United States v. Oliva

• Citation: 705 F.3d 390
• Decision Date: 17 December 2012
• Docket Number: Nos. 10–30126,10–30134.,s. 10–30126
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jorge Ortiz OLIVA, aka Jorge Cortez Almonte, aka Jorge Meras Barajas, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Pablo Barajas Lopez, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

705 F.3d 390

UNITED STATES of America, Plaintiff–Appellee,

v.Jorge Ortiz OLIVA, aka Jorge Cortez Almonte, aka Jorge Meras Barajas, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Pablo Barajas Lopez, Defendant–Appellant.

Nos. 10–30126, 10–30134.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 2011.^*

Filed July 20, 2012.

Amended Dec. 17, 2012.

Robert M. Stone (argued), Medford, OR, for Appellant Jorge Ortiz Oliva.

Marc Friedman, Eugene, OR, for Appellant Pablo Barajas Lopez.

Dwight C. Holton, United States Attorney, Kathleen Bickers (argued), Assistant United States Attorney, Portland, OR, for Appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. Nos. 3:07–cr–00050–BR–1, 3:07–cr–00050–BR–5.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and RICHARD R. CLIFTON, Circuit Judges.

ORDER

Appellee's motion to file an untimely petition for panel rehearing, filed October 5, 2012, is GRANTED. The Clerk of Court is instructed to file Appellee's petition for panel rehearing.

The opinion filed July 20, 2012, and reported at 686 F.3d 1106, is amended as follows:

At slip opinion pages 8372–73, 686 F.3d at 1108–09, delete the paragraph that begins “aggrieved person” has standing to bring a motion to suppress> and the paragraph that begins and insert the following paragraph in their place:

“aggrieved person” has standing to bring a motion to suppress the contents of intercepted wire or oral communications or evidence derived therefrom. § 2518(10)(a). An “aggrieved person” means a person “who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” § 2510(11) (emphasis added); see Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)(“In order to qualify as a person aggrieved by an unlawful search and seizure one must [be] ... one against whom the search was directed.” (quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)) (internal quotation marks omitted)); see also In re Flanagan, 533 F.Supp. 957, 960 (E.D.N.Y.1982) (“In the context of wiretapping, the rule has crystalized that the only persons with standing to suppress the fruits of an illegal wiretap are parties at whom the wiretaps were directed, parties to the call that was intercepted, or parties owning the premises where the conversations were intercepted.”), aff'd in relevant part, In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 118 n. 2 (2d Cir.1982). Irrespective of Oliva's refusal to admit that the voices in the conversations intercepted included his own or that any of the intercepts took place on his premises, Oliva was one of the individuals “against whom the interception[s] w[ere] directed.” § 2510(11). The affidavits in support of the surveillance orders included investigators' statements certifying their beliefs that he was using the individual cellular phones at issue. Oliva's conversations were the target of the surveillance. See United States v. Benjamin, 72 F.Supp.2d 161, 185 (W.D.N.Y.1999) (holding that the defendant had standing to challenge a pager wiretap where he was named in the intercept order and there was probable cause to believe that the defendant's electronic communications would be obtained through the interceptions). We therefore hold that Oliva has standing.>

At slip opinion page 8374, footnote 4, 686 F.3d at 1110 n. 4, add the following sentences to the end of the footnote:

“is a unique number hardwired into every cell phone.” United States v. Fletcher, 635 F.Supp.2d 1253, 1256 n. 3 (W.D.Okla.2009). IMSI numbers are the “unique identifying numbers assigned to the computer chips installed on cellular phones.” United States v. Green, No. 09–cv10183, 2011 WL 86681, at *2 (D.Mass. Jan. 11, 2011). Each chip is removable and “may be placed in another similarly equipped telephone.” See Fletcher, 635 F.Supp.2d at 1256 n. 2.>

With these amendments, the panel has voted to deny Appellant Oliva's petition for rehearing en banc and to deny Appellee's petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellant Oliva's petition for rehearing en banc, filed August 31, 2012, is DENIED.

