Thursday, August 29, 2013

Evidence Suppressed from Wiretap: Court Lacked Territorial Jurisdiction and Agents Failed to Follow Minimization Protocols

United States v. North, No. 11-60763 (Aug. 26, 2013) (Stewart, DeMoss, Graves) (per curiam)

In the days of Edward Snowden and SOD parallel construction, it is somewhat comforting to see the Fifth Circuit limit the Government’s wiretap reach. North, who was indicted for conspiring to distribute more than fifty grams of cocaine, appealed the district court’s denial of his motion to suppress evidence obtained from the interception of his cellular phone. The panel reversed the district court’s denial based on two grounds.

First, the panel found that the Southern District of Mississippi court that issued the wiretap did not have "the authority to permit interception of cell phone calls form Texas at a listening post in Louisiana." The panel interpreted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to "mean that, except in the case of a mobile interception device, a district court cannot authorize interception of cell phone calls when neither the phone nor the listening post is present within the court’s territorial jurisdiction." In this case, however, the district court explicitly authorized the wiretap "‘in any other jurisdiction within the United States" without requiring that the listening post remain in the Southern District of Mississippi. The panel concluded that a cell phone was not "a mobile interception device" and that the Government had not provided any proof that the interception device was mobile; so, the exception to territorial jurisdiction did not apply here. Since the order of authorization for the interception was insufficient on its face and "the territorial jurisdiction limitation serves important substantive interests and implicates core concerns of the statute," the interception must be suppressed.

Note: In reaching this conclusion, the panel disagrees with the Seventh Circuit, which held that "a mobile interception device" means a cell phone or other mobile communication device that is being intercepted (not the device doing the interception), and with the Eleventh Circuit, which held that the territorial jurisdiction limitation was not a core concern of Title III that merited suppression.

Second, the panel agrees with North that the agents failed to follow minimization protocols during the interception of a phone call between North and a female friend who was not under investigation. The minimization instructions authorized spot monitoring for not more than two minutes and continued monitoring only when the conversation related to the alleged crimes under investigation. North called his friend shortly after a traffic stop for speeding. They spoke for over an hour, and the agents listened for several minutes before "‘dropping out’ for less than one minute at a time before resuming their near continuous listening." North and his friend did not speak about any criminal matters until the very end of the conversation.
Under these circumstances, it was not objectively reasonable for agents to listen in for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes. As such, the evidence obtained from the May 16, 2009 interception of North’s cell phone must be suppressed.

The panel rejected North’s arguments that the wiretap applications for his cell phone and another phone contained material misrepresentations and omissions and were merely boilerplate applications lacking sufficient specificity.

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