UNITED STATES of America, Plaintiff-Appellee, v. Jorge Ortiz OLIVA, aka Jorge Cortez Almonte, aka Jorge Meras Barajas, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Pablo Barajas Lopez, Defendant-Appellant.
Nos. 10-30126, 10-30134
United States Court of Appeals, Ninth Circuit
July 20, 2012
Argued and Submitted Nov. 18, 2011.*
686 F.3d 1106
Marc Friedman, Eugene, OR, for appellant Pablo Barajas Lopez.
Dwight C. Holton, United States Attorney, Kathleen Bickers (argued), Assistant U.S. Attorney, Portland, OR, for the appellee.
Before: RAYMOND C. FISHER, RICHARD A. PAEZ and RICHARD R. CLIFTON, Circuit Judges.
OPINION
FISHER, Circuit Judge:
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended,
BACKGROUND
In January 2006, the Drug Enforcement Agency began investigating a drug trafficking conspiracy involving numerous participants, including Oliva and Lopez. In August 2006, and over the course of the next 10 months, the government obtained a series of 30-day electronic surveillance orders that authorized the monitoring of 23 cellular phones used by 10 persons, nine of whom, including Oliva and Lopez, ultimately became defendants in the underlying criminal proceeding.
In February 2007, the government indicted Oliva, Lopez and multiple alleged co-conspirators for their participation in a drug trafficking conspiracy involving the distribution of methamphetamine, cocaine and marijuana. A jury convicted Oliva and Lopez of all drug counts in October 2009. They have raised various issues on appeal, but here we deal only with Oliva‘s appeal of the district court‘s denial of his pretrial motion to suppress evidence obtained from the surveillance orders.3
Specifically, Oliva argues that the surveillance orders improperly authorized roving intercepts and failed to meet the statutory specification requirements, and were thus facially invalid. He raises questions about interception of communications over cellular phones, whose technology differs from conventional land line phones.
DISCUSSION
I. Standing
As a preliminary matter, we reject the government‘s contention that Oliva lacks standing to challenge the interceptions because he has neither admitted that the voices in the conversations intercepted were his nor asserted that any of the intercepts took place on his premises. We review a defendant‘s standing under
Under federal law, any “aggrieved person” has standing to bring a motion to suppress the contents of intercepted wire or oral communications or evidence derived therefrom.
Oliva was one of the individuals against whom the interceptions were directed. The affidavits in support of the surveillance orders included descriptions of Oliva as a suspect and investigators’ statements certifying their beliefs that he was using the individual cellular phones at issue. Oliva was specifically named as a “subject” of the investigation, and his conversations were the target of the surveillance. We therefore hold that Oliva has standing.
II. Sufficiency of the Electronic Surveillance Orders
We turn to the language of the surveillance orders at issue. As we shall explain, we agree with Oliva that certain terminology in the orders is problematical in the context of cellular phones. Nonetheless, we disagree that the orders must be construed as having authorized improper roving bugs, requiring suppression of the intercepted evidence. We also reject Oliva‘s argument that the orders were facially invalid for failure to meet the statutory specification requirements.
A. Standard and Roving Intercepts
Federally authorized interception of wire, oral and electronic communications is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Title III “ties wiretap authority to specific communications facilities or locations.” United States v. Hermanek, 289 F.3d 1076, 1086 (9th Cir. 2002). To obtain authorization for what is commonly known as a “standard” intercept, the statute requires the government to include in its application, as relevant here, “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.”
When the government cannot meet the specification requirements of
The first type is a “roving bug,” used to intercept oral communications. See
The second type is a “roving wiretap,” used to intercept wire communications. See
B. Nature of the Orders Here
Beginning in August 2006, the government sought and obtained a number of orders permitting surveillance of cellular phones associated with Oliva, Lopez and other subjects of the government‘s investigation. Each order authorized the government to intercept “wire communications” to and from certain target phones and phone numbers. Oliva argues that language in each order actually gave the government broader authority, transforming the orders from standard intercepts into authorizations for roving bugs or roving wiretaps.
