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 the captioned decision:

There is a typographical error on page 35 of the opinion. 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)
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John M. Hutchins, Assistant United States Attorney, Denver, CO, argued the

cause for the appellant. Henry L. Solano, United States Attorney, Denver, CO,

and David M. Gaouette, Assistant United States Attorney, Denver, CO, assisted

on the brief. 

Virginia Grady, Assistant Federal Public Defender, Denver, CO, argued the cause

for appellee Ismael Armendariz-Amaya. Michael G. Katz, Federal Public

Defender, Denver, CO, assisted on the brief.

Harvey A. Steinberg, Denver, CO, argued the cause for appellee Jesus Saul

Bujanda-Ibarra. Susan Fuller, Denver, CO, assisted on the brief.

Argued March 18, 1997.

Before PORFILIO, EBEL, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

After obtaining and executing five separate but related telephone

wiretapping orders, the government secured evidence sufficient to indict eighteen

members of an alleged drug conspiracy. In a pre-trial 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 suppression order. We exercise

jurisdiction under 18 U.S.C. § 3731 (1994), affirm in part, and reverse in part.

BACKGROUND
1Rosario Portillo-Rodriguez is not a defendant in the present proceeding.

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During the summer of 1994, Denver Police detective Stephen F. Barnhill

(working as a special federal officer “deputized” by the FBI) was told by a

confidential informant that Rosario Portillo-Rodriguez1 was running a large

cocaine distribution operation out of two houses located 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-Rodriguez over the past year. 

Detective Barnhill impounded 1.25 of those kilograms.

Based on that information, and after a month of collecting additional

evidence against Rosario Portillo-Rodriguez, Detective 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 the Raritan Street houses was set

too far back from the street to be observed, that the residential nature of the

Raritan Street neighborhood rendered surveillance officers conspicuous, and that

it was difficult to tail Rosario Portillo-Rodriguez because he owned and drove

nine different vehicles and frequently went to construction sites located in remote
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locations with limited traffic access. In addition, the application documented a

fruitless year-long attempt by a confidential informant to determine the ultimate

source of Rosario Portillo-Rodriguez’s drugs. Finally, 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 authorizing interceptions of

communications from these three phone numbers [the “First Wiretap”]. The First

Wiretap began immediately, and terminated on September 17, 1994.

During the period from August 19, 1994, to September 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 suspected cocaine distribution

operation. Equipped with this information, the government began visually

surveilling at least one of Rosario Portillo-Rodriguez’s suspected drug suppliers:

defendant-appellee Ceferino Castillo-Garcia. On September 5, 1994, however,

Ceferino Castillo-Garcia phoned Rosario Portillo-Rodriguez and told him that he

“saw them watching.”

Subsequently, on September 22, 1994, the government applied for a warrant

to wiretap two more telephone numbers: one subscribed to in the name of Fidela

Armendariz, and one subscribed to in the name of Anita Pino. Neither of these
2The government was able to determine the phone numbers from which Ceferino

Castillo-Garcia’s calls were placed by consulting “trap and trace records” for Rosario

Portillo-Rodriguez’s wiretapped phone number.

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two individuals, however, were targets of the government’s investigation. Rather,

the government sought these wiretaps because Ceferino Castillo-Garcia had on

several occasions placed drug-related “business” calls to Rosario PortilloRodriguez from each of the two targeted phone numbers.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 paging devices. One pager was

subscribed to in the name of Ruben Martinez; the other in the name of Raul

Ferrnandez. Once again, neither of these two individuals were the targets of the

government’s investigation. Rather, the government sought to wiretap the “Ruben

Martinez” pager because it overheard Ceferino Castillo-Garcia (phoning from

Juarez, Mexico) instruct Rosario Portillo-Rodriguez to “take down the ‘beeper

number’ in case an opportunity arises,” and then provide the pager number

assigned to Ruben Martinez. The government understood this instruction to mean

that Rosario Portillo-Rodriguez should page Ceferino Castillo-Garcia at Ruben

Martinez’s pager number if Rosario Portillo-Rodriguez wanted any more cocaine
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or marijuana while Ceferino Castillo-Garcia remained 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 marijuana) were using the “Raul

Ferrnandez” pager. In response to this application, Judge Sparr issued Warrant

94-WT-8, authorizing electronic eavesdropping on phone numbers (303) 251-1594

and (303) 609-1931 [the “Third Wiretap”].

