December 11, 2013

The D.C. Circuit Holds That A Judge In D.C. Cannot Authorize A Bug in Maryland

The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn't get any evidence on him that way.

The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug - a little microphone - in his truck.

The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).

bug-1411396-m.jpgThe bug picked up some conversations, not in code, that strongly suggested Mr. Glover is a drug dealer. He was convicted, and, on appeal, challenged the validity of the wire tap because it was authorized by a federal judge in D.C. for a car in Maryland.

The D.C. Circuit, in an opinion by Senior Judge Silberman, reversed, in United States v. Glover.

Eighteen U.S.C. section 2518(3) allows a federal district judge to:

"authoriz[e] or approv[e] interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."

Does this language let a federal judge in Washington, D.C. authorize a wire tape for a wire that's not in Washington, D.C.?

That parenthetical is not a model of clarity. Here's how the D.C. Circuit parses it:

To be sure, the parenthetical phrase is somewhat ambiguous. It seems reasonable to read the words "such jurisdiction" in the phrase as referring back to the jurisdiction in which the judge is sitting; i.e., in this case, the District of Columbia, since the provision mentions no other jurisdiction. It is also possible that the phrase, by implication, refers to the jurisdiction in which the mobile interception device is installed.

So, could the parenthetical be read to say that a federal judge in D.C. could authorize the interception of conversations in Maryland for an investigation being run by the U.S. Attorney's Office in DC? The D.C. Circuit says no - it doesn't work with the rest of the language of the section:

Under either reading, the parenthetical makes clear that a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge's jurisdiction. A contrary reading would render the phrase "authorized by a Federal court within such jurisdiction" completely superfluous.

The government has a response to this.

It argues that:

The government points to a handful of cases in which courts have found that an "interception" under Title III takes place at both the location of the listening post and at the location of a tapped phone. The government argues that in light of these cases, we should recognize that an issuing court has the power to authorize covert, trespassory entries onto private property, anywhere in the country, for purposes of placing surveillance equipment. The only jurisdictional limitation the government acknowledges is that the listening post must be located in the issuing court's jurisdiction.

It's like the argument the government frequently makes about wire fraud venue - any place that the wire goes through is an appropriate location for venue. If you email from California to Nevada, but the email goes through a server in Virginia, the government has argued that you can be tried in Virginia. Though it's a little odder here - the government, of course, controls where the listening post sits.

The D.C. Circuit doesn't go along with the government here - noting that the "listening post" language is just not in the statute.

Finally, the government asks the Court to ignore the jurisdictional problem because of the "good faith" exception to the warrant requirement. The D.C. Circuit gives this argument short shrift:

The government's last refuge is a plea that we recognize the government's "good faith" and, therefore, import a good faith exception to Title III's remedy of suppression. The Supreme Court has done so regarding Fourth Amendment violations, see United States v. Leon, 468 U.S. 897, 911 (1984), where there is no explicit textual remedy. Here, of course, Congress has spoken: The statute requires suppression of evidence gathered pursuant to a facially insufficient warrant.

The convictions were reversed, and the wiretapped conversations are suppressed.

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