United States v. Eric Scurry

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 3, 2015 Decided April 8, 2016

No. 12-3104

UNITED STATES OF AMERICA,
APPELLEE

v.

ERIC SCURRY, ALSO KNOWN AS E,
APPELLANT

Consolidated with 12-3105, 12-3109, 13-3055, 13-3068

Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cr-00310-RCL-4)
(No. 1:10-cr-00310-RCL-7)
(No. 1:10-cr-00310-RCL-1)
(No. 1:10-cr-00310-RCL-2)
(No. 1:10-cr-00310-RCL-3)

Jonathan S. Zucker, appointed by the court, argued the
cause for appellants Robert Savoy, et al. Dennis M. Hart,
appointed by the court, argued the cause for appellant Eric
Scurry. With them on the joint brief were Pleasant S. Brodnax
III, Howard B. Katzoff, and Mark Diamond, all appointed by the
court.
 2

Daniel J. Lenerz, Attorney, U.S. Attorney’s Office, argued
the cause for appellee. On the brief were Vincent H. Cohen Jr.,
Acting U.S. Attorney, and Elizabeth Trosman, David B.
Goodhand, and Arvind K. Lal, Assistant U.S. Attorneys.
Elizabeth H. Danello, Assistant U.S. Attorney, entered an
appearance.

Before: ROGERS and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The principal question presented in
this appeal is whether Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 mandates suppression of evidence
derived from a wiretap where information expressly required by
the statute was omitted from the court order authorizing the
wiretap. Appellants contend that the district court erred in
denying their motions to suppress, relying on our subsequent
decision in United States v. Glover, 736 F.3d 509 (D.C. Cir.
2013). In Glover, 736 F.3d at 513–14, the court reiterated the
distinction drawn by the Supreme Court between two of the
grounds for suppression of wiretap evidence under 18
U.S.C. § 2515. To determine whether an “unlawfully
intercepted” communication merits suppression, id.
§ 2518(10)(a)(i), a court engages in “a broad inquiry into the
government’s intercept procedures to determine whether the
government’s actions transgressed the ‘core concerns’” of Title
III. Glover, 736 F.3d at 513. On the other hand, a mechanical
test applies when a wiretap authorization order is “insufficient
on its face,” 18 U.S.C. § 2518(10)(a)(ii), and suppression is
mandatory. Glover, 736 F.3d at 513–14. So, for example, in
Glover, the court held suppression was mandatory under 18
U.S.C. §§ 2515 and 2518(10)(a)(ii) where the Title III
authorization order was facially invalid because it exceeded the
 3

limits of the district court’s jurisdiction set forth in the statute,
id. § 2518(3). Glover, 736 F.3d at 514–15. We hold that a
wiretap order is “insufficient on its face,” 18 U.S.C.
§ 2518(10)(a)(ii), where it fails to identify the Justice
Department official who approved the underlying application,
as required by Title III, id. § 2518(4)(d), accordingly reverse the
denial of the motions to suppress evidence from wiretaps on the
phones of appellants Terrance Hudson and Jerome Johnson, and
remand. Otherwise we affirm, concluding appellants’ other
contentions lack merit.

I.

In July 2009, the Federal Bureau of Investigation (“FBI”)
began an investigation into narcotics trafficking in and around
a group of multi-unit apartment buildings, “the Second Court,”
in the 4200 block of 4th Street in southeast Washington, D.C.
Over the course of its investigation, the FBI identified a
narcotics trafficking organization involved in distributing
cocaine base (i.e., crack cocaine) in the Second Court. The FBI,
relying on information from two cooperating witnesses,
concluded Eric Scurry was a Second Court crack dealer.

On April 2, 2010, the FBI submitted an application and
proposed order, which was signed by the district court, for a 30-
day wiretap on Scurry’s cell phone, an order later extended for
another 30-day period. Based on evidence obtained from
Scurry’s tapped calls, the FBI on June 11, 2010, applied for and
received court authorization to tap two cell phones associated
with Terrance Hudson, whom investigators had identified as part
of the same narcotics-trafficking conspiracy as Scurry.
Hudson’s phone calls, in turn, suggested that Robert Savoy was
one of his cocaine suppliers, and on July 22, 2010, the FBI
obtained a wiretap court order for two cell phones associated
with Savoy. Those wiretaps indicated that Savoy also supplied
 4

crack and powder cocaine to another suspected narcotics dealer,
James Brown. The Savoy wiretaps additionally indicated that
Jerome Johnson supplied Savoy with large quantities of powder
cocaine, and on September 10, 2010, the FBI sought and
obtained a wiretap court order for Johnson’s cell phone.

Appellants were indicted for various drug-trafficking
offenses. After the district court denied their motions to
suppress the wiretap evidence against them, United States v.
Savoy, 883 F. Supp. 2d 101 (D.D.C. 2012), and Savoy’s motion
for reconsideration, appellants entered conditional guilty pleas
pursuant to FED. R. CRIM. P. 11(a)(2). On appeal, they contend,
relying on Glover, 736 F.3d 509, that Title III mandates
suppression of evidence collected or derived from the wiretaps
on Hudson and Johnson’s cell phones because, as the district
court found, Savoy, 883 F. Supp. 2d at 114, 120, the court orders
authorizing those wiretaps were facially insufficient, see 18
U.S.C. § 2518(10)(a)(ii). They also contend that the district
court erred in denying the motions to suppress evidence derived
from the wiretaps on Scurry and Savoy’s phones. “In evaluating
appellants’ objections to the district court’s denial of . . .
motions to suppress, we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Eiland, 738 F.3d 338, 347 (D.C. Cir. 2013).

II.

Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, Pub. L. No. 90-351, 82 Stat. 197, 211–25 (codified as
amended at 18 U.S.C. §§ 2510 et seq.), sets forth a detailed
procedure for the interception of wire, oral, or electronic
communications, which is otherwise a felony, 18 U.S.C. § 2511;
cf. id. §§ 2512–2513, and subject to civil penalties, id. § 2520.
The procedure appears in 18 U.S.C. § 2518 (2012). Under Title
III, a judge may authorize a wiretap by law enforcement officers
 5

provided the application for and the court order authorizing the
interception include certain specific information. Id. § 2518(1),
(4).

The wiretap authorization process here entails four steps.
First, the wiretap application must be pre-approved by one of
the statutorily identified high-level Justice Department officials,
specifically including the Attorney General, the Deputy
Attorney General, the Associate Attorney General, any Assistant
Attorney General, or any acting Assistant Attorney General, as
well as certain Deputy Assistant Attorneys General specially
designated by the Attorney General. See id. § 2516(1).

Second, the government must submit the application, under
oath or affirmation, to a judge of competent jurisdiction and
state the applicant’s authority to make such application. Id.
§ 2518(1). Title III specifies what information the application
must contain. Id. § 2518(1)(a)–(f). That information includes:
(1) the identity of the high-level Justice Department official who
approved the application (“the application identification
requirement”), id. § 2518(1)(a); (2) an explanation of the facts
and circumstances that the applying officer believes justify the
wiretap, id. § 2518(1)(b); and (3) a statement describing the
necessity of the wiretap to the government’s investigation, id.
§ 2518(1)(c). “The judge may require the applicant to furnish
additional testimony or documentary evidence in support of the
application.” Id. § 2518(2).

Third, before issuing the ex parte wiretap order, as
requested or modified, a judge must make certain determinations
based on the facts submitted by the applicant, id. § 2518(3),
including that the wiretap is necessary to the investigation, id.
§ 2518(3)(c), and that there exists probable cause to believe that
the phone to be tapped is or will soon be used in connection with
particular enumerated criminal offenses, id. § 2518(3)(d).
 6

Fourth, the judge issues an order approving the wiretap.
Title III limits the length of the interception period to that
“necessary to achieve” the wiretap’s objective, with an initial
maximum 30-day period subject to renewal upon submission of
a new application. Id. § 2518(5). Title III also requires that the
court order contain certain specified information. Id.
§ 2518(4)(a)–(e), (5). As relevant: The court order must specify
“the nature and location of the communications facilities” to be
wiretapped. Id. § 2518(4)(b). It must specify the identity of the
high-level Justice Department official who approved the wiretap
application (“the order identification requirement”). Id.
§ 2518(4)(d). And it must contain a provision mandating that
law enforcement minimize the interception of communications
that fall outside the scope of the wiretap order (“the
minimization requirement”). Id. § 2518(5).

Title III includes its own exclusionary mandate. Section
2515 provides:

Whenever any wire or oral communication has been
intercepted, no part of the contents of such
communication and no evidence derived therefrom
may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or a political subdivision thereof if the
disclosure of that information would be in violation of
[Title III].

18 U.S.C. § 2515. A person seeking to enforce section 2515
must have Title III “standing,” see In re Evans, 452 F.2d 1239,
1244 (D.C. Cir. 1971), which Title III defines as “[a]ny
aggrieved person in any trial, hearing, or proceeding,” 18 U.S.C.
§ 2518(10)(a), who was a target of the wiretap or a person party
 7

to a wiretap intercept, id. § 2510(11). A person with standing
may move to suppress wiretap evidence and its fruits on any of
three grounds: “(i) the communication was unlawfully
intercepted; (ii) the [wiretap] order . . . is insufficient on its face;
or (iii) the interception was not made in conformity with the
[wiretap] order . . . .” Id. § 2518(10)(a)(i)–(iii).

A.
No party disputes that the court orders authorizing the
wiretaps on Hudson and Johnson’s cell phones fail to identify
the officials who pre-approved the underlying applications. The
orders specify a type of official authorized to pre-approve
wiretap applications, namely, a Deputy Assistant Attorney
General in the Criminal Division specially designated by the
Attorney General. See id. § 2516(1). But where that official’s
name should appear, there are only asterisks. The order
authorizing the Hudson wiretap reads: the “application [was]
authorized by ******, Deputy Assistant Attorney General of the
Criminal Division, United States Department of Justice,
pursuant to the power delegated to that official by special
designation of the Attorney General.” The order authorizing the
Johnson wiretap states that the “application [was] authorized by
*, Deputy Assistant Attorney General of the Criminal Division,
United States Department of Justice, pursuant to the power
delegated to that official by special designation of the Attorney
General.” There are five Deputy Assistant Attorneys General in
the Criminal Division.1 The district court ruled that the Hudson

1
See U.S. Dep’t of Justice, Justice Mgmt. Div., 2012
Organization, Mission and Functions Manual, available at
https://www.justice.gov/archive/jmd/mps/2012/mission.htm (Criminal
Division Organizational Chart dated Oct. 4, 2010); U.S. Dep’t of
Justice, Justice Mgmt. Div., Organization, Mission and Functions
M a n u a l , 2 0 0 9 , a v a i l a b l e a t
https://www.justice.gov/archive/jmd/mps/2009omf/mission.htm
 8

and Johnson orders were facially insufficient for failing to
comply with the identification requirement in section
2518(4)(d), but concluded, prior to Glover, that the facial
insufficiency “constituted a technical defect that did not
undermine the purposes of the [wiretap] statute or prejudice”
Hudson or Johnson, and so denied their motions to suppress.
Savoy, 883 F. Supp. 2d at 113–14, 120–21.

