### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk July 14, 1997

TO: All recipients of the captioned opinion
RE: 96-1259, USA v. Castillo-Garcia June 30, 1997
Please be advised of the following correction to th e captioned decision: There is a typographical error on page 35 of the op inion. In the second sentence of the paragraph beginning “This fact, . . .” the phrase “had ever been tried” should be “had even been tried.” Please make the correction. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 30 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CEFERINO CASTILLO-GARCIA, also known as Pini, JESUS SAUL BUJANDA-IBARRA, ISMAEL ARMENDARIZ-AMAYA, VICTOR JULIA AVILA, Jr., LARRY PINO,APOLONIO PORTILLORODRIGUEZ, ALONSO MORENO, THOMAS McCULLOCH, ALBERTO AVILA, also known as Jesus Javalera, JACK GIRARD, also known as Jacko, JOANNE AYERS, and JAIME OLIVAS-SANCHEZ, Defendants-Appellees, and JEFFERY SAMUEL PINO, RAY GUTIERREZ, also known as Guero, DOUG TIERNEY, JOHN SHERIDAN, and MATT HILTON, No. 96-1259

Defendants.

Appeal from the United States District Court

for the District of Colorado (D.C. No. 94-CR-371-ALL)- 2 -

John M. Hutchins, Assistant United States Attorney, Denver, CO, argued the cause for the appellant. Henry L. Solano, United S tates Attorney, Denver, CO, and David M. Gaouette, Assistant United States Atto rney, Denver, CO, assisted on the brief. Virginia Grady, Assistant Federal Public Defender, Denver, CO, argued the cause for appellee Ismael Armendariz-Amaya. Michael G. K atz, Federal Public Defender, Denver, CO, assisted on the brief. Harvey A. Steinberg, Denver, CO, argued the cause f or appellee Jesus Saul Bujanda-Ibarra. Susan Fuller, Denver, CO, assistedon the brief. Argued March 18, 1997.

Before PORFILIO, EBEL, and HENRY , Circuit Judges.

EBEL , Circuit Judge.

After obtaining and executing five separate but rel ated telephone wiretapping orders, the government secured evidence sufficient to indict eighteen members of an alleged drug conspiracy. In a pre-tr ial order, however, the district court suppressed all evidence obtained pursuant to four of the five wiretapping orders, on the grounds that the government had not demonstrated sufficient “necessity” for those wiretaps. Pursuant to 18 U.S .C. § 2518(10)(b) (1994), the government now appeals the district court’s suppres sion order. We exercise jurisdiction under 18 U.S.C. § 3731 (1994), affirm in part, and reverse in part.
BACKGROUND1 Rosario Portillo-Rodriguez is nota defendant in the present proceeding. - 3 - During the summer of 1994, Denver Police detective Stephen F. Barnhill (working as a special federal officer “deputized” b y the FBI) was told by a confidential informant that Rosario Portillo-Rodrig uez 1 was running a large cocaine distribution operation out of two houses lo cated on Raritan Street in Denver. United States v. Castillo-Garcia , 920 F. Supp. 1537, 1541 (D. Colo. 1996). The confidential informant claimed to have obtained 22 kilograms (almost 50 pounds) of cocaine from Rosario Portillo-Rodrigu ez over the past year. Detective Barnhill impounded 1.25 of those kilogram s. Based on that information, and after a month of col lecting additional evidence against Rosario Portillo-Rodriguez, Detect ive Barnhill applied for a warrant to wiretap three phone numbers assigned to Rosario Portillo-Rodriguez’s home telephone, cellular telephone, and pager. The application noted certain difficulties which had thwarted the government’s attempts to conduct visual surveillance of Rosario Portillo-Rodriguez and the Raritan Street houses. Specifically, the application alleged that one of t he Raritan Street houses was set too far back from the street to be observed, that t he residential nature of the Raritan Street neighborhood rendered surveillance o fficers conspicuous, and that it was difficult to tail Rosario Portillo-Rodriguez because he owned and drove nine different vehicles and frequently went to cons truction sites located in remote- 4 -

locations with limited traffic access. In addition , the application documented a fruitless year-long attempt by a confidential infor mant to determine the ultimate source of Rosario Portillo-Rodriguez’s drugs. Fina lly, the application enumerated certain reasons, discussed Part III, infra , why other normal investigative techniques would be unlikely to succeed if tried. On August 19, 1994, United States District Judge Sparr issued a warrant author izing interceptions of communications from these three phone numbers [the “First Wiretap”]. The First Wiretap began immediately, and terminated on Septem ber 17, 1994. During the period from August 19, 1994, to Septembe r 17, 1994, by eavesdropping on calls to and from Rosario Portillo -Rodriguez’s home telephone, cellular telephone, and pager, the FBI learned the identities of several other suspected members of Rosario Portillo-Rodriguez’s s uspected cocaine distribution operation. Equipped with this information, the gov ernment began visually surveilling at least one of Rosario Portillo-Rodrig uez’s suspected drug suppliers: defendant-appellee Ceferino Castillo-Garcia. On Se ptember 5, 1994, however, Ceferino Castillo-Garcia phoned Rosario Portillo-Ro driguez and told him that he “saw them watching.” Subsequently, on September 22, 1994, the governmentapplied for a warrant to wiretap two more telephone numbers: one subscrib ed to in the name of Fidela Armendariz, and one subscribed to in the name of An ita Pino. Neither of these2 The government was able to determine the phone numb ers from which Ceferino

Castillo-Garcia’s calls were placed by consulting “ trap and trace records” for Rosario Portillo-Rodriguez’s wiretapped phone number. - 5 - two individuals, however, were targets of the gover nment’s investigation. Rather, the government sought these wiretaps because Ceferi no Castillo-Garcia had on several occasions placed drug-related “business” ca lls to Rosario PortilloRodriguez from each of the two targeted phone numbe rs. 2 In response to this application, Judge Sparr issued Warrant 94-WT-7, authorizing electronic eavesdropping on phone numbers (303) 431-4345 and ( 303) 292-1131 [the “Second Wiretap”]. Also on September 22, 1994, the government applied for a warrant to wiretap two phone numbers assigned to digital pagin g devices. One pager was subscribed to in the name of Ruben Martinez; the ot her in the name of Raul Ferrnandez. Once again, neither of these two indiv iduals were the targets of the government’s investigation. Rather, the governmentsought to wiretap the “Ruben Martinez” pager because it overheard Ceferino Casti llo-Garcia (phoning from Juarez, Mexico) instruct Rosario Portillo-Rodriguez to “take down the ‘beeper number’ in case an opportunity arises,” and then pr ovide the pager number assigned to Ruben Martinez. The government underst ood this instruction to mean that Rosario Portillo-Rodriguez should page Ceferin o Castillo-Garcia at Ruben Martinez’s pager number if Rosario Portillo-Rodrigu ez wanted any more cocaine- 6 -

