REVISED SEPTEMBER 6, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 11-60763 August 26, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RICHARD NORTH,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before STEWART, Chief Judge, and DeMOSS and GRAVES, Circuit Judges.
PER CURIAM:
Appellant Richard North appeals the district court’s denial of his motion
to suppress evidence obtained from the interception of his cellular phone.
Information obtained from the interception led to North’s arrest for possession
of cocaine. For the following reasons, we reverse the district court’s denial of his
motion to suppress.
No. 11-60763
I.
This case stems from the government’s investigation of Kenneth Lofton,
a Jackson, Mississippi-based cocaine and marijuana distributor. As part of its
investigation, the government sought wiretaps on various cell phones. Judge
Wingate in the United States District Court for the Southern District of
Mississippi authorized wiretaps on two cell phones (Target Telephone 1 and
Target Telephone 2) that were used by Lofton. From these wiretaps, Drug
Enforcement Agency (DEA) agents intercepted phone conversations between
Lofton and a person known as “Jack,” arranging an upcoming cocaine
transaction. On March 16, 2009, Lofton and “Jack” met in a parking lot in
Jackson. The truck driven by “Jack” was registered to Jerry Primer. On March
18, 2009, the government obtained a third wiretap warrant for “Jack’s” cell
phone (Target Telephone 3). On March 19, 2009, DEA agents obtained a driver’s
license photograph confirming that “Jack” was in fact Primer.
On March 28, 2009, Primer received a phone call from “Billy,” during
which the two agreed to meet at a Jackson home used by Primer. Agents
followed Primer to the residence, where they observed a Ford Explorer with a
Texas license plate parked in the driveway. The Ford Explorer was a rental car
that was later determined to have been rented by Richard North.
Based on surveillance and information gathered from intercepted phone
calls between Primer and “Billy,” the government applied for a warrant
authorizing interception of phone calls to and from the phone used by “Billy”
(Target Telephone 4). The government stated that it had probable cause to
believe the targeted phone was “in the possession of and [was] being used by
[BILLY],” and further declared that “Billy” had been identified as a member of
a narcotics trafficking organization. The application for the warrant was
supported by an affidavit from DEA agent Christopher Gale, and stated that
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No. 11-60763
“alternative investigative procedures [had] been tried and failed or appear[ed]
unlikely to succeed if tried,” and that interception was therefore necessary. The
district court approved the application.
Based on phone calls intercepted pursuant to the wiretap of Target
Telephone 4, the government concluded that “Billy” was Richard North, and that
North and Primer were planning a delivery of cocaine to Jackson on May 16,
2009. Agents also received a copy of North’s drivers license photograph. On the
date in question, agents learned that North was traveling en route to Jackson
from Houston, Texas. Texas state troopers stopped North for speeding. North’s
vehicle was searched by officers and drug sniffing dogs, but no cocaine was
found. Three hours after he was stopped, North was released. Immediately after
the stop, a third party listening agent in Metairie, Louisiana intercepted a call
on North’s cell phone between North and a female friend. Approximately one
hour into the call, North revealed that he had cocaine hidden in the car and was
returning to Houston. The listening agent forwarded this information to officers
in Texas, who intercepted North at his home. North was subsequently arrested
for possession of cocaine.
II.
In November 2009, North and his co-conspirators were indicted for, inter
alia, conspiring to distribute more than fifty grams of cocaine. North moved to
suppress the evidence gathered pursuant to the wiretaps on Target Telephones
3 and 4. North moved to suppress the evidence gathered pursuant to the wiretap
on Target Telephone 4 on the grounds that (1) the district court lacked territorial
jurisdiction and (2) agents failed to minimize the May 16, 2009 phone call. North
moved to suppress the wiretap authorizations for both Target Telephones 3 and
4 on the grounds that the applications contained material misrepresentations
and omissions. After an evidentiary hearing, the district court denied North’s
motion.
