Case: 11-60763 Document: 00512420683 Page: 1 Date Filed: 10/25/2013
REVISED OCTOBER 25, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
October 24, 2013
No. 11-60763
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:
The court sua sponte grants rehearing, withdraws its previous opinion in
this matter, United States v. North, 728 F.3d 429 (5th Cir. 2013), and substitutes
the following.
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
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of cocaine. For the following reasons, we reverse the district court’s denial of his
motion to suppress.
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
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supported by an affidavit from DEA agent Christopher Gale, which explained
that interception was necessary because normal investigative procedures had
been tried and failed or appeared unlikely to succeed if tried. 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 driver’s license photograph. On the
date in question, agents learned that North was 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. For
approximately the first fifty minutes of the call, North talked about a recent
concert and about the traffic stop, complaining that he had been wrongfully
detained and racially profiled. 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 evidence gathered pursuant to the wiretap on
Target Telephone 4 on the grounds that (1) the district court that authorized the
wiretap lacked territorial jurisdiction and (2) agents failed to minimize
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interception of the May 16, 2009 phone call. North moved to suppress evidence
gathered pursuant to the wiretaps on both Target Telephones 3 and 4 on the
ground that the wiretap applications contained material misrepresentations and
omissions. After an evidentiary hearing, the district court denied North’s
motion.
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.
Because we conclude that the government did not comply with minimization
requirements, we do not reach North’s other arguments.
III.
North argues that the evidence gathered as a result of the interception of
his May 16, 2009 phone call 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.1 The government argues that the agents made reasonable
minimization efforts, emphasizing that during the call North complained about
racial profiling and what occurred during the traffic stop; and that the
1
North contends, and the district court appears to have accepted, that 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.” However, we can find no evidence in the record to support this claim. North’s
motion to suppress filed in the district court states that a copy of these instructions is attached
as an exhibit, but the record contains no such exhibit.
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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). We consider three factors in determining the objective
reasonableness of the government’s efforts to minimize: “‘(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,
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, 2009 phone call.
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Even if the alleged minimization did occur, we do not find the effort to
have been objectively reasonable. The affidavit in support of the application to
wiretap North’s phone stated that “monitoring will be suspended if the
conversation is not criminal in nature or is not otherwise related to the offenses
under investigation,” and that “spot checks” would be conducted “to insure that
the conversation ha[d] not turned to criminal matters.” However, the agents did
not stop listening when it was made clear that the conversation was not criminal
in nature and then conduct brief “spot checks.” Rather, assuming the alleged
minimization occurred, the agents listened to a non-pertinent conversation for
nearly one hour, suspending monitoring only eight times for an average of less
than one minute each time. Although the government asserts that the context
supported 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, his emphasis was that he had been wrongfully
detained and racially profiled – not that he was engaged in criminal activity.
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. We therefore conclude that the district court clearly erred in
finding that these minimization attempts were objectively reasonable. As such,
the evidence obtained from the May 16, 2009 interception of North’s cell phone
must be suppressed.
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IV.
For the foregoing reasons, we find that the government failed to comply
with statutory minimization requirements 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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DeMOSS, Circuit Judge, specially concurring:
I concur with the majority opinion. I write separately because I would
have reached the issue of territorial jurisdiction and concluded that the
district court lacked the authority to permit interception of cell phone calls
from Texas at a listening post in Louisiana for the following reasons.
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).
I 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
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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 vehicle.” 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 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.
I 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 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.,
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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. I 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.
The government has not offered any evidence showing that North’s cell
phone communications were intercepted using a device that was itself mobile.
Accordingly, I find the “mobile interception device” clause inapplicable. A s
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). 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
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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 (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
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wiretapping, Congress did not consider this geographical limitation a core
concern. Id. at 1499-1500.
I disagree and think 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 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. I 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.
Although application of the plain language may create a circuit split
and potentially reduce the efficiency of the government to intercept
communications from any available listening post, this is not a reason for our
court to apply the law in contravention of the plain language of the statute.
The language of the statute is clear and must be applied as written.1
1
I 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,
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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, this
court 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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