or marijuana while Ceferino Castillo-Garcia remaine d in Mexico. The government sought to wiretap the “Raul Ferrnandez” pager because, on several occasions, Rosario Portillo-Rodriguez left messages on that pager requesting return phone calls. The government suspected that Rosario Portillo-Rodriguez and Jaime Olivas-Sanchez (a suspected intermediary between Rosario PortilloRodriguez and other sources of cocaine and marijuan a) were using the “Raul Ferrnandez” pager. In response to this application , Judge Sparr issued Warrant 94-WT-8, authorizing electronic eavesdropping on ph one numbers (303) 251-1594 and (303) 609-1931 [the “Third Wiretap”]. On October 7, 1994, the government applied for a wa rrant to wiretap Ceferino Castillo-Garcia’s home telephone number. In the application, the government presented evidence that both Ceferino Ca stillo-Garcia and Ismael Armendariz-Amaya had made drug-related “business” c alls from this number. In response to this application, Judge Sparr issued Warrant 94-WT-10, authorizing electronic eavesdropping on phone number (303) 477- 2721 [the “Fourth Wiretap”]. Finally, on October 21, 1994, the government applie d for a warrant to wiretap a telephone number subscribed to in the nam e of “M. Olivas.” In the application, the government presented evidence thatJaime Olivas-Sanchez had, on several occasions, phoned Rosario Portillo-Rodri guez from the “M. Olivas”- 7 -

phone number to discuss several drug purchases whic h Jaime Olivas-Sanchez was attempting to broker for Rosario Portillo-Rodriguez . In response to this application, Judge Sparr issued Warrant 94-WT-11, authorizing electronic eavesdropping on phone number (303) 937-1365 [the “ Fifth Wiretap”]. During September and October, 1994, the “Second thr ough Fifth Wiretaps” were all executed. Castillo-Garcia , 920 F. Supp. at 1542-43. All wiretapping was completed by October 30, 1994, by which time about 3500 telephone conversations had been intercepted. United States v. Castillo-Garcia , No. 94-CR371, slip op. at 2 (D. Colo. May 23, 1996) (unpubli shed order & mem.). Based largely on information obtained through the f ive wiretaps, indictments were brought against eighteen named def endants on eight counts. Castillo-Garcia , 920 F. Supp. at 1540. A group of these defendant s-- notincluding original target Rosario Portillo-Rodriguez--moved t o suppress the wiretap evidence, on the grounds that the government had no t demonstrated the “necessity” for the wiretaps required by 18 U.S.C. § 2518(1)(c) (1994). On March 25, 1996, U.S. District Judge Nottingham, who had not issued any of the warrants, granted the defendants’ motion to suppres s the evidence obtained pursuant to the Second through Fifth Wiretaps. Id. at 1548-52. Judge Nottingham denied the motion to suppress evidence o btained pursuant to the First Wiretap. Id. at 1547-48.- 8 -

The government then moved for reconsideration, argu ing that even if there was no “necessity” for the Second through Fifth Wir etaps, the evidence obtained from those wiretaps should not be suppressed becaus e, in executing the wiretaps, the FBI relied in good faith on a facially valid wa rrant issued by U.S. District Judge Sparr. See United States v. Castillo-Garcia , No. 94-CR-371, slip op. at 4, 5 (D. Colo. May 23, 1996) (unpublished order & mem.). Judge Nottingham denied the government’s motion forreconsideration, noting that the government had not raised the “good faith exception” issue in the initial proceeding. United States v. Castillo-Garc ia , No. 94-CR-371, slip op. at 5- 8 (D. Colo. May 23, 1996) (unpublished order & mem. ). In dicta , however, Judge Nottingham opined both that the “good faith excepti on” to the exclusionary rule does not apply to statutory wiretap situations, id. at 8-13, and that even if it did, the FBI did not act in good faith here. Id. at 13. Thus, Judge Nottingham affirmed his original order suppressing the evidenc e obtained from the Second through Fifth Wiretaps. Id. at 21. The government now appeals the suppression of the e vidence obtained from the Second through Fifth Wiretaps.

DISCUSSION
I.- 9 -

In its published opinion in the present case, the d istrict court provided a concise overview of the legal framework for FBI wir etapping. As the court explained: Electronic eavesdropping by law enforcement officia ls is governed by the federal wiretap statute, title III of the Om nibus Crime Control and Safe Streets Act of 1968, as amended. [18 U.S. C. §§ 2510-22 (1994 & Supp. 1996)]. To assure the privacy of ora l and wire communications, title III establishes a three-tiere d procedure for obtaining authorization to intercept wire or oral c ommunications. First, a duly-authorized law enforcement officer mu st obtain approval from the Attorney General of the United States or aspecially designated assistant attorney general in order to apply to a federal judge for a wiretap. See 18 U.S.C. § 2516(1) (1994). Second, once such approval is obtained, the officer must presenta written application for a wiretap to the judge. Third, the judge must make certain enumerated findings and issue an ex parte order containing specified elements. See 18 U.S.C. § 2518(1), (3)-(4) (1994). Strict adherence to these procedural steps is a prerequisi te to issuance of a wiretap order. United States v. Castillo-Garcia , 920 F. Supp. 1537, 1543 (D. Colo. 1996). In the present case, the government complied with a ll three of these procedural steps. Further, it is now uncontested t hat the government demonstrated “probable cause” sufficient to supportall five warrants issued by Judge Sparr. As the district court noted, however, Title III contains a “necessity” requirement--separate and distinct from its “probab le cause” requirement--which must be satisfied before a wiretap order may be law fully issued. Id. at 1544 (citing 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994)) . The purpose of the “necessity” requirement is “to ensure that the relatively intrusive device of- 10 -

wiretapping ‘is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.’” Un ited States v. Edwards , 69 F.3d 419, 429 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996) (quoting United States v. Kahn , 415 U.S. 143, 153 n.12 (1974)). Pursuant to this “necessity” requirement: Each application for an order authorizing or approv ing the interception of a wire, oral, or electronic communi cation . . . shall include . . . a full and complete statement as to w hether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if trie d or to be too dangerous. 18 U.S.C. § 2518(1)(c) (1994). Furthermore, before issuing a wiretap order, a district judge must independently determine that the requested wiretap is necessary. United States v. Mondragon , 52 F.3d 291, 293 (10th Cir. 1995). Specifically, the judge must be convinced, inter alia , that “normal investigative procedures have been t ried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c) (1994). If the requirements of 18 U.S.C. § 2518(1)(c) (1994) and 18 U.S.C. § 2518(3)(c) (1994) are not each met, no warrant should issue. In any event, evidence obtained in v iolation of 18 U.S.C. § 2518(1)(c) (1994) or 18 U.S.C. § 2518(3)(c) (1994) must be suppressed. See 18 U.S.C. § 2515 (1994) (“Whenever any wire or oral co mmunication has been intercepted, no part of the contents of such commun ication and no evidence- 11 -

derived therefrom may be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that informat ion would be in violation of this chapter.”). In the present case, Judge Nottingham found no faul t with the issuance of the First Wiretap order. However, after noting that 18 U.S.C. § 2518(1)(c) (1994) requires in “ each application . . . ‘a full and complete statement’ concerning the efficacy of other investigative procedures,” Castil lo-Garcia , 920 F. Supp. at 1545 (emphasis in original), Judge Nottingham found thatthe “necessity requirement” was not met with respect to the Second through Fift h Wiretap orders issued by Judge Sparr. In particular, Judge Nottingham observed that entire paragraphs of affidavits attached to the warrant applications “co nsist of ‘boilerplate’ language which does not vary from one affidavit to the next. ” United States v. CastilloGarcia , 920 F. Supp. 1537, 1543 (D. Colo. 1996); see also id. at 1554-65 (reprinting pertinent language from warrant applications). Judge Nottingham further found, as a factual matter , that: [t]he apparent reason for this identity was . . . [ that] the United States never paused to give further renewed consideration to the efficacy of . . . normal investigative procedures, . . . and itnever really tried to use any of these procedures. Instead, the investig ation proceeded from one wiretap to another. Id. at 1543. Pursuant to 18 U.S.C. § 2515 (1994), Ju dge Nottingham therefore suppressed all evidence obtained from those Wiretap s.3 Because the application of the “necessity” requirem ent is a question of law

subject to de novo review, we note that Judge Nottingham, who found i nsufficient “necessity” to support the Second through Fifth wir etapping orders, owed no deference to Judge Sparr, who had found sufficient “necessity” to issue those orders. Similarly, we owe no deference to either J udge Nottingham or Judge Sparr in assessing whether the Second through FifthWiretaps were “necessary.” - 12 - The government now argues that Judge Nottingham app lied too stringent a test of “necessity” under 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994).