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No. 11-60763
On appeal, North argues that: (1) the district court in Mississippi lacked
territorial jurisdiction to authorize the interception of his May 16, 2009 call
because his phone was located in Texas and the listening post was located in
Louisiana; (2) the government’s applications for authorizations contained
material misrepresentations and omissions, which undermine the government’s
required showings of necessity to resort to wiretaps as an investigative tool; and
(3) the government did not comply with monitoring minimization requirements.
III.
This court reviews “factual findings of a ruling on a motion to suppress for
clear error and legal conclusions de novo.” United States v. Moore, 452 F.3d 382,
386 (5th Cir. 2006). North’s challenge to the district court’s territorial
jurisdiction to issue the wiretap warrant is a matter of statutory interpretation
that we review de novo. See United States v. Richardson, 713 F.3d 232, 234-35
(5th Cir. 2013).
A.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
authorizes the use of wiretap surveillance in the context of a criminal
investigation. 18 U.S.C. § 2516. To intercept communications between private
persons, law enforcement officers must apply for authorization from a federal
judge. Id. The judge may enter an ex parte order authorizing the interception of
“wire, oral, or electronic communications within the territorial jurisdiction of the
court in which the judge is sitting (and outside that jurisdiction but within the
United States in the case of a mobile interception device authorized by a Federal
court within such jurisdiction) . . . .” Id. § 2518(3). This court has stated that
“interception includes both the location of a tapped telephone and the original
listening post, and that judges in either jurisdiction have authority under Title
III to issue wiretap orders.” United States v. Denman, 100 F.3d 399, 403 (5th Cir.
1996).
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No. 11-60763
We interpret the above authorities to mean that, except in the case of a
mobile interception device, a district court cannot authorize interception of cell
phone calls when neither the phone nor the listening post is present within the
court’s territorial jurisdiction. This, however, is exactly what the district court
did in this case. The order authorizing the wiretap provided that “in the event
that TARGET TELEPHONE 4 is transferred outside the territorial jurisdiction
of this Court, interceptions may take place in any other jurisdiction within the
United States.” Furthermore, the district court did not require that the listening
post remain within its territorial jurisdiction, and the affidavit accompanying
the government’s application for a wiretap explicitly stated that the listening
post would be located in Louisiana. In short, the district court, located in the
Southern District of Mississippi, lacked the authority to permit interception of
cell phone calls from Texas at a listening post in Louisiana.
The government argues that the district court’s order was proper because
it involved a “mobile interception device.” This court has not yet determined
what “mobile interception device” means. In United States v. Ramirez, 112 F.3d
849 (7th Cir. 1997), the Seventh Circuit was tasked with determining whether
a district court in Wisconsin had the authority to issue a warrant to intercept
calls on a Minnesota cell phone being listened to at a post in Minnesota. The
court first looked to the legislative history of § 2518(3), which states that the
term “mobile interception device” “applies to both a listening device installed in
a vehicle and to a tap placed on a cellular or other telephone instrument
installed in a v ehicle.” 112 F.3d at 852 (quoting S. Rep. No. 541, at 30 (1986)).
Rejecting a literal interpretation of the phrase “mobile interception device,” the
court found that the “emphasis in ‘mobile interception device’ falls . . . on the
mobility of what is intercepted rather than on the irrelevant mobility or
stationarity of the device.” Id. at 853. The court concluded that “[t]he term in
context means a device for intercepting mobile communications,” and held that
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No. 11-60763
when the device being intercepted is mobile, a judge may issue a wiretap
warrant on that device “regardless of where the phone or the listening post” is
located. Id.
We disagree that Congress intended to expand the scope of a district
court’s authority to issue wiretap warrants in any jurisdiction in the United
States when the device to be intercepted is a cell phone. Generally, the plain
meaning of a statute controls unless the literal interpretation produces a result
demonstrably at odds with the legislative intent. See United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 242 (1989); New Orleans Depot Servs., Inc. v. Dir.,
Office of Worker’s Comp. Programs, —F.3d—, 2013 WL 1798608, at *7 (5th Cir.
