American Bar Association
Media Alerts
Media Alerts - United States v. Carey - Ninth Circuit
Decrease font size
Increase font size
November 1, 2016
  United States v. Carey - Ninth Circuit
Headline: Ninth Circuit panel expands the "plain view" doctrine and adopts the "plain hearing" doctrine, whereby police may use evidence of conversations of speakers unrelated to a target conspiracy overheard during execution of a valid wiretap for the target conspiracy only until such time that the police know or should reasonably know that the speakers are unrelated to the target conspiracy.

Area of Law: Criminal Procedure; Fourth Amendment, Exceptions to the Warrant or Probable Cause Requirements

Issue Presented: Whether the government may lawfully use evidence obtained from conversations overheard during the execution of a wiretap order for a phone number used in a drug conspiracy where the overheard conversations are those by persons unrelated to the drug conspiracy using the authorized phone number.

Brief Summary: The Appellant-Defendant, Michael Carey ("Carey"), was charged with conspiracy to distribute cocaine after federal officers overheard Carey in conversations during the execution of a wiretap order for an unrelated drug target conspiracy. The district court denied Carey's motion to suppress evidence and Carey appealed. The Ninth Circuit panel expanded the "plain view" doctrine and adopted the "plain hearing" doctrine, holding that: (1) the government may use evidence obtained from a valid wiretap "[p]rior to the officers' discovery of [a] factual mistake" that causes or should cause them to realize that they are listening to phone calls "erroneously within the terms of the "wiretap order and (2) once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.

Significance: The Ninth Circuit panel, addressing an issue of first impression in this Circuit - whether the Wiretap Act can be used to authorize the government to listen to people who were unaffiliated with the initial wiretap subjects - expanded the "plain view" doctrine and adopted the "plain hearing" doctrine as an exception to the Fourth Amendment. The "plain hearing" doctrine allows the government to use evidence obtained from listening to conversations of speakers who are unrelated to the target of a valid wiretap, with the limitation that the government must discontinue listening once it knows or should know the conversations are unrelated to the target of the wiretap.

Extended Summary: FBI Special Agent Christopher Meltzer ("Meltzer") obtained a wiretap order for a phone number, T-14, based on evidence that the target of a drug conspiracy, Ignacio Escamilla Estrada ("Escamilla"), used T-14 to conduct the conspiracy. Several days into the execution of the wiretap order, agents overheard "drug-related" calls. At some point thereafter, the agents realized that the person using T-14 was not Escamilla, but did not know who the people speaking on T-14 were. Melzer initially believed that the callers and calls may still be affiliated with the known targets or part of the criminal activity that he was monitoring. Melzer consulted with federal prosecutors and agents continued to monitor the calls.

Agents subsequently intercepted a call indicating that someone would be traveling with "invoices" (believed to be code for drug money), and the agents coordinated with local police officers to conduct a traffic stop. During the traffic, officers searched the vehicle, finding cash and a cell phone tied to the T-14 number and identified the driver as Adrian Madrid ("Madrid"). Officers later obtained a search warrant for a related residence and found cocaine.

After identifying Madrid, Melzer learned that there was an ongoing DEA/ICE investigation into Madrid and his associates. After Meltzer met with ICE and DEA agents, they learned that there was no "overlap" between the Madrid and Escamilla conspiracies. Agents thereafter identified defendant-appellant, Michael Carey ("Carey") as a member of Madrid's conspiracy and Carey was indicted in February 2011 for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Carey filed a motion to suppress "any and all evidence derived from the use of wiretaps" on grounds that the government failed to comply with the Wiretap Act, 18 U.S.C. §§ 2510-22, with respect to Carey and his coconspirators. The district court denied the motion on grounds that (1) the government had complied with the statute to obtain the wiretap order against Escamilla and (2) "[t]here was no requirement for a separate showing of necessity once the agents concluded that T-14 was not primarily used by Escamilla" because "the agents reasonably believed that the callers might be affiliated with Escamilla or other offenses." Carey then pled guilty in an agreement with Carey that preserved Carey's right to appeal the denial of his motion to suppress.

On appeal, Carey raised the issue whether government agents could lawfully use the Escamilla wiretap to listen to Carey's conversations. The Ninth Circuit panel noted that there was a lack of Ninth Circuit precedent squarely on point in a situation where 18 U.S.C. § 2517(5) was used to authorize law enforcement to listen to people who were unaffiliated with the original wiretap subjects. The Ninth Circuit panel also noted that while the government showed necessity and probable cause for a wiretap of the Escamilla conspiracy, the novel question raised in Carey's appeal was "what happens when a wiretap that is valid at its inception is later used to listen to someone who is not involved in the conspiracy under surveillance?"