II. On appeal from a motion to suppress evidence obtain ed pursuant to a wiretap, we accept the district court's factual fin dings 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 , 116 S. Ct. 2497 (1996) (citing United States v. Williamson , 1 F.3d 1134, 1135 (10th Cir.1993)). The question of whether the government demonstrated sufficient “necessity” unde r 18 U.S.C. § 2518(1)(c) (1994) to support the issuance of a wiretapping ord er is a question of law which we review de novo

. 3 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 pre sumption.” Id. Thus, under our precedents, the defendants continue to carry th e burden of persuasion on the4As discussed supra , however, we accept the district court's factual f indings unless clearly erroneous and view the evidence in t he light most favorable to the defendants, who prevailed below. United States v. Edwards , 69 F.3d 419, 428 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996) (citing United States v. Williamson , 1 F.3d 1134, 1135 (10th Cir.1993)). Thus, the de fendants are in a somewhat better position than if they had not preva iled below

. - 13 - legal question of whether the Second through Fifth Wiretaps were “necessary,” despite having prevailed below. 4 As discussed supraPart I, a wiretap is “necessary” only where “normal investigative proced ures 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) (1 994). As the district court noted, Congress did not inten d the statutory phrase “normal investigative procedures” to include electr onic eavesdropping techniques. Castillo-Garcia , 920 F. Supp. at 1545 (citing United States v. Bia nco , 998 F.2d 1112, 1127 (2d Cir. 1993), cert. denied , 511 U.S. 1069 (1994); United States v. Uribe , 890 F.2d 554, 556 (1st Cir. 1989); United States v. Lambert , 771 F.2d 83, 91 (6th Cir.), cert. denied , 474 U.S. 1034 (1985)). Rather, the Ninetieth Congress, which enacted Title III, envisioned that [n]ormal investigative procedure would include, forexample, standard visual or aural surveillance techniques bylaw enforcement officers, general questioning or interrogation unde r an immunity grant, use of regular search warrants, and the infi ltration of conspiratorial groups by undercover agents or informants.5 This court has always adhered to Congress’s intenti on that the

government’s demonstration of the necessity for ins tituting a wiretap be evaluated in a practical and commonsense fashion. See, e.g. , United States v. Nunez , 877 F.2d 1470, 1472 (10th Cir.), cert. denied , 493 U.S. 981 (1989); United States v. Johnson , 645 F.2d 865, 867 (10th Cir.), cert. denied , 454 U.S. 866 (1981). - 14 - Senate Comm. on the Judiciary, Report on the Omnibu s Crime Control and Safe Streets Act of 1968, S. Rep. No. 90-1097, at 79 (19 68), reprinted in1968 U.S.C.C.A.N. 2112, 2190, and cited inCastillo-Garcia , 920 F. Supp. at 1545; see also United States v. Mesa-Rincon , 911 F.2d 1433, 1444 (10th Cir. 1990) (relying on above-quoted Senate Report language to require t he government to exhaust these four investigative techniques or to explain w hy exhaustion would be too dangerous or futile, prior to initiating electronic visualsurveillance). The Ninetieth Congress noted that “[m]erely because a normal investigative technique is theoretically possible, it does not fo llow that it is likely.” Id. (citing Giancana v. United States , 352 F.2d 921 (7th Cir.), cert. denied , 382 U.S. 959 (1965); People v. Saperstein , 140 N.E.2d 252 (N.Y. 1957), cert. denied , 353 U.S. 946 (1957)). It therefore emphasized that “[w]hat the provision envisions is that the [government’s] showing [of necessity] be testedin a practical and commonsense fashion.” Id. (distinguishing United States v. Ventresca , 380 U.S. 102 (1965)). 5 In this fashion, a court must undertake “a consid eration of all the facts and circumstances” in order to determine whet her the government’s showing of necessity is sufficient to justify a wiretap. I d.6Although Mesa-Rinconinvolved visual, rather than aural, electronic

surveillance, the Mesa-Rinconcourt adopted a “necessity” requirement for the government’s use of clandestine television cameras by analogizing to the very provisions of Title III at issue here. See Mesa-Rincon , 911 F.2d at 1442-43. The Mesa-Rinconcourt predicated its analysis primarily on case law pertaining to wiretapping, and on the same legislative history materials applicable to the present case. See id. at 1442-45

. - 15 - The “necessity” requirement of Title III is not an “exhaustion” requirement. “In examining necessity challenges to wiretap orde rs, we have repeatedly held that law enforcement officials are not required to exhaust all other conceivable investigative procedures before resorting to wiretapping.” United States v. Edwards , 69 F.3d 419, 429 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996) (internal quote marks and citations omitted). “Rat her, that section of the statute serves to insure that wiretapping is not used in si tuations where traditional investigative techniques would suffice to expose th e crime.” United States v. Johnson , 645 F.2d 865, 867 (10th Cir.), cert. denied , 454 U.S. 866 (1981) (citing cases). Thus, the government may obtain a wiretapp ing warrant without trying

anyother methods of investigation, if it demonstrates that normal investigatory techniques reasonably appear to be unlikely to succ eed if tried, or to be too dangerous to try. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994); UnitedStates v. Mesa-Rincon , 911 F.2d 1433, 1444 (10th Cir. 1990). 6
In Mesa-Rincon , we noted that “[t]he legislative history of Title III suggests . . . [reasonable investigatory] technique s that should be considered,”7Although the Mesa-Rinconcourt cited this quotation to page 101, the

quoted language actually appears at page 79 of S. R ep. No. 90-1097 (1968). - 16 - 911 F.2d at 1444 (emphasis added), and we then identified the four investigative techniques specifically set forth by Congress in th e Senate and House Report of Title III of the Omnibus Crime Control and Safe Str eets Act of 1968. Id. (citing S. Rep. No. 90-1097, at 101 7(1968), reprinted in1968 U.S.C.C.A.N. 2112, 2190). We now expressly hold what the court in Mesa-Rinconsuggested and what seems clearly to be contemplated by Title III. To obtain an electronic surveillance order, the government must explain ful ly in its application what investigative techniques have been tried against th e 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 partic ularity why each of such untried techniques would be either unsuccessful or too dangerous. Those investigative procedures are: (1) standard visual a nd aural surveillance; (2) questioning and interrogation of witnesses or parti cipants (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 un dercover agents or informants. In addition, if other normal investigative techniqu es such as pen registers or trap and trace devices have not been tried, a similar explanation must be offered as to- 17 -