Apr. 29 2013) (en banc) (“[T]he first rule of statutory construction is that we may
not ignore the plain language of a statute.”). “Mobile” modifies “device,” thus the
phrase “mobile interception device” on its face appears to refer to the mobility
of the device used to intercept communications, not the mobility of the tapped
phone. We decline to interpret the statute in any way that eliminates important
provisions regarding territorial restrictions in the case of cell phones,
particularly when such an interpretation is not obvious from the statutory
language.1
1
We recognize that this holding yields a strange result in this case. Although the
Mississippi district court judge did not have territorial jurisdiction under the statute, he
arguably was in the best position to balance privacy concerns with the appropriateness of
interception. See United States Department of Justice Electronic Surveillance Manual, DOJML
Comment § 9-7.000 (instructing that when requesting interception of a cellular or mobile
telephone, “[t]he order should specifically authorize such extra-jurisdictional interceptions, and
should be sought in the jurisdiction having the strongest investigative nexus to the object in
which the monitoring device is installed”) (emphasis added). However, we are bound to apply
the law as it written. See United States v. Guidry, 456 F.3d 493, 501-02 (5th Cir. 2006) (“When
the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its
terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). It is for the United
States Congress to determine whether, in light of technological advances, the statute should
be amended. See Caminetti 242 U.S. at 490 (“If the words are plain, they give meaning to the
act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search
of a different meaning.”)
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No. 11-60763
The government has not offered any evidence showing that North’s cell
phone communications were intercepted using a device that was itself mobile.
Accordingly, we find the “mobile interception device” clause inapplicable.
B.
As explained above, the district court lacked authority to permit the
interception of cell phone calls from Texas at a listening post in Louisiana. Title
III provides that interception of a wire communication may be suppressed if “the
order of authorization or approval under which it was intercepted is insufficient
on its face.” 18 U.S.C. § 2518(10)(a)(ii). However, not every failure to comply
with Title III’s statutory requirements mandates suppression. Suppression is
required “only for a ‘failure to satisfy any of those statutory requirements that
directly and substantially implement the congressional intention to limit the use
of intercept procedures to those situations clearly calling for the employment of
this extraordinary investigative device.’” United States v. Donovan, 429 U.S. 413,
433-34 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)).
North urges this court to find that the district court’s lack of territorial
jurisdiction “is not a mere ‘technical defect’ but is in fact a central and functional
safeguard underlying [Title III].” The government argues that suppression is not
warranted because the territorial jurisdiction requirement was not among
Congress’s core concerns when enacting Title III. The district court held that
territorial jurisdiction was not a central or functional safeguard in the statutory
scheme.
The purpose of Title III “was effectively to prohibit, on the pain of criminal
and civil penalties, all interceptions of oral and wire communications, except
those specifically provided for in the Act, most notably those interceptions
permitted to law enforcement officers when authorized by court order in
connection with the investigation of the serious crimes listed in § 2516.”
Giordano, 416 U.S. at 514 (footnote omitted). “Title III has as its dual purpose
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No. 11-60763
(1) protecting the privacy of wire and oral communications, and (2) delineating
on a uniform basis the circumstances and conditions under which the
interception of wire and oral communications may be authorized.” Adams v.
Lankford, 788 F.2d 1493, 1498 (11th Cir. 1986) (quoting S. Rep. No. 1097).
Other courts have determined that the territorial jurisdiction limitation
in Title III does not “directly and substantially implement the congressional
intention to limit the use of intercept procedures to those situations clearly
calling for the employment of this extraordinary investigative device.” See, e.g.,
Lankford, 788 F.2d at 1500; United States v. Rodriguez, 734 F. Supp. 116, 120
(S.D.N.Y. 1990) aff’d, 968 F.2d 130 (2d Cir. 1992). In Lankford, a case dealing
with wiretaps authorized by a state court judge, the Eleventh Circuit court found
that the legislative history was silent regarding the core concerns of Title III and
the requirement that a judge authorize interceptions within the court’s
territorial jurisdiction. 788 F.2d at 1498. Further, the court found that because
the territorial jurisdiction of a state court is subject to state determination, and
Congress gave no indication of a desire to counter this uncertainty by defining
“territorial jurisdiction” for purposes of wiretapping, Congress did not consider
this geographical limitation a core concern. Id. at 1499-1500.
