Wiretap Affidavits Sufficient; Title III Suppression Doesn't Apply to GPS Data

U.S. v. Barajas, 2013 WL 781789 (3/4/13) (Kan.) (Published) - The affidavits used to justify wiretaps were sufficient to show that traditional investigative techniques were ineffective or wouldn't be effective if tried. The goal of uncovering the size and scope of a drug conspiracy may justify a wiretap. The 10th was not sure there was probable cause for pinging [i.,e. having cell phone providers find out where phones are located via GPS]. While there could be probable cause even though the affidavits didn't mention pinging, there was no explanation in the affidavits stating how the defendant's location would reveal information about the conspiracy's workings. But good faith saves the day for the government. The 10th could see a minimally sufficient nexus between the illegal activity and the place to be searched. The officers could reasonably think there was probable cause because the agents knew a man named "Samy" was involved, but couldn't identify who that was until they located him through the GPS pinging. Because the law is unsettled on the matter, the agents could reasonably believe they could get GPS data through a wiretap order. The agents' knowledge of the gap between the affidavit, which did not mention pinging, and the wiretap order, which did, gave the 10th "more pause," But the 10th couldn't bring itself to "say the gap was intentional." Also of note, the 10th says the Title III suppression remedy, which only applies to wire and oral communications, does not apply to GPS data. So the 10th didn't have to answer the "murky" question, which has created a circuit split, whether the good faith exception applies to Title III violations.