why they also would be unsuccessful or too dangerou s. We add pen registers and trap and trace devices to this list because they po ssess a logical relationship and close affinity to wiretaps and yet are less intrusi ve. Thus, unless the government can show that they would be ineffective or dangerou s they must be tried before resorting to wiretaps. Whether other normal investigative techniques must also be explored before turning to wiretaps will depend on the unique circu mstances of each investigation. For example, it will often be the case that the gov ernment must consider first the less intrusive technique of reviewing available pub lic, private, or governmental records pertaining to the suspects under investigat ion to see if the requisite information needed to prosecute may be obtained in that way. However, we articulate no general rule as to such other normal investigative techniques because they are so dependent upon the nature of the invest igation and the crimes being investigated. Because the record in this case does not suggest to us any normal investigative techniques other than those cited by Congress in the Senate and House Report, plus pen registers, trap and trace de vices, and telephone toll records, we confine our analysis to those technique s. In any event, generalities, or statements in the co nclusory language of the statute, are insufficient to support a wiretap appl ication. The statements must be factual in nature and they must specifically relate to the individuals targeted by- 18 -

the wiretap. The district court here rejected “boi lerplate” allegations contained in some of the applications and as we discuss in Part III, infra , we agree with its concerns in certain regards. However, the government need not exhaust or explain its failure to exhaust
every conceivable investigative procedure before resorting to wiretapping. MesaRincon , 911 F.2d at 1444 (citing United States v. Apodaca , 820 F.2d 348, 350 (10th Cir.), cert. denied , 484 U.S. 903 (1987)). “Instead, we require the government to prove exhaustion--either by attempt o r explanation of why the method would not work--of all ‘reasonable’ investig atory methods.” Id. Additionally, we note that where the government’s s tated explanation for its use, or failure to use, normal investigative te chniques clearly encompasses each of these categories and any other normal inves tigative techniques that may be applicable to the circumstances, it is not neces sary for the government formally to address each category with an explanation. Mesa -Rincon , 911 F.2d at 1444. Thus, the government’s failure explicitly to explai n its failure to utilize one or more specified categories of normal investigative t echniques will not be fatal to its wiretap application if it is clear, under the g overnment’s recitation of the facts of the case, that requiring the government to attempt the unexhausted and unexplained normal investigative techniques would b e unreasonable. See id. at 1445.- 19 -

With these standards in mind, we proceed to analyze the five wiretap applications at issue in the present case.

III. As a threshold matter, we note that the district co urt denied the defendants’ motion to suppress evidence obtained via the First Wiretap (94-WT-4), and that this decision has not been appealed. Nonetheless, because the Second through Fifth Wiretap incorporate by reference the applicat ion for the First Wiretap, we need to address it as well. As discussed Part II, supra , we analyze each of the five wiretap applications to determine whether “each application ” contained “a full and complete statement” demonstrating that (1) standard visual or aural surveillance; (2) general questioning or interrogation under an i mmunity grant; (3) use of regular search warrants; and (4) the infiltration o f conspiratorial groups by undercover agents or informants, each “have been tried and have failed or reasonably appear to be unlikely to succeed if trie d or to be too dangerous.” 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). We also e xamine whether pen registers, trap and trace devices, and review of telephone tol l records were utilized. This showing must be made with respect to the target of each proposed wiretap, and must be stated with particularity.- 20 -

First Wiretap (94-WT-4) (8/19/94) : The district court found that the government’s appl ication for the First Wiretap satisfied the requirements of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia , 920 F. Supp. at 1547-48. We agree. The First Wi retap was directed at three phone numbers used by Rosario Portillo-Rodriguez, who was suspected of directing his organization’s drug distribution operations in Denver. The government sought the wiretap in order to deter mine the source of Rosario Portillo-Rodriguez’s drugs. As the government explained in its application, sta ndard visual and aural surveillance of Rosario Portillo-Rodriguez’s suspec ted drug distribution operation had been tried, but had failed due to the location of Rosario Portillo-Rodriguez’s Raritan Street houses and garage in a quiet residen tial neighborhood, at a curve in the road, and set back from the street behind anoth er house. Id. at 1548. The government had also attempted visual surveillance o f Rosario PortilloRodriguez’s activities outside the Raritan street h ouses, but these attempts had failed to adduce any evidence because Rosario Porti llo-Rodriguez frequented construction sites located in remote locations with limited traffic access, and drove nine different vehicles as a result of his co nnection with construction work. Id.- 21 -

Further, the government had tried using a confident ial informant to discover the source of Rosario Portillo-Rodriguez’s drug supply. Id. at 1547. However, that confidential informant had purchased more than twenty kilograms of cocaine from Rosario Portillo-Rodriguez over the course of a year, but had never been introduced to Rosario Portillo-Rodriguez ’s suppliers. Id. The government thus reasonably concluded that the attempted use of a confidential informant to discover Rosario Portillo-Rodriguez’s suppliers had failed, and that the use of an undercover law enforcement officer fo r the same purpose would be no more likely to succeed. Id. In addition, the government had used trap and trace devices and pen register data and had reviewed telephone toll recor ds from Rosario PortilloRodriguez’s three phone numbers. Id. at 1556 ¶ 40. However, after employing these techniques for about a month, the government had still not discovered the source of Rosario Portillo-Rodriguez’s drug supply. Id. at 1541, 1556 ¶ 40. The government explained that these techniques had prov en ineffective because they did not enable the government to identify the indiv iduals placing the calls to Rosario Portillo-Rodriguez, nor did they reveal the nature or purpose of the communications. Id. at 1556 ¶ 40. This attempt satisfies the governme nt’s obligation in this investigation to try trap and tr ace devices, pen register data, and telephone toll records prior to resorting to wiretapping.- 22 -

In its application, the government also explained t hat use of general questioning or interrogation under an immunity grant was unlikely to succeed if tried for four reasons: (1) no single person was f amiliar with the entire conspiracy; (2) the interviewees would fear likely reprisals; (3) word of such interviews might cause some subjects of the investi gation (many of whom had strong ties with the Republic of Mexico) to flee th e United States; and (4) because the government did not, as of August, 1994, know orsuspect the identities of any of Rosario Portillo-Rodriguez’s suppliers, culpable persons might receive grants of immunity which would make their subsequent prose cution difficult. Id. at 1548. We agree with the district court’s conclusio n that these assertions, accompanied by the specific and particularized info rmation contained throughout the First Wiretap application, establish that the u se of general questioning or interrogation under an immunity grant was unlikely to succeed if tried. Id. Finally, the government explained that it eschewed the use of a regular search warrant at Rosario Portillo-Rodriguez’s Rari tan Street houses because it did not expect that a search of the houses would pr oduce any uncoded written information which would identify the participants i n Rosario Portillo-Rodriguez’s cocaine distribution business. Id. at 1551. The district court was skeptical of the government’s explanation, on the ground that the explanation ignored (and tended to contradict) specific information known to the go vernment which suggested that8As discussed in the BACKGROUND section, supra , neither of these phone

numbers were subscribed to in Ceferino Castillo-Gar cia’s name. We consider the relevance of this fact, however, to be minimal. Be fore seeking to wiretap these two phone numbers, the government used trap and tra ce records to establish that (continued...) - 23 - Rosario Portillo-Rodriguez did maintain “a record o f his drug customers and outstanding debts in a small notebook.” Id. We do not share the district court’s skepticism in this regard. Rather, we see no contr adiction between information suggesting that Rosario Portillo-Rodriguez maintain ed records of his drug

