In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3433
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTHONY SANTIAGO,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12‐cr‐00383‐1 — Robert W. Gettleman, Judge.
____________________
ARGUED APRIL 19, 2018 — DECIDED OCTOBER 2, 2018
____________________
Before RIPPLE, MANION, and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Anthony Santiago initially was
charged with conspiracy to possess with intent to distribute
1000 grams or more of heroin and five or more kilograms of
cocaine, in violation of 21 U.S.C. § 846, and with distribution
of heroin, in violation of 21 U.S.C. § 841(a)(1). Superseding
indictments also charged Mr. Santiago with several counts of
money laundering, in violation of 18 U.S.C. § 1956.
2 No. 16‐3433
Prior to trial, Mr. Santiago filed a motion to suppress
phone recordings secured through a wiretap under Title III
of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. §§ 2510–2520. The court denied that motion as well
as a subsequent motion to reconsider. A jury later convicted
Mr. Santiago on all charges that were tried. He now appeals
the district court’s ruling on the motion to suppress the Title
III wiretap evidence. Specifically, he submits that the wire‐
tap application incorrectly stated that the investigators did
not know his identity and that the application failed to es‐
tablish that the wiretap was necessary to obtain relevant ev‐
idence. If the district court had full and accurate information,
he argues, it would not have issued the warrant. He further
contends that, at the very least, he made a substantial pre‐
liminary showing that the application contained a deliberate
or reckless misstatement of material fact that required a
hearing under Franks v. Delaware, 438 U.S. 154, 155–56.
(1978).
Mr. Santiago’s arguments are not persuasive. The war‐
rant application’s failure to identify Mr. Santiago by his
name rather than simply by his nickname did not affect the
issuing court’s probable‐cause analysis. The application also
established that traditional investigative techniques had
been employed, but were unlikely to uncover critical evi‐
dence about the targets. Finally, Mr. Santiago did not make
the necessary showing to obtain a Franks hearing. We there‐
fore affirm the judgment of the district court.
No. 16‐3433 3
I
BACKGROUND
Sometime in 2011, the Government began investigating
Pedro Salas for drug‐related activity. The investigation in‐
cluded surveillance, use of confidential informants, as well
as evidence procured through wiretaps. Specifically, on
March 13, 2012, the Government received authorization to
tap a phone identified as Target Phone 7, used by Salas, and,
on April 6, 2012, received authorization to intercept commu‐
nications on Target Phone 9, used by Sergio Baltazar‐
Lujano.1 Through intercepted communications and surveil‐
lance, investigators were able to identify a participant by the
nickname of “Titi,” whom they believed to be involved in
both narcotics trafficking and money laundering.
On April 11, 2012, Special Agent Kristofer White submit‐
ted an affidavit in support of an application for continuing
the interception of communications of Target Phone 7 and
for expanding the authorization to include an additional de‐
vice, Target Phone 10. The application identified the follow‐
ing individuals as likely interceptees: Pedro Salas, aka “To‐
ny” or “Bebe”; Sergio Baltazar‐Lujano, aka “Primo” or
“Gansito”; Gerardo Baltazar‐Lujano, aka “Primo”; Jesus
Fuentes, aka “Pepe”; unknown male UM7‐5; FNU LNU2 aka
“Mantequita”; Pedro Trigo; and FNU LNU aka “Titi.”3 Titi
was identified as the user of Target Phone 10. He, along with
1 Mr. Santiago does not contest these wiretap authorizations.
2 “FNU LNU” stands for first name unknown, last name unknown.
3 See R.105‐6 at 7.
4 No. 16‐3433
the other interceptees, also were identified as “Violators,”
meaning that they had committed, were committing, and
would continue to commit the offenses being investigated.4
The affidavit also alleged that there was probable cause
to believe that the target phones were being used and would
continue to be used by the Violators. Special Agent White
believed that the intercepted communications would reveal:
“the nature, extent, and methods of the distribution, trans‐
portation, storage and importation of controlled substances
by the INTERCEPTEES and others”; “the nature, extent, and
methods of operation of the illegal business being conducted
by the INTERCEPTEES”; “the identities and roles of
INTERCEPTEES, accomplices, aiders and abettors, co‐
conspirators, and other participants in these illegal activi‐
ties”; “the distribution and transfer of controlled substances
and money involved in the illegal activities”; “the existence
and location of records related to the illegal activities”; “the
location and source of resources used to finance the illegal
activities”; “the location and disposition of the proceeds
from the illegal activities”; and “the locations and items used
in furtherance of the illegal activities.”5
The affidavit recounted, as well, the evidence establish‐
ing probable cause to believe that the target phones were be‐
ing used to coordinate illegal activities. Specific to Mr. Santi‐
ago, the affidavit included summaries of phone calls on
April 3 and 4, 2012, between Salas on Target Phone 7 and
Mr. Santiago on Target Phone 10. The first call concerned ar‐
4 See id. at 9.
5 Id. at 10–11.
No. 16‐3433 5
ranging a meeting with a Mexican contact who could help
them obtain an import/export license to facilitate their nar‐
cotics business. The second call concerned a large shipment
of narcotics from Mexico.6
Special Agent White also explained in his affidavit the
need for the wire interception. Specifically, the agents were
trying to
(a) identify[] the individuals working with
SALAS and others in distributing narcotics and
collecting narcotics proceeds in the Chicago ar‐
ea; (b) identify[] customers of SALAS and the
drug trafficking organization for which he
works; (c) identify[] the source(s) of supply for
SALAS; (d) identify[] the locations for storing
narcotics and drug proceeds used by
SALAS and (e) obtain[] admissible evidence
necessary to prove beyond a reasonable doubt
that the VIOLATORS, and others yet un‐
known, are engaged in the Subject Offenses.[7]
Moreover, in seeking this evidence, agents had employed
traditional investigative techniques with some, but limited,
success. For instance, visual surveillance of Salas and Titi on
April 2–4, 2012, revealed that Salas had meetings with Titi,
an individual known as “the doctor,” and Sergio Baltazar‐
Lujano.8 The agents were not privy to any of the discussions
6 See id. at 64–65, 67.
7 Id. at 72–73.
8 Id. at 79–81.
6 No. 16‐3433
because they were conducted inside. Moreover, Special
Agent White described how, after leaving a meeting on
April 3, Titi got into his Porsche and drove onto the ex‐
pressway. There he changed speeds and lanes several times,
and swerved over three lanes of traffic at high speed to exit
at the last moment. Special Agent White stated that, in his
experience, Titi was engaged in counter‐surveillance to de‐
tect the presence of law enforcement.9
Although at least some members of the investigative
team knew that Titi was Mr. Santiago,10 that information
was not included in Special Agent White’s affidavit. Instead,
Mr. Santiago was identified throughout the affidavit as FNU
LNU aka “TITI.”
Based on Special Agent White’s affidavit, the district
court entered an order authorizing the interception of wire
communications on Target Phone 10 and extended the au‐
thorization on Target Phone 7. The Government later ap‐
plied for and obtained a wiretap authorization for another
phone used by Mr. Santiago (Target Phone 12) and two other
phones used by Salas. This application tracked closely the
April 11 application, but identified Mr. Santiago by his actu‐
al name. The affidavit in support of the application ex‐
plained that
9 Id. at 81.
10 Special Agent Nick Loonan prepared a report of the April 2–4 surveil‐
lance on April 9, 2012. In the report, Special Agent Loonan noted that he
“observed … Anthony SANTIAGO (aka TITI, per intercepted calls), who
was driving the Porsche, enter the restaurant.” R.105‐1 at 2. Thus, as of
April 9, 2012, at least Special Agent Loonan had identified Titi as
Mr. Santiago.
No. 16‐3433 7
[i]n previous affidavits, SANTIAGO was only
identified as “TITI.” Law enforcement identi‐
fied “TITI” as ANTHONY SANTIAGO in the
following manner. During a recorded call over
Target Phone 10 with SALAS on April 12, 2012
(Call #67), SANTIAGO recommended a lawyer
in Tijuana, Mexico to SALAS and told SALAS
to call the lawyer and say he was calling on
behalf of “ANTHONY SANTIAGO.” On a call
the next day over Target Phone 10 (Call #68),
an unknown male said to SANTIAGO, “Let me
ask you this ANTHONY … .” When law en‐
forcement obtained authority to intercept calls
over Target Phone 10, the Court also ordered
the telephone company to assist law enforce‐
ment in locating Target Phone 10 over the same
30‐day period. Using that location information
for Target Phone 10, law enforcement has con‐
ducted surveillance of SANTIAGO on a num‐
ber of occasions in April 2012 and his appear‐
ance matches that of known photos of
ANTHONY SANTIAGO.[11]
The application was granted.
