U.S. v. Ramirez, s. 96-2237

Citation112 F.3d 849
Decision Date28 April 1997
Docket Number96-2276 and 96-2340,96-2257,Nos. 96-2237,s. 96-2237
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ken RAMIREZ, Peter Hotchkiss, Paul Hotchkiss, and Patrick Flynn, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Larry Wszalek (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Charles L. Hawkins, Minneapolis, MN (argued), Douglas W. Thomson (argued), Earl P. Gray (argued), and Paul Applebaum (argued), St. Paul, MN, for Defendants-Appellees.

Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The four appellants were tried together in the U.S. District Court for the Western District of Wisconsin, convicted by a jury of conspiracy to distribute methamphetamine, and sentenced to long prison terms. They raise a number of issues, but only one has possible merit, and only one other has sufficient colorable merit to warrant discussion. The details of the conspiracy are irrelevant to these issues, except that it is important to keep in mind that the conspiracy straddled the border between two states, Wisconsin and Minnesota.

The substantial issue, which is presented by appellants Patrick Flynn and Paul Hotchkiss relates to the admission of evidence obtained by a government wiretap of a cellular phone (actually two phones, but the second need not be discussed separately). The government had information that Hotchkiss, who lived in Wisconsin but dealt drugs in St. Paul, was using a cellular phone, owned by Flynn, in aid of the conspiracy and was carrying the phone with him as he traveled back and forth between his home in Wisconsin and his illegal business in Minnesota. On the basis of this information the government obtained from a district judge in the Western District of Wisconsin, where the appellants' conspiracy was being investigated and would later be prosecuted, an order authorizing the wiretapping of the cellular phone line. The order was issued on April 13, 1995, was by its terms good for only 30 days, and required the government to submit a progress report at the end of that time. The government set up a listening post in Minnesota to eavesdrop on calls made from the cellular phone. It located the post in Minnesota rather than in Wisconsin because it was afraid that the agents manning it would be recognized in the defendants' home stamping ground.

Within a few days after the order was issued the agents manning the post learned from conversations that they intercepted that the cellular phone was not being used by Hotchkiss--that he was using a different phone--and that the user of the phone that they were tapping did not seem to travel outside Minnesota. The user was, however, talking with Flynn over this phone and the conversations concerned the drug conspiracy that the government was investigating. At the end of the 30 days in which the order was in force the government asked the district judge for an extension of the order for another 30 days but did not disclose to the judge either that the listening post was located in Minnesota rather than in the Western District of Wisconsin or that the user of the phone they were tapping was using it only in Minnesota. The judge granted the motion for an extension. The case was later reassigned to a different judge, who when she learned that the communications and interceptions were entirely within Minnesota ordered the evidence obtained by the wiretap after the expiration of the original 30-day period suppressed on the authority of 18 U.S.C. § 2518(10)(a)(i), which directs the suppression of information obtained by an unlawful interception. The court's reasoning was that the statute which authorized the wiretap, Title III of the Safe Streets and Crime Control Act of 1968, does not permit a federal district court to authorize wiretapping in another federal district. The court refused to suppress the evidence obtained during the term of the original order, however, because that order had been issued in response to an application that had been based upon the government's reasonable and good-faith belief that the phone line was being used in the Western District of Wisconsin.

There is a difficulty with the court's reasoning concerning the period between the discovery by the government agents that the cellular phone was not being used in Wisconsin and the expiration of the original order. It is true that if government agents execute a valid wiretap order and in the course of executing it discover that it was procured by a mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible in evidence. United States v. London, 66 F.3d 1227, 1234-35 (1st Cir.1995); cf. United States v. Malekzadeh, 855 F.2d 1492, 1496-97 (11th Cir.1988). It is just the "plain view" doctrine (e.g., Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Ewain, 88 F.3d 689, 693 (9th Cir.1996)) translated from the visual to the oral dimension. It is as if government agents executing a conventional search warrant discover that they have the wrong address but before they can withdraw notice other illegal activity. E.g., Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); United States v. Williams, 917 F.2d 1088 (8th Cir.1990). The discovery of the mistake does not make the search unlawful from its inception, United States v. Fitzgerald, 724 F.2d 633 (8th Cir.1983) (en banc); United States v. Soussi, 29 F.3d 565 (10th Cir.1994); United States v. Noel, 938 F.2d 685, 687-88 (6th Cir.1991), because all that is required for a lawful search is probable cause to believe that the search will turn up evidence or fruits of crime, not certainty that it will. But in either case, the visual or the aural, once the mistake is discovered, the government cannot use the authority of the warrant, or of the order, to conduct a search or interception that they know is unsupported by probable cause or is otherwise outside the scope of the statute or the Constitution. Maryland v. Garrison, supra, 480 U.S. at 87, 107 S.Ct. at 1018; Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir.1995). No longer would they be merely discovering evidence of crime in the course of a lawful search.

No doubt the agents were entitled to some leeway to continue listening until they were sure that Hotchkiss hadn't just lent the phone to his coconspirator and would soon retrieve it and carry it back with him to his home in Wisconsin. But it appears that this uncertainty was dissipated before the order expired, rather than conveniently ending at the precise moment of expiration.

We need not pursue this issue. We do not think that the location of the phone affected the legality of the tap, and we do not understand anyone to be arguing that it matters who was using the phone, since the person to whom Hotchkiss gave it and whose conversations the agents overheard was (and this was obvious from the conversations) a participant in the same conspiracy. Nor must the evidence be suppressed because the tap was not authorized by the order....

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