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Posted on Thursday, June 07, 2018

Providing a Little Knowledge of Wiretaps

Dahda v. United States, ___ U.S. ___, No. 17-43 (14 May 2018).

I have never agreed with Plato’s dictum that a little knowledge of geometry is a dangerous thing.  After all, everyone starts with only a little knowledge when learning anything.  What is dangerous is not a little knowledge but confusing a little knowledge with general competence.  The same applies to knowledge of the federal wiretap laws.  A little knowledge is useful and only dangerous when confounded with delusions of competence.  True, most lawyers have never represented a client who has been wiretapped and may never represent such a client.  However, some knowledge of wiretap laws is useful even for lawyers not engaged in the practice of criminal law.  Many lawyers represent clients in business, and numerous criminal laws affect the conduct of business.  Wiretaps, like criminal laws generally, are not limited to only drug cartels, racketeers, spies and the like.  The Supreme Court’s recent decision in Dahda v. United States provides a little knowledge of wiretaps.

Federal law allows judges to issue wiretap orders authorizing the interception of communications to detect and prosecute serious federal crimes. 18 U.S.C. §2510 et seq.  Wiretaps are a powerful weapon in the hands of government.  Presumably, mindful of Lord Acton’s observation that “power tends to corrupt and absolute power corrupts absolutely,” and to prevent the unconstrained, abusive use of wiretaps by law enforcement, Congress included numerous requirements and conditions that law enforcement must follow to lawfully conduct wiretaps.  To begin with, the statute requires a judge to find probable cause supporting issuance of the wiretap order; but there are other more detailed requirements governing both the application for a wiretap order and the content of the judicial order that authorizes the wiretap.

Each application for a wiretap order must identify the law enforcement officer making the application; provide a complete statement of facts justifying issuance of the order; specify the crime being investigated; state the place where the communication is to be intercepted; describe the type of communications sought to be intercepted; identify the person, if known, allegedly committing the crime and whose communications are to be intercepted; provide a statement of whether other investigative procedures have been tried and failed or why they are unlikely to succeed; and state the period of time needed to maintain the interception. 18 U.S.C. §2518(1).

An order authorizing the interception of wire, oral or electronic communication must specify: (a) the identity of the person, if known, whose communications are to be intercepted; (b) the nature and location of the communications facilities as to which authority to intercept is granted; (c) a particular description of the type of communications sought to be intercepted and a statement of the particular offense to which the communications relate; (d) the identity of the agency authorized to intercept the communications and of the person authorizing the application; and (e) the period of time during which such interception is authorized. 18 U.S.C. §2518(4).

Directly pertinent to the Dahda decision, the wiretap statute also provides that an aggrieved person can move to suppress the contents of intercepted communications on the grounds that –

  • the communication was unlawfully intercepted;
  • the order of approval was “insufficient on its face”; or
  • the interception was not in conformity with the wiretap order.

18 U.S.C. §2518(10)(a).  Specifically, Dahda concerns the second of these grounds for suppression – that the wiretap order was insufficient on its face.

Mr. and Mrs. Dahda operated a flourishing, illegal drug distribution network, and to their great misfortune their business caught the attention of federal investigators.  As part of their investigation, the investigators received nine wiretap orders from a federal judge.  The statute normally allows a judge to authorize a wiretap only within the judge’s “territorial jurisdiction.” §2518(3).  (There is a limited exception not pertinent to the Dahda case.)  An intercept takes place either where the tapped telephone is located or where the government’s listening post is located.  The statute generally requires that one or the other of these locations must be within the authorizing judge’s territorial jurisdiction.

The Dahdas’s drug distribution business was based in Kansas, and a federal judge for the district of Kansas issued the nine wiretap orders.  Each order said that in the event the targeted telephones “are transported outside the territorial jurisdiction of the court, interception may take place at any other jurisdiction within the United States.”  This language did not comply with the statute.  The quoted language in the orders could not lawfully allow a wiretap of a phone that was outside Kansas if the government’s listening post was also located outside Kansas.  In one instance, the government listened from a listening post outside Kansas (in Missouri) to conversations on a mobile phone that was outside Kansas (in California).

The defendants moved to suppress all evidence derived from the wiretap orders on the ground that each order was “insufficient on its face,” because the sentence authorizing interception “at any other jurisdiction within the United States” authorized an unlawful wiretap and therefore violated 18 U.S.C. §2518(10)(a)(ii), cited above.  The government responded that it would not introduce any evidence arising from its Missouri listening post, and the government’s concession had the practical effect of suppressing that evidence.  The district court denied the defendants’ motion to suppress, and the 10th Circuit affirmed.

The question before the Supreme Court was whether each wiretap order was insufficient on its face because it authorized interception “at any other jurisdiction within the United States,” when the statute permitted interception only within the issuing judge’s territorial jurisdiction.

The Court held that the ground for suppression set forth in §2518(10)(a)(ii) does not apply to each and every error that appears in an otherwise sufficient order.  The Court said that if a wiretap order fails to include an item of information specifically required by §2518(4) (i.e., those items described above), then the order is insufficient on its face.  An order lacking that information would deviate from the uniform, authorizing requirements that Congress explicitly enacted and would be insufficient on its face.  An order is insufficient if it lacks what is necessary and requisite – that is, it lacks what the statute requires.

In Dahda, the wiretap orders were not deficient or lacking in anything necessary or requisite.  The orders had all the information required by §2518(4).  The offending sentence in each order was without legal effect because the district court could not have legally authorized a wiretap outside the court’s territorial jurisdiction.  Here, the orders would have been sufficient if they had lacked the disputed language authorizing interception outside Kansas.  The fact that the wiretap orders had extra language having no legal effect did not render the orders insufficient on their face.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.