angeles office on Blake Avenue

to the alleged conspiracy is hardly surprising. Nor is such a

claim adequate evidence that traditional investigative tools

were exhausted with respect to the newer, Los Angelestargeted stage of the investigation. Only the failure of “normal,” not extraordinary, investigative measures justifies the

statutory necessity requirement. 

[6] Even when all of the traditional investigative techniques

reportedly used in conjunction with the investigation into the

Blake Avenue office are viewed together, it is clear that the

steps taken before the Blake wiretap was sought fall short of

what our case law requires. Cf. Carneiro, 861 F.2d at 1178

(upholding wiretap order where the DEA used CIs, surveillance, pen registers, and undercover agents before resorting to

a wiretap). In reaching our holding, we are cognizant that the

necessity requirement should not be interpreted to require law

enforcement to exhaust every possible technique before

resorting to wiretapping, but to ensure that in the usual case

wiretapping is not used as the first meaningful step in an

investigation. Carneiro, 861 F.2d at 1181; United States v.

Brone, 792 F.2d 1504, 1506 (9th Cir. 1986); United States v.

7442 UNITED STATES v. GONZALEZ, INC.
Martin, 599 F.2d 880, 887 (9th Cir. 1979); see also Ippolito,

774 F.2d at 1486. In our judgment, the facts attested to in the

Hill affidavit indicate that the government side-stepped its

responsibility to use promising traditional techniques when it

began to investigate the Blake Avenue office, and instead

conducted only the most cursory investigation before seeking

a wiretap. We hold that the necessity provisions require the

government to do more. 

B. Unutilized investigative procedures were reasonably

likely to succeed

[7] Even though the government failed to show that it had

used an ample array of traditional investigative tools before

seeking the Blake Avenue wiretap, the government would

have proven necessity had it reasonably attested that the

unused tools were unlikely to succeed. Ippolito, 774 F.2d at

1486. The government has made no such showing. On the

contrary, the wiretap application itself showed that law

enforcement did not first attempt, without success, traditional

investigative methods that may have been “potentially productive.” Id. 

First, although the affidavit claimed that neither physical

nor video surveillance was likely to produce useful information as the Blake Avenue “headquarters are housed in a building that has large darkened windows that do not allow either

physical or video visual surveillance of the activities inside,”

we cannot accept this as evidence that such surveillance was

reasonably unlikely to bear fruit. Surely surveillance is not

completely unsuccessful if it does not decipher what an individual is writing while she sits at her desk. Accepting the limitations of the location of the office as noted in the affidavit,

it is still reasonable to conclude that video or physical surveillance could have identified individuals, such as known coyotes (those who assist in the illegal entry of persons for a fee),

coming and going from the Blake Avenue office. This information certainly would have assisted law enforcement in disUNITED STATES v. GONZALEZ, INC. 7443
covering the identities of “members of the criminal enterprise

and aiders and abettors,” a stated purpose of the Blake Avenue wiretap. 

Second, the facts presented in the Blake Avenue affidavit

suggest that the use of confidential informants or undercover

agents in relation to the Blake Avenue was a potentially productive, but unutilized tool. These methods not only have the

potential to provide highly detailed information on those

working at the Blake office, but also as the affidavit itself

indicated, these tools had already proven effective in earlier

stages of the investigation. The Hill affidavit discusses the

useful information obtained from CIs during the earlier stages

of the investigation targeted at the bus terminals, but the affidavit makes no claims that CIs were ever recruited from the

Blake Avenue office. This information should have led the

issuing judge to question why the government did not attempt

to use CIs to investigate the Blake Avenue office. 

Third, the affidavit’s terse rejection of the possible productive use of grand jury subpoenas or search warrants does not

establish that these investigative techniques were reasonably

unlikely to work. The affidavit rejects these tools by claiming

they would likely reveal the investigation to its targets. Such

statements do not reasonably explain why traditional investigative tools are unlikely to succeed in a particular investigation, but are “boilerplate conclusions that merely describe

inherent limitations of normal investigative procedures,”

which we have found insufficient to establish necessity.