Looking to dicta from the Seventh Circuit, the Ninth Circuit panel found United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) to be persuasive. In Ramirez, the Seventh Circuit explained in dicta that, "t 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. It is just the 'plain view' doctrine translated from the visual to the oral dimension." Id. at 851. But, "once the mistake is discovered, the government cannot use the authority of the warrant, or of the [wiretap] 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." Id. at 852 (citing Maryland v. Garrison, 480 U.S. 79, 87-88 (1987) (holding that the search "[p]rior to the officers' discovery of the factual mistake" did not violate the Fourth Amendment so long as the officers' failure to realize the mistake "was objectively understandable and reasonable")).

On the one hand, Carey argued that Garrison "has limited application to wiretaps" because of the Wiretap Act's procedural requirements; however, the Ninth Circuit panel found Carey's argument to be unavailing because (1) the government complied with the Wiretap Act to obtain a valid wiretap on T-14 and (2) the issue on appeal was whether the government could use the valid wiretap of T-14 to listen to unrelated people's phone calls, which was a concern that mirrored the question in Garrison of whether officers could rely on a valid warrant for entry into an unrelated person's apartment.

On the other hand, the government argued that (1) the agents could continue listening to the conversations after the agents realized the speakers were not involved in the target conspiracy because the wiretap order authorized agents to listen to conversations of "others yet unknown" and (2) under 18 U.S.C. § 2517(5), the federal officers could continue listening to the conversations because the Wiretap Act authorized listening for evidence of other crimes.

As to the government's first argument, the Ninth Circuit panel concluded that (1) the wiretap order, when read in context, did not extend to unknown people not involved in the Escamilla Conspiracy and, therefore, did not authorize the wiretap of "others yet unknown" participating in a conspiracy "yet unknown"; and (2) the wiretap order could not authorize surveillance of a yet unknown conspiracy because the statute expressly requires agents to demonstrate probable cause and necessity to procure a wiretap order (see 18 U.S.C. § 2518(b)-(c)). Essentially, the Ninth Circuit panel interpreted "others yet unknown" as referring to others yet unknown who are participating in the target conspiracy and held that Melzer's affidavit contained no information about unknown people engaged in drug trafficking outside the Escamilla conspiracy.

As for the government's second argument, the Ninth Circuit panel reasoned that § 2517(5) only allows the government to use "communications relating to offenses other than those specified in the authorization or approval" when officers are "engaged in intercepting wire, oral, or electronic communications in the manner authorized [by the statute]." As such, the Ninth Circuit panel reasoned that the wiretap order did not authorize agents to listen to conversations outside the Escamilla conspiracy and § 2517(5) did not aid the government.

The panel therefore held that (1) "[t]he government may use evidence obtained from a valid wiretap '[p]rior to the officers' discovery of [a] factual mistake' that causes or should cause them to realize that they are listening to phone calls 'erroneously included within the terms of the' wiretap order (Garrison, 480 U.S. at 87-88) and (2) "once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible (id. at 87).

Applying this two-pronged rule to Carey's case, the panel noted that the government could only use evidence obtained in accordance with the "plain hearing" doctrine. On the record presented, the panel was unable to discern: (1) what evidence was obtained before the agents knew or should have known that they were listening to calls outside the Escamilla conspiracy; (2) the identities of the persons who called T-14; and (3) how much of the government's wiretap evidence may be outside of the "plain hearing" doctrine. The panel also found that the record lacked the factual findings necessary to determine what evidence was admissible against Carey. As such, the Ninth Circuit panel vacated the district court's order denying Carey's motion to suppress and remanded on an open record to determine what evidence is admissible against Carey under the "plain hearing" doctrine's framework.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/14-50222.pdf

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

Argument Date: May 6, 2016

Date of Issued Opinion: September 7, 2016

Docket Number: 14-50222

Decided: District Court ruling vacated and case remanded to determine what evidence was admissible under the "plain hearing" doctrine.

Case Alert Author: Camille Hooper

Counsel: 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.

Author of Opinion: Ronald M. Gould, Circuit Judge

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 11/01/2016 04:39 PM     9th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top