Issues
Must a court exclude evidence obtained by wiretapping, solely because the judge issuing the wiretapping warrant exceeded his or her territorial jurisdiction?
In this case the Supreme Court will determine if evidence obtained by wiretapping while investigators were outside the state where the authorizing judge sits is admissible in court. Petitioners Los and Roosevelt Dahda were arrested, charged, and convicted in a conspiracy to distribute over two thousand pounds of marijuana. Most of the evidence used against them was obtained by wiretapping phones. A judge in Kansas authorized the wiretap, including wiretaps both inside and outside Kansas. The Dahda brothers argue that the judge had no authority to authorize interception outside Kansas and that, therefore, the entire warrant is deficient under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and all the evidence obtained from wiretaps cannot be used against them at trial. The Government agrees that the warrant was overbroad, but claims that the warrant was not wholly deficient and thus the Government should be allowed to present the evidence obtained from wiretaps within Kansas. Much is at stake in this case: organizations supporting the Dahda brothers claim a ruling for the Government would undermine personal privacy. The Government disagrees, asserting that no privacy concerns are implicated.
Questions as Framed for the Court by the Parties
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, required suppression of communications that were intercepted within the territorial jurisdiction of the issuing court, pursuant to a wiretap order that permitted interceptions to take place outside the jurisdiction of the issuing court.
Facts
Petitioners, twin brothers Los and Roosevelt Dahda (collectively “the Dahda brothers”), joined a drug-distribution network as importers and dealers. Los was responsible for driving money from Kansas to California to help a co-conspirator purchase marijuana. Then, while in California, Los would help package the marijuana, return it to Kansas, and sell it there to others who would redistribute it. Similarly, Roosevelt transported drugs and cash back and forth via a truck with a hidden compartment for storage. This distribution operation continued successfully for around seven years, with the conspiracy distributing over two thousand pounds of marijuana.
In 2011, the government began investigating the drug distribution ring. As part of the investigation, law enforcement sought nine wiretap orders from a judge in the U.S. District Court for the District of Kansas. The judge issued a warrant under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The Act authorizes governmental interception of wire, oral, and electronic communications in certain circumstances. Among other things, Title III limits judicial authority to approve the interception of communications to within the territorial jurisdiction of the court in which the judge is sitting, allowing approval for interception outside that jurisdiction only where mobile interception devices are used for an area still within the United States. Title III also mandates suppression of evidence obtained in violation of its requirements and provides three grounds upon which aggrieved persons can request suppression: (i) the communication was unlawfully intercepted; (ii) the order of authorization under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization.
Eventually, Los and Roosevelt were indicted with forty-one others on various counts related to conspiracies to distribute cocaine and marijuana as part of a drug network. Evidence presented at their trial included communications intercepted from the mobile phones of both Dahda brothers and three other individuals. Before trial, the Dahda brothers moved to suppress the evidence gathered from the wiretaps, claiming the interception orders were insufficient on their face because they allowed interception outside the territorial jurisdiction of the court. The district court referred the motion to a magistrate judge, who recommended the district court deny the Dahda brothers’ motion to suppress the evidence because the government’s communication interception did not occur outside the court’s jurisdiction. The district court subsequently denied Dahda brothers’ motion. Both Los and Roosevelt were convicted following a jury trial. Los was sentenced to 189 months in prison. Roosevelt was sentenced to 201 months.
They appealed their convictions, arguing that the district court erroneously denied their motion to suppress the wiretap evidence due to the orders’ facial insufficiencies. The Court of Appeals agreed with the Dahda brothers that the wiretap orders exceeded the district court’s territorial jurisdiction. The court, however, affirmed the district court’s ruling allowing the use of the wiretapped evidence at trial because the territorial jurisdictional violation in the warrants did not undercut the core aims of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Los and Roosevelt then petitioned the Supreme Court for writ of certiorari, which the Court granted.
Analysis
WAS THE EVIDENCE OBTAINED UNDER A WARRANT IN VIOLATION OF TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT?
