United States v. Eric Scurry
821 F.3d 1
D.C. Cir.2016Background
- FBI investigation (2009–2010) into drug trafficking centered on multi-unit "Second Court" residences; wiretaps obtained on phones of Scurry, Hudson, Savoy, and Johnson.
- Wiretap orders for Hudson and Johnson omitted the individual names of the Deputy Assistant Attorneys General who pre-approved the underlying applications; the orders showed only asterisks.
- District court denied suppression motions and defendants entered conditional guilty pleas; defendants appealed relying on this circuit’s decision in United States v. Glover.
- Title III (18 U.S.C. § 2518) requires both (a) the application identify the approving high-level DOJ official and (b) the court order itself identify that official; § 2515 provides exclusion for communications in violation of Title III.
- The panel considered whether omission of the official’s name on the face of the order makes the order "insufficient on its face" (mandating suppression under § 2518(10)(a)(ii)) and separately addressed challenges about "facilities" identification for cell phones and the Scurry wiretap’s probable cause, necessity, and minimization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a wiretap order that fails to name the DOJ official who approved the application is "insufficient on its face" under 18 U.S.C. § 2518(10)(a)(ii) | Omission renders the order facially insufficient and requires suppression of intercepted communications and derivative evidence | The order’s identification of the official's title or other extrinsic materials (the application and signed approval letters) supply the missing information so the order is functionally sufficient | Held: Omission of the individual’s identity makes the order facially insufficient; suppression is mandatory under § 2518(10)(a)(ii) |
| Whether extrinsic materials (application, approval letters) can cure a facial omission in the court order | N/A (defendants argued facial insufficiency) | Government: materials submitted to the issuing judge and attachments identifying the approving official cure the defect and avoid suppression | Held: No; facial-sufficiency inquiry is limited to the four corners of the order; extrinsic materials cannot cure a statutory omission on the order itself |
| Whether Title III required identifying cell towers (not just the phone) as the "facilities" to be intercepted | Appellants: mobile phones lack fixed location so order must identify cell towers routing communications | Government: identifying the target phone (number, serial, subscriber, provider) satisfies § 2518(1)(b)(ii) and § 2518(4)(b) | Held: "Facilities" can include the cell phone itself; the orders’ identification of phone number, device serial, provider, and subscriber satisfies the statute and Fourth Amendment particularity |
| Challenges to Scurry wiretap (probable cause, necessity, minimization) | Appellants: affidavit misidentified the target phone (mix-up between old and new numbers) and failed necessity/minimization showings | Government: affidavit (Fiorito) established fair probability target phone was used for drug crimes; necessity shown by inadequacy of other techniques; minimization adequate | Held: Probable cause and necessity upheld; minimization challenge rejected (no showing of unreasonable minimization failure) |
Key Cases Cited
- United States v. Glover, 736 F.3d 509 (D.C. Cir. 2013) (distinguishes "unlawfully intercepted" (core-concerns) inquiry from mechanical facial-sufficiency rule; suppression mandatory for facially insufficient orders)
- United States v. Chavez, 416 U.S. 562 (1974) (facial-sufficiency inquiry limited to four corners of the order)
- United States v. Giordano, 416 U.S. 505 (1974) (Title III pre-approval by high-level DOJ official is a critical check; explains statutory purposes)
- Scott v. United States, 436 U.S. 128 (1978) (standards for minimization review)
- Loughrin v. United States, 134 S. Ct. 2384 (2014) (statutory disjunctive interpretation—satisfaction of one paragraph doesn’t negate another)
- United States v. Eiland, 738 F.3d 338 (D.C. Cir. 2013) (standard of review for Title III suppression and discussion of affidavit reading as a whole)