Case o' Week: Heard it through the Grapevine - Carey and "Plain Hearing" in Title III Wiretaps

DEA, FBI, Title III, tap wrong guy.

Suppress?

Deny.

United States v. Carey, 2016 WL 4651408 (9th Cir. Sept. 7, 2016), decision available here. 

 

Players:  Decision by Judge Gould, joined by Judge W. Fletcher. Dissent by Judge Kozinski.

Facts: Feds got a Title III order to tap a suspected drug dealer, Escamilla. Id. at *1. They listened to calls on the target line for seven days, and at some point (not clear when) they realized the target, Escamilla, wasn’t using this line. Id. 

 After consulting with AUSAs, id. at *2, agents continued listening. Id. at *1. 

  Based on these intercepted calls, Carey was eventually indicted for a conspiracy to distribute cocaine. Id. Carey’s motion to dismiss was denied. Id.

Issue(s): “Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act by never applying for a wiretap as to him or his coconspirators.” Id. “In Carey’s view, the government instead had unlawfully relied on the validity of the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Mr. Carey.” Id. at *2. “Here the government showed [Title III] necessity and probable cause for a wiretap of the target conspiracy. But what happens when a wiretap that is valid at its inception is later used to listen to someone who is not involved in the conspiracy under surveillance? It is that novel question to which we turn our attention.” Id. at *4. “The question here is whether the government could use that valid wiretap to listen to unrelated people’s phone calls . . .” Id. at *5.

Held: “The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in ‘plain view.’ We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy.” Id. at *1.  

“The district court did not apply these principles, and the record in this case does not show exactly when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. We vacate the . . . denial of Carey's motion to suppress and remand to the district court on an open record to determine what evidence was lawfully obtained in ‘plain hearing.’” Id. at *2.  

“[O]nce the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.” Id. at *6.

Of Note: Brief opinion, big new rules. 

  In a holding of first impression aggravating to the defense, Judge Gould holds that the Fourth Amendment “plain view” exception expands to “plain hearing” in a Title III wiretap. 

   In a holding of first impression aggravating to the government, Judge Gould limits that exception by requiring agents to stop listening once they realize the Title III target isn’t on the line. 

  Where’s the next round of litigation? Whether the inevitable downstream Title III application will have adequate necessity and probable cause showings to justify the tapping order of the schmo unlucky enough to have the original target’s number.

How to Use: The government groused that the original order allowed the use of communications relating to “other crimes.” Id. at *5. Carey agrees – but helpfully observes that the order limited collateral intercepts to when feds listened in a manner authorized by the order. Id. A useful (albeit obvious) principle and a good cite when fighting Title III taps: wiretap orders do have internal limits, and those limits must be respected.   

                                               

For Further Reading: From 2007 through 2015, NorCal district judges have ordered 35 (non-terrorism) wiretaps that have been terminated. A whopping 45% of the wiretap applications granted over these 8 years clustered in 2015 alone. ("Smart on Crime" means Feds on line.)

  Of particular East Bay interest, 68% of the 2015 wiretap orders were signed by Oakland DJs. All of these taps, by the way, were narcotic cases.

   In 15 of the 16 wiretaps initiated in 2015 there is “no prosecutor report.” 

  Curious what the Feds are up to in your own district? Hit this fascinating site.

Image of Uncle Sam and pay phone from https://www.wired.com/images_blogs/threatlevel/2013/06/wiretap.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: "Super" En Banc Petition (or More Accurately, a Petition for Super En Banc)

The gaul of the Ninth Circuit: giving us the first appellate decision to deal with the realities of the Information Age, without first obtaining DOJ approval. United States v. Comprehensive Drug Testing, __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 31 2009) (en banc), decision available here.

Players: Solicitor General Elena Kagan, on behalf of Rome - er, the Department of Justice - seeking super rehearing en banc in the Ninth Circuit (rehearing by the entire Ninth Circuit Court of Appeals).

Facts: You’ll recall this fall we trumpeted the most technologically-savvy opinion on computer searches ever written: Chief Judge Kozinski’s en banc decision in Comprehensive Drug Testing (“CDT”). See blog here.

To recap, in CDT the ND Cal USAO had snagged a vast amount of private information from third parties, gleaned from computer searches that roamed far beyond the data originally sought.

Three district judges quashed later subpoenas based on this computer data, and peppered their quashals with allegations of government manipulation and misrepresentations. The original three-judge Ninth panel reversed the quashals, but the en banc reversed the panel and sustained the district courts. C.J. Kozinski ended the en banc CDT opinion by setting forth procedures with which the government should (must?) comply for future computer searches.

The government – and specifically, S.G. Kagan – has now sought, for the first time in history, a full rehearing en banc by the entire court of the Ninth Circuit.

Issue(s): Did the en banc panel “step[ ] outside of the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases[?]” Brief for the United States in Support of Rehearing En Banc by the Full Court, at 2.

Held: “The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.” Ord., Chief Judge Kozinski, Dec. 18, 2009.

Of Note: When Blakely was decided, DOJ cried the sky was falling and warned that sentencing would grind to a halt. Defendants, however, continued to be incarcerated with grim efficiency.

When Booker was decided, DOJ cried the sky was falling and concocted emergency measures to “save” the guidelines. Defendants, however, continued to be shuffled away to serve depressingly long terms, with barely a blip on the sentencing stats.

Given its track record with Blakely and Booker, Justice’s latest cry that the sky is falling after CDT merits a healthy skepticism.

The government’s super en banc petition frets that its investigations are off-track because of the CDT procedures. It does not reveal, however, that filter-teams have long been routinely used in white collar cases with little impact on conviction rates. DOJ neglects to disclose how many computer investigations have in fact gone forward using CDT procedures. The brief omits the CDT-like protocol that enlightened ND Cal magistrates have had in place since 2000, with no negative impact on computer searches or prosecutions. Finally, DOJ ignores new technology which can filter and focus computer searches in ways that were impossible even a decade ago, making the CDT procedures both realistic and workable. Let’s hope the Ninth recognizes that CDT is the wrong case for the very first super en banc.

How to Use: How to best use CDT has been the subject of much discussion in the ND Cal FPD and among the Northern District panel. Given the current procedural posture of the case, best to e-mail or call to discuss CDT issues.

For Further Reading: “The government has moved to further stay the mandate ‘through the disposition of [this court’s] consideration whether to grant en banc review and its en banc consideration of the case or, if [this court] denies en banc review, through the expiration of the time for filing a petition for a writ of certiorari, or, if a petition is filed, the disposition of such a petition for a writ of certiorari.’ Quite a mouthful, and wholly unnecessary. I have already stayed the mandate through the time for filing a timely petition for certiorari. What qualifies as timely is between the government and a higher authority.” Ord., Chief Judge Kozinski, Nov. 12, 2009.

Image of Asterix from http://www.coloriage.tv/dessincolo/Asterix.png

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

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