Blackmon, 273 F.3d at 1210; see also id. at 1211 (The fact

“that traditional investigation methods do not reveal all are

generic problems of police investigation. Their generic nature

does not dissipate simply because the government claims a

vast investigative purpose. . . . The government may not cast

its investigative net so far and so wide as to manufacture

necessity in all circumstances.”) 

[8] To cover its failure to establish necessity for the Blake

Avenue wiretap, the Hill affidavit attempted to shoe-horn the

7444 UNITED STATES v. GONZALEZ, INC.
significant investigatory work the government conducted

before applying for the Terminal wiretap into its application

for the Blake Avenue wiretap. But the government is not free

to transfer a statutory showing of necessity from one application to another — even within the same investigation. This

court has held that an issuing judge may not examine various

wiretap applications together when deciding whether a new

application meets the statutory necessity requirement. Each

wiretap application must separately satisfy the necessity

requirement. See Carneiro, 861 F.2d at 1180-81 (upholding

an initial wiretap order, but invalidating subsequent orders

covering other suspects because the later applications did not

show that particularized investigative actions were targeted,

without success, at each later suspect); see also Brone, 792

F.2d at 1507. Accordingly, we hold that the Blake Avenue

wiretap application did not establish that adequate traditional

tools were tried before the wiretap was sought or that these

untried alternatives were reasonably unlikely to be productive.

C. Unused investigative procedures were not too

dangerous to be tried

[9] The affidavit in support of the Blake Avenue wiretap

makes no claim that normal investigative procedures were

reasonably determined to be too dangerous to try. Quite sensibly, the necessity requirement for a wiretap order does not

compel law enforcement officers to use traditional investigative strategies at the risk of danger to themselves or others.

See McGuire, 307 F.3d at 1197 (upholding a wiretap order

without requiring exhaustion of traditional investigative tools

due to the “grave dangers” involved with any such effort

because of the target “group’s known violent propensity and

undisputed possession of assault weapons”). The Blake Avenue affidavit contained no statements supporting a finding

that law enforcement had any reason to fear danger from anyone associated with the office. 

[10] A district court’s decision to grant a motion to suppress wiretap evidence is reviewed de novo. United States v.

UNITED STATES v. GONZALEZ, INC. 7445
Reyna, 218 F.3d 1108, 1110 (9th Cir. 2000). But the court’s

underlying factual findings are reviewed under the clearly

erroneous standard. United States v. Bynum, 362 F.3d 574,

578 (9th Cir. 2004). The court below correctly determined

that the affidavit in support of the Blake Avenue wiretaps

failed to meet the statutory necessity requirements. Based

solely on the evidence presented in the affidavit, it was evident that the government made limited use of traditional, and

potentially productive, investigative methods before seeking

the Blake Avenue wiretap. The affidavit did not allege sufficiently that these strategies were reasonably unlikely to succeed or too dangerous to try. Therefore, the issuing court

abused its discretion in concluding that the government established necessity for the Blake Avenue wiretap. Because this

wiretap did not meet the statutory necessity requirements, the

evidence obtained from it is “fruit of the poisonous tree,” and

must be suppressed. 18 U.S.C. § 2515 (codifying the fruit of

the poisonous tree doctrine for wiretapping evidence). 

III. Antonio and Francisco have Standing to Challenge

the Conversations Intercepted under the Blake Avenue

Wiretap 

The government also appeals the district court’s order

granting Antonio and Francisco Gonzalez standing to challenge the contents of all conversations intercepted by the

Blake Avenue wiretap, not simply those conversations in

which they participated. The question of whether a particular

defendant has standing to challenge the legality of a search is

a mixed question of law and fact. We review the district

court’s ultimate legal conclusion on standing de novo, and the

findings of fact related to this conclusion for clear error.