1. To determine whether a wiretap order is facially
insufficient, a reviewing court must examine the four corners of
the order and establish whether, on its face, it contains all that
Title III requires it to contain. See United States v. Chavez, 416
U.S. 562, 573–74 (1974); United States v. Giordano, 416 U.S.
505, 525 n.14 (1974). If the order complies with the
requirements of Title III, it is “[]sufficient on its face”; if it does
not comply with those requirements, it is “insufficient on its
face.” See 18 U.S.C. § 2518(10)(a)(ii). For example, a wiretap
order is facially sufficient when it names the Assistant Attorney
General as the official who authorized the wiretap application
even though extrinsic documents reveal that a different Justice
Department official — e.g., the Attorney General — authorized
the application. See Chavez, 416 U.S. at 573–74. For purposes
of section 2518(10)(a)(ii), then, it is enough that the official
named in the order had the power to pre-approve wiretap
applications.

There can be little question that each of the Hudson and
Johnson orders is “insufficient on its face,” see 18 U.S.C.
§ 2518(10)(a)(ii), because each fails to include information
expressly required by Title III. Section 2518(4) enumerates
certain categories of information that a wiretap order “shall
specify.” One is “the identity . . . of the person authorizing the
application.” Id. § 2518(4)(d) (emphasis added). The text is

(Criminal Division Organizational Chart dated Jan. 17, 2008).
 9

plain and unambiguous; every wiretap court order must identify
the individual high-level Justice Department official who, as
required by section 2516(1), authorized the underlying wiretap
application. This requirement may be met where the language
points unambiguously to a unique qualified officer holding a
position that only one individual can occupy at a time, but here
there is more than one Deputy Assistant Attorney General and
no individual Deputy is identified on the face of either the
Hudson or the Johnson wiretap orders. This would appear to
end this part of our inquiry. See Engine Mfrs. Ass’n v. S. Coast
Air Quality Mgmt. Dist., 541 U.S. 246, 252–54 (2004).

In resisting suppression, the government views the
interpretation of sub-sections 2518(4)(d) and (10)(a)(ii)
compelled by the text as adopting an overly formalistic
approach. It urges the court to hold that a court wiretap order is
not facially insufficient where essential information required by
Title III is missing from the order so long as other materials
submitted to the judge who issued the order supply the missing
detail. Here, the application for the Hudson wiretap states that
“Bruce C. Swartz, Deputy Assistant Attorney General of the
Criminal Division, has authorized this Application” and includes
as an attachment a copy of Deputy Swartz’s signed letter
approving the application. Similarly, the Johnson application
includes as an attachment a signed letter of Kenneth A. Blanco,
whom the letter identifies as a Deputy Assistant Attorney
General in the Criminal Division, approving the application.

But, as noted, Title III’s facial sufficiency inquiry is limited
to the four corners of the wiretap order. See Chavez, 416 U.S.
at 573–74; Giordano, 416 U.S. at 525 n.14. There is something
incongruous about an interpretation that would let extrinsic
documents transform an order that is “insufficient on its face”
into one that is sufficient “on its face.” See 18 U.S.C.
§ 2518(10)(a)(ii). Further, the government’s interpretation
 10

would allow it, in every case, to satisfy Title III’s order
identification requirement, id. § 2518(4)(d), by satisfying its
application identification requirement, id. § 2518(1)(a),
effectively rendering section 2518(4)(d) superfluous. See
Duncan v. Walker, 533 U.S. 167, 174 (2001). Although
Congress has amended Title III since its enactment in 1968,
Congress has left unchanged the information required to be
contained in a wiretap court order. Compare 18 U.S.C.
§ 2518(4)(a)–(e), with Title III, § 802, 82 Stat. at 219 (adding
section 2518(4)(a)–(e) to Title 18).

To the extent Title III’s two identification requirements are
functionally redundant, it is clear that “Congress could sensibly
have seen some practical value in the redundancy.” Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 445 (1995) (Souter, J.,
dissenting); cf. Nat’l Ass’n of Clean Water Agencies v. EPA, 734
F.3d 1115, 1126 (D.C. Cir. 2013). The deliberations leading up
to the passage of Title III reveal deep unease over the risk to
privacy interests inherent in granting wiretapping authority to
law enforcement. With telecommunications technology — and
alongside it eavesdropping technology — evolving rapidly,
members of Congress feared that “if [Title III] is successful,
today’s narrowing enclave of individual privacy will shrink to
the vanishing point.” S. REP. NO. 90-1097, at 171 (1968)
(additional views of Sen. Hart). The President and the Attorney
General expressed serious misgivings about a wiretap statute,
with the Attorney General testifying that wiretaps posed a risk
to privacy “too great to permit their exploitation even by
Government agents acting in the name of law enforcement.”
Anti-Crime Program: Hearings Before Subcomm. No. 5 of the
H. Comm. on the Judiciary, 90th Cong. 209 (1967).

Congress sought, therefore, to limit the use of wiretaps —
to balance law enforcement and privacy interests — by
“impos[ing] important preconditions to obtaining any intercept
 11

authority at all.” Giordano, 416 U.S. at 515; see also Title III,
§ 801(a)–(d), 82 Stat. at 211–12. Among them was the
requirement that a high-level Justice Department official sign
off on each wiretap application. See 18 U.S.C. § 2516(1).
Congress intended application pre-approval to “play a central
role” in the Title III process, Giordano, 416 U.S. at 528, and to
constitute “a critical precondition to any judicial order”
authorizing a wiretap, id. at 516. According to the Report of the
Senate Judiciary Committee, application pre-approval

centralizes . . . the formulation of law enforcement
policy on the use of electronic surveillance techniques.
Centralization will avoid the possibility that divergent
practices might develop. Should abuses occur, the
lines of responsibility lead to an identifiable person.
This provision in itself should go a long way toward
guaranteeing that no abuses will happen.

