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SCOTUS clarifies interpretation of federal wiretap statute’s suppression provision

Dahda v. United States, USSC No. 17-43, 2018 WL 2186173 (May 14, 2018), affirming United States v. Dahda, 853 F.3d 1101 (10th Cir. 2017); Scotusblog page (including links to briefs and commentary)

This decision will be important to federal criminal defense practitioners dealing with evidence obtained with wiretap orders issued under 18 U.S.C. § 2510 et seq, as a unanimous Court clarifies the application of United States v. Giordano, 416 U.S. 505 (1974), to suppression challenges under 18 U.S.C. § 2518(10)(a)(ii).

A federal district court in Kansas authorized police to intercept communications on cell phones of various persons, including the Dahdas, who were suspected of drug trafficking. The wiretap orders authorized interception of calls in any other jurisdiction within the U.S. But under 18 U.S.C. § 2518(3) a wiretap order may allow interception of communications only if they are “within the territorial jurisdiction of the court in which the [issuing] judge is sitting….” So the Dahdas moved to suppress the evidence obtained under the orders, citing § 2518(10)(a)(ii), which requires suppression when the wiretap order is “insufficient on its face….” (Slip op. at 2-5).

The Tenth Circuit refused to suppress the evidence obtained under the orders. Like most other federal appeals courts facing wiretap suppression claims (including the Seventh, United States v. Lawson, 545 F.2d 557, 562 (7th Cir. 1975)), it invoked Supreme Court precedent holding that not every failure to comply with a provision of the wiretap statute renders the interception of wire or oral communications unlawful. Instead, suppression is required only if the statutory provision is one “that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 527 (1974). The Tenth Circuit held that the jurisdictional limitation doesn’t advance the statute’s “core concerns” of protecting privacy or establishing uniformity in interception of wire and oral communications, so suppression isn’t required. (Slip op. at 5).

The Supreme Court agrees suppression isn’t appropriate, but for different reasons. First, it holds that the Tenth Circuit erred in using Giordano’s “core concern” test, as that only applies to arguments for suppression under § 2518(10)(a)(i), which covers unlawful interception generally. (Slip op. at 6-8). Dahda argued for suppression under § 2518(10)(a)(ii), which involves a wiretap order that is “insufficient on its face.” There is no good reason for applying Giordano’s test to subparagrpah (ii), because:

The underlying point of Giordano’s limitation was to help give independent meaning to each of § 2518(10)(a)’s subparagraphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’—precisely what [this] Court tried to avoid in Giordano.” …. We consequently conclude that subparagraph (ii) does not contain a Giordanolike “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.”

(Slip op. at 8 (quoted source omitted)). Second, applying § 2518(10)(a)(ii), the Court concludes the extra language in the wiretap order authorizing extraterritorial interception doesn’t make the order “insufficient”; quite the opposite, it adds too much:

The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas…. But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “outside the territorial jurisdiction of the court.” …. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its presence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we discussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. …. Consequently, every wiretap that produced evidence introduced at the Dahdas‘ trial was properly authorized under the statute.

(Slip op. at 10).

As we noted in our post on the cert grant, Wisconsin has a wiretap statute based on federal law, and § 968.28 requires an order for interception to be issued by “the chief judge of the judicial administrative district for the county where the interception is to take place….” This looks comparable to the territorial jurisdiction limitation in § 2518(3), as it implies an authorization from the chief judge of one administrative district can’t be used to intercept a communication made in a different district. We speculated that the Court’s decision in this case might affect state practice under our counterpart statute, but given how the Court resolved the issue, that is not the case. Here’s why.

In State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, our supreme court applied § 968.30(9)(a) (our counterpart to § 2518(10)(a)) to decide whether suppression was required where a wiretap order included both crimes for which interception is authorized under our statute and crimes for which interception is not authorized. House took precisely the same approach as the Supreme Court in Dahda. It limited its use of Giordano to the “unlawfully intercepted” clause in § 968.30(9)(a), and read the “insufficient on its face” clause to not require suppression where the order contained additional interception authority not included in the statute—i.e., where the order “included too much.” House, 302 Wis. 2d 1, ¶¶37-38. Because our court came to the same conclusion as the Supreme Court, House is still standing.

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