United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999).

[11] For the purposes of challenging wiretaps, the relevant

statute provides that 

Any aggrieved person in any trial . . . before any

court . . . of the United States . . . may move to sup7446 UNITED STATES v. GONZALEZ, INC.
press the contents of any wire or oral communication

intercepted pursuant to this chapter, or evidence

derived therefrom, on the grounds that . . . the order

of authorization or approval under which it was

intercepted is insufficient on its face. 

18 U.S.C. § 2518(10)(a). The statute defines an aggrieved

person as one “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) (emphasis

added). The Supreme Court has interpreted these provisions

as limiting standing to challenge wiretaps to persons whose

Fourth Amendment rights were violated by the interception.

Alderman v. United States, 394 U.S. 165, 175-76, n.9 (1969);

see also United States v. King, 478 F.2d 494, 506 (9th Cir.

1973). The touchstone for Fourth Amendment standing analysis is whether the individual asserting her right to challenge

the interception had a reasonable expectation of privacy in the

place where the wiretap was used. See, e.g., O’Connor v.

Ortega, 480 U.S. 709, 711-12 (1987). We hold that the district court correctly determined that Antonio and Francisco

Gonzalez had such a reasonable expectation of privacy at the

Blake Avenue office that they owned and in which they had

substantial control of the day-to-day operations. 

[12] The Supreme Court has held that owners of the premises where an illegal wiretap occurs have standing to challenge the interception, even if the owners did not participate

in the intercepted conversations. Alderman, 394 U.S. at 175-

76; see also King, 478 F.2d at 506 (“[A] defendant may move

to suppress the fruits of a wire-tap only if his privacy was

actually invaded; that is, if he was a participant in an intercepted conversation, or if such conversation occurred on his

premises.”) (emphasis added). Although the government concedes that the Gonzalezes owned the Blake Avenue property,

it suggests that Alderman and King are distinguishable

because the premises at issue in those cases were residential,

not commercial properties, and because it is well-established

UNITED STATES v. GONZALEZ, INC. 7447
that an individual’s expectation of privacy is lower in a commercial property. See, e.g, New York v. Burger, 482 U.S. 691,

700 (1987). At least in the instant case, we do not find this to

be a distinction that makes a difference. 

[13] In determining whether the Gonzalezes had a reasonable expectation of privacy over the intercepted calls, it is

important to assess the nature of the location where these conversations were seized. See O’Connor, 480 U.S. at 715 (1987)

(“[T]he reasonableness of an expectation of privacy . . . is

understood to differ according to context . . . .” ) The Blake

Avenue office was a small, family-run business housing only

25 employees at its peak. In such an office, individuals who

own and manage the business operation have a reasonable

expectation of privacy over the on-site business conversations

between their agents. In reaching this result, we do not rule

out the possibility that the hands-off executives of a major

corporate conglomerate might lack standing to challenge all

intercepted conversations at a commercial property that they

owned, but rarely visited. Instead, we simply hold that

because the Gonzalezes were corporate officers and directors

who not only had ownership of the Blake Office but also

exercised full access to the building as well as managerial

control over its day-to-day operations, they had a reasonable

expectation of privacy over calls made on the premises.

CONCLUSION

In conclusion, we affirm the district court’s determination

that defendants made a showing sufficient to require a Franks

hearing, however, we decline to find an implicit Franks violation by the district court with respect to any of the wiretap

applications. In addition, we affirm the district court’s finding

that the government failed to prove the necessity for the Blake

Avenue wiretap. Thus, we also affirm the district court’s

order suppressing any evidence resulting from this wiretap.

Lastly, we uphold the district court’s determination that Anto7448 UNITED STATES v. GONZALEZ, INC.
nio and Francisco Gonzalez have standing to challenge all the

calls intercepted pursuant to the Blake Avenue wiretap. 

AFFIRMED.

UNITED STATES v. GONZALEZ, INC. 7449