Based in large part on evidence obtained through the
wiretaps, Mr. Santiago was charged in a superseding in‐
dictment with conspiracy to distribute narcotics, distribution
of narcotics, and money laundering. Prior to trial on these
charges, Mr. Santiago moved to suppress the evidence ob‐
11 R.105‐9 at 5 n.1 (emphasis removed).
8 No. 16‐3433
tained from the April 11 wiretap authorization. In his mo‐
tion, Mr. Santiago argued, among other grounds, that the
Government had violated 18 U.S.C. § 2518(4)(a), which re‐
quires that the wiretap application include “the identity of
the person, if known, whose communications are to be inter‐
cepted.”12 Mr. Santiago contended that the DEA knew of his
identity prior to April 11, yet failed to identify him by his
name in the affidavit. He also maintained that “normal in‐
vestigative procedures were neither exhausted nor ade‐
quately attempted” prior to seeking the wiretap.13 Finally, he
submitted that the false statements and material omissions
in the affidavit required a hearing under Franks v. Delaware,
438 U.S. 154, 155–56 (1978). The district court denied the mo‐
tion to suppress; it concluded that Mr. Santiago’s challenge
to the sufficiency of the wiretap affidavit was foreclosed by
the Supreme Court’s decision in United States v. Donovan, 429
U.S. 413 (1977).14 Mr. Santiago moved for reconsideration,15
and the court denied that motion as well.16
12 R.105 at 15 (emphasis removed).
13 Id. at 21.
14 See R.156 at 7–8.
15 See R.224.
16 See R.279 (minute entry); R.416 at 4–5 (transcript of hearing in which
district court denies motion). After the motion to reconsider was filed,
the case was transferred to a new district judge. The new district judge
denied the motion without prejudice to refile. See R.258. As trial ap‐
proached, Mr. Santiago renewed his motion to suppress the wiretap evi‐
dence. See R.263. This motion was withdrawn, see R.275, and the new
district judge ultimately ruled on the original motion to reconsider, see
R.279.
No. 16‐3433 9
Mr. Santiago proceeded to trial and was convicted on all
three counts that were tried to the jury.17
II
DISCUSSION
A.
On appeal,18 Mr. Santiago renews his argument that the
Title III wiretap evidence should have been suppressed be‐
cause the Government did not meet the statutory require‐
ments for obtaining the April 11, 2012 wiretap authorization.
When reviewing the denial of a motion to suppress wiretap
evidence, we review the district court’s factual findings for
clear error and its conclusions of law de novo. See United
States v. Fudge, 325 F.3d 910, 917 (7th Cir. 2003).
Section 2518 of Title 18 sets forth the requirements for ob‐
taining authorization for wiretaps. Among the information
that must be included in a wiretap application is “a full and
complete statement of the facts and circumstances relied up‐
on by the applicant[] to justify his belief that an order should
be issued[.]” 18 U.S.C. § 2518(1)(b). The statement is “full
and complete” if it includes
(i) details as to the particular offense that has
been, is being, or is about to be committed, (ii)
17 The jurisdiction of the district court is predicated on 18 U.S.C. § 3231.
The counts tried to the jury included one violation of 21 U.S.C. § 846, one
violation of 21 U.S.C. § 841(a)(1), and one violation of 18 U.S.C. § 1956.
The district court severed and later dismissed the remaining counts.
18 Our jurisdiction is predicated on 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
10 No. 16‐3433
except as provided in subsection (11), a partic‐
ular description of the nature and location of
the facilities from which or the place where the
communication is to be intercepted, (iii) a par‐
ticular description of the type of communica‐
tions sought to be intercepted, (iv) the identity
of the person, if known, committing the offense
and whose communications are to be inter‐
cepted[.]
Id. The application also must contain “a full and complete
statement as to whether or not other investigative proce‐
dures have been tried and failed or why they reasonably ap‐
pear to be unlikely to succeed if tried or to be too danger‐
ous[.]” Id. § 2518(1)(c).
Once an application is filed, the court may enter the or‐
der authorizing the wiretap if it determines that the Gov‐
ernment has satisfied the requirements of the statute. Specif‐
ically, the district court must determine that
(a) there is probable cause for belief that an in‐
dividual is committing, has committed, or is
about to commit a particular offense enumer‐
ated in section 2516 of this chapter;
(b) there is probable cause for belief that par‐
ticular communications concerning that of‐
fense will be obtained through such intercep‐
tion;
(c) normal investigative procedures have been
tried and have failed or reasonably appear to
be unlikely to succeed if tried or to be too dan‐
gerous;
No. 16‐3433 11
(d) except as provided in subsection (11), there
is probable cause for belief that the facilities
from which, or the place where, the wire, oral,
or electronic communications are to be inter‐
cepted are being used, or are about to be used,
in connection with the commission of such of‐
fense, or are leased to, listed in the name of, or
commonly used by such person.