We disagree and find that the territorial jurisdiction limitation serves
important substantive interests and implicates core concerns of the statute,
despite the lack of legislative history. In Giordano, the Supreme Court held that
a provision requiring a Department of Justice official to authorize an application
for a wiretap was “intended to play a central role in the statutory scheme,”
because the requirement substantively limited the use of wiretaps. 416 U.S. at
527-28. “[S]uch a precondition would inevitably foreclose resort to wiretapping
in various situations where investigative personnel would otherwise seek
intercept authority from the court and the court would very likely authorize its
use.” Id. at 528. Title III’s territorial restrictions prevent forum manipulation by
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No. 11-60763
law enforcement, similarly preventing wiretap authorizations in cases where
investigators would otherwise be able to obtain them. Limiting the number of
district judges authorized to issue a wiretap warrant reduces the opportunity for
the government to use forum manipulation to obtain a warrant that may not be
approved elsewhere. We fail to see how this is not a significant protection of
privacy. Territorial limitations on a district court directly implicate Congress’s
intent to guard against the unwarranted use of wiretapping.
C.
North further argues that the government’s applications for authorizations
contained material misrepresentations and omissions, which undermine the
government’s required showings of necessity to resort to wiretaps as an
investigative tool.
Whether an affidavit used to secure a Title III wiretap authorization
contains “intentional or reckless” misrepresentations or omissions is a factual
determination reviewed for clear error. See United States v. Tomblin, 46 F.3d
1369, 1376-77 (5th Cir. 1995) (citing United States v. Williams, 737 F.2d 594, 602
(7th Cir. 1984) (citations omitted)). “Under the clearly erroneous standard, we
may not reverse the district court’s findings of fact unless the review of the
relevant evidence leaves us with ‘the definite and firm conviction that a mistake
has been committed.’” Broussard v. United States, 989 F.2d 171, 178 (5th Cir.
1993) (per curiam) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). “A factual finding is not clearly erroneous as long as it is plausible in
light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427
(5th Cir. 2001) (per curiam) (citation omitted). A district court’s ultimate
determination that an adequate Title III necessity showing has been made is a
legal conclusion we review de novo. See United States v. Guerra-Marez, 928 F.2d
665, 671 (5th Cir. 1991) (citation and footnote omitted).
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No. 11-60763
Title III requires that each affidavit in support of an application for a
wiretap contain “a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. §
2518(1)(c). Nevertheless, “the purpose of § 2518(1)(c) is not to foreclose electronic
surveillance until every other imaginable method of investigation has been
unsuccessfully attempted.” United States v. Webster, 734 F.2d 1048, 1055 (5th
Cir. 1984). “Rather, the section is designed to inform the issuing judge of the
difficulties involved in the use of conventional techniques and to insure that
wiretapping is not resorted to in a situation in which traditional investigative
techniques will suffice to expose crime.” Id. This court is “reluctant to impose
[our] hindsight upon law enforcement agencies.” Guerra-Marez, 928 F.2d at 670.
Therefore, an affidavit in support of a wiretap “need not establish that every
other imaginable mode of investigation would be unsuccessful.” Id. (internal
quotation marks omitted). “Instead, we take a common sense view of the
statements contained in the application to determine if the necessity
requirement is satisfied.” Id. (internal quotation marks omitted).
North argues that the evidence gathered from both his phone and Primer’s
phone should be suppressed because the wiretap applications and supporting
affidavits failed to satisfy Title III’s necessity requirement. First, North asserts
that the applications for both wiretaps “failed the necessity requirement because
Agent Gale’s affidavits in support of the applications contained material
misrepresentations and omissions, without which there was an insufficient
showing of necessity for the wiretaps.” Second, North maintains that “even if
there were no misrepresentations or omissions, necessity was still lacking as the
applications failed to present actual facts–as contrasted with boilerplate
allegations that would be true in any large scale drug trafficking
conspiracy–suggesting why alternative investigative techniques had not been
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No. 11-60763
tried and/or would not likely have succeeded.” The government contends that
Agent Gale’s affidavits did not contain any material misrepresentations or
omissions. The government does not respond to North’s “boilerplate allegations.”
i.