S. REP. NO. 90-1097, at 97.

The identification requirements buttress this core bulwark
against unwarranted intrusions into private conversations. As
the Supreme Court has observed, “[t]here is little question that
[the identification requirements] were intended to make clear
who bore the responsibility for approval of the submission of a
particular wiretap application.” Chavez, 416 U.S. at 571–72; see
also S. REP. NO. 90-1097, at 101, 103. This ex post check on the
misuse or overuse of wiretaps, in turn, also operates as an ex
ante constraint on executive branch conduct. Congress could
reasonably conclude that a high-level Justice Department
official, who is already prone to caution given the level of
responsibilities attendant to the high position, will tread even
more cautiously when reviewing proposed wiretap applications
if the official is individually identified as having approved the
application. Insisting on individual identification in both the
 12

application and the order accords with Congress’s intent “to
make doubly sure that the statutory [wiretap] authority be used
with restraint.” Giordano, 416 U.S. at 515.

Furthermore, in functional terms, Title III’s doubled
identification requirements are not redundant. Title III contains
evidence of Congress’s intent that the order — independent of
the application — be the operative document in the field. One
sign of this intent is that all the information contained in the
order is also contained in the application. Compare 18 U.S.C.
§ 2518(1)(a)–(b) & (d), with id. § 2518(4)(a)–(e). That
complete overlap makes little sense if Congress expected the
order always to travel with the application. Another indicator
arises out of Title III’s criminal and civil penalties. Since its
enactment, Title III has exposed “any person” to personal-
capacity civil liability, including punitive damages, and even
criminal prosecution for carrying out an unlawful wiretap. 18
U.S.C. §§ 2511(1)(a)–(b), 2511(4)–(5), 2520(a)–(c); see also
Title III, § 802, 82 Stat. at 213, 223. Good-faith reliance on a
court order — but not on a wiretap application — is a complete
defense to a criminal or civil action. 18 U.S.C. § 2520(d); see
also Title III, § 802, 82 Stat. at 223. Congress expected reliance
on the wiretap order in the field, where the risk of criminal and
civil exposure is at its height, and it designed Title III’s
immunity provision accordingly. Practice confirms what Title
III’s design suggests. After the authorizing judge signs the
wiretap order, the order — but not the application — goes to
those involved in conducting the surveillance. The Hudson and
Johnson orders, for example, state that the order, application,
affidavit in support of the application, proposed orders, and
interim reports be sealed, “except that copies of the orders, in
full or redacted form, may be served on the [FBI] and its
participating law enforcement agencies including the
Metropolitan Police Department of the District of Columbia, and
the service providers as necessary to effectuate this order.”
 13

Each identification requirement, then, has a distinct
audience in the Title III process. “Requiring identification of
the authorizing official in the application facilitates the court’s
ability to conclude that the application has been properly
approved under § 2516 . . . .” Chavez, 416 U.S. at 575.
Including that identification in the wiretap order facilitates
additional oversight, this time by the parties executing the order.
Congress did not want field agents or telecommunications
service providers to conduct or assist in conducting wiretaps
unless they — like the judge who authorized the wiretap —
could satisfy themselves of proper compliance with section
2516(1)’s application pre-approval requirement. Section
2518(4)(d)’s order identification requirement is how Congress
chose to furnish them evidence of compliance, thereby ensuring
that the evidence would be at once fairly reliable, because a
federal judge has vouched for its accuracy, and easily accessible,
because it is included in the operative field document. And by
tying immunity to good-faith reliance on a court order, see 18
U.S.C. § 2520(d), Congress created an incentive for field agents
and service providers to examine a wiretap order for
completeness, including the identity of the authorizing Justice
Department official. With pre-approval as a critical check on
the overuse or misuse of wiretapping authority, see Giordano,
416 U.S. at 516, 528, Congress designed Title III so that the
absence of evidence of pre-approval by an individual Justice
Department official at either of two stages would halt the
wiretap process.

The government also contends that the Hudson and Johnson
orders are facially sufficient because they identified the title of
the person or the general category of official who authorized the
underlying application. Alternatively, the government resorts to
grammatical niceties. Each order states that the government
sought the order “pursuant to an application authorized by . . .
[a] Deputy Assistant Attorney General of the Criminal Division
 14

. . . pursuant to the power delegated to that official by special
designation of the Attorney General” (emphasis added). In the
government’s view, the use of the demonstrative adjective “that”
before the noun “official” makes it reasonably believable that a
single, individual Deputy Assistant Attorney General authorized
the application.

The same reasoning undercuts both of the government’s
arguments. Title III requires that the wiretap order provide the
“identity . . . of the person” who authorized the application. 18
U.S.C. § 2518(4)(d) (emphasis added). To specify a category of
official or a job title is usually not the same thing as specifying
the “identity” of a “person.” Nor does it fix responsibility for
approval of the wiretap application, see S. REP. NO. 90-1097, at
103, such that “[s]hould abuses occur, the lines of responsibility
[would] lead to an identifiable person,” id. at 97 (emphasis
added). The same problems infect reliance on the reference to
an unnamed Deputy Assistant Attorney General. As noted, five
officials in the Criminal Division hold that title. Indeed, other
documents show that two different Deputy Assistant Attorneys
General — Swartz and Blanco — authorized the Hudson and
Johnson wiretap applications. A third Deputy, John C. Keeney,
authorized the application for a wiretap on Savoy’s phone. That
there is more than one Deputy Assistant Attorney General
distinguishes the instant case from United States v. Traitz, 871
F.2d 368, 379 (3d Cir. 1989), where the failure to name the
Assistant Attorney General for the Criminal Division, who had
pre-approved the application, did not render the order facially
insufficient; because at any given time, there is only one
Assistant Attorney General for the Criminal Division, see 28
C.F.R. § 0.55 (referring to “the Assistant Attorney General,
Criminal Division”), identifying that person by title is the
functional equivalent of identifying the individual’s name. Not
so here.
 15