On October 7, 1994, the government applied for a warrant to wiretap

Ceferino Castillo-Garcia’s home telephone number. In the application, the

government presented evidence that both Ceferino Castillo-Garcia and Ismael

Armendariz-Amaya had made drug-related “business” calls 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 applied for a warrant to

wiretap a telephone number subscribed to in the name of “M. Olivas.” In the

application, the government presented evidence that Jaime Olivas-Sanchez had,

on several occasions, phoned Rosario Portillo-Rodriguez from the “M. Olivas”
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phone number to discuss several drug purchases which 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 through 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) (unpublished order & mem.).

Based largely on information obtained through the five wiretaps,

indictments were brought against eighteen named defendants on eight counts. 

Castillo-Garcia, 920 F. Supp. at 1540. A group of these defendants--not including

original target Rosario Portillo-Rodriguez--moved to suppress the wiretap

evidence, on the grounds that the government had not 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 suppress the evidence obtained

pursuant to the Second through Fifth Wiretaps. Id. at 1548-52. Judge

Nottingham denied the motion to suppress evidence obtained pursuant to the First

Wiretap. Id. at 1547-48.
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The government then moved for reconsideration, arguing that even if there

was no “necessity” for the Second through Fifth Wiretaps, the evidence obtained

from those wiretaps should not be suppressed because, in executing the wiretaps,

the FBI relied in good faith on a facially valid warrant 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 for reconsideration,

noting that the government had not raised the “good faith exception” issue in the

initial proceeding. United States v. Castillo-Garcia, 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 exception” 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 evidence obtained from the Second

through Fifth Wiretaps. Id. at 21.

The government now appeals the suppression of the evidence obtained from

the Second through Fifth Wiretaps.

DISCUSSION

I.
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In its published opinion in the present case, the district court provided a

concise overview of the legal framework for FBI wiretapping. As the court

explained:

Electronic eavesdropping by law enforcement officials is governed

by the federal wiretap statute, title III of the Omnibus Crime Control

and Safe Streets Act of 1968, as amended. [18 U.S.C. §§ 2510-22

(1994 & Supp. 1996)]. To assure the privacy of oral and wire

communications, title III establishes a three-tiered procedure for

obtaining authorization to intercept wire or oral communications. 

First, a duly-authorized law enforcement officer must obtain approval

from the Attorney General of the United States or a specially

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 present a 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 prerequisite 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 all three of these

procedural steps. Further, it is now uncontested that the government

demonstrated “probable cause” sufficient to support all five warrants issued by

Judge Sparr. As the district court noted, however, Title III contains a “necessity”

requirement--separate and distinct from its “probable cause” requirement--which

must be satisfied before a wiretap order may be lawfully 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
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wiretapping ‘is not resorted to in situations where traditional investigative

techniques would suffice to expose the crime.’” United States v. Edwards, 69

F.3d 419, 429 (10th Cir. 1995), 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 approving the

interception of a wire, oral, or electronic communication . . . shall

include . . . a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too

dangerous.

18 U.S.C. § 2518(1)(c) (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 tried 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 violation 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 communication has been

intercepted, no part of the contents of such communication and no evidence
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derived therefrom may be received in evidence in any trial, hearing, or other

proceeding . . . if the disclosure of that information would be in violation of this

chapter.”).

In the present case, Judge Nottingham found no fault 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,” Castillo-Garcia, 920 F. Supp. at 1545

(emphasis in original), Judge Nottingham found that the “necessity requirement”

was not met with respect to the Second through Fifth Wiretap orders issued by

Judge Sparr. In particular, Judge Nottingham observed that entire paragraphs of

affidavits attached to the warrant applications “consist 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 it never really tried to

use any of these procedures. Instead, the investigation proceeded

from one wiretap to another.

