Dahda v. United States, USSC No. 17-43, 2018 WL 2186173 (May 14, 2018), affirmingUnited 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. § 2510et 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….”

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.

In sum, to obtain authorization to intercept (that is, tap) real-time phone calls, email or text messages, a federal agent must first exhaust every other investigative alternative. 18 U.S.C. § 2518(c). Then, the agent must engage with a federal prosecutor who will oversee the application for and use of the intercepts via well-established statutory and policy-based procedures that control every step of the process.

The police also failed to properly seal the recorded information. Only a limited exclusionary rule applies pursuant to 18 U.S.C. § 2518(8)(a), though. Just the intercepts are suppressed, not the fruits of those intercepts, including investigative leads and warrants that were based on information learned from the intercepts.

ave damage or injury to any person, entity or institution.”On the other hand, the Western District of New York issued a general order that contains a substantially more expansive definition of what is and may be considered “highly sensitive documents,” including:applications for electronic surveillance;partial reports of grand jury proceedings;documents that contain information that would present clear and present danger to life and safety;documents in highly sensitive criminal matters;documents discussing matters of national security;documents raising highly sensitive domestic or international issues;documents involving intellectual property, trade secrets or other highly sensitive commercial issues; anddocuments discussing the reputational interest of the United States.And the Northern District of New York issued its own general order defining “highly sensitive information” in yet another way, including applications for search warrants, applications for electronic surveillance under 18 U.S.C. § 2518, sealed grand jury indictments, sealed complaints, pen registers, grand jury target letters, grand jury non-disclosure orders, applications for 18 U.S.C. § 2703-d disclosures and qui tam actions.The Second Circuit Court of Appeals issued a notice stating that it would be adhering to its current practices, which requires that all sealed documents – whether they contain highly sensitive information or not – be delivered directly to the clerk’s office. The Second Circuit does not permit filing of any sealed documents in its CM/ECF system and therefore does not need to update its procedures in response to the Judiciary’s new protocols.

Title III both sets forth the legal requirements for obtaining judicial authorization for a wiretap and contains its own exclusionary rule, providing that wiretap evidence cannot be presented at trial if (i) a communication was unlawfully intercepted; (ii) the order authorizing the wiretap was insufficient on its face; or (iii)the interception was not carried out in conformity with the authorizing order. 18 U.S.C. §2518(10). Only the first subpart—unlawful interception—is potentially in play here.

The Court's decision is available here.Dahda v. United States,No. 17-43: By federal law, judges may issue wiretap orders, but the same statute also requires suppression of any evidence if, inter alia, the wiretap order was “insufficient on its face.” See 18 U.S.C. §2518(10)(A)(ii). Here, a judge in the District of Kansas issued a number of wiretap orders that met all statutory requirements, but included a sentence providing that if the telephones at issue were transported outside the territorial jurisdiction of the District of Kansas, interception could still occur.

Counsel was not ineffective for failing to challenge evidence obtained from an electronic surveillance device (truck bug) unlawfully installed in a vehicle outside of the authorizing court’s geographic jurisdiction. In light of the deeply unsettled law on the question of standing to suppress pursuant to 18 U.S.C.S. § 2518(10)(a)(i), counsel did not perform below the constitutional standard. United States v. Glover, 2017 U.S. App. LEXIS 19741 (D.C. Cir. Oct. 10, 2017).

One model for such legislation is the Title III wiretap statute, which applies to both state and federal authorities. See 18 U.S.C. § 2518, et al. A bill with bipartisan sponsorship which is modeled on Title III—the “Geolocational Privacy and Surveillance Act” or “GPS Act”—has been introduced in both chambers of Congress, but it has not advanced far through the legislative process.

From 1986 to 1998, Title III authorized roving wiretaps if “the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities,” among other requirements. 18 U.S.C.A. § 2518(11)(b)(i)-(iii) (1986) (amended 1998) (emphasis added). New Jersey added a roving wiretap provision in 1993, which closely tracked then-existing federal law.