customers and outstanding debts , and the government’s hypothesis that Rosario Portillo-Rodriguez did not maintain records which w ould reveal the names of his drug suppliers . Our limited disagreement with the district courtis immaterial, however, because we agree with the district court’s ultimate conclusion--which was not appealed--that the government’s application for the First Wiretap demonstrated sufficient necessity to justify the Wi retap. Second Wiretap (94-WT-7) (9/22/94; extended 10/21/9 4) : The district court found that the government’s appl ication for the Second Wiretap, in contrast to its application for the Fir st Wiretap, failed to satisfy the requirements of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia , 920 F. Supp. at 1549-52. Reviewing this conclusion de novo , we disagree. The Second Wiretap was directed against two phone numbe rs used by Ceferino Castillo-Garcia, 8 who was suspected of being the intermediary betwee n Rosario8 (...continued)

they were in fact being used by Ceferino Castillo-G arcia to discuss drug transactions with Rosario Portillo-Rodriguez. It d oes not appear that anyone other than Ceferino Castillo-Garcia was targeted bythe Second Wiretap. Indeed, neither Fidela Armendariz nor Anita Pino, to whom t he two phone numbers were registered, were ever charged in connection with th e present case. - 24 - Portillo-Rodriguez and the ultimate source of the c ocaine which Rosario PortilloRodriguez was distributing in Denver. The governme nt sought the wiretap in order to determine where Ceferino Castillo-Garcia w as obtaining his drug supply. As the district court noted, the application for th e Second Wiretap incorporated by reference the application for the F irst Wiretap. See CastilloGarcia , 920 F. Supp. at 1557 ¶ 29. Pertinent to the “nec essity” of wiretapping Ceferino Castillo-Garcia, the First Wiretap application stated that: (1) the government suspected Rosario Portillo-Rodriguez to be a member of a large drug conspiracy; (2) that some of Rosario Portillo-Rodri guez’s suspected coconspirators were from Mexico and several of them w ere related to each other, making penetration of the alleged conspiracy diffic ult; (3) that unindicted and atlarge members of the conspiracy were unlikely to co -operate with the FBI if contacted; (4) that one confidential informant (“CW -1") working with the FBI could not penetrate the alleged conspiracy any furt her because CW-1 dealt only with Rosario Portillo-Rodriguez; (5) that pen regis ters and “trap and trace” devices, which identify telephone numbers called orcalled from, provided insufficient information as to the identities of pe ople using those telephone- 25 -

numbers and the substance of those conversations; and (6) that the alleged conspiracy operated on a 24-hour basis, rendering v isual surveillance difficult and costly. Castillo-Garcia , 920 F. Supp. at 1555-56. In addition to the information incorporated by refe rence from the First Wiretap application, the application for the Second Wiretap revealed three additional facts pertinent to the necessity of wire tapping Ceferino Castillo-Garcia. First, the Second Wiretap application disclosed that evidence adduced from the First Wiretap indicated that Ceferino Castillo-Garc ia was “clearly the intermediary between Rosario Portillo[-Rodriguez] and the ultimate source(s) of the cocaine.” Id. at 1557 ¶ 30. In addition, the Second Wiretap app lication disclosed the existence of a second confidential wi tness (“CW-2”), who had provided additional information to Detective Barnhi ll but had “indicated a reluctance to testify in any proceeding . . . out o f fear for CW-2's personal safety and/or that of CW-2's family should CW-2's identityand cooperation be revealed.” Id. at 1557 ¶ 32. Finally, the Second Wiretap application disclosed that on at least one occasion, Ceferino Castillo-Ga rcia and Ismael ArmendarizAmaya were tailed by visual surveillance officers, and that following that occasion, Ceferino Castillo-Garcia had told Rosario Portillo-Rodriguez that Castillo-Garcia had detected the surveillance. Id

. at 1549, 1558.- 26 -

The evidence regarding the extent to which Ceferino Castillo-Garcia was subject to visual surveillance is ambiguous. Neith er Detective Barnhill nor any other law enforcement officer attested to having ev er conducted or attempted surveillance of Ceferino Castillo-Garcia. Indeed, on cross-examination at the hearing on the defendants’ Motion to Suppress, Dete ctive Barnhill admitted that between the First Wiretap and the Fourth Wiretap, he undertook no investigatory steps, other than the Wiretaps. This admission led the district court to find as a factual matter that “after obtaining the First Wire tap, the Governmentundertook no ‘normal investigation procedures’ before seeking any of the subsequent wiretaps.” Id. at 1551 (emphasis added). Detective Barnhill did, however, testify in his affidavit attached to the Second Wiretap app lication, that: On September 5, 1994, the following occurred: At approximately 7:00 P.M., surveillance officers followed CEFERINO CASTILLOGARCIA and ISMAEL ARMENDARIZ-AMAYA from 6550 Benton Street to a shopping center located at West 72nd Av enue and Sheridan Boulevard. After a few moments, both indi viduals returned to 6550 Benton Street, Denver, Colorado. (Rec. V.6 at 20 ¶ 23(a)). Nowhere else in the reco rd is there any reference to visual surveillance of Ceferino Castillo-Garcia, Is mael Armendariz-Amaya, or any other defendant in the present proceeding. While Detective Barnhill’s statement could support an inference that both Ceferino Castillo-Garcia and Ismael Armendariz-Amay a were subject to extensive visual surveillance prior to the government’s reque st for a wiretap of Ceferino- 27 -

Castillo-Garcia’s telephone, it could also support an inference that either Ceferino Castillo-Garcia or Ismael Armendariz-Amaya was “tai led” only once. The district court declined to resolve the extent to which visua l surveillance of Ceferino Castillo-Garcia actually occurred. See id. at 1549. Because we must view the evidence in the light most favorable to the defenda nts, who prevailed below, United States v. Edwards , 69 F.3d 419, 428 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996) (citing United States v. Williamson , 1 F.3d 1134, 1135 (10th Cir.1993)), we must assume that visual surveillance of Ceferino Castillo-Garcia was attempted only once, and then abandoned, and th at no visual surveillance of the other defendants in the present case was ever attempted. Even under this assumption, however, we think the g overnment’s aborted attempt at visual surveillance of Ceferino Castillo -Garcia satisfies the “standard visual and aural surveillance” prong of our test of necessity. In addition to his affidavit testimony suggesting that Ceferino Castil lo-Garcia was tailed on the evening of September 5, 1994, Detective Barnhill al so reported that Ceferino Castillo-Garcia was overheard, shortly thereafter, telling Rosario PortilloRodriguez that Ceferino Castillo-Garcia suspected t he tail. See Castillo-Garcia , 920 F. Supp. at 1549. The district court found that Detective Barnhill’s affidavit

statement was: based on two conversations between Rosario Portillo -Rodriguez and Ceferino Castillo-Garcia overheard during the FirstWiretap. On the9 There is no similar evidence tending to suggest that Ceferino CastilloGarcia’s companion of September 5, 1994, Ismael Arm endariz-Amaya, ever detected any surveillance. - 28 - evening of September 5, 1994, Ceferino told Rosario that he ‘saw them watching.’ The next day he told Rosario that he intended to drive to Rosario’s location ‘to see if he . . . wou ld be followed.’ Castillo-Garcia , 920 F. Supp. at 1549 (citations to the record omi tted). Even assuming arguendo , as we must, that the evening of September 5, 1994, was the one and only time that Ceferino Casti llo-Garcia was ever subject to visual surveillance, we find it dispositive that, o n that occasion, Ceferino Castillo-Garcia detected the surveillance. 9 We think that Ceferino CastilloGarcia’s belief