Finally, the government contends that “[a]t worst, the
authorizing orders’ typographical errors rendered them
‘imperfect’ . . . but not facially insufficient.” Appellee’s Br.
26–27 (citing Glover, 736 F.3d at 515). The government is
correct that Glover, 736 F.3d at 515, left open the possibility that
a “technical defect” in a wiretap order might not rise to the level
of facial insufficiency, but rather would render the order
“imperfect.” But the omissions in the Hudson and Johnson
orders are not merely technical defects. The government failed
to include in the proposed orders information expressly required
by Title III. See 18 U.S.C. § 2518(4)(d). It is difficult to
conceive of that as a technical defect. By contrast, the technical-
defect cases the court cited in Glover, 736 F.3d at 515, did not
involve facially insufficient orders that omitted information
expressly required by Title III. See United States v. Moore, 41
F.3d 370, 372, 375–76 (8th Cir. 1994); Traitz, 871 F.2d at
378–79.

For these reasons, we agree with the district court that the
Hudson and Johnson orders are facially insufficient under 18
U.S.C. § 2518(10)(a)(ii). See Savoy, 883 F. Supp. 2d at 113–14,
120–21.
.
2. The question remains whether suppression pursuant to
section 2515 is the appropriate remedy here. “The issue does
not turn on the judicially fashioned exclusionary rule aimed at
deterring violations of Fourth Amendment rights, but upon the
provisions of Title III.” Giordano, 416 U.S. at 524. Title III
sets out three grounds for suppression, 18 U.S.C.
§ 2518(10)(a)(i)–(iii), and the Supreme Court explained the
analytical distinctions between them in Chavez, 416 U.S. at
573–75, and Giordano, 416 U.S. at 524–27. A functional
inquiry determines whether a violation of Title III is such that
the contents of the wiretap must be suppressed as “unlawfully
intercepted.” 18 U.S.C. § 2518(10)(a)(i). Suppression is
 16

required only when the government fails to comply with “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.” Giordano, 416 U.S.
at 527. Consequently, not every failure to comply with Title III
will warrant suppression under section 2518(10)(a)(i). For
example, under the “unlawfully intercepted” paragraph, the
failure to comply with section 2516(1)’s application pre-
approval requirement results in suppression, Giordano, 416 U.S.
at 524–29, but suppression does not necessarily result from the
misidentification of the authorizing Justice Department official
in the wiretap application and order, Chavez, 416 U.S. at
574–80.

The Supreme Court, however, pursued an altogether
different methodological tack in analyzing the scope of the
facial-insufficiency ground of section 2518(10)(a)(ii). As this
court recently explained, in Giordano and Chavez,

the Court read paragraph (i) as requiring a broad
inquiry into the government’s intercept procedures to
determine whether the government’s actions
transgressed the “core concerns” of the [wiretap]
statute, whereas (ii) is a mechanical test; either the
warrant is facially sufficient or it is not. . . .
Suppression is the mandatory remedy when evidence
is obtained pursuant to a facially insufficient warrant.
There is no room for judicial discretion.

Glover, 736 F.3d at 513. In sum, once a reviewing court
determines that a wiretap order is facially insufficient, the only
appropriate remedy is suppression. Because the Hudson and
Johnson wiretap orders are facially insufficient, see supra Part
II.A.1, the contents of intercepts collected pursuant to those
 17

orders and “evidence derived therefrom” must be suppressed.
18 U.S.C. §§ 2515, 2518(10)(a)(ii).

The government objects that the omissions in the Hudson
and Johnson orders do not warrant suppression because the
wiretap orders satisfy the functional “core concerns” test for
suppression under the unlawfully intercepted ground of section
2518(10)(a)(i). That is, the record accompanying the wiretap
applications submitted to the district court shows that a Deputy
Assistant Attorney General in fact approved each of the
applications. The Hudson and Johnson wiretaps therefore were
not “unlawfully intercepted” within the meaning of section
2518(10)(a)(i). See Chavez, 416 U.S. at 574–80; cf. Giordano,
416 U.S. at 527–28. But that is irrelevant to the suppression
inquiry under the facial-insufficiency ground of section
2518(10)(a)(ii). Title III provides for suppression in any one of
three different circumstances, set forth in three separate
subparagraphs separated by the disjunctive conjunction “or.” 18
U.S.C. § 2518(10)(a). Suppression is required when the
conditions set forth in any of those three paragraphs are met.
That one paragraph does not require suppression has no bearing
on the applicability of the other two. Cf. Loughrin v. United
States, 134 S. Ct. 2384, 2389–90 (2014). What the government
asks, in essence, is for the court to transform section 2518(10)(a)
from a statutory provision establishing a disjunctive test into one
establishing a conjunctive test. On the government’s
interpretation, a defendant would have to satisfy all three of its
paragraphs to prevail on a motion to suppress. This is not the
choice Congress made, and the government has pointed to
nothing that supports a contrary conclusion.

