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9th Circuit: Police can use wiretap evidence outside scope of wiretap order unless they knew or reasonably should have known that evidence fell outside scope of order

United States v. Carey, — F.3d — (9th Cir. Sep. 7,2016): 9th Circuit applies “plain view” principles to recognize “plain hearing” doctrine with respect to wiretaps

“Welcome to the AT&T Teleconspiracy Center. You have entered the code for the Escamilla conspiracy. At the tone, please clearly state your name, aliases, and role in the conspiracy. Then press pound.”

Nope, it doesn’t work like that. Under the Wiretap Act, 18 U.S.C. 2510-22, the government gets an order permitting it to tap calls linked to a specified conspiracy. They listen. If all goes according to plan, they hear and record the participants in that conspiracy discussing the nefarious deeds identified in the order. But what if they wind up hearing an entirely different cast of characters discussing an entirely different set of nefarious deeds? Finders keepers? Not exactly, says the Ninth Circuit.

Federal agents got an order allowing them to tap calls on a particular number in connection with a suspected drug conspiracy involving a Mr. Escamilla. They heard people discussing drugs, but at some point or other they realized they were not hearing Escamilla or his confederates, but a different set of conspirators discussing a non-overlapping conspiracy, which happened to implicate Mr. Carey. They ran with it, and indicted Mr. Carey. Mr. Carey pleaded guilty while preserving his objection to the use of the wiretap evidence. On appeal, the government argued no harm no foul, because the wiretap order referred to “others yet unknown.” Not so, said the Ninth Circuit – the “others” had to be part of the same conspiracy underlying the wiretap. The government pointed to caselaw allowing agents to collect evidence of other crimes while conducting a wiretap. True enough, said the Ninth Circuit, but only when their surveillance is legitimately within the scope of the wiretap. The court concluded that a “plain hearing” principle analogous to the “plain view” doctrine applies: The government can use evidence that it hears while acting within the scope of a wiretap order, but if it heard what it heard after the point at which its agents knew or reasonably should have known that what they heard did not fall within the scope of the order, the evidence is inadmissible. Because it was unclear which evidence fell on which side of that line, the court vacated Mr. Carey’s conviction and remanded the case for an open-record hearing on that question. (Judge Kozinski dissented, agreeing with the merits holding but arguing that Mr. Carey was to blame for the insufficiency of the record and that the majority was giving him a “mulligan.”)

Moral: The rules of the middle-school lunchroom do not apply to the federal Wiretap Act, mostly.

(Congratulations to Knut Sveinbjorn and Emerson Wheat of San Diego, CA)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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