that he was being watched extensively, when consid ered with the rest of the allegations contained in the First and Second Wiretap applications, adequately established that standard visual and aur al surveillance of Ceferino Castillo-Garcia had been tried and failed and that future attempts to “tail” Ceferino Castillo-Garcia would be dangerous and pro bably futile. See United States v. Apodaca , 820 F.2d 348, 350 (10th Cir.), cert. denied , 484 U.S. 903 (1987) (upholding wiretapping order where, as one f actor in establishing “necessity,” the government established that increa sed visual surveillance would have increased the possibility of detection). We think that the government’s application for the Second Wiretap also satisfied the “undercover agents or informants” pro ng of our test. In addition to- 29 -

incorporating by reference the material from the Fi rst Wiretap application which detailed the year-long efforts of confidential info rmant CW-1 to determine the source of Rosario Portillo-Rodriguez’s drugs, the application for the Second Wiretap also detailed the similarly unsuccessful ef forts of a second confidential informant, CW-2. Further, the application for the Second Wiretap disclosed that conversations intercepted pursuant to the First Wir etap indicated that Ceferino Castillo-Garcia traveled to Juarez, Mexico to obtai n cocaine and marijuana from the ultimate source. In our view, the use of CW-1 and CW-2 to attempt to determine the source of the drugs procured by Cefer ino Castillo-Garcia and distributed by Rosario Portillo-Rodriguez indicates that “undercover agents or informants” had been tried and failed. Further, th e information that the “ultimate source” was probably located in the Republic of Mex ico implied that future attempts to use confidential informants for this pu rpose would probably be futile. Similarly, the government’s application for the Sec ond Wiretap also satisfied the requirement here that it explore the normal investigative techniques of pen registers, trap and trace devices, and telep hone toll records. In addition to incorporating by reference the material from the Fi rst Wiretap application which detailed the use of these normal investigative tech niques against Rosario PortilloRodriguez’s telephone numbers, the application for the Second Wiretap also referred to the use of pen registers, trap and trac e devices, and telephone toll- 30 -

records to investigate certain telephone numbers “k nown to be available to the subjects of this investigation.” Id. at 1558 ¶ 37. The district court interpreted this statement to mean that “the Government continu ed . . . to use pen registers or trap and trace devices on the calls made from each intercepted number (in order to show that the additional target telephones were used in negotiating drug transactions). . . .” Id. at 1551 (emphasis added). If so, then pen registe rs or trap and trace devices were used against the two phone n umbers which were the subjects of the Second Wiretap, but proved ineffect ive in assisting the government to determine the identity of the “ultimate source” of the drugs. In our view, the Second Wiretap Application also satisfactorily explains why “general questioning or interrogation under an immunity grant” was not attempted against Ceferino Castillo-Garcia. Based on the information it had obtained from the First Wiretap, the government con sidered Ceferino CastilloGarcia to be “clearly the intermediary between Rosa rio Portillo[-Rodriguez] and the ultimate source(s) of the cocaine.” Castillo-G arcia , 920 F. Supp. at 1557 ¶ 30. As such, Ceferino Castillo-Garcia was presumably a very high ranking member of the suspected conspiracy, and therefore a “culpable individual.” In its application for the Second Wiretap, the government clearly stat ed that “if called to testify, [Ceferino Castillo-Garcia] would likely invoke [his ] Fifth Amendment privileges, and furthermore, that it would be unwise to seek Gr and Jury immunity for any of- 31 -

the subjects named herein because it might foreclos e prosecution of culpable individuals.” Id. at 1558 ¶ 36. The government also noted in its ap plication that “interviews and attempts to develop witnesses wouldserve to alert the targets of the [ongoing] investigation, cause them to become m ore cautious, and perhaps prompt them to flee the jurisdiction to avoid furth er investigation or possible prosecution, since many of the subjects involved in this cocaine distribution enterprise have strong ties to the Republic of Mexi co.” Id. at 1558 ¶ 35. In our view, these statements satisfactorily support the g overnment’s claim that attempting to question Ceferino Castillo-Garcia--wi th or without an offer of immunity--would have probably have been both futile and generative of undesired
consequences. Finally, we think that under the government’s recit ation of the facts of the case, it would have been unreasonable to attempt th e use of a regular search warrant against Ceferino Castillo-Garcia. As just discussed, the government clearly expressed in the application for the Second Wiretap its reasonable desire not to alert any of the targets of its investigatio n. Id. Executing a regular search warrant against Ceferino Castillo-Garcia would have alerted both him and his associates of the existence of an ongoing investigation. Because we find that each prong of our necessity te st was satisfied by the application for the Second Wiretap (94-WT-7), we re verse the district court’s10 Like the phone numbers at issue in the Second Wiret ap, neither of the two

pager numbers which were subject to the Third Wiret ap were subscribed to in the names of the Third Wiretap’s targets. For the reas ons discussed in footnote 9, supra , however, we discount the relevance of this fact. It is uncontroverted that the pager numbers at issue here were in fact being used by Ceferino CastilloGarcia and Jaime Olivas-Sanchez, who were the targe ts of the Third Wiretap. - 32 - grant of the defendants’ Motion to Suppress evidenc e obtained from the Second Wiretap. Third Wiretap (94-WT-8) (9/22/94) : The district court also found that the government’s application for the Third Wiretap failed to satisfy the necessity requirement s of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia , 920 F. Supp. at 1549-52. Reviewing this conclusion de novo , we agree in part and disagree in part. The Third Wiretap was directed against two phone numbers assigned to digi tal display paging devices: one used by Ceferino Castillo-Garcia, and one used by Jaime Olivas-Sanchez, who, like Ceferino Castillo-Garcia, was suspected o f being “the intermediary between Rosario Portillo[-Rodriguez] and other sour ce(s) of cocaine and marijuana.” 10 Castillo-Garcia , 920 F. Supp. at 1559 ¶ 30. The government sought the Third Wiretap in order to determine where Cefer ino Castillo-Garcia and Jaime Olivas-Sanchez were obtaining their drug supplies.11 As the district court noted, no copy of the application for the First Wiretap

was actually attached to the application for the Th ird Wiretap. See Castillo Garcia , 920 F. Supp. at 1559 ¶ 28 & n.2. A copy of the application for the First Wiretap was, however, attached to the application for the Second Wiretap. Id. at 1557 ¶ 29. Because the Second and Third Wiretap ap plications were ruled on by Judge Sparr on the same day, id. at 1542, we are confident that, despite the government’s clerical error, Judge Sparr was able t o consider the relevant material from the First Wiretap application in ruli ng on the Third Wiretap application. - 33 - As the district court noted, the application for th e Third Wiretap incorporated by reference the application for the F irst Wiretap. 11 See CastilloGarcia , 920 F. Supp. at 1559 ¶ 28. Further, the applicat ion for the Third Wiretap was filed and ruled on by Judge Sparr concurrently with the application for the Second Wiretap. See id. at 1542, 1557, 1559. For the reasons discussed in our analysis of the Se cond Wiretap, we believe that, as of September 22, 1994, the government had demonstrated sufficient necessity to wiretap the communications of Ceferino Castillo-Garcia. Accordingly, we think that the necessity to wiretap phone number (303) 251- 1594, a digital paging device allegedly being used by Ceferino Castillo-Garcia to receive late-breaking drug purchase orders while tr aveling in Mexico to purchase drugs, was sufficiently established. We therefore reverse the order of the district court suppressing the evidence obtained from the wi retap of phone number (303)
251-1594.- 34 -