Id. at 1543. Pursuant to 18 U.S.C. § 2515 (1994), Judge Nottingham therefore

suppressed all evidence obtained from those Wiretaps.
3Because the application of the “necessity” requirement is a question of law

subject to de novo review, we note that Judge Nottingham, who found insufficient

“necessity” to support the Second through Fifth wiretapping orders, owed no

deference to Judge Sparr, who had found sufficient “necessity” to issue those

orders. Similarly, we owe no deference to either Judge Nottingham or Judge

Sparr in assessing whether the Second through Fifth Wiretaps were “necessary.”

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The government now argues that Judge Nottingham applied 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 obtained pursuant to a

wiretap, we accept the district court's factual findings unless clearly erroneous,

review questions of law de novo, and view the evidence in the light most

favorable to the prevailing party. United States v. Edwards, 69 F.3d 419, 428

(10th Cir. 1995), cert. denied, 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” under 18 U.S.C. § 2518(1)(c)

(1994) to support the issuance of a wiretapping order is a question of law which

we review de novo.

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 presumption.” Id. Thus, under

our precedents, the defendants continue to carry the burden of persuasion on the
4As discussed supra, however, we accept the district court's factual findings

unless clearly erroneous and view the evidence in the 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 defendants are in a

somewhat better position than if they had not prevailed below.

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legal question of whether the Second through Fifth Wiretaps were “necessary,”

despite having prevailed below.4

 As discussed supra Part I, a wiretap is

“necessary” only where “normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994).

As the district court noted, Congress did not intend the statutory phrase

“normal investigative procedures” to include electronic eavesdropping techniques. 

Castillo-Garcia, 920 F. Supp. at 1545 (citing United States v. Bianco, 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, for example,

standard visual or aural surveillance techniques by law enforcement

officers, general questioning or interrogation under an immunity

grant, use of regular search warrants, and the infiltration of

conspiratorial groups by undercover agents or informants.
5This court has always adhered to Congress’s intention that the

government’s demonstration of the necessity for instituting 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).

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Senate Comm. on the Judiciary, Report on the Omnibus Crime Control and Safe

Streets Act of 1968, S. Rep. No. 90-1097, at 79 (1968), reprinted in 1968

U.S.C.C.A.N. 2112, 2190, and cited in Castillo-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 the government to exhaust

these four investigative techniques or to explain why exhaustion would be too

dangerous or futile, prior to initiating electronic visual surveillance).

The Ninetieth Congress noted that “[m]erely because a normal investigative

technique is theoretically possible, it does not follow 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 tested in 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 consideration of all the

facts and circumstances” in order to determine whether the government’s showing

of necessity is sufficient to justify a wiretap. Id.
6Although Mesa-Rincon involved visual, rather than aural, electronic

surveillance, the Mesa-Rincon court 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-Rincon court 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.

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The “necessity” requirement of Title III is not an “exhaustion” requirement. 

 “In examining necessity challenges to wiretap orders, we have repeatedly held

that law enforcement officials are not required to exhaust all other conceivable

investigative procedures before resorting to wiretapping.” 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). “Rather, that section of the statute

serves to insure that wiretapping is not used in situations where traditional

investigative techniques would suffice to expose the 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 wiretapping warrant without trying

any other methods of investigation, if it demonstrates that normal investigatory

techniques reasonably appear to be unlikely to succeed if tried, or to be too

dangerous to try. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994); United States

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] techniques that should be considered,” 
7Although the Mesa-Rincon court cited this quotation to page 101, the

quoted language actually appears at page 79 of S. Rep. No. 90-1097 (1968).

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911 F.2d at 1444 (emphasis added), and we then identified the four investigative

techniques specifically set forth by Congress in the Senate and House Report of

Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Id. (citing

S. Rep. No. 90-1097, at 1017 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2190).

We now expressly hold what the court in Mesa-Rincon suggested and what

seems clearly to be contemplated by Title III. To obtain an electronic

surveillance order, the government must explain fully in its application what

investigative techniques have been tried against the target of the wiretap. 18

U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). If any of the four categories of normal

investigative techniques referred to in the legislative history of Title III have not

been tried, the government must explain with particularity why each of such

untried techniques would be either unsuccessful or too dangerous. Those

investigative procedures are: (1) standard visual and aural surveillance; (2)

questioning and interrogation of witnesses or participants (including the use of

grand juries and the grant of immunity if necessary); (3) use of search warrants;

and (4) infiltration of conspiratorial groups by undercover agents or informants. 

