United States District Court, D. Montana, Billings Division
OPINION and ORDER
SUSAN P. WATTERS, District Judge.
Defendants Jason Neel ("Neel") and Mario Villegas ("Villegas") have moved to suppress evidence obtained through wiretaps. (Does. 246 and 249). Neel and Villegas contend that the government did not make an adequate showing of necessity in its wiretap applications. Villegas also seeks to suppress information captured from his cell phone. (Doc. 250 at 13-15). The Court denied their request for a Franks hearing on December 10, 2014. (Doc. 294). The Court now considers their remaining arguments and denies the motions in their entirety.
I. Factual and Procedural Background
Federal Bureau of Investigation ("FBI") agents sought three wiretaps while investigating a drug trafficking organization based in California. In January and February 2014, the FBI applied for wiretaps on two phones belonging to co-defendant Casey Fleming ("Fleming") ("Fleming Application"),  Neel's phone ("Neel Application"), and co-defendant Desiree Jimenez's ("Jimenez") phone ("Jimenez Application"). The FBI later sought to extend the wiretap on one of Fleming's phones ("Fleming Extension"). The Court granted the applications. The Court took the following information from the four wiretap applications.
At the time of the investigation, Neel was incarcerated in a California state prison on a murder conviction. While incarcerated, Neel directed a drug trafficking organization through contraband cell phones. In late September 2013, a Confidential Human Source ("CHS") notified law enforcement that he received a call from Neel. Neel informed the CHS that Fleming was driving to Billings to sell methamphetamine. The next day through text messaging, Fleming told the CHS that he was staying at a hotel near downtown Billings. Fleming also informed the CHS that he was looking to sell nine ounces of methamphetamine. After several days, Fleming told the CHS that he was going back to California but that he would return to Montana with more methamphetamine. During Fleming's stay in Billings, the FBI discovered a car registered to Fleming in the hotel's parking lot. The car's registration revealed an address for Fleming in Taft, California.
The CHS remained in contact with Neel and Fleming and helped them traffic methamphetamine into Montana. The FBI consensually recorded calls between the CHS and Neel and Fleming. In one call, Fleming instructed the CHS to send him drug proceeds through Green Dot or MoneyGram. In other calls, the CHS spoke with Neel and Fleming about a package of methamphetamine that Fleming mailed to Montana.
In early November 2013, the CHS notified the FBI that Fleming had returned to Billings. The CHS told the FBI that Fleming was dealing drugs out of a trailer. The FBI's surveillance confirmed that a car rented by Fleming was parked outside the trailer.
The FBI asked the CHS to introduce Fleming to an undercover agent with the Montana Division of Criminal Investigation ("UCA"). On November 14, the CHS called Fleming and tried to set up a drug deal from Fleming to the UCA. Fleming said he was out of town, but he arranged for the CHS and the UCA to purchase methamphetamine from "Dave" in Roundup. "Dave" was later identified as co-defendant David Goffena ("Goffena"). The CHS and the UCA drove together to Roundup and purchased half an ounce of methamphetamine from Goffena.
The next day, the CHS tried to set up another sale of methamphetamine from Fleming to the UCA. That day, the UCA met Fleming at a prearranged meeting place and purchased half an ounce of methamphetamine. Fleming gave the UCA his phone number. Fleming also told the UCA that he purchased his drugs from a massive methamphetamine laboratory in southern. California.
The UCA developed a good rapport with Fleming, and they remained in contact through the duration of the investigation. On December 12, the UCA purchased one ounce of methamphetamine from Fleming in a Billings parking lot. There, Fleming told the UCA that his drug trafficking ring was operated out of a California prison. Fleming told the UCA that he was looking for a distributor for eastern Montana and western North Dakota. He also said that he would sell methamphetamine to the UCA at a discount if he purchased it by the pound. Fleming told the UCA that the methamphetamine laboratory in southern California was run by the Mexican Mafia. He said that chemicals smuggled from Mexico into California were processed into methamphetamine at the southern California lab.
Fleming provided the UCA details about how he shipped methamphetamine from California to Montana. He said that people working for him would ship two packages: One contained the methamphetamine and the other contained a cell phone with GPS tracking capabilities. Fleming said he monitored their movements. He explained that if the packages were separated from each other, it could indicate that law enforcement may have intercepted the methamphetamine. If that happened, Fleming said he would know not to accept the package. He also said he shipped the packages overnight express to make it harder for law enforcement to get a search warrant before the packages were delivered.
The FBI learned more about Fleming's operations through text messages obtained from Fleming's phone pursuant to a warrant. The texts revealed numerous messages between Neel and Fleming that discussed drug trafficking. In one conversation, Neel and Fleming talked about low quality methamphetamine that Fleming received from a supplier. On December 18, Neel texted Fleming that he arranged for Fleming to get his money back from "P." On December 21, Neel texted Fleming that "Pilot" needed "the stuff' before refunding Fleming. On the same day, Neel again mentioned "P." From those text messages, the agents believed that "P" or "Pilot" was a source of supply for Neel and Fleming. On December 24, Fleming received a series of text messages from an unidentified number that provided delivery tracking numbers, a Green Dot card number, and a money order number.