We substantially agree, however, with the district court’s analysis of the lack of a showing of necessity for wiretapping the digital paging device assigned to phone number (303) 609-1931, and used by defendant-appellee Jaime OlivasSanchez. As the district court noted, Detective B arnhill swore in his affidavit attached to the Third Wiretap application that “a v ariety of normal and routine investigative techniques have been attempted during this investigation.” See Castillo-Garcia , 920 F. Supp. at 1559 ¶ 28 (reprinting affidavit). Detective Barnhill’s statement was technically true but large ly misleading. The “variety of normal and routine investigative techniques” that h ad been attempted during “this investigation” consisted primarily of visual survei llance directed against just two suspects: Rosario Portillo-Rodriguez, see id. at 1542-43, and Ceferino CastilloGarcia. (See Rec. V.6 at 20 ¶ 23(a); Aplt.’s Br. at 23). While criminal background checks, pen registers, and trap and trac e devices were apparently used against suspect Jaime Olivas-Sanchez, no other “normal and routine investigative techniques” were ever directed against him, or, ind eed, against any suspect other than Rosario Portillo-Rodriguez or Ceferino Castill o-Garcia. Castillo-Garcia , 920 F. Supp. at 1551-52. This fact, standing alone, does not imply that the government lacked necessity to wiretap Jaime Olivas-Sanchez’s digital paging device. As discussed

supra , such a wiretap would qualify as “necessary” under18 U.S.C. §§- 35 -

2518(1)(c), 2518(3)(c) (1994) ever where no “normal investigative techniques” had even been tried, if allsuch techniques reasonably appeared either unlikel y to succeed if tried, or too dangerous to try. We thus proceed to examine whether the government demonstrated in its application for the Third Wiretap the potential futility or danger of attempting “normal investigat ive techniques” against Jaime Olivas-Sanchez. We agree with the district court that the factors s et forth in the First and Second Wiretap applications to establish “necessity ” to wiretap Rosario PortilloRodriguez ’s and Ceferino Castillo-Garcia ’s telephone numbers do not necessarily establish “necessity” to wiretap telephone numbers used by the other defendants.
See Castillo-Garcia , 920 F. Supp. at 1551. In particular, we note that the First Wiretap application describes the difficulty of vis ual surveillance of the Raritan Street houses, and the difficulty of “tailing” Rosa rio Portillo-Rodriguez, who owned nine cars and frequented remote construction sites. Id. at 1555-56 ¶ 39. Similarly, the Second Wiretap application describes how visual surveillance of Ceferino Castillo-Garcia was tried and detected. I d. at 1557-58 ¶ 34(a). The Third Wiretap application, by contrast, relies on wholly conclusory language which would apply to every member of everysuspected drug conspiracy to explain why visual surveillance of Jaime Olivas- Sanchez, which was never attempted, would not have worked. The application says that:- 36 -

Surveillance of [each member of the suspected consp iracy] designed to identify all their distributors would require th at their activities be monitored on a 24-hour basis. It is unlikely that such a surveillance operation could be conducted for more than a brief period of time before it was discovered, possibly placing the enti re investigation in jeopardy. . . . In your affiant’s experience, surveillance of these individuals has been successful only to a limited degree, in that p rior knowledge of the subjects’s activities enabled surveillance offi cers to observe meetings at known locations. Id. at 1560 ¶ 34. As the district court noted, nothing in this langua ge is in any way particularized to Jaime Olivas-Sanchez. See id. at 1549 (“In contrast to the First Wiretap Affidavit, there is . . . no claim in the [ Third] Wiretap application[] concerning circumstances which made surveillance un usually difficult.”). Thus, we think that the “standard visual and aural survei llance prong” of our test was simply not established in the application for the T hird Wiretap with respect to Jaime Olivas-Sanchez. Further, we can see no reaso n, based on the government’s recitation of the facts of the case, why such stand ard visual and aural surveillance would not have worked against Jaime Olivas-Sanchez. We have, of course, said that the “necessity” requi rement “should be read in a common sense fashion.” United States v. Nunez , 877 F.2d 1470, 1472 (10th Cir.), cert. denied , 493 U.S. 981 (1989); see also Johnson , 645 F.2d at 867 (“affidavits in support of an application for a wir etap order . . . are to be read in a- 37 -

practical and commonsense manner rather than hypert echnically”) (citing cases). However, we have also made it clear that a “common sense approach” will not rehabilitate the government’s failure to include st atutorily required information in a wiretap application. United States v. Mondragon , 52 F.3d 291, 293 (10th Cir. 1995). Applying “common sense,” we note that wiretapping i s normally the safest and most efficacious way for law enforcement office rs to gain useful information about a suspected drug conspiracy. However, we hav e declined to deduce from this “common sense” observation any per se rule that wiretapping is always “necessary” when there is probable cause to believe that the suspects are engaged in a drug conspiracy. See Mondragon , 52 F.3d at 293-94 (suppressing evidence of drug conspiracy obtained pursuant to wiretapping warrant because “necessity” for wiretap was not established in warrant applicat ion). Rather, we have said that: The necessity requirement directly and substantiall y implements the congressional intention to limit the use of interce pt procedures to those situations clearly calling for their employme nt. As a result, failure to satisfy this requirement requires that t he contents of the intercepted communications and the evidence derived therefrom be suppressed. Id. at 294 (citing United States v. Donovan , 429 U.S. 413, 433-34 (1977)) (internal punctuation and citations omitted).- 38 -

Our approach to the “necessity” requirement of Titl e III is consistent with the opinion of the Supreme Court in United States v . Giordano , 416 U.S. 505 (1974). In Giordano , the Court described the congressional intent unde rlying Title III as follows: Congress legislated in considerable detail in provi ding for applications and orders authorizing wiretapping andevinced the clear intent to make doubly sure that the statutory autho rity be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. Thes e procedures were not to be routinely employed as the initial st ep in criminal investigation. Rather, the applicant must state an d the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if t ried or to be too dangerous. Id. at 515. In the present case, the Third Wiretap application simply failed to contain any evidence, other than conclusory evidence that w ould apply to virtually all drug conspiracy investigations, that “normal invest igative procedures”-- particularly “standard visual and aural surveillanc e”--would have been unlikely to succeed if tried against Jaime Olivas-Sanchez, or t hat such procedures were too dangerous to try. Title III, however, requires that such evidence be stated “full[y] and complete[ly],” 18 U.S.C. § 2518(1)(c) (1994), i .e. in a particularized manner. We therefore affirm the order of the district courtsuppressing the evidence obtained during the Third Wiretap from wiretapping phone number (303) 609-
1931.- 39 -