18 U.S.C. § 2518(3).
Finally, § 2518(10)(a) provides an avenue for an “ag‐
grieved person” to challenge evidence obtained through an
authorized wiretap. Specifically, an aggrieved person may
move to suppress
the contents of any wire … communica‐
tion … on the grounds that (i) the communica‐
tion was unlawfully intercepted; (ii) the order
of authorization or approval under which it
was intercepted is insufficient on its face; or
(iii) the interception was not made in conformi‐
ty with the order of authorization or approval.
Id. § 2518(10)(a).
B.
Mr. Santiago maintains that the evidence gathered
through the April 11 authorization should be suppressed be‐
cause Special Agent White failed to identify him by name as
required by § 2518(1)(b)(iv), even though his name was
known at the time the affidavit was submitted to the court.
United States v. Donovan, 429 U.S. 413 (1977), forecloses this
argument.
12 No. 16‐3433
In Donovan, the Government had secured authorization
for an initial wiretap of three named individuals and three
“others, as yet unknown.” Id. at 418. Through recorded con‐
versations, the Government learned that the names of the
three unknown individuals were Donovan, Robbins, and
Buzzacco. The Government then applied for an extension of
the wiretap. In its extension application, the Government
failed to identify Donovan, Robbins, and Buzzacco by name
and failed to state that their conversations would be inter‐
cepted. After Donovan, Robbins, and Buzzacco were indict‐
ed, they moved to suppress the wiretap evidence on the
ground that the failure to identify them by name in the ex‐
tension application violated 18 U.S.C. § 2518(1)(b)(iv). The
district court granted the motion to suppress, and the court
of appeals affirmed.
The Supreme Court, however, reversed. It held that, alt‐
hough there was a violation of the identification provision,
the evidence should not have been suppressed. With respect
to the identification, the court rejected the Government’s ar‐
gument that the statute only required identification of the
“principal” target of the investigation—the one whose
phone was to be monitored. Donovan, 429 U.S. at 423. The
Court held that the statutory language—“the person, if
known, committing the offense and whose communications
are to be intercepted”—“is as applicable to a suspect placing
calls to the target telephone as it is to a suspect placing calls
from the telephone.” Id. at 424–25 (internal quotation marks
omitted). Therefore, “a wiretap application must name an
individual if the Government has probable cause to believe
that the individual is engaged in the criminal activity under
investigation and expects to intercept the individual’s con‐
versations over the target telephone.” Id. at 428. The Court
No. 16‐3433 13
concluded that the statute made no distinction between
“principal target[s]” and other suspects whose communica‐
tions were to be intercepted. See id. at 425–28.
Turning to the issue of suppression, the Court noted that
“[t]here [wa]s no basis on the facts of this case to suggest
that the authorization orders [we]re facially insufficient, or
that the interception was not conducted in conformity with
the orders.” Id. at 432 (referencing § 2518(10)(a)(i) and (ii)).
Consequently, the only question was whether the communi‐
cations were unlawfully intercepted. In answering this ques‐
tion, the Court turned to its earlier cases, United States v.
Giordano, 416 U.S. 505 (1974), and United States v. Chavez, 416
U.S. 562 (1974). Those cases had held that not every failure to
comply fully with a Title III requirement renders the inter‐
ceptions “unlawful.” Donovan, 429 U.S. at 433 (quoting
Chavez, 416 F.3d at 575). Instead, “suppression is required
only for a ‘failure to satisfy any of those statutory require‐
ments that directly and substantially implement the congres‐
sional intention to limit the use of intercept procedures to
those situations clearly calling for the employment of this
extraordinary investigative device.’” Id. at 433–34 (quoting
Giordano, 416 U.S. at 527). The failure to identify some of the
individuals likely to be intercepted, the Court held, does not
fall into this category. The Court explained that the statute
allowed a judge to
approve an intercept application if he deter‐
mines that normal investigative techniques
have failed or are unlikely to succeed and there
is probable cause to believe that: (i) an individ‐
ual is engaged in criminal activity; (ii) particu‐
lar communications concerning the offense will
14 No. 16‐3433
be obtained through interception; and (iii) the
target facilities are being used in connection
with the specified criminal activity. That de‐
termination is based on the “full and complete
statement” of relevant facts supplied by law
enforcement authorities. If, after evaluating the
statutorily enumerated factors in light of the
information contained in the application, the
judge concludes that the wiretap order should
issue, the failure to identify additional persons
who are likely to be overheard engaging in in‐
criminating conversations could hardly invali‐
date an otherwise lawful judicial authorization.
The intercept order may issue only if the issu‐
ing judge determines that the statutory factors
are present, and the failure to name additional tar‐
gets in no way detracts from the sufficiency of those
factors.
Donovan, 429 U.S. at 435 (emphasis added) (citation omitted).