In addition, if other normal investigative techniques such as pen registers or trap

and trace devices have not been tried, a similar explanation must be offered as to
- 17 -

why they also would be unsuccessful or too dangerous. We add pen registers and

trap and trace devices to this list because they possess a logical relationship and

close affinity to wiretaps and yet are less intrusive. Thus, unless the government

can show that they would be ineffective or dangerous 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 circumstances of each investigation. 

For example, it will often be the case that the government must consider first the

less intrusive technique of reviewing available public, private, or governmental

records pertaining to the suspects under investigation 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 investigation 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 devices, and telephone toll

records, we confine our analysis to those techniques.

In any event, generalities, or statements in the conclusory language of the

statute, are insufficient to support a wiretap application. The statements must be

factual in nature and they must specifically relate to the individuals targeted by
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the wiretap. The district court here rejected “boilerplate” 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 or explanation of why the

method would not work--of all ‘reasonable’ investigatory methods.” Id.

Additionally, we note that where the government’s stated explanation for

its use, or failure to use, normal investigative techniques clearly encompasses

each of these categories and any other normal investigative techniques that may

be applicable to the circumstances, it is not necessary 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 explain its failure to utilize one or

more specified categories of normal investigative techniques will not be fatal to

its wiretap application if it is clear, under the government’s recitation of the facts

of the case, that requiring the government to attempt the unexhausted and

unexplained normal investigative techniques would be unreasonable. See id. at

1445. 
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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 court 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 application 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 immunity grant; (3) use of

regular search warrants; and (4) the infiltration of conspiratorial groups by

undercover agents or informants, each “have been tried and have failed or

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

U.S.C. §§ 2518(1)(c), 2518(3)(c) (1994). We also examine whether pen registers,

trap and trace devices, and review of telephone toll records were utilized. This

showing must be made with respect to the target of each proposed wiretap, and

must be stated with particularity.
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First Wiretap (94-WT-4) (8/19/94):

The district court found that the government’s application 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 Wiretap 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 determine the source of Rosario

Portillo-Rodriguez’s drugs.

As the government explained in its application, standard visual and aural

surveillance of Rosario Portillo-Rodriguez’s suspected 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 residential neighborhood, at a curve in

the road, and set back from the street behind another house. Id. at 1548. The

government had also attempted visual surveillance of Rosario PortilloRodriguez’s activities outside the Raritan street houses, but these attempts had

failed to adduce any evidence because Rosario Portillo-Rodriguez frequented

construction sites located in remote locations with limited traffic access, and

drove nine different vehicles as a result of his connection with construction work. 

Id.
- 21 -

Further, the government had tried using a confidential 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 for 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 records 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 proven ineffective because they

did not enable the government to identify the individuals 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 government’s

obligation in this investigation to try trap and trace devices, pen register data, and

telephone toll records prior to resorting to wiretapping.
- 22 -

In its application, the government also explained that use of general

questioning or interrogation under an immunity grant was unlikely to succeed if

tried for four reasons: (1) no single person was familiar with the entire

conspiracy; (2) the interviewees would fear likely reprisals; (3) word of such

interviews might cause some subjects of the investigation (many of whom had

strong ties with the Republic of Mexico) to flee the United States; and (4) because

the government did not, as of August, 1994, know or suspect the identities of any

of Rosario Portillo-Rodriguez’s suppliers, culpable persons might receive grants

of immunity which would make their subsequent prosecution difficult. Id. at

1548. We agree with the district court’s conclusion that these assertions,

accompanied by the specific and particularized information contained throughout

the First Wiretap application, establish that the use 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 Raritan Street houses because it

did not expect that a search of the houses would produce any uncoded written

information which would identify the participants in 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 government which suggested that
8As discussed in the BACKGROUND section, supra, neither of these phone

numbers were subscribed to in Ceferino Castillo-Garcia’s name. We consider the

relevance of this fact, however, to be minimal. Before seeking to wiretap these

two phone numbers, the government used trap and trace records to establish that

(continued...)