We apply a two-step analysis to alleged misrepresentations and omissions.
First, the criminal defendant must show that misrepresentations or omissions
were knowingly or recklessly included in, or omitted from, the affidavit
supporting the wiretap application. Id. The reviewing court may infer this intent
if the affidavit misrepresented or omitted facts that were “clearly critical” to the
finding of necessity. Cf. United States v. Cronan, 937 F.2d 163, 165 (5th Cir.
1991) (citation omitted). Second, once the criminal defendant makes this
requisite showing, the court will reconstruct the affidavit by striking the
misrepresentations and including the omissions. See Guerra-Marez, 928 F.2d
at 670. Then, looking only to the reconstructed affidavit, the court will
determine whether § 2518(1)(c)’s necessity requirement was satisfied. See id.
Here, North argues that the affidavit used to obtain the wiretap of
Primer’s phone contained “material misrepresentations and omissions made
with reckless disregard for the truth.” Specifically, he contends that Agent
Gale’s affidavit (1) failed to disclose that, by March 16, 2009, agents had
determined that the truck driven by “Jack” was registered to Primer; and (2)
failed to mention that, on that same day, agents had observed Lofton meet
“Jack” in a Jackson parking lot. Additionally, North asserts that Agent Gale’s
statement in the affidavit, that a wire tap was “essential . . . in order to fully
identify JACK,” was a misrepresentation made with reckless disregard for the
truth because agents could have used other means to reveal Primer’s true
identity.
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No. 11-60763
The district court rejected these arguments. We do the same, and hold
that the district court did not clearly err by concluding that Agent Gale’s
affidavit did not contain intentional misrepresentations or omissions.
First, North does not identify anything in the record establishing that
Agent Gale made his alleged misrepresentation or omissions intentionally.
Therefore, North must infer intent by pointing to “clearly critical”
misrepresented or omitted facts. See Cronan, 937 F.2d at 165. He fails to do so.
Concerning the alleged misrepresentation, North entirely decontextualizes
the statement that he isolates from Agent Gale's affidavit. Contrary to what
North suggests, the affidavit did not merely state that a wiretap was essential
to identifying “Jack.” Rather, the relevant portion of the affidavit stated:
According to the investigation to date, LOFTON is a
major drug distributor in Mississippi. LOFTON works
closely with JACK and LEDBETTER who are also
major cocaine distributors in Mississippi. Accordingly,
it is essential to intercept wire communications over
TARGET PHONE 3 in order to fully identify JACK and
obtain a clear understanding of the drug trafficking
activities of JACK and others, as well as to have the
best opportunity to identify all of the importation,
transportation, and distribution routes and the persons
that are participating in and facilitating the criminal
activities of the distribution groups.
Given the broad scope of the government’s investigation, which extended
to “all of the importation, transportation, and distribution routes and the
persons that [were] participating in and facilitating the criminal activities of the
distribution groups,” we simply cannot say that the “essential . . . in order to
fully identify JACK” language in the affidavit was “clearly critical” to
establishing the government’s need to wiretap Primer’s phone. For similar
reasons, we also cannot say that the omitted information concerning Primer’s
identity was “clearly critical.” Accordingly, the district court did not clearly err
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No. 11-60763
by rejecting North’s argument that Agent Gale’s affidavit contained material
misrepresentations and omissions as to the wiretap of Primer’s phone.2
ii.
As stated above, Title III’s necessity requirement mandates that each
application for an order authorizing a wiretap contain “a full and complete
statement as to whether or not other investigative procedures have been tried
and failed or why they reasonably appear to be unlikely to succeed if tried or to
be too dangerous.” 18 U.S.C. § 2518(1)(c).