Appellee's petition for panel rehearing, filed October 5, 2012, is DENIED.

No future petitions for rehearing or rehearing en banc will be entertained.

OPINION

FISHER, Circuit Judge:

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510–2522, governs interception of wire, oral and electronic communications. Jorge Ortiz Oliva appeals the district court's denial of his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones associated with him and his alleged co-conspirators.¹ Oliva contends these orders by their terms authorized more than “standard” intercepts, permitting more intrusive “roving” intercepts without meeting the statutory prerequisites of § 2518(11).² Specifically, he contends that the orders in essence authorized the government to transform the cellular phones into roving electronic bugs through use of sophisticated eavesdropping technology. We agree that if the government seeks authorization for the use of new technology to convert cellular phones into “roving bugs,” it must specifically request that authority, the court must scrutinize the need for such surveillance and the authorization orders must be clear and unambiguous. In this case, however, we credit the district court's finding that the orders were intended only to authorize standard interception techniques and the government did not do otherwise, and we therefore reject Oliva's argument. We also reject Oliva's related argument that the surveillance applications and orders failed to meet the specification requirements of § 2518 to qualify even as standard intercepts. We therefore affirm the district court's denial of Oliva's motion to suppress.

BACKGROUND

In January 2006, the Drug Enforcement Agency began investigating a drug trafficking conspiracy involving numerous participants, including Oliva and Lopez. In August 2006, and over the course of the next 10 months, the government obtained a series of 30–day electronic surveillance orders that authorized the monitoring of 23 cellular phones used by 10 persons, nine of whom, including Oliva and Lopez, ultimately became defendants in the underlying criminal proceeding.

In February 2007, the government indicted Oliva, Lopez and multiple alleged co-conspirators for their participation in a drug trafficking conspiracy involving the distribution of methamphetamine, cocaine and marijuana. A jury convicted Oliva and Lopez of all drug counts in October 2009. They have raised various issues on appeal, but here we deal only with Oliva's appeal of the district court's denial of his pretrial motion to suppress evidence obtained from the surveillance orders.³

Specifically, Oliva argues that the surveillance orders improperly authorized roving intercepts and failed to meet the statutory specification requirements, and were thus facially invalid. He raises questions about interception of communications over cellular phones, whose technology differs from conventional land line phones.

DISCUSSION

I. Standing

As a preliminary matter, we reject the government's contention that Oliva lacks standing to challenge the interceptions because he has neither admitted that the voices in the conversations intercepted were his nor asserted that any of the intercepts took place on his premises. We review a defendant's standing under § 2518 de novo. See Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir.2009) (holding that questions of statutory standing are reviewed de novo).

Under federal law, any “aggrieved person” has standing to bring a motion to suppress the contents of intercepted wire or oral communications or evidence derived therefrom. § 2518(10)(a). An “aggrieved person” means a person “who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” § 2510(11) (emphasis added); see Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“In order to qualify as a person aggrieved by an unlawful search and seizure one must [be] ... one against whom the search was directed.” (quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)) (internal quotation marks omitted)); see also In re Flanagan, 533 F.Supp. 957, 960 (E.D.N.Y.1982) (“In the context of wiretapping, the rule has crystalized that the only persons with standing to suppress the fruits of an illegal wiretap are parties at whom the wiretaps were directed, parties to the call that was intercepted, or parties owning the premises where the conversations were intercepted.”), aff'd in relevant part, In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 118 n. 2 (2d Cir.1982). Irrespective of Oliva's refusal to admit that the voices in the conversations intercepted included his own or that any of the intercepts took place on his premises, Oliva was one of the individuals “against whom the interception[s] w[ere] directed.” § 2510(11). The affidavits in support of the surveillance orders included investigators' statements certifying their beliefs that he was using the individual cellular phones at issue. Oliva's conversations were the target of the surveillance. See United States v. Benjamin, 72 F.Supp.2d 161, 185 (W.D.N.Y.1999) (holding that the defendant had standing to challenge a pager wiretap where he was named in the intercept order and there was probable cause to believe that the defendant's electronic communications would be obtained...