United States v. Oliva
705 F.3d 390
9th Cir.2012Background
- Title III governs interception of wire, oral and electronic communications; Oliva appeals denial of suppression of evidence from surveillance orders.
- Investigations began January 2006; 30-day orders authorized monitoring 23 cells phones used by 10 people, including Oliva.
- February 2007 indictment; Oliva and Lopez convicted in 2009; appeal concerns pretrial suppression motion.
- Oliva contends orders improperly authorized roving intercepts and failed to meet §2518 specification requirements.
- District court found orders authorized standard intercepts, not roving bugs or roving taps; panel amendments anticipated by the court.
- Papers include petitions for rehearing en banc/panel rehearing; full court advised; final dispositions deny rehearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge interceptions | Oliva claims no standing; voices/premises not admitted | Oliva is an aggrieved person under 2518(10)(a) and 2510(11) | Oliva has standing to challenge interceptions |
| Standard vs roving intercepts | Orders authorized roving intercepts via ambiguous language | Orders targeted standard interceptions; no roving authorization | Orders valid as standard intercepts; not de facto roving taps |
| “Background conversations”/“off the hook” for cellular phones | Language could enable roving bugs; broad interpretation | Language plausibly limits to conversations while in use | Language not read to authorize roving bugs; no evidence of roving bugs used |
| “Any changed telephone number”/facilities description | Affidavits failed to describe facilities; roving taps implied | Orders sufficiently described facilities by ESN/IMSI; not roving taps | Orders satisfied §2518(l)(2)(ii) and (4)(b) as standard intercepts; no de facto roving taps |
Key Cases Cited
- United States v. Goodwin, 141 F.3d 394 (2d Cir. 1997) (identification of facilities by phone numbers/ESN acceptable for §2518)
- United States v. Duran, 189 F.3d 1071 (9th Cir. 1999) (authorization to intercept any number with specified ESN/IMSI satisfies preconditions)
- United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002) (roving intercepts appropriate to multiple booths/numbers)
- United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990) (language for cellular background conversations; off-hook terminology problematic for cell phones)
- In re Flanagan, 533 F.Supp. 957 (E.D.N.Y. 1982) (standing to suppress fruits limited to those intercepted)