On December 26, the CHS reported to the FBI that Fleming had returned to California. On December 30, FBI surveillance observed. Jimenez and co-conspirator David Hampton ("Hampton") talking outside of Fleming's house in Taft, California. Soon after his return to California, Fleming initiated contact with the UCA and asked if he was interested in purchasing methamphetamine. The UCA said yes. Fleming said that he would ship some methamphetamine to his associates in Roundup and would reserve two ounces of the methamphetamine for the UCA.
On January 6, 2014, Fleming called the UCA and told him that the methamphetamine was available in Roundup. The next day, the UCA went to Roundup and purchased two ounces of methamphetamine from Goffena. Per Fleming's instructions, the UCA did not pay Goffena. Instead, the UCA deposited $4, 000 into Fleming's Wells Fargo bank account. The UCA called Fleming to confirm the transaction. Fleming told the UCA that Fleming had just received about five pounds of high quality of methamphetamine.
Two weeks later, the FBI obtained another search warrant for text messages from Fleming's phone. The text messages revealed more discussions between Fleming and Neel regarding drug trafficking and a source of supply. On January 13, Neel texted Fleming two phone numbers for "Pilot." On January 15, Neel texted Fleming that he was going to buy more drugs from "P."
On January 23, the FBI submitted the Fleming Application. The Fleming Application was accompanied by a 79-page supporting affidavit used to establish probable cause and the necessity to intercept calls from Fleming's phones. In a section entitled "Need for Intercept, " the FBI stated that wiretapping Fleming's phones was necessary to discover the full scope of the conspiracy. Specifically, the FBI wanted to know the sources of supply and distributors' identities. The FBI stated it was unsure if Fleming and Neel were involved in crimes apart from drug distribution. The FBI also stated that the wiretaps were needed to identify and locate stash houses in Montana and California. While the FBI knew of the stash house in Roundup, they suspected that Fleming and Neel used other stash houses to store and conceal drugs. Finally, the FBI stated that a wiretap was necessary to determine how the conspiracy laundered its money. All of these objectives were designed to take down the conspiracy as a whole.
The agents also listed alternative investigatory techniques that had been tried and failed, appeared unlikely to succeed if tried, or were too dangerous to employ. The techniques described by the agents were: (1) The use of confidential sources and informants; (2) Controlled drug purchases; (3) Pen registers, trap and trace devices, and toll analysis; (4) Surveillance; (5) Consensually-recorded conversations; (6) Search and arrest warrants; (7) Interviews, grand jury subpoenas, and immunity; (8) Trash searches; (9) Attempted use of other surveillance techniques; (10) Mail cover requests; (11) Vehicle and driver's license records; (11) Other wiretaps; and (12) Financial investigation. After describing each technique, the agents stated why they were insufficient to achieve the investigation's goals.
Specific to Neel and Villegas's arguments are mail cover requests and the financial investigation. The FBI did not employ mail covers. A mail cover is a service provided by the United States Postal Service where a list of all the sender and receiver names and addresses on each piece of mail received at a particular location can be obtained. The list is compiled by the mail carrier who would deliver the mail to the target address, and the list would ultimately be given to the FBI. The FBI stated that given the small population of Roundup, the mail carrier could not be trusted to not compromise the investigation, so the FBI did not use this technique.
The FBI also did not use grand jury subpoenas to get records from Wells Fargo or MoneyGram. The FBI stated an intention to issue a grand jury subpoena to Green Dot later in the month. The FBI searched the Financial Crimes Enforcement Network, which returned no results for Jimenez and Neel. The search returned five large cash deposits and withdrawals for Fleming, but the information was dated with the most recent transaction being a $20, 000 withdrawal on May 31, 2012.
After the Court approved the Fleming Application, the FBI began intercepting calls from Fleming's phone. On the evening of January 23, the FBI listened as Fleming agreed to meet an unidentified male at a McDonald's. After waiting at the McDonald's for some time, Fleming called the unidentified male to check his location. The male answered and excitedly told Fleming that his vehicle caught on fire on the freeway. The male told Fleming that his associate would deliver drugs to Fleming. After the call, Fleming texted Neel that "P's" car caught on fire. From that text, the agents believed that "Pilot" was the unidentified male who arranged to meet Fleming at the McDonald's. First responders to the car fire identified "Pilot" as Villegas.
Fleming purchased drugs from Villegas's associate. Neel and Fleming discussed the transaction through the early morning of January 24. Neel told Fleming that his mom was going test the drugs they shipped out of state. Fleming's mother is co-defendant Katherine Neel ("Katherine").
Since October 24, 2013, the FBI had continually operated a pen register on Neel's phone. A pen register records the phone numbers dialed from the target phone. The FBI reviewed the pen register data from Neel's phone and discovered that Neel had been in contact with two individuals with connections to high level Mexican Mafia associates involved in methamphetamine distribution in southern California. The FBI also discovered that Neel communicated regularly with Villegas.
On February 3, based on the information obtained through their prior investigation and from information gleaned from Fleming's wiretap, the FBI made the Neel Application. It was accompanied by a 90-page supporting affidavit. The sections describing the necessity for the wiretap and the alternative investigative techniques are largely the same as the Fleming Application. However, the FBI did make several additions. First, the FBI stated that it knew that Villegas was a first-level supplier for Fleming and Neel. The FBI explained that by intercepting calls from Neel's phone, it could likely gain insight into Villegas's operations. The FBI also stated the wiretap was necessary to locate the clandestine laboratory in southern ...