The government’s reliance on out-of-circuit cases declining
to suppress wiretap evidence in circumstances like those here,
see Appellee’s Br. 20–22 n.11, is misplaced. In those cases,
courts have reasoned that section 2518(10)(a)(i)’s “core
 18

concerns” test can excuse orders that are facially insufficient
under section 2518(10)(a)(ii). See, e.g., Traitz, 871 F.2d at
379–80; United States v. Robertson, 504 F.2d 289, 291–92 (5th
Cir. 1974); United States v. Gray, 521 F.3d 514, 524–28 (6th
Cir. 2008); United States v. Callum, 410 F.3d 571, 574–76 (9th
Cir. 2005); United States v. Radcliff, 331 F.3d 1153, 1161–63
(10th Cir. 2003). This panel is bound by the rejection of this
approach in Glover, 736 F.3d at 513, where the court declined
to import the “core concerns” test into the facial-insufficiency
context. See Belbacha v. Bush, 520 F.3d 452, 457 (D.C. Cir.
2008); LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.
1996) (en banc). The Glover court’s reasoning is, in any event,
faithful to both Supreme Court precedent and the text of Title
III.

For these reasons, we reverse the district court’s denial of
the motions to suppress the Hudson and Johnson wiretap
evidence. See Savoy, 883 F. Supp. 2d at 113–14, 120–21. It
remains for the district court on remand to determine the effect
of our reversal on appellants’ conditional pleas and what
evidence is “derived” from the Hudson and Johnson wiretaps.
See 18 U.S.C. § 2515. We note, parenthetically, that a number
of cases cited by the government, Appellee’s Br. 20–22 n.11,
entail similar errors as here. The Justice Department can readily
reduce the likelihood that it repeats this kind of error going
forward. Cf. Chavez, 416 U.S. at 573 n.4. The United States
Attorneys’ Manual’s Criminal Resource Manual provides a
detailed overview of what information a Title III order must
contain. See DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL:
CRIMINAL RESOURCE MANUAL § 30 (2012), available at
https://www.justice.gov/usam/criminal-resource-manual-30-el
ectronic-surveillance-title-iii-orders. In fact, it includes every
requirement enumerated in section 2518(4) except the
requirement that the order identify the high-level Justice
Department official who pre-approved the underlying
 19

application. Id. A revision to the Criminal Resource Manual
appears in order.

B.
Next, appellants contend that the district court erred by not
interpreting the word “facilities” in sub-sections 2518(1)(b)(ii)
and (4)(b) to require applications and orders for wiretaps on cell
phones to identify the cell towers that will transmit signals to
and from the tapped phone. We are not persuaded.

Title III requires that ordinary wiretap applications include
“a particular description of the nature and location of the
facilities from which or the place where the communication is
to be intercepted.” 18 U.S.C. § 2518(1)(b)(ii) (emphasis added).
A wiretap order likewise must specify “the nature and location
of the communications facilities as to which, or the place where,
authority to intercept is granted.” Id. § 2518(4)(b) (emphasis
added). No party disputes that the wiretap applications and
orders here identified the individual cell phones that would be
subject to surveillance. Appellants maintain that the “location”
of the “facilities” to be tapped must be geographically fixed and
a cell phone, therefore, cannot constitute the “facilit[y]” to be
tapped, because unlike a land-line telephone it has no fixed
location. Instead, appellants contend that, in the cell phone
context, the “location” of the “facilities” to be tapped is the cell
tower — or, in reality, towers — through which the cell phone’s
signals are routed.

Title III does not define what is meant by the “facilities”
targeted by the wiretap. But three considerations, based on the
structure, purpose, and legislative history of Title III, see N.Y.
State Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 655 (1995), persuade us that Congress
intended the word “facilities” in sub-sections 2518(1)(b)(ii) and
(4)(b) to encompass cell phones themselves. First, a contrary
 20

interpretation would yield an absurd result. No Title III
provision other than the “facilities” paragraphs — sub-sections
2518(1)(b)(ii) and (4)(b) — could be read to require that wiretap
applications and orders identify the target phone. So if the target
telephone is not a type of “facilit[y],” then wiretap applications
and orders would never have to identify the specific phone the
government intends to tap. Yet, Congress required applications
and orders to specify the “nature and location” of the “facilities”
to be tapped in order to “reflect[] the constitutional command of
particularization” enshrined in the Fourth Amendment. S. REP.
NO. 90-1097, at 101; see also id. at 102–03. The Fourth
Amendment requires that a warrant “particularly describ[e] the
place to be searched, and the persons or things to be seized.”
Generally, to satisfy the search component of the particularity
requirement, a warrant must enable the executing officer to
locate and identify the place to be searched and ensure — to a
reasonable probability — that the officer will not mistakenly
search the wrong place. United States v. Johnson, 437 F.3d 69,
73 (D.C. Cir. 2006). “In the wiretap context,” the Fourth
Amendment’s particularity requirement is “satisfied by
identification of the telephone line to be tapped and the
particular conversations to be seized.” United States v.
Donovan, 429 U.S. 413, 427 n.15 (1977). Surely a Title III
wiretap application or order could not satisfy the Fourth
Amendment’s particularity requirement if it failed to identify the
individual phone to be tapped. Second, the Senate Judiciary
Committee Report states that Congress understood telephones
to be a type of “facilit[y]”: “Subparagraph (b) [of section
2518(4)] requires the order to specify the phone or other
communication facilities from which or the place where the
authority to intercept is granted.” S. REP. NO. 90-1097, at
102–03 (emphasis added); see also id. at 101. Third, of the
many amendments to Title III since 1968, the parties point us to
none — and we are aware of none — that suggests Congress
intended Title III to treat wiretaps on cell phones differently
 21

from wiretaps on land-line phones. Quite the contrary. In the
Electronic Communications Privacy Act, Pub. L. No. 99-508,
§ 101(a)(1)(B), 100 Stat. 1848, 1848 (1986), Congress amended
the definition of “wire communication” in Title III to “make[]
clear that cellular communications — whether they are between
two cellular telephones or between a cellular telephone and a
‘land line’ telephone — are included in the definition of ‘wire
communications’ [sic] and are covered by [Title III].” S. REP.
NO. 99-541, at 11 (1986); see also H.R. REP. NO. 99-647, at 31,
35 (1986).

