UNITED STATES OF AMERICA v. MARIO DEMITRIC STOWERS; UNITED STATES OF AMERICA v. CARLOS SANCHEZ; UNITED STATES OF AMERICA v. THURSTON CHADRICK MARTIN, а.k.a. Thurston Chadwick Martin; UNITED STATES OF AMERICA v. LEONARDO STEEPLES; UNITED STATES OF AMERICA v. HORACE MAYFIELD; UNITED STATES OF AMERICA v. GUSTAVO MELENDEZ; UNITED STATES OF AMERICA v. STEPHENS EDWIN IVESTER; UNITED STATES OF AMERICA v. MARVIN JUNIOR TEASLEY; UNITED STATES OF AMERICA v. NATHAN ANTONIO HOWARD
No. 18-12569, 18-15289, 18-14958, 18-14967, 19-10703, 19-10704, 19-10804, 19-10805, 19-12657, 19-13566
United States Court of Appeals For the Eleventh Circuit
April 20, 2022
[PUBLISH]
Appeals from the United States District Court for the Northern District of Georgia
D.C. Docket No. 2:16-cr-00010-RWS-JCF-8
D.C. Docket No. 2:16-cr-00010-RWS-JCF-5
D.C. Docket No. 2:16-cr-00009-RWS-JCF-6
D.C. Docket No. 2:16-cr-00009-RWS-JCF-5
D.C. Docket Nos. 2:16-cr-00009-RWS-JCF-1, 2:16-cr-00010-RWS-JCF-1
D.C. Docket Nos. 2:16-cr-00010-RWS-JCF-1, 2:16-cr-00009-RWS-JCF-1
D.C. Docket No. 2:16-cr-00010-RWS-JCF-4
D.C. Docket No. 2:16-cr-00009-RWS-JCF-3
D.C. Docket No. 2:16-cr-00009-RWS-JCF-9
D.C. Docket No. 2:16-cr-00009-RWS-JCF-2
Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.
These consolidated appeals require us to answer several questions of first impression about Title III of the Omnibus Crime Control and Safe Streets Act, “which regulates the interception of wire, oral, and electronic communications.” United States v. Ojeda Rios, 495 U.S. 257, 259 (1990) (citing
The defendants make three arguments that the district court should have suppressed this evidence. First, they argue that the state judge did not correctly seal the wiretap recordings as required under Title III. Second, they argue that the government impermissibly delayed sealing the wiretap recordings without providing a satisfactory explanation for that delay. And third, they argue that the state court‘s wiretap authorization order exceeded its jurisdiction. The government responds that the recordings were validly sealed, that it has satisfactorily explained its delay in sealing, and that the state court did not exceed its jurisdiction. We agree with the government and affirm.
I. BACKGROUND
A. Factual Background
Georgia Bureau of Investigation Agent Clay Bridges led a state investigation into suspected drug crimes. Before applying for a state wiretap, Agent Bridges met with an assistant United States attorney to discuss the investigation becoming a federal case. But at that point, the federal government declined involvement, so Agent Bridges and the district attorney sought state wiretap authorization. Agent Bridges had worked on several wiretap investigations during his twenty-five years of law enforcement, but he had never been the affiant or prepared the application.
Because this was his first time preparing the application, Agent Bridges reviewed the state wiretap law and sought guidance from his superiors, asking for “all the documentation” that they had on obtaining a wiretap. His superiors talked to him about obtaining a wiretap and sent him various materials. The materials included, most importantly, several “go-bys“—or applications, affidavits, and orders from past cases that judges and attorneys had approved and that officers had successfully used. At least some of those “go-by” orders allowed for the recordings to be returned and sealed ten days after the wiretap terminated.
