705 F.3d 390
9th Cir.2012Background
- DEA investigated Oliva, Lopez and others for drug trafficking beginning in January 2006.
- Over ~10 months in 2006, government obtained multiple 30-day electronic surveillance orders covering 23 cellular phones used by 10 people.
- February 2007 indictments followed; Oliva and Lopez were convicted in 2009 after trial.
- Oliva moved to suppress evidence from the surveillance orders in district court; Lopez joined the motion.
- Oliva argued orders authorized roving bugs and failed to meet statutory specification requirements; government contended they did not authorize roving intercepts.
- District court denied suppression; Ninth Circuit analyzed standing and sufficiency de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge interceptions | Oliva argues no standing absent admission of voices or premises ownership. | Oliva contends as subject of surveillance he has standing. | Oliva has standing; named as subject of surveillance. |
| Whether orders authorized roving intercepts | Oliva asserts orders, read with cellular tech, allowed roving bugs/wiretaps. | Government argues orders targeted standard intercepts; roving authority not requested. | Orders did not authorize roving intercepts; standard interpretation upheld. |
| Sufficiency of the specification under § 2518(1)(b)(ii) and (4)(b) | Oliva contends orders failed to specify facilities for interception. | Government contends orders identified facilities via ESN/IMSI and were sufficient. | Orders satisfied specification requirements; standard intercepts valid. |
| Applicability of background-conversation language to cellular phones | Language could allow conversion of phones into roving bugs. | Language was ambiguous but likely referred to in-use conversations; no roving evidence shown. | Ambiguity did not render evidence suppression necessary; no showing that roving interception occurred. |
| Effect of 'any changed telephone number' language | Language could broaden intercepts to roving scope. | Affidavits identified facilities by ESN/IMSI; analogous to prior Goodwin, Duran interpretations. | Specifically authorized standard intercepts; not de facto roving taps. |
Key Cases Cited
- United States v. Goodwin, 141 F.3d 394 (2d Cir. 1997) (identified facilities by phone numbers and ESN; met §2518 requirements)
- United States v. Duran, 189 F.3d 1071 (9th Cir. 1999) (authorization to intercept any changed number with specified ESN/IMSI valid)
- United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990) (landline context; off-hook concept origins)
- United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002) (roving wiretaps and use against individuals using multiple telephones)
- United States v. Jones, 132 S. Ct. 945 (2012) (Fourth Amendment and technology considerations)
- United States v. Tomero, 462 F. Supp. 2d 565 (S.D.N.Y. 2006) (roving bug concept in district court context)
- Feola, 651 F. Supp. 1068 (S.D.N.Y. 1987) (background conversations and intercepts under landline logic)
- United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990) (off-hook concept in landlines (duplicate entry to maintain citation set))