The Supreme Court has recognized that § 2518(1)(c) “is simply designed
to assure that wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime.” United States v.
Kahn, 415 U.S. 143, 153 n.12 (1974). “While the government’s burden is not
great, it still may not make the required showing through a mere boilerplate
recitation of the difficulties of gathering usable evidence.” United States v.
Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995) (internal quotation marks omitted).
“Rather, the government must base its need on real facts and must specifically
describe how, in the case at hand, it has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence with normal techniques to the
point . . . where wiretapping becomes reasonable.” Id. (internal quotations
marks and citations omitted) (alterations in original). In the absence of Circuit
precedent on this point, distinguishing between “mere boilerplate recitation” and
“real” case-specific facts for the purposes of satisfying the government’s
§ 2518(1)(c) necessity showing, we hereby adopt the Fourth Circuit’s
well-reasoned approach from Oriakhi.
2
Because the district court did not clearly err by concluding that Agent Gale’s affidavit
in support of the wiretap of Primer’s phone did not contain intentional misrepresentations or
omissions, we need not reconstruct the affidavit in accordance with the second step of the
Guerra-Marez framework. See 928 F.2d at 670.
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No. 11-60763
Here, North maintains that Agent Gale’s affidavit in support of the
government's application to wiretap Primer’s phone did not satisfy Title III’s §
2518(1)(c) necessity requirement because it lacked “real” case-specific facts.
According to North, the affidavit was defective because it contained mere
boilerplate generalities applicable to any large-scale drug trafficking
investigation. This position is not persuasive. Agent Gale’s affidavit contained
some language that could be read as boilerplate. However, the boilerplate
language was not in isolation. Agent Gale also described case-specific details
concerning the investigation as a whole, the agents’ use of confidential
informants, and the information agents previously had gathered from physical
surveillance. These “real facts” informed the district court of the case-specific
limitations of conventional investigative techniques, and demonstrated that
agents did not resort to wiretapping in a situation where conventional
techniques would have sufficed. Taking a “common sense view” of the facts in
Agent Gale’s affidavit, we conclude that those facts were enough to satisfy Title
III’s necessity requirement. See Guerra-Marez, 928 F.2d at 670 (internal
quotation marks omitted).
The district court did not clearly err by finding that the affidavit used to
obtain the wiretap of Primer’s phone did not contain intentional
misrepresentations or omissions. Additionally, the district court’s ultimate
necessity determination as to the wiretap of Primer’s phone was correct because
Agent Gale provided real case-specific facts in his affidavit in support of the
authorization. Accordingly, we affirm the district court’s denial of North’s
motion to suppress as it relates to the wiretap of Primer’s phone.
iii.
Similar to his contentions concerning the wiretap of Primer’s phone, North
argues that Agent Gale’s affidavit supporting the wiretap of his phone contained
“material misrepresentations and omissions made with reckless disregard for
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No. 11-60763
the truth.” Specifically, North maintains that the affidavit failed to mention
that agents knew North had rented the blue Ford Explorer with Texas plates,
which they had observed on March 28, 2009. North also asserts that the
affidavit omitted the fact that agents already had a physical description of
North, in addition to his Houston address.
The district court found these arguments unavailing. In its written
opinion, the district court concluded that Agent Gale's affidavit “did not contain
any intentional or reckless misrepresentations or falsehoods.” We agree, and
hold that the district court’s conclusion was not clearly erroneous.
As with his challenge to the wiretap of Primer’s phone, North does not
identify anything in the record establishing that Agent Gale intentionally
omitted information concerning agents’ prior knowledge of North’s identity.
Moreover, it is not at all clear that Agent Gale’s two alleged omissions were
“clearly critical” to the government’s necessity showing within the meaning of
Cronan. See 937 F.2d at 165. The relevant portion of Agent Gale’s affidavit
stated:
According to the investigation to date, PRIMER is a
major drug distributor in Jackson, Mississippi.