“Here,” the Court reasoned, “the statutorily imposed pre‐
conditions to judicial authorization were satisfied,” but the
issuing judge simply was not aware that other persons
might be heard engaging in incriminating conversations. Id.
at 436. The Court concluded that “[i]n no meaningful sense
can it be said that the presence of that information as to ad‐
ditional targets would have precluded judicial authorization
of the intercept.” Id. Consequently, the Court reversed the
suppression order.19
19 The Court did leave open the possibility that suppression may be
available as a remedy if the defendant could establish bad faith on the
(continued … )
No. 16‐3433 15
The facts in Mr. Santiago’s case are strikingly similar to
those in Donovan. Here, as in Donovan, the Government had
received initial authorization to tap the phone of Salas. By
early April, at least one member of the DEA investigative
team had identified Titi as Mr. Santiago. However, the April
11 application for extension and expansion of the wiretap
authorization failed to identify Mr. Santiago by his name; it
only identified him as Titi. We need not consider whether
this constitutes a violation of the identification requirement
because, even if it is, suppression is not warranted. The affi‐
davit sets out in great detail that Salas, “Titi,” and others
were engaged in criminal activity, that particular communi‐
cations concerning the offense would be obtained through
interception; and that Target Phones 7 and 10 were being
used in connection with the criminal activity. Thus, there
was evidence that all of the statutory factors had been met;
the failure to identify all of the suspects by their legal names
did not detract from the sufficiency of those factors.
Mr. Santiago contends, however, that his case is not gov‐
erned by Donovan. First, he claims that he was a “principal
target” of the wiretap; consequently, the failure to name him
impinges on a “requirement[] that directly and substantially
implement[s] the congressional intention to limit the use of
intercept procedures to those situations clearly calling for
the employment of this extraordinary investigative device.”
Donovan, 429 U.S. at 433–34 (quoting Giordano, 416 U.S. at
527). However, in Donovan, the Supreme Court explicitly re‐
( … continued)
part of the Government or if the defendant could show prejudice result‐
ing from his failure to be named. See id. at 439 n.26; see also infra at 16–18.
16 No. 16‐3433
jected the idea that there are different levels of priority
among targets. Instead, the statute treats all anticipated in‐
terceptees the same. See id. at 424–28 (discussing and reject‐
ing the argument that identification requirement is limited to
principal targets).
Second, Mr. Santiago states that his case differs from Do‐
novan because he has demonstrated bad faith on the part of
the Government. In Donovan, the Court noted that there was
“no suggestion … that the Government agents knowingly
failed to identify respondents Donovan, Robbins, and Buz‐
zacco for the purpose of keeping relevant information from
the District Court that might have prompted the court to
conclude that probable cause was lacking.” Id. at 436 n.23; see
also United States v. Matthews, 213 F.3d 966, 969 (7th Cir.
2000) (noting that Donovan had held “that suppression of the
evidence is not necessarily the appropriate remedy for a vio‐
lation of Title III unless the defendant demonstrates either 1)
bad faith on the part of the government; or 2) prejudice”).
Mr. Santiago maintains that “[b]ad faith is apparent” be‐
cause the Government “explicitly and falsely stated his iden‐
tity was unknown.”20 According to Mr. Santiago,
[t]here is a colorable reason to believe that
Agent White [the author of the affidavit] knew
of Santiago’s identity prior to April 11, and ei‐
ther did not want to rewrite the affidavit, or
did not want to engage in the due diligence to
establish the degree of exhaustion that the
20 Appellant’s Br. 30.
No. 16‐3433 17
judge may have required if Santiago’s identity
were known.[21]
At bottom, Mr. Santiago is arguing that the failure to
identify him by name in the April 11 affidavit, without more,
raises the specter of bad faith. However, Donovan disposes of
this argument. In Donovan, it was undisputed that all three
targets, Donovan, Robbins, and Buzzacco, were “known” to
the Government at the time it sought the wiretap extension.
Id. at 419 n.5. This knowledge, however, did not “sug‐
gest[] … that the Government agents knowingly failed to
identify” the targets for the purpose of keeping information
from the district court. Id. at 436 n.23. Here, there is no evi‐
dence that Special Agent White’s failure to include Mr. San‐
tiago’s name in the affidavit was anything other than a mere
oversight. Moreover, the Government obtained no ad‐
vantage by omitting Mr. Santiago’s identity. Indeed, in the
very next wiretap application, Special Agent White identi‐
fied Titi as Mr. Santiago and explained how the Government
had confirmed his identity.22 This later application also was
granted.23
21 Id.
22 See R.105‐9 at 5 n.1.
23 Mr. Santiago also maintains that he has suffered prejudice as a result
of Special Agent White’s failure to identify him in the affidavit. Mr. San‐
tiago notes that Special Agent White listed the inability “to fully identi‐
fy … Titi” as one of the reasons why the wiretap was needed. See R.105‐6
at 74. Mr. Santiago submits that, if the district court had been apprised
that his identity was known, it would have determined that there was no
need for the wiretap and would not have authorized it. Because his ar‐
(continued … )
18 No. 16‐3433
C.