Here, the information in the wiretap applications and orders
at issue is sufficient to identify the “nature and location” of the
targeted cell phones. Although Title III does not establish a
minimum quantum of information necessary to identify the
“nature and location” of a telephone targeted by a wiretap, the
particularity requirement under the Fourth Amendment provides
a useful guide to Congress’ intent. See S. REP. NO. 90-1097, at
101–03. Each application and order specified the telephone
number of the targeted cell phone, a serial number identifying
the physical device associated with the target phone number, the
identity of the service provider, and the name and address of the
subscriber. With all of that information in hand, there is no
basis to conclude an officer or service provider would find it
difficult to identify the target phone or tap the wrong phone. Cf.
Johnson, 437 F.3d at 73. Our sister circuits are in accord. See
United States v. Oliva, 705 F.3d 390, 400–01 (9th Cir. 2012);
United States v. Goodwin, 141 F.3d 394, 403 (2d Cir. 1997).
Appellants’ strained readings of Title III’s definitions and case
law interpreting other statutes are unavailing. It would be
difficult to conclude from their arguments that Congress would
resort to minor grammatical distinctions and subtle statutory
alterations — with no accompanying explanation or comment —
in order to institute as dramatic a change as a cell-phone carve
out from Title III’s ordinary requirements. Because the
 22

applications and orders satisfied the facility-identification
requirements of sub-sections 2518(1)(b)(ii) and (4)(b), the court
need not address appellants’ suggestion that the government
ought to have complied with the more stringent requirements
Title III imposes on so-called roving wiretaps. See 18 U.S.C.
§ 2518(11).

C.
Finally, appellants’ challenges to the Scurry wiretaps are
unpersuasive.

1. Appellants maintain that the application for the initial
Scurry wiretap did not establish probable cause to believe the
target phone was being or would be used to commit specified
drug offenses. See Savoy, 883 F. Supp. 2d at 108–09. This
challenge arises from the government’s efforts to keep current
on Scurry’s cell phone habits. FBI Special Agent Christopher
Fiorito had originally prepared an affidavit seeking a wiretap on
a phone whose number ended in 9231 (the “9231 phone”).
Fiorito abandoned that wiretap request, however, after he
learned that Scurry had stopped using the 9231 phone. The
wiretap application that was authorized was for a phone whose
number ended in 7790 (the “target phone”). Appellants concede
that the Fiorito affidavit furnishes probable cause to justify a
wiretap on the 9231 phone, but object that the government failed
to demonstrate probable cause to believe Scurry was using or
would use the target phone to further his alleged narcotics-
trafficking crimes. See 18 U.S.C. § 2518(1)(b), (3)(d).

Title III imports the Fourth Amendment’s probable cause
standard: the authorizing court must “make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before it, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime will
 23

be found in a particular place.” Eiland, 738 F.3d at 347
(alterations omitted) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). A reviewing court gives deference to the
authorizing court’s probable cause determinations. Johnson,
437 F.3d at 71.

The evidence proffered in the 56-page Fiorito affidavit
demonstrates that there was a “fair probability” that the target
phone was being and would be used to commit the specified
narcotics offenses. Scurry and one of the government’s
cooperating witnesses (“Witness 2”) had a months-long history
of coordinating drug transactions by phone, including the 9231
phone. In February 2010, after federal agents had been
investigating Scurry for several months, they learned from
Witness 2 that Scurry had acquired a new phone, which they
identified as the target phone. On March 11, Witness 2 received
five calls from the target phone. During one of those calls,
Scurry arranged to sell crack to Witness 2, a sale that took place
the next day through one of Scurry’s associates, acting at
Scurry’s behest. Around the same time Scurry began calling
Witness 2 on the target phone, he largely stopped using the 9231
phone. Fiorito attests that, based on his experience, drug
traffickers frequently switch phones to avoid police detection.
Toll records revealed that the target phone was in contact with
75 phone numbers with which the 9231 phone had also been in
contact. Of those, several numbers belonged to known
associates of Scurry. According to Witness 2, another
cooperating witness (“Witness 1”), and law enforcement
surveillance, three of these associates were involved in selling
drugs with or in the same area as Scurry. Although Witness 2
has had some veracity problems, Fiorito swore that Witness 1
was reliable and had never provided false information over three
years of cooperating with the FBI.
 24

Appellants hinge their challenge on a repeated error in the
Fiorito affidavit. Specifically, the affidavit on several occasions
incorrectly refers to the 9231 phone as the “target phone.”
Presumably, those mix-ups are artifacts of Fiorito’s original
affidavit, which was for a wiretap on the 9231 phone. In
context, however, it is plain that the incorrect references to the
“target phone” in fact describe the 9231 phone, and there is no
reason to think these errors deceived the authorizing judge. The
Fiorito affidavit states that Scurry was using the 9231 phone —
and not the target phone — during the time period when it
mistakenly refers to the 9231 phone as the “target phone,” and
several erroneous mentions of the “target phone” have as their
clear referent an earlier mention of the 9231 phone. Nor is the
Fiorito affidavit defective merely because it relied on some
“boilerplate” language or a “cut and paste” from the earlier 9231
phone affidavit. See Appellants’ Br. 54. “Even if the affidavit
does contain some general language, applications are not to be
read in a piecemeal fashion.” Eiland, 738 F.3d at 347 (internal
quotation marks omitted). Taken as a whole, then, the Fiorito
affidavit satisfies Title III’s probable cause requirement. See 18
U.S.C. § 2518(1)(b), (3)(d).