First, the orders authorized interception of “background conversations intercepted in the vicinity of Target Phones 1 and 2 while the telephone is off the hook or otherwise in use.”6 According to Oliva, this language authorized roving bugs. Second, the orders authorized interception not only of the target phone numbers but also of “any changed telephone number or
Oliva moved in the district court to suppress evidence obtained pursuant to the orders, contending that each warrant on its face was invalid because the government had failed to comply with the enhanced requirements for roving intercepts under
The district court rejected Oliva‘s challenge, finding that the orders did not authorize “roving bug[s] within the meaning of the statute” or “roving wiretap[s],” and denied the motion to suppress. We review de novo the denial of a motion to suppress. See United States v. Lynch, 367 F.3d 1148, 1159 (9th Cir. 2004). We review the court‘s underlying findings for clear error. See United States v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008).
1. Authorization to Intercept “Background Conversations” While the Telephone is “Off the Hook or Otherwise in Use”
The surveillance orders authorized the government to tap “background conversations intercepted in the vicinity of [a target phone number] while the telephone is off the hook or otherwise in use.”7 Oliva asserts that this language, as applied to cellular phones, authorized the government to intercept “background communications when the cell phones were powered on but not actively engaged in a call.” He contends such authority allowed the government to employ advanced technology to convert the targeted cellular phones into general listening devices, picking up any conversations within the range of the phone even when it was not actively in use during a telephone conversation. According to Oliva, by authorizing such technology each order permitted use of a roving bug.
Oliva‘s argument rests on his claim that law enforcement authorities have the technology to transform cellular phones into listening devices—i.e., roving bugs—that record ambient conversations even when the user thinks the phone is “off.” Whether, and to what extent, this technology exists is not clear. In the district court, Oliva produced a December 1, 2006 article from CNET News entitled, “FBI taps cell phone mic as eavesdropping tool.” The article reports that “[t]he FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone‘s microphone and using it to eavesdrop on nearby conversations.” According to the article, the technique, described as a roving bug, “came to light” in Tomero, 462 F.Supp.2d 565, a 2006 case from the Southern District of New York. Tomero referred to the “installation of a listening device in [a] cellular telephone. The device functioned whether the phone was powered on or off, intercepting conversations within its range wherever it hap-
The language of the orders is susceptible to Oliva‘s interpretation. The terminology—“background conversations intercepted in the vicinity of [a target phone number] while the telephone is off the hook or otherwise in use“—could encompass the use of the alleged technology described by Oliva. But the government‘s interpretation, accepted by the district court, is equally if not more plausible: the intent was to authorize interception of background conversations overheard while the cellular phones were actually being used to communicate. The government represented and the district accepted that no evidence was detected or offered that came from “background conversations from cellular telephones that were powered on, but not connected to ... a live call.”
The terminology “off the hook” is problematical, however, when applied to cell phones, the term having been borrowed from orders concerning land lines, for which the concept has meaning because land line phones typically have hooks, referred to as switch hooks.8 “The hook switch is used to connect or disconnect the receiver and transmitter from the line.” Cyril M. Jansky & Daniel C. Faber, Principles of the Telephone 5 (1916). When the receiver is “on the hook,” its weight pulls the switch down and holds the receiver circuit open, leaving the line free for signaling purposes. Id. at 72. When the receiver is “off the hook,” the switch hook raises and closes the receiver circuit to incoming calls, so that the line can be used for communication. Id. Judicial decisions talking about telephones being off the hook have involved traditional land line technology, referring to the situation in which a receiver is off the hook and a telephone call is not necessarily in progress. See, e.g., United States v. Baranek, 903 F.2d 1068, 1069 (6th Cir. 1990) (concerning a conversation recorded by agents after the phone line “stayed open” because the defendant had “neglected to replace the telephone properly“); United States v. Willoughby, 860 F.2d 15, 18 (2d Cir. 1988) (concerning a conversation that was “automatically recorded” because it “took place while [the defendant] was holding the ... telephone‘s handset off the hook“); United States v. Blanco, No. 93-CV-20042, 1994 WL 695396, at *8 (N.D.Cal. Dec. 8, 1994) (upholding an order authorizing law enforcement to intercept from a land line “background conversations ... in the vicinity of the target telephone while the
The “off the hook” language, however, lacks meaning when applied to cellular phones. Terminating a call on a cellular phone does not turn the phone completely off. To do so requires a separate and more deliberate step that the user may not appreciate is necessary, and may leave the cellular phone open to electronic eavesdropping quite different from what can occur with accidentally failing to hang up a land line phone. Unlike a relatively stationary land line phone, a cellular phone whose microphone remains on even though the call is terminated becomes a truly “roving bug.” If that is what the government‘s application for a warrant actually seeks, it cannot do so using arcane, outmoded terminology like “off the hook.”