PRIMER works closely with LOFTON and FNU LNU
a/k/a/ BILLY who are also major cocaine distributors in
Mississippi. Accordingly, it is essential to intercept
wire communications over TARGET TELEPHONE 4 in
order to fully identify FNU LNU a/k/a/ BILLY and
obtain a clear understanding of the drug trafficking
activities of FNU LNU a/k/a BILLY and others, as well
as to have the best opportunity to identify all of the
importation, transportation, and distribution routes
and the persons that are participating in and
facilitating the criminal activities of the distribution
groups.
Given the broad scope of the government’s investigation, which extended to “all
of the importation, transportation, and distribution routes and the persons that
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No. 11-60763
[were] participating in and facilitating the criminal activities of the distribution
groups,” we cannot say that the omitted information concerning North’s identity
was “clearly critical.” Accordingly, the district court did not clearly err by
rejecting this portion of North’s necessity argument as to the wiretap of his
phone.3
iv.
As discussed above, a supporting affidavit must provide “real” case-specific
facts, rather than “mere boilerplate recitation,” to satisfy § 2518(1)(c)’s
requirement of necessity for a wiretap. See Oriakhi, 57 F.3d at 1298. Here,
North asserts that Agent Gale’s affidavit, which he used to obtain the
authorization to wiretap North’s phone, lacked the requisite case-specific details.
To North, the affidavit was deficient because it contained mere boilerplate
generalities applicable to any large-scale drug trafficking investigation. We
disagree.
Like Agent Gale’s affidavit in support of the wiretap of Primer’s phone,
this affidavit appears to have contained some boilerplate language. However,
as with the other affidavit, the boilerplate language was not in isolation. Agent
Gale provided “real facts,” which demonstrated to the district court that agents
did not resort to wiretapping in a situation where conventional investigative
techniques would have sufficed. Taking a “common sense view” of the facts in
Agent Gale’s affidavit, we conclude that those facts were enough to satisfy Title
III’s necessity requirement. See Guerra-Marez, 928 F.2d at 670 (internal
quotation marks omitted),
3
Because the district court did not clearly err by concluding that Agent Gale’s affidavit
in support of the wiretap of North’s phone did not contain intentional misrepresentations or
omissions, we need not reconstruct the affidavit in accordance with the second step of the
Guerra-Marez framework. See 928 F.2d at 670.
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No. 11-60763
The district court did not clearly err by finding that the affidavit used to
obtain the wiretap of North’s phone did not contain intentional
misrepresentations or omissions. Additionally, the district court’s ultimate
necessity determination as to the wiretap of North’s phone was correct because
Agent Gale provided real case-specific facts in his affidavit in support of the
authorization. Accordingly, we affirm the district court’s denial of North’s
motion to suppress as it relates to the wiretap of his phone on these grounds.4
IV.
Finally, North argues that the government failed to follow minimization
protocols during interception of the May 16, 2009 phone call between North and
a female friend who was not under investigation.
North was stopped for speeding on May 16, 2009. After three hours, he
was released. Within minutes of his release, North called a female friend. The
call lasted just over one hour. North argues that the evidence gathered as a
result of the interception of his cellular phone should be suppressed because the
agents listening in Metairie did not comply with minimization requirements.
Specifically, North argues that listening agents conducted essentially
uninterrupted monitoring of a conversation that had no objective connection to
the drug smuggling investigation. The Government argues that the agents made
reasonable minimization efforts, emphasizing that during the call North
4
One additional point warrants mention. To support his argument that both wiretap
affidavits contained mere boilerplate, North compares the affidavit that Agent Gale drafted
to support the wiretap application for his phone with the affidavit Agent Gale drafted to
support the application for Primer’s phone. North argues that the textual similarities between
the two affidavits establishes that neither was case-specific. This argument is unpersuasive
for two reasons. First, the similarities between the two affidavits are not surprising. After all,
both were used to obtain wiretaps relating to the same investigation and, thus, necessarily
involved the same set of facts. Those similarities do not undermine the validity of either
affidavit. Second, and more fundamentally, Title III does not require case agents to reinvent
the wheel every time they draft affidavits. So long as an affidavit contains “real” case-specific
facts, and both of Agent Gale’s affidavits did, Title III’s necessity requirement is satisfied.