2. Appellants maintain that the district court erred when it
determined that the Fiorito affidavit satisfied Title III’s necessity
requirement, id. § 2518(1)(c), (3)(c). See Savoy, 883
F. Supp. 2d at 109–10. Although intended to prevent over-
reliance on wiretapping authority, Title III’s necessity
requirement “was not designed to foreclose electronic
surveillance until every other imaginable method of
investigation has been unsuccessfully attempted.” United States
v. Carter, 449 F.3d 1287, 1293 (D.C. Cir. 2006) (quoting United
States v. Williams, 580 F.2d 578, 588 (D.C. Cir. 1978)). “[T]he
government will meet its burden of demonstrating necessity if
it shows that other techniques are impractical under the
circumstances and that it would be unreasonable to require
 25

pursuit of those avenues of investigation.” Id. (internal
quotation marks omitted). In the conspiracy context, the
necessity requirement “is satisfied when ‘traditional
investigative techniques have proved inadequate to reveal the
operation’s full nature and scope.’” United States v. (Ernest)
Glover, 681 F.3d 411, 420 (D.C. Cir. 2012) (quoting United
States v. Becton, 601 F.3d 588, 596 (D.C. Cir. 2010)). This
court reviews the authorizing judge’s Title III necessity
determination for abuse of discretion, although it does not grant
additional deference to the district court’s subsequent review.
See id. at 419–20.

The Fiorito affidavit demonstrates that the authorizing judge
did not abuse his discretion when he found that the first Scurry
wiretap was necessary. Fiorito lists the investigative tools the
FBI had already deployed, including physical surveillance, the
use of confidential informants, analysis of pen-register and GPS-
tracking data, and controlled narcotics purchases. But, he adds,
these tools had failed to disclose the full nature and scope of the
narcotics-trafficking enterprise operating in the Second Court.
Physical surveillance, GPS tracking, and pen registers let the
FBI know that Scurry was in contact with other potential
suspects, but those tools told investigators little about the nature
of Scurry’s interactions. Confidential informants, for their part,
had limited access to co-conspirators. Fiorito also attests to the
insufficiency of investigative techniques short of a wiretap. A
number of techniques risked revealing the existence of the
investigation to its targets and putting government cooperators
in harm’s way: interviews with Scurry’s associates, a search of
one of Scurry’s stash houses, trash pulls, and arranging for a
cooperator to introduce Scurry to an undercover officer.
Scurry’s anti-surveillance countermeasures had frustrated
attempts to use still other investigative techniques. Scurry took
evasive maneuvers to avoid physical surveillance, consummated
drug sales indoors or inside cars, and insulated himself from
 26

people he did not know, like undercover officers. To secure
useful grand jury testimony, the government would likely have
had to immunize the investigation’s targets, which would defeat
the purpose of securing their testimony. This court has
repeatedly upheld necessity determinations based on affidavits
similar to the Fiorito affidavit. See, e.g., Eiland, 738 F.3d at
348–49; (Ernest) Glover, 681 F.3d at 420; Carter, 449 F.3d at
1293–94; Becton, 601 F.3d at 596–97.

Appellants’ counterarguments amount to little more than
second-guessing how the government ought to run its
investigations and prosecute drug crimes. They maintain that
the government could have searched Scurry’s known stash
house or prosecuted Scurry on the evidence of controlled
narcotics transactions alone. That assertion runs counter to the
law of this circuit on the scope of Title III’s necessity
requirement in the conspiracy context. See (Ernest) Glover, 681
F.3d at 420. Appellants also challenge the Fiorito affidavit on
the ground that it failed to mention an earlier, unsuccessful
prosecution of Scurry on drug charges. The fact of the earlier
prosecution, they contend, might have led the authorizing judge
to take a different view of whether the wiretap was necessary.
Moreover, appellants suggest, it might have led the judge to
worry that a desire for retribution — rather than necessity — lay
behind the government’s wiretap application. Appellants never
raised this argument in the district court. See Scurry Mot. to
Suppress at 5–6 (Oct. 14, 2011); Savoy, 883 F. Supp. 2d at
109–10. Although our precedent is unclear as to the appropriate
standard of review in these circumstances, compare Eiland, 738
F.3d at 350, with United States v. Peyton, 745 F.3d 546, 551
(D.C. Cir. 2014), under any standard appellants’ challenge fails.
If anything, the government’s loss in the first case — a
comparably simple case involving two counts of distribution —
underscores the need for additional investigative tools. As for
 27

evidence suggesting retributive motivation or bias on the
government’s part, appellants point to none.

3. Appellants maintain that the agents executing the Scurry
wiretaps failed to comply with Title III’s minimization
requirement, 18 U.S.C. § 2518(5). Such compliance turns on
whether the government made “reasonable efforts to minimize
interceptions of non-pertinent communications.” Carter, 449
F.3d at 1295. In appellants’ view, the FBI listened to too many
non-pertinent calls for too long to have taken reasonable steps
to minimize such interceptions. As the district court held,
Savoy, 883 F. Supp. 2d at 110–11, this argument is foreclosed by
controlling precedent. See Scott v. United States, 436 U.S. 128,
139–41 (1978); Carter, 449 F.3d at 1295. More to the point, in
United States v. Cano-Flores, 796 F.3d 83, 87–88 (D.C. Cir.
2015), the court rejected the argument appellants advance. To
challenge the reasonableness of the government’s minimization
efforts, a party must present more than the raw number of non-
pertinent intercepted calls and their durations.

Accordingly, we reverse the denial of the motions to
suppress the Hudson and Johnson wiretap evidence, remand the
case for further proceedings, and otherwise affirm.