Title III makes clear that the government cannot obtain—nor may courts approve—electronic surveillance orders by using ambiguous terminology that can be misconstrued to authorize interception of communications beyond what is intended. Before the government can employ technologies that can eavesdrop on background conversations even if the cell phone is “off“—essentially converting the phone to a bugging device—it would have to comply with the statutory requirements for such intrusive surveillance. That means specifically requesting such authority, the court scrutinizing the need for it and the order authorizing the surveillance in clear and unambiguous terms with respect to the use of the technology permitted and its boundaries. See
In this case, notwithstanding the opportunity for abuse that the orders’ ambiguous language may have afforded the government, the government disavowed that it intended to or did obtain evidence that came from other than direct or background conversations while the cellular phones were being used for conversations. There is no showing that the district court clearly erred in accepting those representations. We therefore decline to adopt Oliva‘s broader reading of the disputed language as having authorized the government to utilize unlawful roving bugs. Even if the language might be construed as having done so, there is no showing the evidence Oliva seeks to suppress resulted from such surveillance.
As noted earlier, under Title III, the district court may authorize a standard intercept of communications over a land line or cellular telephone only if the government‘s application includes “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.”
Oliva argues that these specification requirements were not satisfied here. Pursuant to the government‘s requests, the orders authorized interception not only of named target phone numbers, but also of “any changed telephone number or any other telephone number subsequently assigned to or used by the instrument bearing the same ESN and/or IMSI as the Target Phones 1 and 2 within the thirty (30) day period.” Oliva maintains that these affidavits and orders did not specify the “facilities,” and thus did not authorize valid standard wire intercepts. From this premise, Oliva again argues that the orders constituted roving intercepts—specifically, roving wiretaps. The government concedes its applications did not meet the requirements for roving wiretaps, but disputes that is what it sought or the court approved.
We do not accept Oliva‘s fundamental premise. The orders met the specification requirements and authorized valid standard wire intercepts. The Second Circuit addressed a comparable situation in Goodwin, 141 F.3d 394. There, the government‘s surveillance applications specified the telephone numbers and ESNs of certain target cellular phones. See id. at 397. The defendant argued that the resulting orders authorized roving wiretaps because “a cellular phone has no fixed location, and that it therefore would be impossible for the government or the district court to specify the facility from which or the place where the communication was to be intercepted.” Id. at 403. The court rejected this argument, explaining:
The government‘s affidavits in support of its application clearly identified the facilities to be tapped by their telephone numbers and by their electronic serial numbers. The requirements of
18 U.S.C. §§ 2518(1)(b)(ii) and2518(4)(b) were therefore satisfied, and authorization by a Deputy Assistant Attorney General was sufficient. In sum, [the defendant‘s] argument—that because one may rove about with a cellular telephone interception of a cellular telephone is necessarily a “roving wiretap“—does not comport with the terms or purposes of the wiretap statute.
Oliva would distinguish Goodwin because the applications there appear to have been limited to a phone with a particular phone number and a particular ESN, whereas the surveillance affidavits and orders here extended to any phone number, so long as the phone used an ESN or IMSI specified in the orders. This distinction is immaterial. See United States v. Duran, 189 F.3d 1071 (9th Cir. 1999). As in this case, the surveillance orders in Duran authorized interception of any
AFFIRMED.