"Surplus" does not make an otherwise legal wiretap order insufficient

The Supreme Court decided Dahda v. United States, 2018 WL 2186173 (U.S. May 14, 2018), this past week. As you may know, this case originated from Kansas and involves the federal wiretap statute (18 USC 2510-2518). We previously blogged about the case here. In Dahda, the Supreme Court affirmed the Tenth Circuit's decision, but rejected its reasoning. The Supreme Court was not kind to the Tenth Circuit’s analysis, calling its interpretation of the statute “too narrow” and reminding the Tenth that the statute “means what it says.”

The wiretap statute includes a statutory suppression remedy (or an exclusionary rule), which applies in three instances: (1) where a communication was unlawfully intercepted; (2) where the order authorizing the intercept was "insufficient on its face"; and (3) where the intercept did not conform with the order authorizing the interception. 

Dahda involved the second provision. The Court held that an order's sufficiency is measured via 2518(4), which requires the order to include the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." The Dahdas objected to something else: a sentence within the order authorizing interception of phones located “outside the territorial jurisdiction of the court,” and further authorizing the interception to “take place in any other jurisdiction within the United States.”

In a bit of a brain buster, the Court held that this sentence did not make the order insufficient (even though it was “without legal effect” because the order could not legally authorize a wiretap outside Kansas). Instead, the sentence was surplus. “Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court's territorial jurisdiction. A listening post within the court's territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas.” And here, the government did not use any evidence at trial that was obtained from a listening post outside of Kansas.

This last fact appears dispositive. Nothing from outside of Kansas was admitted, so nothing outside of Kansas should have been (but was not) suppressed. The territorial language, right or wrong, did not make the order insufficient. So the Dahdas lose (in a unanimous decision). 

As an aside, the Court does not address what would have happened if communications seized from a listening post outside of Kansas, from phones not located within Kansas, were admitted at trial; perhaps they would have to be excluded as “unlawfully intercepted.”

It's a short decision worth the read. 

--Dan Hansmeier

Testimony on drug courier profiles alone cannot establish guilt

Expert testimony on drug courier profiles is inherently prejudicial. It has the potential for “including innocent citizens as profiled drug couriers” because simply matching a defendant to a drug profile “suggests to the jury that otherwise innocuous conduct or events demonstrate criminal activity.” Hence the reversal last week by the Ninth Circuit in United States v. Espinoza-Valdez where the government hung its hat “almost exclusively” on drug courier profile testimony.

In Espinoza-Valdez, evidence at trial demonstrated Espinoza-Valdez’s presence with two unknown men in a known drug-smuggling corridor close to the Mexican border near what appeared to be a camp for drug trafficking scouts. Evidence also demonstrated “the seizure of items that were suspicious in this context.” Nevertheless, “there was insufficient evidence for a jury to find beyond a reasonable doubt that Espinoza-Valdez entered into a conspiratorial agreement to import or distribute marijuana[,]” wrote D.C. District Court Judge Paul L. Friedman sitting in designation for the Ninth Circuit. And this was true despite the introduction of 404(b) evidence that agents had previously apprehended Espinoza-Valdez in the same area, and that he had told the agents at that time that he and others were backpacking marijuana across the desert.

In short, the government may not rely on inherently prejudicial “expert testimony of drug courier profiles alone to establish guilt.” In Espinoza-Valdez the government presented no evidence of drugs that actually passed through or were intended to pass through the area under Espinoza-Valdez’s watch. “There simply [was] no evidence as to what (if anything) was specifically agreed to, who agreed to it, or what any agreement was intended to accomplish.”

“While it is possible, perhaps even probable, that Espinoza-Valdez was on the mountaintop to act as a scout for drug traffickers, a reasonable suspicion or probability of guilt is not enough.” Guilt, “according to the basic principles of our jurisprudence,” Judge Friedman stresses, demands more.