Justices Consider the Reach of Court-Approved Wiretaps

WASHINGTON (CN) – The case of twin brothers caught trafficking drugs between California and Kansas came before the U.S. Supreme Court on Wednesday, forcing the justices to consider whether a court order allowing law enforcement to monitor the brothers’ cell phone communications was lawful when the targets moved into other court jurisdictions.

As recounted during Wednesday’s hearing, brothers Los and Roosevelt Dahda began their life as drug trafficker in 2006 after they joined a drug ring operated by three other men.

According to federal prosecutors, Los would drive from Kansas to California to purchase marijuana, and then package his haul on the west coast before loading it into crates headed for the Midwest.

While this was going on, the authorities said, Los’ brother Roosevelt managed the product and cash flow.

An investigation by the Drug Enforcement Agency prompted agents to seek permission from a federal judge in Kansas to intercept the Dahdas communications as they travelled over state lines.

Prior to their trial on drug trafficking charges, the Dahdas brothers moved to suppress the information obtained from the wiretaps on the grounds that the court orders exceeded the district court’s territorial jurisdiction. The trial court rejected that argument, and both were found guilty and sentenced.

The surveillance requested was typical, the government contends, but on appeal at the 10th Circuit, the court agreed with the petitioners, saying the evidence found could be suppressed because it was obtained in areas outside of the authorizing judge’s jurisdiction.

During Wednesday’s hearing, Justice Ruth Bader Ginsburg pressed attorney Kannon Shanmugam on the question of Congressional intent when it comes to limits placed on the jurisdiction of federal courts.

The Dahdas argue since the surveillance should have never been authorized outside of the jurisdiction of the court in Kansas, the information gathered during the wiretaps should be tossed.

The government contends it doesn’t matter since the evidence which ultimately ensnared the men was communication gathered within Kansas.

Justice Ginsburg appeared to side with the government.

“The only intercepts that were introduced were from the District of Kansas. So while the order authorized an invalid application, but there was no such invalid application,” she said.

Shanmugam conceded there were communications intercepted from a wire room in St. Louis, Missouri, and that the government agreed to suppress that information. That said, he argued, if the order itself is insufficient, all of the captured communications should be barred from evidence.

“To the extent the government is making this back-end argument about a severance principle and seeking to introduce a severance principle that the lower courts have recognized in the exclusionary rule context into Title III, that there’s just simply no textual footing for that,” Shanmugam said.

“Ordinarily, you can’t have too much evidence. You can only have too little. I think this [the controlling legislation suggests] you can’t have too much evidence, you can only have too little. I think that this is a somewhat unusual formulation … and [it] doesn’t appear anywhere else in the U.S. code,” Shanmugam said. “I do think that the definition of the term “insufficient,” even if you view “insufficient” to mean “lacking,” could easily mean lacking a valid limitation. It doesn’t necessarily mean lacking a provision that the order is required by statute to contain.”

But Justice Stephen Breyer held fast to the principle of the law.

“Where does it say they have the jurisdiction to intercept in Kansas?” he asked at one point. “Read the paragraph. It says ‘in the event that they are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States.’”

Justice Elena Kagan was hesitant as Zachary Tripp, assistant to the U.S. Solicitor General, unpacked the bill’s verbiage.

While insufficient “doesn’t usually mean invalid,” she said, it usually means something is lacking.

“The question is was this order lacking something,” Kagan said.  “You say no because it didn’t have anything about the jurisdictional reach of the interception … if we accepted that, how are these orders supposed to read? We’re going to every court and telling them, you don’t have to put anything in your order about whether this is only within [or outside of] that jurisdiction.”

After some pushback by the justices, Tripp said a suggestion the orders were insufficient was off base since they included everything the law, as written, requires.

“[Including] an order for the government to perform interception inside Kansas, and that’s the only evidence we relied on at trial,” he said.

If the justices decide to remand the case, it will be up to Congress to decide if the Wiretap Act needs updating to accommodate modern day technology, something attorney Shanmugam asked the justices to fully consider as they consider the arguments being made before them.

Justice Neil Gorsuch recused himself from Wednesday’s arguments because he’d previously heard the case on the 10th circuit.

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