- 23 -

Rosario Portillo-Rodriguez did maintain “a record of 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 contradiction between information

suggesting that Rosario Portillo-Rodriguez maintained records of his drug

customers and outstanding debts, and the government’s hypothesis that Rosario

Portillo-Rodriguez did not maintain records which would reveal the names of his

drug suppliers. Our limited disagreement with the district court is 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 Wiretap.

Second Wiretap (94-WT-7) (9/22/94; extended 10/21/94):

The district court found that the government’s application for the Second

Wiretap, in contrast to its application for the First 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 numbers used by Ceferino

Castillo-Garcia,8

 who was suspected of being the intermediary between Rosario
8

(...continued)

they were in fact being used by Ceferino Castillo-Garcia to discuss drug

transactions with Rosario Portillo-Rodriguez. It does not appear that anyone

other than Ceferino Castillo-Garcia was targeted by the Second Wiretap. Indeed,

neither Fidela Armendariz nor Anita Pino, to whom the two phone numbers were

registered, were ever charged in connection with the present case. 

- 24 -

Portillo-Rodriguez and the ultimate source of the cocaine which Rosario PortilloRodriguez was distributing in Denver. The government sought the wiretap in

order to determine where Ceferino Castillo-Garcia was obtaining his drug supply.

As the district court noted, the application for the Second Wiretap

incorporated by reference the application for the First Wiretap. See CastilloGarcia, 920 F. Supp. at 1557 ¶ 29. Pertinent to the “necessity” 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-Rodriguez’s suspected coconspirators were from Mexico and several of them were related to each other,

making penetration of the alleged conspiracy difficult; (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 further because CW-1 dealt only

with Rosario Portillo-Rodriguez; (5) that pen registers and “trap and trace”

devices, which identify telephone numbers called or called from, provided

insufficient information as to the identities of people using those telephone
- 25 -

numbers and the substance of those conversations; and (6) that the alleged

conspiracy operated on a 24-hour basis, rendering visual surveillance difficult and

costly. Castillo-Garcia, 920 F. Supp. at 1555-56.

In addition to the information incorporated by reference from the First

Wiretap application, the application for the Second Wiretap revealed three

additional facts pertinent to the necessity of wiretapping Ceferino Castillo-Garcia. 

First, the Second Wiretap application disclosed that evidence adduced from the

First Wiretap indicated that Ceferino Castillo-Garcia 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 application

disclosed the existence of a second confidential witness (“CW-2”), who had

provided additional information to Detective Barnhill but had “indicated a

reluctance to testify in any proceeding . . . out of fear for CW-2's personal safety

and/or that of CW-2's family should CW-2's identity and cooperation be

revealed.” Id. at 1557 ¶ 32. Finally, the Second Wiretap application disclosed

that on at least one occasion, Ceferino Castillo-Garcia 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. Neither Detective Barnhill nor any

other law enforcement officer attested to having ever conducted or attempted

surveillance of Ceferino Castillo-Garcia. Indeed, on cross-examination at the

hearing on the defendants’ Motion to Suppress, Detective 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 Wiretap, the Government undertook

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 application, 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 Avenue and

Sheridan Boulevard. After a few moments, both individuals returned

to 6550 Benton Street, Denver, Colorado.

(Rec. V.6 at 20 ¶ 23(a)). Nowhere else in the record is there any reference to

visual surveillance of Ceferino Castillo-Garcia, Ismael 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-Amaya were subject to extensive

visual surveillance prior to the government’s request 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 “tailed” only once. The district

court declined to resolve the extent to which visual surveillance of Ceferino

Castillo-Garcia actually occurred. See id. at 1549. Because we must view the

evidence in the 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)), we must assume that visual surveillance of Ceferino Castillo-Garcia

was attempted only once, and then abandoned, and that no visual surveillance of

the other defendants in the present case was ever attempted.

Even under this assumption, however, we think the government’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 Castillo-Garcia was tailed on the

evening of September 5, 1994, Detective Barnhill also reported that Ceferino

Castillo-Garcia was overheard, shortly thereafter, telling Rosario PortilloRodriguez that Ceferino Castillo-Garcia suspected the 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 First Wiretap. On the
9There is no similar evidence tending to suggest that Ceferino CastilloGarcia’s companion of September 5, 1994, Ismael Armendariz-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 . . . would be followed.’

