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SCOTUS will address suppression of wiretap evidence

Dahda v. United States, USSC No. 17-43, certiorari granted 10/16/17

Question presented:

Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Lower court decision: United States v. Los Rovell Dahda, 853 F.3d 1101 (10th Cir. 2017).

USSC Docket

Scotusblog page (includes links to cert petition and responses; briefs; and commentary)

This case will of course be of interest to federal criminal defense practitioners. But the Court’s decision in this case could also affect Wisconsin law. Our wiretapping statutes are based on the federal statutes and our courts have long looked to federal legislative history and intent and federal case law when applying our statutes. State v. House, 2007 WI 79, ¶14, 302 Wis. 2d 1, 734 N.W.2d 140.

In Dahda’s case a federal district court in Kansas authorized police to intercept communications on cell phones of various persons suspected of drug trafficking. The wiretap orders said that “in the event [the target telephone numbers] are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States.” But 18 U.S.C. § 2518(3) says that a wiretap order may (with an exception not applicable here) intercept communications only if they are “within the territorial jurisdiction of the court in which the [issuing] judge is sitting….”

The Tenth Circuit agreed the orders in this case were facially invalid because they authorized interception outside of the court’s territorial jurisdiction, but it refused to suppress the evidence obtained under the orders. It took its lead from United States v. Chavez, 416 U.S. 562, 574-75 (1974), which held that not every failure to comply fully with any requirement in the wiretap statutes would render the interception of wire or oral communications unlawful. The Tenth Circuit held that suppression is required only if the territorial jurisdictional requirement is one of “those statutory requirements 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,” quoting United States v. Giordano, 416 U.S. 505, 527 (1974), and concluded the jurisdictional limitation doesn’t advance the statute’s “core concerns” about the privacy of wire and oral communications and establishing uniformity in the circumstances and conditions under which the interception of wire and oral communications is authorized.

Dahda criticizes this result because, he argues, Chavez and Giordano address suppression under § 2518(10)(a)(i), when there’s been unlawful interception generally; here there was interception under a facially insufficient authorization, and suppression for that kind of error is expressly provided for under a separate statute, § 2518(10)(a)(ii). Most other circuit courts have taken the same position as the Tenth Circuit, the Seventh among them. United States v. Lawson, 545 F.2d 557, 562 (7th Cir. 1975). On the other hand, one circuit has agreed with Dahda’s argument that the “core concerns” approach has no application to violations of the territorial jurisdiction limitation, United State v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013), and another has held (albeit it in an opinion that was later withdrawn) that the jurisdictional limitation implicates a core concern, so violating it leads to suppression, United States v. North, 728 F.3d 429, 437 (5th Cir. 2013), opinion withdrawn, suppression ordered on other grounds, 735 F.3d 212 (5th Cir. 2013). A lopsided split, but one the Court will now resolve.

As noted, the decision could affect state practice, in two ways. First, our supreme court has applied the Chavez/Giordano approach in applying § 968.30(9)(a) (our counterpart to § 2518(10)(a)) to decide whether to suppress evidence obtained as a result of a violation of Wisconsin’s wiretap statutes. See House, 302 Wis. 2d 1, ¶¶34-60 (holding that suppression was not required where application for interception included both crimes for which interception is authorized and crimes for which interception is not authorized). If this decision expands or contracts Chavez or Giordano, our test for suppression will likely change in the same way.

Second, § 968.28 requires the 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 like a territorial jurisdiction limitation comparable to one in § 2518(3), as it seems to say an authorization from the chief judge of one administrative district can’t be used to intercept a communication made in a different district. A limitation like this isn’t a problem when communication is by stationary land line; but with cell phones being used by people crossing administrative district lines, we may one day see a case like Dahda’s involving interception of communications from outside an authorized geographic area, and the questions of whether the interception is authorized, and whether its contents should be suppressed, will be presented.

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