United States v. Carey

• Decision Date: 07 September 2016
• Docket Number: No. 14-50222,14-50222
• Citation: 836 F.3d 1092
• Parties: United States of America, Plaintiff-Appellee, v. Michael Carey, AKA Garrocha, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

836 F.3d 1092

United States of America, Plaintiff-Appellee,

v.Michael Carey, AKA Garrocha, Defendant-Appellant.

No. 14-50222

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2016, Pasadena, California

Filed September 7, 2016

Knut Sveinbjorn Johnson (argued) and Emerson Wheat, San Diego, California, for Defendant-Appellant.

Peter Ko (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Alex Kozinski, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Dissent by Judge Kozinski

Acting pursuant to the Wiretap Act, 18 U.S.C. §§ 2510 –22, federal agents secured a wiretap order for a San Diego phone number based on evidence that Ignacio Escamilla Estrada (Escamilla) was using the number in a drug smuggling and distribution conspiracy. Agents monitoring the wiretap overheard drug-related phone conversations. At some point during a seven-day period, the agents realized that Escamilla was not using the phone. Agents continued listening, however, believing at least initially that the people speaking on the phone might have been part of the Escamilla conspiracy. The seven days of wiretap monitoring culminated in a traffic stop, and agents then confirmed that the persons on the phone had no connection to Escamilla.

Appellant Michael Carey was eventually identified as a speaker in some of the phone calls, and he was then charged with conspiracy to distribute cocaine. Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act by never applying for a wiretap as to him or his coconspirators. The district court denied the motion, ruling that the government could rely on the Escamilla order to listen to Carey's conversations.

The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in “plain view.” We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Cf. Maryland v. Garrison , 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987).

The district court did not apply these principles, and the record in this case does not show exactly when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. We vacate the district court's denial of Carey's motion to suppress and remand to the district court on an open record to determine what evidence was lawfully obtained in “plain hearing.”

I

On March 5, 2010, the district court granted FBI Special Agent Christopher Melzer's application for a wiretap order for several phone numbers thought to be associated with a drug conspiracy led by Ignacio Escamilla Estrada (Escamilla). The phone number designated “T-14” was believed to belong to Escamilla. The wiretap of T-14 went live on March 5, although no calls were intercepted until March 10.

Starting on the 10th, the agents overheard “drug-related” calls, but at some point the agents realized that the person using T-14 was not Escamilla. The agents did not know who the people speaking on T-14 were, although Melzer initially “thought the callers and calls might still be affiliated with [the] known targets or part of the criminal activity [he] was investigating.” Melzer consulted with federal prosecutors, and agents continued to monitor the calls.

On the morning of March 17, 2010, agents intercepted a call indicating that someone would be traveling with “invoices” (believed to be code for drug money). The agents coordinated with local police officers to execute a traffic stop on a car involved in the phone calls. Officers identified the driver as Adrian Madrid and searched the vehicle, finding cash and a cellphone tied to the T-14 number. Officers then obtained a search warrant for a related residence and found cocaine. Now knowing Madrid's identity, Melzer learned that there was an ongoing DEA/ICE investigation into Madrid and his associates. Melzer met with ICE and DEA agents, and they concluded that there was no “overlap” between the Madrid and Escamilla conspiracies.

Agents later identified Carey as a member of Madrid's conspiracy.¹ Carey was indicted in February 2011 for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He filed a motion to suppress “any and all evidence derived from the use of wiretaps,” arguing that the government failed to comply with the Wiretap Act, 18 U.S.C. §§ 2510 –22, with respect to Carey and his coconspirators. In Carey's view, the government instead had unlawfully “relie[d] on the validity of the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Mr. Carey.” Carey also requested a Franks² hearing to “fill in the holes” of a declaration by Special Agent Melzer that had been submitted to the district court to explain the agents' and officers' actions in connection with the wiretap.

The district court denied the motion to suppress, reasoning that the government had complied with the statute to obtain the wiretap order against Escamilla and holding that “[t]here was no requirement for a separate showing of necessity once the agents concluded that T-14 was not primarily used by Escamilla. The agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses.” Carey pled guilty in an agreement that preserved his right to appeal the denial of his motion to suppress. Carey's appeal was timely and we have jurisdiction under 28 U.S.C. § 1291.

II

In 1967, the Supreme Court issued two opinions discussing the constitutionality of certain phone surveillance techniques. In Berger v. New York , 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Court invalidated a New York wiretap statute as “too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area.” Id. at 44, 87 S.Ct. 1873. Then in Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court held that federal agents violated the Fourth Amendment by eavesdropping on and recording a telephone call without a warrant. Id. at 348, 357–59, 88 S.Ct. 507.

Congress took note of these foundational decisions when passing the Omnibus Crime Control and Safe Streets Act of 1968. See United States v. U.S. Dist. Ct. for the E. Dist. of Mich. , 407 U.S. 297, 302, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Title III, which is known colloquially as the Wiretap Act, prescribes certain procedures that the government must follow to secure judicial authorization for a wiretap. See United States v. Giordano , 416 U.S. 505, 507, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) (citing 18 U.S.C. §§ 2510 –20 ). The government must demonstrate probable cause that a particular offense has been or will be committed, see 18 U.S.C. § 2518(1)(b) ; United States v. Kahn , 415 U.S. 143, 155, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), and the government must demonstrate “necessity” for the wiretap by showing that traditional investigative procedures did not succeed or would be too dangerous or unlikely to succeed if tried, see 18 U.S.C. § 2518(1)(c) ; United States v. Blackmon , 273 F.3d 1204, 1207 (9th Cir. 2001). The statute also requires the government to adopt minimization techniques to “reduce to a practical minimum the interception of conversations unrelated to the criminal activity under investigation.” United States v. McGuire , 307 F.3d 1192, 1199 (9th Cir. 2002) ; see 18 U.S.C. § 2518(5).

If the government uses a wiretap in violation of the statute, evidence obtained from the wiretap is inadmissible against the conversation's participants in a criminal proceeding. Giordano , 416 U.S. at 507–08, 94 S.Ct. 1820 ; see 18 U.S.C. § 2515. Carey argues that suppression is warranted here because the government did not comply with these statutory requirements as to him or his coconspirators—the government's wiretap application instead demonstrated probable cause and necessity only as to Escamilla's conspiracy.

As a preliminary matter, the government argues that the only Wiretap Act argument Carey has preserved is his necessity argument: whether the agents violated 18 U.S.C. § 2518(1)(c) by listening to Carey's phone calls without first trying “other investigative procedures” or explaining “why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” At oral argument on appeal, the government further suggested that Carey's argument that the government could not rely on the Escamilla wiretap to listen to Carey's calls was an argument about the proper “execution of the order” rather than “the necessity showing.”

In this context, however, we see no meaningful difference between the argument presented to the district court and that presented on appeal. While Carey's suppression brief primarily discussed necessity, he argued in substance that the government could not “rel[y] on the validity of the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Mr. Carey.” The government recognized that this was the premise of Carey's argument, responding with its view that “agents properly continued to intercept T-14 even after determining Escamilla was not the primary user.” And this claim was further fleshed out before the district court when, in dialogue with the judge, Carey's lawyer argued that “[a]t the point in that time during that 15-day period they [the agents] realize this is a...