Castillo-Garcia, 920 F. Supp. at 1549 (citations to the record omitted).

Even assuming arguendo, as we must, that the evening of September 5,

1994, was the one and only time that Ceferino Castillo-Garcia was ever subject to

visual surveillance, we find it dispositive that, on that occasion, Ceferino

Castillo-Garcia detected the surveillance.9 We think that Ceferino CastilloGarcia’s belief that he was being watched extensively, when considered with the

rest of the allegations contained in the First and Second Wiretap applications,

adequately established that standard visual and aural surveillance of Ceferino

Castillo-Garcia had been tried and failed and that future attempts to “tail”

Ceferino Castillo-Garcia would be dangerous and probably 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 factor in establishing

“necessity,” the government established that increased 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” prong of our test. In addition to
- 29 -

incorporating by reference the material from the First Wiretap application which

detailed the year-long efforts of confidential informant CW-1 to determine the

source of Rosario Portillo-Rodriguez’s drugs, the application for the Second

Wiretap also detailed the similarly unsuccessful efforts of a second confidential

informant, CW-2. Further, the application for the Second Wiretap disclosed that

conversations intercepted pursuant to the First Wiretap indicated that Ceferino

Castillo-Garcia traveled to Juarez, Mexico to obtain 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 Ceferino Castillo-Garcia and

distributed by Rosario Portillo-Rodriguez indicates that “undercover agents or

informants” had been tried and failed. Further, the information that the “ultimate

source” was probably located in the Republic of Mexico implied that future

attempts to use confidential informants for this purpose would probably be futile.

Similarly, the government’s application for the Second Wiretap also

satisfied the requirement here that it explore the normal investigative techniques

of pen registers, trap and trace devices, and telephone toll records. In addition to

incorporating by reference the material from the First Wiretap application which

detailed the use of these normal investigative techniques against Rosario PortilloRodriguez’s telephone numbers, the application for the Second Wiretap also

referred to the use of pen registers, trap and trace devices, and telephone toll
- 30 -

records to investigate certain telephone numbers “known to be available to the

subjects of this investigation.” Id. at 1558 ¶ 37. The district court interpreted

this statement to mean that “the Government continued . . . 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 registers or trap

and trace devices were used against the two phone numbers which were the

subjects of the Second Wiretap, but proved ineffective 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 considered Ceferino CastilloGarcia to be “clearly the intermediary between Rosario Portillo[-Rodriguez] and

the ultimate source(s) of the cocaine.” Castillo-Garcia, 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 stated that “if called to testify,

[Ceferino Castillo-Garcia] would likely invoke [his] Fifth Amendment privileges,

and furthermore, that it would be unwise to seek Grand Jury immunity for any of
- 31 -

the subjects named herein because it might foreclose prosecution of culpable

individuals.” Id. at 1558 ¶ 36. The government also noted in its application that

“interviews and attempts to develop witnesses would serve to alert the targets of

the [ongoing] investigation, cause them to become more cautious, and perhaps

prompt them to flee the jurisdiction to avoid further investigation or possible

prosecution, since many of the subjects involved in this cocaine distribution

enterprise have strong ties to the Republic of Mexico.” Id. at 1558 ¶ 35. In our

view, these statements satisfactorily support the government’s claim that

attempting to question Ceferino Castillo-Garcia--with 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 recitation of the facts of the

case, it would have been unreasonable to attempt the 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 investigation. 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 test was satisfied by the

application for the Second Wiretap (94-WT-7), we reverse the district court’s
10Like the phone numbers at issue in the Second Wiretap, neither of the two

pager numbers which were subject to the Third Wiretap were subscribed to in the

names of the Third Wiretap’s targets. For the reasons 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 targets of the Third Wiretap.