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No. 11-60763
complained about racial profiling and what occurred during the traffic stop; and
that the conversation occurred immediately after North’s car had been searched
for drugs and the agents knew from other tapped conversations that drugs were
concealed in the vehicle.
“This court reviews the district court’s determination of the reasonableness
of minimization efforts for clear error.” United States v. Brown, 303 F.3d 582,
603 (5th Cir. 2002). “Under the clearly erroneous standard, we may not reverse
the district court’s findings of fact unless the review of the relevant evidence
leaves us with ‘the definite and firm conviction that a mistake has been
committed.’” Broussard v. United States, 989 F.2d 171, 178 (5th Cir. 1993)
(quoting U.S. Gypsum, 333 U.S. at 395). Electronic surveillance must “‘be
conducted in such a way as to minimize the interception of communications not
otherwise subject to interception.’” Brown, 303 F.3d at 604 (quoting 18 U.S.C. §
2518(5)). To comply with § 2518(5), the “government’s efforts to minimize
interception of non-pertinent conversations must be objectively reasonable in
light of the circumstances confronting the interceptor.” Id. (internal quotation
marks omitted). This court has set forth a three-part test to determine whether
the government’s minimization efforts were objectively reasonable: “‘(1) the
nature and scope of the criminal enterprise under investigation; (2) the
Government’s reasonable inferences of the character of a conversation from the
parties to it; and (3) the extent of judicial supervision.’” Id. at 604 (quoting
United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999)).
The government contends, and the district court appears to have accepted
the fact that, during the conversation, the listening agents stopped listening in
on the call eight times, for a total of six minutes and seventeen seconds.
However, we can find no evidence in the record to support the government’s
contention that the phone call was minimized. The record cite provided by the
government does not speak to the minimization efforts made during the May 16,
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No. 11-60763
2009 phone call. Because there is no evidence of minimization, the district court
clearly erred in finding that the government’s minimization attempts were
objectively reasonable.
Even if the minimization did occur, we do not find the effort to have been
objectively reasonable. The instructions provided to the agents “authorized spot
monitoring for not more than two minutes, and authorized continued monitoring
when the conversation relate[d] to the alleged crimes under investigation.” The
agents did not stop listening when it was made clear that the conversation was
not criminal in nature and then conduct subsequent spot checks by “dropping in”
to the conversation to check if it had turned to criminal matters. Rather, the
agents listened to the conversation for several minutes, “dropping out” for less
than one minute at a time before resuming their near continuous listening.
Although the government asserts that the context supports continuous listening
because North had been stopped on what the government believed to be a drug
run, it seems just as likely that North’s failure to immediately discuss his near
miss during the conversation demonstrated that the phone call was not related
to the drug crimes under investigation. Additionally, while North discussed the
stop at various times during the first fifty minutes of the call, North reiterated
throughout the conversation that he had been the victim of racial profiling,
which falls outside the scope of the crimes being investigated. Moreover, North
was not speaking to a member of the drug smuggling conspiracy. Until the very
end of the conversation, nothing of the conversation was criminal in nature or
referenced the smuggling activities. Under these circumstances, it was not
objectively reasonable for agents to listen in for nearly one hour to a
conversation that did not turn to criminal matters until the last few minutes. As
such, the evidence obtained from the May 16, 2009 interception of North’s cell
phone must be suppressed.
V.
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No. 11-60763
For the foregoing reasons, we find that the district court did not have the
requisite territorial jurisdiction and such non-compliance implicates a core
concern of the statute and requires suppression of the evidence obtained from
the wiretap. We further find that the government failed to comply with
minimization protocols when monitoring North’s May 16, 2009 phone call. We
therefore REVERSE the district court’s denial of North’s motion to suppress and
REMAND for further proceedings.
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