Mr. Santiago also maintains that the Government failed
to establish necessity for the April 11 wiretap. In determin‐
ing whether a Title III warrant establishes necessity, we gen‐
erally review the issuing court’s order for an abuse of discre‐
tion. See United States v. Maggard, 865 F.3d 960, 967 (7th Cir.
2017).24
( … continued)
gument regarding prejudice is the same as his argument regarding ne‐
cessity, we address it in our discussion of necessity. See infra at 19–24.
Mr. Santiago submits in the alternative that the wiretap evidence
should have been suppressed even in the absence of a showing of bad
faith or prejudice. He notes that in United States v. Giordano, 416 U.S. 505
(1974), the Court did not require a showing of bad faith before it sup‐
pressed evidence from a wiretap application that had originated with the
Attorney General’s Executive Assistant, as opposed to “the Attorney
General” or an “Assistant Attorney General specially designated by the
Attorney General” as required by 18 U.S.C. § 2516(1). In Giordano, how‐
ever, the Court explained that “the provision for pre‐application approv‐
al was intended to play a central role in the statutory scheme and the
suppression must follow when it is shown that this statutory require‐
ment has been ignored.” Id. at 528. The Court in Donovan distinguished
the situation before it—the affidavit failing to identify specifically three
known interceptees—with the situation in Giordano, “where the failure to
satisfy the statutory requirement of prior approval by specified Justice
Department officials bypassed a congressionally imposed limitation on
the use of the intercept procedure.” Id. at 435. Here, as in Donovan, the
agents seeking the application did not ignore a critical step in the ap‐
proval process; instead, Special Agent White’s affidavit simply failed to
identify one of several interceptees. Therefore, Donovan, not Giordano,
dictates the circumstances under which suppression is warranted.
24 Mr. Santiago maintains that deference is not warranted when the “af‐
fidavit in question contain[s] several factual errors and omissions that
(continued … )
No. 16‐3433 19
( … continued)
prevent[] the issuing judge from making a fully informed decision.” Ap‐
pellant’s Br. 15. Mr. Santiago relies on United States v. Glover, 755 F.3d
811, 817 (7th Cir. 2014), and United States v. Rice, 478 F.3d 704, 709 (6th
Cir. 2007), in support of his contention. In Glover, the defendant chal‐
lenged a search warrant on the ground that it was not supported by
probable cause. The affidavit in support of the warrant relied almost en‐
tirely on the statement of a confidential informant, but critical infor‐
mation about the informant’s credibility had been left out of the affida‐
vit, namely: “his criminal record[] … ; his gang activity; his prior use of
aliases to deceive police; and his expectation of payment.” Glover, 755
F.3d at 817. The Government conceded that “such information [wa]s so
essential to a witness’s credibility that the same information regarding a
government witness at trial would have [had] to [have] be[en] disclosed
to the defense as exculpatory material under Brady v. Maryland.” Id. We
concluded that “the omissions from the affidavit deprived the magistrate
of highly relevant information that tends to undermine Doe’s credibility
and thus the probable cause determination.” Id. at 817–18. Here, howev‐
er, nothing about the omission of Mr. Santiago’s full identity called into
question the credibility of Special Agent White or the substance of the
remaining sections of the affidavit.
The facts here also bear little resemblance to those in Rice. In Rice, the
affidavit submitted in support of the wiretap authorization had repre‐
sented that “[p]hysical surveillance of the subjects of this investigation
has been conducted and is presently being conducted with only limited
success.” 478 F.3d at 707 (alteration in original). It also stated that sur‐
veillance posed an unreasonable danger to law enforcement because
members of the organization carried firearms. However, testimony at the
suppression hearing revealed that agents never had conducted surveil‐
lance of Rice and had no specific information that he carried a firearm.
