Dahda v. United States

• Decision Date: 14 May 2018
• Docket Number: No. 17–43.,17–43.
• Citation: 200 L.Ed.2d 842,138 S.Ct. 1491
• Parties: Los Rovell DAHDA, Petitioner v. UNITED STATES. Roosevelt Rico Dahda, Petitioner v. United States.
• Court: U.S. Supreme Court

138 S.Ct. 1491

200 L.Ed.2d 842

Los Rovell DAHDA, Petitioner

v.UNITED STATES.

Roosevelt Rico Dahda, Petitioner

v.United States.

No. 17–43.

Supreme Court of the United States

Argued Feb. 21, 2018.

Decided May 14, 2018.

Kannon K. Shanmugam, Washington, D.C., for Petitioner.

Zachary D. Tripp, Washington, D.C., for Respondent.

Rick E. Bailey, Conlee, Schmidt, & Emerson, LLP, Wichita, KS, Edward K. Fehlig, Jr., Fehlig & Fehlig–Tatum, LLC, St. Louis, MO, Kannon K. Shanmugam, Amy Mason Saharia, Allison Jones Rushing, Charles L. McCloud, J. Liat Rome, Williams & Connolly LLP, Washington, D.C., for Petitioners.

Noel J. Francisco, Solicitor General, John P. Cronan, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Eric J. Feigin, Zachary D. Tripp, Assistants to the Solicitor General, Finnuala K. Tessier, Attorney, Department of Justice, Washington, D.C., for Respondent.

Justice BREYER delivered the opinion of the Court.

A federal statute allows judges to issue wiretap orders authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. See Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. The statute requires the judge to find "probable cause" supporting issuance of the order, and it sets forth other detailed requirements governing both the application for a wiretap and the judicial order that authorizes it. See § 2518.

The 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

"(i) the communication was unlawfully intercepted;

"(ii) the order of ... approval under which it was intercepted is insufficient on its face; or

"(iii) the interception was not made in conformity with the order of authorization or approval." § 2518(10)(a).

This litigation concerns the second of these provisions—the provision that governs the "insufficien[cy]" of an order "on its face." § 2518(10)(a)(ii).

Los and Roosevelt Dahda—defendants in the trial below and petitioners here—sought to suppress evidence derived from nine wiretap Orders used to obtain evidence of their participation in an unlawful drug distribution conspiracy. They argue that each Order is "insufficient on its face" because each contains a sentence authorizing interception "outside the territorial jurisdiction" of the authorizing judge, App. 97 (emphasis added), even though the statute normally allows a judge to authorize wiretaps only within his or her "territorial jurisdiction," § 2518(3).

In deciding whether each Order was "insufficient on its face," we assume that the Dahdas are right about the "territorial" requirement. That is to say, we assume the relevant sentence exceeded the judge's statutory authority. But 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."

I

A

As we just said, the relevant statute permits a judge to issue an order authorizing the Government to intercept wire communications for an initial (but extendable) period of 30 days. § 2518(5). To obtain that order, the Government must submit an application that describes the particular offense being investigated as well as the type of communications it seeks to intercept; that sets forth the basis for an appropriate finding of "probable cause"; that explains why other less intrusive methods are inadequate, have failed, or are too dangerous to try; and that meets other requirements, showing, for example, authorization by a specified governmental official. § 2518(1). If the judge accepts the application, finds probable cause, and issues an authorizing order, that order must itself contain specified information, including, for example, the identity of the "person" whose "communications are to be intercepted"; the "nature and location of the [relevant] communications facilities"; a "particular description of the type of communication sought to be intercepted"; a statement of the "particular offense" to which the intercept "relates"; the "identity of the agency authorized to intercept"; the identity of the "person authorizing the application"; and "the period of time during which" the "interception is authorized." §§ 2518(4)(a)-(e).