The Dahda brothers argue that the wiretap evidence used against them in their trial was obtained through a warrant that violates Title III of the Omnibus Crime Control and Safe Streets Act (the “Act”) of 1968. The Dahda brothers note that the Act requires a court to suppress evidence obtained in violation of Title III. According to the Dahda brothers, a warrant violates Title III if the order is “insufficient on its face.” The Dahda brothers contend that in determining whether a warrant is insufficient on its face, a court must analyze the text of the warrant itself, not how the communication was actually intercepted. One textual requirement, the Dahda brothers claim, is that a judge may only authorize a wiretap within the territorial jurisdiction of the court. The Dahda brothers argue that because the warrant in this case allowed investigators to perform wiretaps throughout the country, the warrant violates the territoriality requirement. Therefore, the Dahda brothers maintain that because the territoriality requirement of Title III is not met, the order is “insufficient on its face” and thus the evidence obtained from communications as a result of that order must be suppressed at trial.
The Government responds that the warrant contains all the information required by the Act and is therefore not facially insufficient. The Government defines an order as “insufficient” if it is missing required information—such as what would be searched or where—to the extent that the government could not reasonably rely on it to take action. In contrast, the Government contends that here, because the warrant specifies what phones will be wiretapped and the duration of the tapping, the warrant satisfies all the requirements and is therefore sufficient on its face. Further, the Government argues that the Court should suppress evidence only where an error is substantial in nature, which it argues is not applicable to this situation. The Government agrees that the warrant here is overbroad, because it includes a superfluous paragraph premised on an erroneous interpretation of Title III’s requirements for extraterritorial wiretapping. Nonetheless, the Government contends that the judge’s misreading of Title III was reasonable, as the Title permits wiretapping outside the jurisdiction of the court so long as the government uses a mobile interception device. The Government contends that the issuing judge was willing to allow wiretapping to the fullest extent the law permits, and that despite any error, investigators would have been authorized to intercept communications outside of Kansas through a mobile interception device. Therefore, the Government argues that all communications were intercepted lawfully and any error with the warrant should be disregarded.
DID CONGRESS INTEND FOR EVERY TECHNICAL DEFECT TO WARRANT SUPPRESSION OR ONLY THOSE IMPLICATING CORE CONCERNS?
The Dahda brothers argue that in deciding whether the warrant was insufficient on its face the Court of Appeals should not have applied the “core concerns” test—i.e., that the error implicates core concerns of the statute. According to the Dahda brothers, the cases involving the “core concern” test, United States v. Chavez and United States v. Giordano, involved claims that communication was unlawfully intercepted, not that the warrant was insufficient. The Dahda brothers argue that the core concerns test is only applicable to determining whether the communication was unlawfully intercepted, but not whether the warrant was insufficient on its face. They further contend that if the Court requires a defendant to satisfy the core concerns test for a claim of an insufficient warrant, the requirements for suppression under subchapter (i)—that the communication was unlawfully intercepted—would be the same as under subchapter (ii), which would render the section impermissibly superfluous. Additionally, the Dahda brothers argue that the evidence should be suppressed even under the core concerns test, because the territorial jurisdiction restriction was one of Congress’s core concerns in passing the Act. They point to Congress’s stated intention to “prohibit . . . all interception of oral and wire communication, except those specifically provided for in the Act” and a Senate Report indicating that the Act sought to preserve individual privacy. Finally, the Dahda brothers claim that Congress sought to prevent forum shopping by prosecutors seeking permission to infiltrate communications and intended for Title III to serve as a strict judicial review of that practice.
The Government responds that Congress could not have intended that even the smallest technical defect require suppression, therefore the lower court correctly applied a “core concerns” test. Thus, the Government claims that even if overbroadness makes a warrant insufficient, the error here was not “insufficient on its face.” The Government notes that the judge could have issued a warrant granting the use of a “mobile interception device”, which the judge erroneously believed included cell phones. The error, the Government contends, affects only the method of interception, not the fact that the communication was lawfully intercepted. Thus, the Government argues that because the judge could have authorized for the same communications to be intercepted in a different manner, the privacy concerns at the core of the Act are not implicated by the judge’s error. The Government further notes that all evidence introduced at trial was lawfully intercepted in Kansas and should therefore not be suppressed. The Government also maintains that a statutory interpretation error that is objectively reasonable does not require suppression. Furthermore, the Government notes that at the time the judge committed the error, the question of whether a “mobile interception device” included cell phones was an unresolved question of law. The Government therefore contends that such an error does not justify the enormous costs of suppression.
Discussion
PRIVACY CONCERNS
The Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers (“The Electronic Frontier”), in support of the Dahda brothers, argue that the Act was created with a carefully designed system of protections for individual privacy. The Electronic Frontier and the Rutherford Institute suggest that the growth of new technologies that are more pervasive and personal than traditional communication systems led Congress to impose strict requirements in the Act intended to limit the circumstances under which a wiretap could be ordered in an effort to protect privacy. Similarly, the Electronic Privacy Information Center (“EPIC”) argues that the Act was designed to be broad and unambiguous, in order to minimize unlawful or unauthorized surveillance and protect privacy. EPIC cites a Senate Committee Report in arguing that the suppression of evidenced obtained through improper warrants is essential to the Act’s privacy protections and Congress’s intention in including such a rule was to sanction law enforcement engaging in unlawful wiretapping and deter others from doing so. Finally, EPIC argues that clarifications or revisions to the Act should come from the legislature rather than from the Court through atextual exceptions, because the legislature is better prepared to gauge changing public attitudes, draw detailed lines, and balance privacy and public safety in matters involving computer and telecommunication technologies and technological innovation.
In contrast, the Government argues that personal privacy was protected in this case because the wiretap order was appropriately authorized and the Government did not present any evidence gathered under the part of the authorization that went beyond the issuing judge’s jurisdiction. Because all the intercepted communications the Government used at the Dahdas’ trial were gathered in Overland Park, Kansas, the Government contends that they were lawfully intercepted and therefore did not violate any expectations of privacy. These communications, the government argues, are severable from communications obtained potentially invalidly.Severability is appropriate, the government posits, when evidence lacks a causal connection to a violation and when the deterrence benefits of suppressing the evidence do not outweigh the social costs of doing so. Additionally, the Government contends that the Act’s territorial limitations do not meaningfully protect individual privacy because the limitations address only where, not whether, communications will be intercepted. The Government maintains that the Act requires suppression of evidence only when substantial requirements of a wiretap order are not met. Because it argues the territorial limitations are not meaningful requirements, the Government asserts that the evidence in this case should not be suppressed.
FORUM SHOPPING AND JUDICIAL OVERSIGHT
The Electric Frontier, in support of the Dahda brothers, argues that the Act’s territorial restrictions prevent government investigators from “shopping” for a judge who will authorize extensive wiretapping not allowed by the Act or who is too geographically removed from the investigation to provide proper oversight. The Rutherford Institute notes that Congress intended to create stricter judicial oversight over wiretap applications by limiting the judges who could issue wiretap warrants to “judge[s] of competent jurisdiction,” rather than allowing the broader category of “neutral and detached magistrate[s]” to decide wiretap warrant applications. The Rutherford Institute points out that Congress furthered the role of judicial oversight by allowing judges to deny wiretap requests even if the applications are within the statutory requirements. The Dahda brothers argue that strict enforcement of the territoriality requirements of the Act by suppressing all evidence from warrants that exceed its authorized scope of jurisdiction will best promote the goals of reducing forum shopping and increasing judicial oversight of wiretaps.
The Government, on the other hand, contends that the Court of Appeals correctly rejected the forum shopping argument as a reason to suppress the evidence in this case. The Government notes that even under the Dahda brothers’ interpretation of territorial limits, forum shopping is possible. The Government explains that, under Title III’s requirements, law enforcement can still choose the forum most likely to grant its request for a warrant by stationing a listening post in a preferred judge’s district to meet the Act’s territorial jurisdiction requirements. Thus, the Government asserts that a decision in its favor would not trigger forum shopping concerns.
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Acknowledgments
Additional Resources
- Robert Barnes, Supreme Court to Consider Major Digital Privacy Case on Microsoft Email Storage, Wash. Post (Oct. 16, 2017).
- OT2017 #4: “Wind, Diabetes & Voluntary Retirement”, SCOTUSBlog, (Oct. 30, 2017).