There were similar misstatements with respect to other areas of investi‐
gation. See id. at 708–09. The district court found that the misleading
statements were made recklessly, and given this misleading information,
the issuing judge’s determination of necessity did not warrant the usual
deference. See id. at 709. Again, here there is no evidence that materially
misleading statements infected the entire affidavit in support of the wire‐
(continued … )
20 No. 16‐3433
Under 18 U.S.C. § 2518(1)(c), an affidavit submitted in
support of a wiretap must contain “a full and complete
statement as to whether or not other investigative proce‐
dures have been tried and failed or why they reasonably ap‐
pear to be unlikely to succeed if tried or to be too danger‐
ous.” Although commonly referred to as the “exhaustion or
necessity requirement,” United States v. Campos, 541 F.3d 735,
746 (7th Cir. 2008), our case law makes clear that “[t]his sec‐
tion of the statute was not intended to ensure that wiretaps
are used only as a last resort in an investigation, but rather
that they are not to be routinely employed as the initial step
in a criminal investigation.” United States v. McLee, 436 F.3d
751, 762–63 (7th Cir. 2006) (internal quotation marks omit‐
ted). Indeed, in McLee we explained:
The rule in this circuit is that the government’s
burden of establishing compliance with
§ 2518(1)(c) “is not great,” and that the re‐
quirement of exhausting “other investigative
procedures” prior to obtaining a wiretap is
“reviewed in a practical and common‐sense
fashion.” To receive a wiretap order, the gov‐
ernment need not demonstrate that prosecu‐
tion would be impossible without it or that ev‐
idence possibly sufficient for indictment could
not conceivably be obtained through other
means. We have upheld the “necessity” of
( … continued)
tap application. Because the missing information does not taint the re‐
mainder of the affidavit, there is no reason for us to abandon our usual,
deferential approach.
No. 16‐3433 21
wiretap orders on the basis that investigators
were “having trouble fingering other members
of the conspiracy,” and that the wiretaps “al‐
lowed the government to ascertain the extent
and structure of the conspiracy.”
436 F.3d at 763 (citations omitted).
Mr. Santiago maintains that necessity has not been
shown because the stated reason for the wiretap was “identi‐
fying the individuals working with SALAS and others in
distributing narcotics and collecting narcotics proceeds in
the Chicago area.”25 Because his identity was known, he
concludes, there was no necessity for the wiretap.
We cannot accept Mr. Santiago’s characterization of the
reason for the wiretap. In addition to identifying Salas’s con‐
federates, Special Agent White’s affidavit identified four
other goals of the investigation for which a wiretap was “the
only available technique that ha[d] a reasonable likelihood”
of success:
(b) identifying customers of SALAS and the
drug trafficking organization for which he
works; (c) identifying the source(s) of supply
for SALAS; (d) identifying the locations for
storing narcotics and drug proceeds used by
SALAS; and (e) obtaining admissible evidence
necessary to prove beyond a reasonable doubt
25 R.105‐6 at 72–73.
22 No. 16‐3433
that the VIOLATORS, and others yet un‐
known, are engaged in the Subject Offenses.[26]
The fact that Mr. Santiago’s identity was known only dimin‐
ishes the need for one category of evidence identified by
Special Agent White: the identity of those working with or
for Salas. Even with respect to this category, however, it is
undisputed that there were several individuals involved in
the transactions, such as UM7‐5 and Mantequita, whom the
Government had not identified.27 Consequently, even if Spe‐
cial Agent White’s affidavit had identified Titi as Mr. Santia‐
go, there still would have been the need for the wiretap to
collect evidence as to the identities of other individuals.
Mr. Santiago also argues that the Government did not es‐
tablish that traditional investigative methods had been tried
or would be unsuccessful in the investigation of his activi‐
ties, as opposed to those of other members of the conspiracy.
The affidavit, however, contains evidence specific to Mr.
Santiago that shows the April 11 wiretap was not the first
step in the Government’s investigation. The affidavit de‐
scribes two days of surveillance of Mr. Santiago. During this
time, Mr. Santiago engaged in a series of meetings with Salas
and his associates; all of these meetings occurred behind
closed doors, out of earshot and view of the surveilling
agents. After leaving one of these meetings, Mr. Santiago got
on the expressway. Once on the expressway, he
26 Id.
27 See id. at 8.
No. 16‐3433 23
got into the left hand lane and drove substan‐
tially over the speed limit, and then moved in‐
to another lane and slowed down to approxi‐
mately the speed limit, and then repeated the
process numerous times. … When
[Mr. Santiago] got off the expressway, he
swerved over three lanes of traffic at a high
rate of speed to exit at the last second. Once off
the expressway, [Mr. Santiago] swerved in and
out of traffic several times in an effort to de‐
termine if he was being followed.[28]
Special Agent White explained that, based on his training
and experience, he believed that these actions were efforts
by Mr. Santiago to engage in counter‐surveillance tactics.29
Thus, the affidavit contained evidence that the investigating
agents employed traditional techniques in investigating Mr.