A judge's authorizing authority normally extends only within statutorily defined bounds. The statute specifies that an order can permit the interception of communications "within the territorial jurisdiction of the court in which the judge is sitting." § 2518(3). (There is an exception allowing interception beyond the judge's territorial jurisdiction if the judge authorizes a "mobile interception device," ibid., but the parties now agree that exception does not apply to these Orders.) The Government here adds (without the Dahdas' disagreement) that an intercept takes place either where the tapped telephone is located or where the Government's "listening post" is located. See § 2510(4) (defining "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device"); see also Brief for Petitioners 11; Brief for United States 6. As so interpreted, the statute generally requires that one or the other or both of these locations must be found within the authorizing judge's "territorial jurisdiction."

B

In 2011, the Government began investigating a suspected drug distribution ring based in Kansas. It submitted an application asking a federal judge for the District of Kansas to issue nine related wiretap Orders, and the judge issued them. For present purposes we assume, see infra, at 1495 – 1500, that all nine Orders met all statutory requirements with one exception. Each Order contained a sentence that read as follows:

"Pursuant to Title 18, United States Code § 2518(3), it is further Ordered that, in the event TARGET TELEPHONE # 1, TARGET TELEPHONE # 3 and TARGET TELEPHONE # 4, are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States." App. 105 (under seal) (emphasis added); see also id., at 97, 114, 123, 132, 140, 149, 158, 166, 174 (Orders containing identical language but targeting different telephones).

Although they disputed it below, the parties now agree that this sentence could not lawfully allow a wiretap of a phone that was located outside Kansas in instances where the Government's listening post was also located outside of Kansas.

Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on mobile phones that were located outside of Kansas. But, in one instance, the Government listened from a listening post outside of Kansas (in Missouri) to conversations on a mobile phone that was also outside of Kansas (in California). That one instance concerned a mobile phone (Target Telephone # 7) belonging to Philip Alarcon.

In 2012, the Government indicted the Dahdas and several others, charging them with conspiracy to buy illegal drugs in California and sell them in Kansas. Prior to trial, the Dahdas moved to suppress all evidence derived from the wiretaps authorized by the nine Orders on the ground that the District Court could not authorize the interception of calls from the Missouri listening post to and from Alarcon's mobile phone in California. In its response, the Government said it would not introduce any evidence arising from its Missouri listening post. A Magistrate Judge and subsequently the District Court denied the Dahdas' suppression motion. App. to Pet. for Cert. 59a–76a.

The Dahdas appealed. They argued that, even though the Government did not use any wiretap information from the Missouri listening post, the court should have suppressed all evidence derived from any of the Orders. That, they said, is because each Order was "insufficient on its face" given the extra sentence authorizing interception outside Kansas. Hence the second subparagraph of the statute's suppression provision required the evidence to be suppressed. § 2518(10)(a)(ii).

The U.S. Court of Appeals for the Tenth Circuit rejected this argument on the ground that the claimed insufficiency concerned the statute's territorial requirement. 853 F.3d 1101, 1114–1116 (2017). That requirement, in its view, did not " ‘implemen[t]’ " Congress' core statutory concerns in enacting the wiretap statute. Id., at 1114 (quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) ). And for that reason a violation of the territorial requirement did not warrant suppression. See also 852 F.3d 1282, 1290 (2017).

The Dahdas filed a petition for certiorari, seeking review of the Tenth Circuit's determination. And, in light of different related holdings among the Circuits, we granted that petition. Compare 853 F.3d, at 1114–1116 (suppression was not required for orders authorizing suppression beyond the District Court's territorial jurisdiction), and Adams v. Lankford, 788 F.2d 1493, 1500 (C.A.11 1986) (same), with United States v. Glover, 736 F.3d 509, 515 (C.A.D.C.2013) (suppression required for territorial defect).

II

A

The question before us concerns the interpretation of the suppression provision's second subparagraph, which requires suppression where a wiretap order is "insufficient on its face." § 2518(10)(a)(ii). The Dahdas ask us to read subparagraph (ii) as applying to any legal defect that appears within the four corners of the order. The Government replies that the Dahdas' approach would require suppression of evidence of serious criminal behavior due to the most minor of technical failures, including those that have...