- 32 -

grant of the defendants’ Motion to Suppress evidence 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 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 agree in part and disagree in part. The Third Wiretap was

directed against two phone numbers assigned to digital display paging devices:

one used by Ceferino Castillo-Garcia, and one used by Jaime Olivas-Sanchez,

who, like Ceferino Castillo-Garcia, was suspected of being “the intermediary

between Rosario Portillo[-Rodriguez] and other source(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 Ceferino Castillo-Garcia and Jaime

Olivas-Sanchez were obtaining their drug supplies.
11As the district court noted, no copy of the application for the First Wiretap

was actually attached to the application for the Third 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 applications 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 to consider the relevant

material from the First Wiretap application in ruling on the Third Wiretap

application.

- 33 -

As the district court noted, the application for the Third Wiretap

incorporated by reference the application for the First Wiretap.11 See CastilloGarcia, 920 F. Supp. at 1559 ¶ 28. Further, the application 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 Second 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 traveling in Mexico to purchase

drugs, was sufficiently established. We therefore reverse the order of the district

court suppressing the evidence obtained from the wiretap 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 Barnhill swore in his affidavit

attached to the Third Wiretap application that “a variety 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 largely misleading. The “variety of

normal and routine investigative techniques” that had been attempted during “this

investigation” consisted primarily of visual surveillance 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 trace devices were apparently used 

against suspect Jaime Olivas-Sanchez, no other “normal and routine investigative

techniques” were ever directed against him, or, indeed, against any suspect other

than Rosario Portillo-Rodriguez or Ceferino Castillo-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” under 18 U.S.C. §§
- 35 -

2518(1)(c), 2518(3)(c) (1994) ever where no “normal investigative techniques”

had even been tried, if all such techniques reasonably appeared either unlikely 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 investigative techniques” against Jaime

Olivas-Sanchez.

We agree with the district court that the factors set 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 visual surveillance of the Raritan

Street houses, and the difficulty of “tailing” Rosario 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. Id. at 1557-58 ¶ 34(a).

The Third Wiretap application, by contrast, relies on wholly conclusory

language which would apply to every member of every suspected 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 conspiracy] designed

to identify all their distributors would require that 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 entire investigation in

jeopardy. . . . 

In your affiant’s experience, surveillance of these individuals has

been successful only to a limited degree, in that prior knowledge of

the subjects’s activities enabled surveillance officers to observe

meetings at known locations.

Id. at 1560 ¶ 34.

As the district court noted, nothing in this language 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 unusually difficult.”). Thus,

we think that the “standard visual and aural surveillance prong” of our test was

simply not established in the application for the Third Wiretap with respect to

Jaime Olivas-Sanchez. Further, we can see no reason, based on the government’s

recitation of the facts of the case, why such standard visual and aural surveillance

would not have worked against Jaime Olivas-Sanchez.

We have, of course, said that the “necessity” requirement “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 wiretap order . . . are to be read in a
- 37 -

practical and commonsense manner rather than hypertechnically”) (citing cases). 

However, we have also made it clear that a “common sense approach” will not

rehabilitate the government’s failure to include statutorily 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 is normally the safest

and most efficacious way for law enforcement officers to gain useful information

about a suspected drug conspiracy. However, we have 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 application). Rather, we have said

that:

The necessity requirement directly and substantially implements the

congressional intention to limit the use of intercept procedures to

those situations clearly calling for their employment. As a result,

failure to satisfy this requirement requires that the 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 Title 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 underlying

Title III as follows:

Congress legislated in considerable detail in providing for

applications and orders authorizing wiretapping and evinced the clear

intent to make doubly sure that the statutory authority be used with

restraint and only where the circumstances warrant the surreptitious

interception of wire and oral communications. These procedures

were not to be routinely employed as the initial step in criminal

investigation. Rather, the applicant must state and the court must

find that normal investigative procedures have been tried and failed

or reasonably appear to be unlikely to succeed if tried 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 would apply to virtually all

drug conspiracy investigations, that “normal investigative procedures”--

particularly “standard visual and aural surveillance”--would have been unlikely to

succeed if tried against Jaime Olivas-Sanchez, or that 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 court suppressing 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 application for the Fourth

Wiretap failed to satisfy the necessity 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 Fourth Wiretap was directed against Ceferino Castillo-Garcia’s home

telephone number, which was subscribed to in Ceferino Castillo-Garcia’s own

name. It was predicated in part on information obtained in the earlier wiretaps. 

The government sought the Fourth Wiretap on October 7, 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 obtaining his drug supplies.

As the district court noted, the application for the 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 reasons discussed

in our analysis of the Second Wiretap, we believe that, 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 could
12As in some of the earlier applications, the government explained that telephone

toll records, pen register and trap and trace devices 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 established sufficient necessity to

wiretap phone number (303) 477-2721. We therefore reverse the order of the

district court suppressing the evidence obtained from the Fourth Wiretap.

Fifth Wiretap (94-WT-11) (10/21/94):

The district court found that the government’s application for the Fifth

Wiretap failed to satisfy the necessity 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 agree.

The Fifth Wiretap, which was applied for and granted 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 Wiretap: to determine where

Jaime Olivas-Sanchez was allegedly obtaining his drug supplies.

As the district court noted, the application for the 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 reasons discussed
- 41 -

in our analysis of the Third Wiretap, we believe that, as of September 22, 1994,

the government had not demonstrated sufficient necessity to wiretap the

communications of Jaime Olivas-Sanchez. We see nothing in the government’s

October 21, 1994 application for the Fifth Wiretap which adds anything to its

earlier inadequate showing. We therefore affirm the order of the district court

suppressing the evidence obtained from the Fifth Wiretap.

IV.

In concluding its Order granting the defendants’ Motion to Suppress

evidence obtained from the Second through Fifth Wiretaps, 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 consider 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 solely because

defendants were suspected to be members of the conspiracy under

investigation. Such suspicion, while it may satisfy the probable

cause element of the wiretap statute, is an insufficient basis for a

wiretap. If the Constitution and the statutory procedures 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 did attempt certain “normal
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investigative procedures,” sufficient to justify its subsequent recourse to

wiretapping. We agree with the district court, however, that no such techniques

were ever attempted against any of the other defendants 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. We further agree with the district

court’s admonition that, even within an ongoing investigation of a suspected drug

conspiracy, the government may not simply “move swiftly from wiretap to

wiretap.” Id. Rather, under Title III, it must always “paus[e] to consider whether

normal investigative procedures could be used effectively, particularly in light of

any evidence obtained as a result of each succeeding wiretap.” Id.; compare

United States v. Killingsworth, No. 96-6021 (10th Cir. June 30, 1997) (providing

an example of a wiretap application in full compliance with the letter and spirit of

Title III).

V.

Also before us is the government’s appeal of the district court’s denial of

its motion for reconsideration. United States v. Castillo-Garcia, No. 94-CR-371,

slip op. at 5-8 (D. Colo. May 23, 1996) (unpublished order & mem.). An appeal

of a district court’s denial of a motion to reconsider “raises for review only the

district court’s order of denial and not the underlying judgment itself.” Van
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Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506

U.S. 828 (1992) (citing cases). “Therefore, we review a denial of a motion to

reconsider only for an abuse of discretion.” Elsken v. Network Multi-Family Sec.

Corp., 49 F.3d 1470, 1476 (10th Cir. 1995). 

Here, the district court found that “the Government raise[d] no new law or

facts” in its motion to reconsider, i.e. no arguments based either on newly

discovered evidence or on legal authority promulgated subsequent to the hearing

on the suppression motion. United States v. Castillo-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 raised

for the first time in a motion for reconsideration are not properly before the court

and generally need not be addressed. Burnette v. Dresser Indus., Inc.,

849 F.2d 1277, 1285 (10th Cir. 1988) (citing Eureka Carlisle Co. v. Rottman, 398

F.2d 1015, 1019 (10th Cir. 1968)). Thus, the district court did not abuse its

discretion when it denied the government’s motion to 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 language of 18 U.S.C. § 2515
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(1994), a “good faith exception” might permit the admission of wiretap evidence

obtained pursuant to a facially valid wiretapping order 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 Wiretap (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 respect to the Third Wiretap

(94-WT-8). Specifically, we affirm the district court’s order suppressing

evidence obtained from wiretapping phone number (303) 609-1931, but reverse

the district court’s order suppressing evidence obtained from wiretapping phone

number (303) 251-1594.

Finally, we AFFIRM the district court’s denial of the government’s motion

for reconsideration.