Santiago, but that, given the counter‐surveillance efforts,
those techniques had not been, and were not likely to be,
successful in garnering evidence. This declaration satisfied
the Government’s burden.
D.
Our discussion of bad faith and necessity also disposes of
Mr. Santiago’s claim that the district court should have or‐
28 R.105‐6 at 81.
29 See id. Contrary to Mr. Santiago’s assertions, the detailed description of
the agents’ surveillance efforts, and their first‐hand observations of
Mr. Santiago’s counter‐surveillance tactics, are not merely “generalized
and conclusory statements that other investigative procedures would
prove unsuccessful.” United States v. Lilla, 699 F.2d 99, 104 (2d Cir. 1983).
24 No. 16‐3433
dered an evidentiary hearing under Franks v. Delaware, 438
U.S. 154 (1978). Franks held that “a wiretap order is invalid
… if the order was obtained by the government’s deliberate
or reckless omission of material information from its applica‐
tion.” United States v. Mandell, 833 F.3d 816, 823 (7th Cir
2016). A defendant is entitled to an evidentiary hearing on
the validity of the authorization if he “makes a substantial
preliminary showing,” id. (internal quotation marks omit‐
ted), which we have described as “relatively difficult”:
Allegations of negligent or innocent mistakes
do not entitle a defendant to a hearing, nor do
conclusory allegations of deliberately or reck‐
lessly false information. The defendant must
identify specific portions of the warrant affida‐
vit as intentional or reckless misrepresenta‐
tions, and the claim of falsity should be sub‐
stantiated by the sworn statements of witness‐
es. To obtain a hearing, the defendant must al‐
so show that if the deliberately or recklessly
false statements were omitted, or if the deliber‐
ately or recklessly misleading omissions in‐
cluded, probable cause would have been ab‐
sent.
United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013)
(citations omitted). “[I]f probable cause to issue the warrant
would still exist even if the false statement or material omis‐
sion were corrected, then no Franks hearing is required.”
United States v. Carmel, 548 F.3d 571, 577 (7th Cir. 2008). We
review the district court’s denial of a Franks hearing for clear
error. Mandell, 833 F.3d at 823.
No. 16‐3433 25
As we already have discussed, there is no evidence in the
record that Special Agent White’s failure to identify Titi as
Mr. Santiago was anything other than an oversight.30 More‐
over, the inclusion of Mr. Santiago’s name would not have
altered the district court’s conclusion that there was proba‐
ble cause to believe that Target Phones 7 and 10 were being
used to conduct illegal transactions. The affidavit is replete
with evidence that the target phones were used to coordi‐
nate drug transactions, that the transactions were on‐going,
and that the tapping of those phones would lead to further
evidence of criminal activity.
Indeed, Mr. Santiago’s argument is not based on proba‐
ble cause, but on necessity. He claims that, if he had been
identified, the remaining allegations of the affidavit would
not have satisfied the necessity requirement of the wiretap
statute. Although a number of our sister circuits have ap‐
plied the Franks analysis to the necessity requirement, see,
e.g., United States v. Green, 175 F.3d 822, 828 (10th Cir. 1999);
United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985),
we have not had an occasion to address directly this issue
and need not address it here. Even assuming that Franks ap‐
plies to the necessity requirement, a hearing would not have
been required here.
As we have explained previously, the Government’s
burden with respect to showing necessity is not great. “We
have upheld the ‘necessity’ of wiretap orders on the basis
that investigators were ‘having trouble fingering other
members of the conspiracy,’ and that the wiretaps ‘allowed
30 See supra at 18.
26 No. 16‐3433
the government to ascertain the extent and structure of the
conspiracy.’” McLee, 436 F.3d at 763 (citations omitted).
Here, the affidavit explained that there was a need for inter‐
ception to understand Salas and his organization, including
his customers, his sources, and the location of storage facili‐
ties. Knowledge of Mr. Santiago’s true identity does not di‐
minish the necessity of the wiretap vis‐à‐vis these stated
goals.
Moreover, wiretaps need not be “a last resort in an inves‐
tigation, but rather … are ‘not to be routinely employed as
the initial step’ in a criminal investigation.” Id. (quoting
United States v. Thompson, 944 F.2d 1331, 1340 (1991)). Here,
Special Agent White’s affidavit establishes that agents at‐
tempted surveillance of Mr. Santiago, but their efforts to col‐
lect information were thwarted by counter‐surveillance
techniques.
Mr. Santiago simply has not made a substantial prelimi‐
nary showing that, if his identity had been included in the
affidavit, necessity would have been lacking. Therefore a
Franks hearing was not warranted.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED