Case o' The Week: Right Target, Wrong Number, No Problem: Title III and Reed

The wiretap target is R--, but turns out that the line really belongs to J-- (and is, not surprisingly, primarily used by J--). Close enough, reassures the Ninth in a disappointing new Title III case. United States v. Reed, No. 06-50040, 2009 WL 2366556 (9th Cir. Aug. 4, 2009), decision available here.

Players: Decision by Judge N.R. Smith (above).

Facts: Reed and others were suspected of conspiring to manufacture and distribute PCP. Id. at *1. Reed, the target, was caught discussing the crime on monitored calls from a line subscribed to by co-conspirator Jackson. Id. The feds got a wiretap on this line, and within four hours learned the phone was (surprise!) actually primarily used by Jackson, not Reed. Id. at *1, *7. The feds reported this fact in an interim report to the authorizing judge four days later, and were allowed to continue the tap nonetheless. Id. at *2.

Reed (and others) were busted, their Title III challenge was denied, they were tried, convicted, and Reed got a life prison term. Id. at *4.

Issue(s): (Among many): “Appellants argue that, once authorities discovered that the [line’s] primary user was . . . Jackson, they should have immediately discontinued the wiretap. They contend that to continue listening to Jackson’s phone calls was akin to getting a search warrant for one house, searching the wrong house, and then even after discovering that it is the wrong house, continuing the search anyway.” Id. at *6.

Held: “We disagree with this analogy in light of the language of § 2518. . . Although the primary, known target was Reed, the objective of the wiretap was to intercept communications made over [the line] to identify the co-conspirators in the PCP manufacturing conspiracy . . . Neither the order nor the wiretap statute requires suppression of legally intercepted conversations merely because Reed was not the primary user of [the line].” Id. at *7.

Of Note: Reed’s frustrating holding tolerates a frequent wiretap abuse: the government makes a probable cause and necessity showing for Suspect B, when the real target of the tap is Suspect A. Judge Marilyn Patel of the Northern District of California identified precisely this problem and was troubled by it (though not, unfortunately, troubled enough to suppress). See United States v. Stepney, CR 01-0344 MHP (Ord.), at 26 (N.D. Cal. June 6, 2005) (“This court is of the view that the principle enunciated in Martin is an uncomfortable fit where, rather than simply being an unnamed interceptee as was the case in Martin, the interceptee at issue served as an actual pillar for the government’s justification of the wiretap.”)

It is hard to distill a clear new rule out of Reed’s new Title III holding – appears now that the court cares less about probable cause that a particular target was using a phone, and more that a particular phone was being used. Id. at *7. (Doesn’t the Fourth Amendment protect people’s privacy interests, and not places or things?)

How to Use: How does one limit Reed’s “moving target” holding? Well, Judge Smith emphasizes that Reed was in fact listed among the targets in the wiretap application for the Jackson line, and that were “others unknown” – so that helps mitigate the error in tapping the Jackson line. Id. at *7. Moreover, on at least one occasion Jackson at handed this phone to Reed, who did some drug business on the line, and evidence showed that the line was being used to further Reed’s PCP conspiracy. Id. It also helped that the feds reported the Jackson line to the authorizing judge relatively quickly. Id. Maybe (hopefully) in a case where the tapped line is less intertwined with the real target, Reed’s “close enough for government work” rule would be limited.

For Further Reading: Reed argued that the feds actually conducted an illegal wiretap of another of his phones, and transferred those calls to the Jackson line to make them look legally intercepted. Id. at *8. The Court dismisses this theory as “highly speculative.” Id. at *9. The defense evidence cited, however, sounds considerably stronger than the Court gives credit. Id. There have been examples of similar illegal wiretaps in Hawai’i, and an early illegal wiretap was strongly suspected by the defense in the above Stepney case. The Reed counsel fought this challenge hard and hired a phone expert to testify – they would be a good place to start if (or rather, when) this suspicion arises again.

Image of the Hon. N.R. Smith from http://www.ce9.uscourts.gov/jc2009/speakers.html . Cartoon from http://counter-surveillance-devices.com/tag/rf/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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