Published on: Tuesday, May 15, 2018

In Dahda v. United States, No. 17-43, a unanimous Supreme Court held that wiretap orders that authorized interception outside the territorial jurisdiction of a district court were not “insufficient on [their] face” to require suppression of all wiretap evidence where the orders (1) were not lacking any information that the wiretap statute required them to include and (2) would have otherwise been sufficient absent the challenged language authorizing interception outside of the district court’s territorial jurisdiction.

The wiretap statute provides for the suppression of “the contents of any wire or oral communication” that a wiretap “intercept[s]” along with any “evidence derived therefrom” if, as relevant to the question presented in this case, “the order of . . . approval under which it was intercepted is insufficient on its face.”  18 U.S.C. § 2518(10)(a)(ii).  Absent a “mobile interception device” exception not applicable here, the wiretap statute provides that an order can permit the interception of communications “within the territorial jurisdiction of the court in which the judge is sitting.” An intercept occurs either where the tapped device is located or where the government’s listening post is located. The wiretap “statute generally requires that one or the other or both of these locations must be found within the authorizing judge’s ‘territorial jurisdiction.’”

Here, the government obtained nine wiretap orders from a Kansas District Court to investigate a suspected drug distribution ring in Kansas.  The orders met the statutory requirements with one exception—each authorized interception of the targets’ telephones if “transported outside the territorial jurisdiction of the court.”  The parties agreed that the wiretap order could not legally intercept a phone that was located outside of Kansas by a government listening post also located outside of Kansas.  The government mostly listened to conversations on mobile devices from a listening post inside Kansas, but in one instance listened to conversations on a mobile device located in California from a listening post located in Missouri.  The government subsequently indicted the Los and Roosevelt Dahda for buying illegal drugs in California and selling them in Kansas.  The Dahdas sought to suppress the evidence pretrial by arguing each order was “insufficient on its face” because it authorized interception outside the territorial jurisdiction of the Kansas District Court.  After the government responded that it would not introduce any evidence obtained from the Missouri listening post, the Dahdas’ motion to suppress was denied.  The Tenth Circuit affirmed the denial of the motion to suppress.

While the Supreme Court assumed that the wiretap orders exceeded the “territorial” limitation of the statute, the Court held that suppression was not required, explaining: “none of the communications unlawfully intercepted outside the judge’s territorial jurisdiction were introduced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas.  Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not ‘insufficient’ on their ‘face.’”  The Court reasoned “not every defect results in an insufficiency.”  The defect here is “without legal effect because . . . the Orders could not legally authorize a wiretap outside the District Court’s ‘territorial jurisdiction.’”  Characterizing the defect as “surplus,” the Court concluded the defect was “not connected to any other relevant part of the Orders.”  Removing the defect, the Orders properly authorized the collection of wiretap evidence that was used at trail. 

In contrast, the Court identified defects that would render a wiretap “insufficient on its face:”

In our view, subparagraph (ii) does not cover each and every error that appears in an otherwise sufficient order. It is clear that subparagraph (ii) covers at least an order’s failure to include information that §2518(4) specifically requires the order to contain. See §§2518(4)(a)–(e) (requiring an order to specify, e.g., the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates”); Brief for United States 17. An order lacking that information would deviate from the uniform authorizing requirements that Congress explicitly set forth, while also falling literally within the phrase “insufficient on its face.”

At the end of the opinion, the Court summarized the three ways in which evidence may be suppressed under the wiretap statute:

Our interpretation of subparagraph (ii) makes sense of the suppression provision as a whole. Where the Government’s use of a wiretap is unconstitutional or violates a statutory provision that reflects Congress’ core concerns, an aggrieved person may suppress improperly acquired evidence under subparagraph (i) (as “unlawfully intercepted,” see Giordano, 416 U. S., at 527). Where an order lacks information that the wiretap statute requires it to include, an aggrieved person may suppress the fruits of the order under subparagraph (ii) (as “insufficient on its face”). And where the Government fails to comply with conditions set forth in the authorizing order, an aggrieved person may suppress its fruits under subparagraph (iii) (as an “interception . . . not made in conformity with the order of authorization or approval”).

The Training Division provides resources on wiretaps and electronic surveillance.