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PATC Legal E-Newsletter

September 2016

By Jim Chapman, Attorney, Public Agency Training Council

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Ninth Circuit finds that officers may use evidence in “plain hearing” when they overhear speakers unrelated to the target of a conspiracy while listening to a valid wiretap, but they must discontinue monitoring once they know or reasonably should know that the phone call only involves speakers outside the target conspiracy

In United States v. Carey, ___ F.3d ___, 2016 WL 4651408 (9th Cir. September 7, 2016), the United States Court of Appeals for the Ninth Circuit considered a matter of first impression for that court: whether police officers must stop listening to a telephone call, upon which they have obtained a valid wiretap, as soon as they know or reasonably should know that the call does not involve their particular investigation.  In other words, the Ninth Circuit was asked to determine whether evidence is admissible when a valid wiretap helps catch someone else who happens to be involved in a different crime.

On March 5, 2010, a federal district court granted FBI Special Agent Christopher Melzer’s application for a wiretap order for several phone numbers thought to be associated with a drug conspiracy led by Ignacio Escamilla Estrada (“Escamilla”).  The phone number designated “T-14” was believed to belong to Escamilla.  The wiretap of T-14 went live on March 5 although no calls were intercepted until March 10.

Starting on the 10th, the agents overheard “drug-related” calls, but at some point, the agents realized that the person using T-14 was not Escamilla.  The agents did not know who the people speaking on T-14 were although Melzer initially “thought the callers and calls might still be affiliated with [the] known targets or part of the criminal activity [he] was investigating.”  Melzer consulted with federal prosecutors, and agents continued to monitor the calls.

On the morning of March 17, 2010, agents intercepted a call indicating that someone would be traveling with “invoices” (believed to be code for drug money).  The agents coordinated with local police officers to execute a traffic stop on a car involved in the phone calls.  Officers identified the driver as Adrian Madrid (“Madrid”) and, after searching the vehicle, found cash and a cellphone tied to the T-14 number.  Officers, then, obtained a search warrant for a related residence and found cocaine.   Now knowing Madrid’s identity, Melzer learned that there was an ongoing DEA/ICE investigation into Madrid and his associates.  Melzer met with ICE and DEA agents, and they concluded that there was no “overlap” between the Madrid and Escamilla conspiracies.

Agents later identified Michael Carey (“Carey”) as a member of Madrid’s conspiracy.  Carey was indicted in February 2011 for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.  Carey filed a motion to suppress “any and all evidence derived from the use of wiretaps,” arguing that the government failed to comply with the Wiretap Act, 18 U.S.C. §§ 2510-22, with respect to Carey and his co-conspirators.  In Carey’s view, the government, instead, had unlawfully “relie[d] on the validity of the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Mr. Carey.”  Carey also requested a Franks hearing to “fill in the holes” of a declaration by Special Agent Melzer that had been submitted to the district court to explain the agents’ and officers’ actions in connection with the wiretap.

The district court denied Carey’s motion to suppress, reasoning that the government had complied with the statute to obtain the wiretap order against Escamilla and holding that “[t]here was no requirement for a separate showing of necessity once the agents concluded that T-14 was not primarily used by Escamilla.  The agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses.”  Carey pled guilty in an agreement that preserved his right to appeal the denial of his motion to suppress.

On appeal, the Ninth Circuit began its analysis by noting that, if the government uses a wiretap in violation of the Wiretap Act, evidence obtained from the wiretap is inadmissible against the conversation’s participants in a criminal proceeding. United States v. Giordano, 416 U.S. 505, 507 (1974).  The Ninth Circuit, then, noted that it could find no case in which the Wiretap Act was used to authorize police officers to listen to people who were unaffiliated with the initial wiretap subjects, and so, the Ninth Circuit framed the issue before it as follows: “[W]hat 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?”

In answering that question, the Ninth Circuit turned to a case decided by the Seventh Circuit.  In United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997), the Seventh Circuit explained: “It is true that if government agents execute a valid wiretap order and in the course of executing it discovery that it was procured by a mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible in evidence.  It is just the “plain view’ doctrine translated from the visual to the oral dimension.” Id. at 581.  The Seventh Circuit further noted, however, that “once the mistake is discovered, the government cannot sue the authority of the warrant, or of the [wiretap] order, to conduct a search of interception that they know is unsupported by probable cause or is otherwise outside the scope of the statute or the Constitution.” Id. at 852.  The Ninth Circuit found the Seventh Circuit’s reasoning in Ramirez to be persuasive and adopted it as its own.

In short, the Ninth Circuit explained that the Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in “plain view.”  The Ninth Circuit, then, adopted a similar principle and held 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 Ninth Circuit also held that the police must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Maryland v. Garrison, 480 U.S. 79, 87 (1987).

According to the Ninth Circuit, the district court did not apply the principles set forth above, and the record did not show exactly when agents knew or should have known that the phone conversations did not involve Escamilla and his co-conspirators.  Therefore, the Ninth Circuit vacated the district court’s denial of Carey’s motion to suppress and remand to the district court to determine what evidence was lawfully obtained in “plain hearing.” 

The lesson in this case for police officers is obvious.  Even if the officer has obtained a valid wiretap from a court for a telephone number, once the officer knows or should reasonably know that phone conversation involves a person or persons who are outside of the target of the wiretap order, the officer must stop listening.  Otherwise, any evidence obtained against someone who is not the subject of the target conspiracy cannot be used against that person.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.





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