Fourth Wiretap (94-WT-10) (10/7/94) : The district court found that the government’s appl ication for the Fourth Wiretap failed to satisfy the necessity requirement s of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia , 920 F. Supp. at 1549-52. Reviewing this conclusion de novo , we disagree. The Fourth Wiretap was directed against Ceferino Ca stillo-Garcia’s home telephone number, which was subscribed to in Ceferi no Castillo-Garcia’s own name. It was predicated in part on information obt ained in the earlier wiretaps. The government sought the Fourth Wiretap on October7, 1994, by which time Ceferino Castillo-Garcia had stopped making many of his drug-related “business” calls from the phone numbers which were subject to the Second Wiretap, and had begun making such calls from his home phone number. The purpose of the Fourth Wiretap was identical to the purpose of the Second Wiretap: to determine where Ceferino Castillo-Garcia was allegedly obtain ing his drug supplies. As the district court noted, the application for th e Fourth Wiretap incorporated by reference the applications for the First and Second Wiretaps. See Castillo-Garcia , 920 F. Supp. at 1561 ¶ 37 & nn.3 & 4. For the re asons discussed in our analysis of the Second Wiretap, we believe t hat, as of October 7, 1994, the government had demonstrated sufficient necessity to wiretap the communications of Ceferino Castillo-Garcia. We do not think that Ceferino Castillo-Garcia could12 As in some of the earlier applications, the governm ent explained that telephone

toll records, pen register and trap and trace devic es had been utilized but that those devices had not revealed the identities of further participants in the conspiracy. Castillo-Garcia , 920 F. Supp. at 1565 ¶ 37. - 40 - defeat this showing of necessity simply by changing phone numbers. Accordingly, we think that the government establish ed sufficient necessity to wiretap phone number (303) 477-2721. We therefore reverse the order of the district court suppressing the evidence obtained fr om the Fourth Wiretap. Fifth Wiretap (94-WT-11) (10/21/94) : The district court found that the government’s appl ication for the Fifth Wiretap failed to satisfy the necessity requirement s of 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). Castillo-Garcia , 920 F. Supp. at 1549-52. Reviewing this conclusion de novo , we agree. The Fifth Wiretap, which was applied for and grante d on October 21, 1994, was directed against a telephone number subscribed to under the name of “M. Olivas,” and allegedly used by Jaime Olivas-Sanchez to conduct drug-related conversations with Rosario Portillo-Rodriguez. The purpose of the Fifth Wiretap was identical to one of the purposes of the Third W iretap: to determine where Jaime Olivas-Sanchez was allegedly obtaining his drug supplies. As the district court noted, the application for th e Fifth Wiretap incorporated by reference the applications for the First and Third Wiretaps. 12 See Castillo-Garcia , 920 F. Supp. at 1563 ¶ 30 & nn.5 & 6. For the re asons discussed- 41 -

in our analysis of the Third Wiretap, we believe th at, as of September 22, 1994, the government had not demonstrated sufficient nece ssity to wiretap the communications of Jaime Olivas-Sanchez. We see not hing in the government’s October 21, 1994 application for the Fifth Wiretap which adds anything to its earlier inadequate showing. We therefore affirm th e order of the district court suppressing the evidence obtained from the Fifth Wi retap.

IV. In concluding its Order granting the defendants’ Mo tion to Suppress evidence obtained from the Second through Fifth Wir etaps, the district court said the following: It is evident the Government's approach here was to move swiftly from wiretap to wiretap, without pausing to conside r whether normal investigative procedures could be used effectively, particularly in light of any evidence obtained as a result of each succeeding wiretap. The Government sought each succeeding wiretap sole ly because defendants were suspected to be members of the cons piracy under investigation. Such suspicion, while it may satisf y the probable cause element of the wiretap statute, is an insuffi cient basis for a wiretap. If the Constitution and the statutory pro cedures of title III are to have any real meaning . . ., the Government must be held to a standard above that which is revealed by the facts of this case. Castillo-Garcia , 920 F. Supp. at 1552 (internal citations omitted)

. Reviewing this conclusion de novo , we find that with respect to defendantappellee Ceferino Castillo-Garcia, the government d id attempt certain “normal- 42 -

investigative procedures,” sufficient to justify it s subsequent recourse to wiretapping. We agree with the district court, how ever, that no such techniques were ever attempted against any of the other defend ants in the present case, nor was the government’s failure to do so explained in terms adequately particularized to the facts of the case at hand. W e further agree with the district court’s admonition that, even within an ongoing inv estigation of a suspected drug conspiracy, the government may not simply “move swi ftly from wiretap to wiretap.” Id. Rather, under Title III, it must always “paus[e] to consider whether normal investigative procedures could be used effec tively, particularly in light of any evidence obtained as a result of each succeedin g wiretap.” Id. ; compare United States v. Killingsworth , No. 96-6021 (10th Cir. June 30, 1997) (providing an example of a wiretap application in full complia nce with the letter and spirit of Title III).

V. Also before us is the government’s appeal of the di strict court’s denial of its motion for reconsideration. United States v. C astillo-Garcia , No. 94-CR-371, slip op. at 5-8 (D. Colo. May 23, 1996) (unpublishe d order & mem.). An appeal of a district court’s denial of a motion to reconsi der “raises for review only the district court’s order of denial and not the underl ying judgment itself.” Van- 43 -

Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denie d , 506 U.S. 828 (1992) (citing cases). “Therefore, we rev iew a denial of a motion to reconsider only for an abuse of discretion.” Elske n v. Network Multi-Family Sec. Corp. , 49 F.3d 1470, 1476 (10th Cir. 1995). Here, the district court found that “the Governmentraise[d] no new law or facts” in its motion to reconsider, i.e. no arguments base d either on newly discovered evidence or on legal authority promulgat ed subsequent to the hearing on the suppression motion. United States v. Castil lo-Garcia , No. 94-CR-371, slip op. at 8 (D. Colo. May 23, 1996) (unpublished order& mem.) (emphasis in original). Indeed, the government apparently conceded that it had never raised the “good faith exception” argument until after the defendants’ motion to suppress had been granted. Id. at 5. As the district court noted, arguments rais ed for the first time in a motion for reconsideration are not properly before the court and generally need not be addressed. Burnette v. D resser Indus., Inc. , 849 F.2d 1277, 1285 (10th Cir. 1988) (citing EurekaCarlisle Co. v. Rottman , 398 F.2d 1015, 1019 (10th Cir. 1968)). Thus, the distr ict court did not abuse its discretion when it denied the government’s motion t o reconsider. Normally, when a claim is “not considered or ruled upon by the district court, we will not address it on appeal.” Id. We thus decline to reach the question of whether, notwithstanding the plain lang uage of 18 U.S.C. § 2515- 44 -

(1994), a “good faith exception” might permit the a dmission of wiretap evidence obtained pursuant to a facially valid wiretapping o rder issued in violation of Title
III.
CONCLUSION We REVERSE the order of the district court granting the defendants’ suppression motions with respect to the Second Wire tap (94-WT-7) and the Fourth Wiretap (94-WT-10) We AFFIRM the order of the district court granting the defendants’ suppression motion with respect to the Fifth Wiretap (94-WT-11). We AFFIRM IN PART and REVERSE IN PART the district court’s order granting the defendants’ suppression motion with re spect to the Third Wiretap (94-WT-8). Specifically, we affirm the district co urt’s order suppressing evidence obtained from wiretapping phone number (30 3) 609-1931, but reverse the district court’s order suppressing evidence obt ained from wiretapping phone number (303) 251-1594. Finally, we AFFIRM the district court’s denial of t he government’s motion for reconsideration.