United States v. Fernandez

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Criminal Practice

New York Law Journal

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Judge Jesse Furman

An indictment charged 20 defendants with conspiracy to distribute narcotics. It also charged Fernandez, Brown, Miller, Montes, Morales and Scarborough with using a firearm in a drug trafficking crime. Fernandez, Montes, Valdez, Morales and Brown sought to suppress evidence obtained from a court-ordered wiretap of Morales' cellphone. They claimed the government's application did not show the wiretap "necessary" as required by Title III of the Omnibus Crime Control and Safe Streets Act. The court noted a "large criminal drug conspiracy that often requires the aid of a wiretap." Additionally, an affidavit underlying the wiretap application showed that other investigative techniques had been tried and either failed, were likely to fail, or were too dangerous. Finding that defendants exaggerated the effectiveness of the government's investigation before the wiretap the court, distinguishing United States v. Lilla, observed that given the nature of the narcotics enterprise, it was reasonable to believe that continued limitation of the investigation to street purchases of modest amounts of drugs from Morales and fellow low-level gang members would not reveal the full scope of the organization or identify more than a handful of its members.

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