Agent Bridges discussed the language of the “go-bys” with his superior and then used that language to draft the application, affidavit, and order for the first wiretap. His draft order authorized interception for thirty days and required that the recordings be returned within forty days of the order. He sent the drafts to the district attorney, who edited them. Then, together, they presented the application, affidavit, and order to the judge. The judge scrutinized the filings and asked Agent Bridges to change the language in the order to clarify that the recordings had to be returned within ten days of the last interception, not just within forty days of the order. Agent Bridges made that change, and the judge signed the order with the language: “Let return hereof and report as
That same process happened four more times—three times for additional wiretaps and once to extend the first wiretap. Each time, Agent Bridges prepared the application, affidavit, and order. Each time, the district attorney edited them. And each time, the judge reviewed them and signed the order. All of the orders contained the ten-day-to-return language, and all of the orders were labeled “UNDER SEAL.” Each also stated that the communications would be intercepted at “a designated law enforcement listening post” and that “based on the fact [that the target] is likely to travel out оf Georgia during the course of this investigation, the State is authorized to continue to monitor and electronically intercept transmissions to and from the target telephone during any out of state travels.”
Based on the language in those five orders plus the examples that he had reviewed, Agent Bridges believed that he would have ten days from the last interception to return the recordings and that they would be sealed when returned. Agent Bridges and other Georgia law enforcement officers set up a listening post in Georgia to monitor the calls in real time, and the calls were recorded and stored in a separate, secure building to which Agent Bridges and the others did not have access. Indeed, to gain access to the building, a person had to display law enforcement identification and then be admitted by an employee with a “prox” card. To get into the server room where the original recordings were storеd, a person would have to pass through three prox-card doors. Only three employees had access to the server room; no one could be in the server room without one of those three employees present. And after entering the room, to access the recordings, a person would need a system account, username, and password, and a separate username and password for the program where the original recordings were stored. Only the three employees with access to the room had usernames; none of them were Agent Bridges or the other officers working on the wiretaps in this case.
About a month-and-a-half after starting interceptions, the agents executed fifteen to twenty search warrants and approximately thirty state arrest warrants. Among those arrested were the two defendants who owned the four targeted phones. Shortly after those defendants werе arrested, the agents terminated all four wiretaps.
Agent Bridges planned to return the recordings for sealing “once [they] had developed discovery copies, once [they] had perfected the transcripts of certain calls, [and] once [they] had perfected the synopses of certain calls and reviewed them.” To get the work done within ten days, Agent Bridges and a state sergeant assigned to the task force worked fourteen-hour days and weekends. At one point, they called in extra agents because they were “falling behind.” Both the sergeant and an FBI agent who helped with the perfection understood from the judge‘s order that they had ten days (and only ten days) to return the original recordings. The sergeant even described ten days as “standard.”
They finished with the wiretaps about eight days after the last interception. During those eight days, none of those agents
The sergeant delivered the recordings to Agent Bridges that same day. Agent Bridges signed the evidence receipt, put the recordings in a tamper-proof evidence bag, and placed the bag in a locked evidence vault in his state-issued Suburban. Agent Bridges then informed the district attorney that he had received the recоrdings and scheduled a meeting with the judge for the next day. The recordings stayed locked in the Suburban‘s vault that night. The back of the Suburban had a cage around it. The vault was in that cage. It had two drawers, each with a combination lock. And the Suburban had an alarm, which did not go off that night.
The following day, Agent Bridges, the district attorney, and an assistant district attorney met with the judge, and Agent Bridges “presented [the recordings] to [the judge], explained that they were the original audio recordings from the wire, . . . explained to him that they must remain under seal; that they couldn‘t come back out of seal, . . . told [the judge] that [Agent Bridges] would be sealing them in . . . a tamper-proof evidence bag and requested that [the judge] initial the bag itself.” Next, Agent Bridges sealed the recordings in the tamper-proof evidence bag in front of the judge, and both of them initialed the seal. The judge then instructed Agent Bridges to take the evidence bag to the clerks’ office where it would remain in the clerk оf court‘s custody under seal.
During that same meeting, the judge also signed the returns, which Agent Bridges had prepared and which the district attorney had reviewed and edited. Those returns verified that the recordings were each “preserved on one (1) unedited DVD-RAM” and were “delivered in the custody of [the] Court.” During the suppression proceedings, the judge testified that once he had initialed the physical seal, he understood that the wiretap recordings were sealed and “that the public would not have access at least to the original recordings.”
After sealing the recordings, Agent Bridges immediately took the evidence bag to the clerk‘s office. Agent Bridges told the clerk of court that the bag contained the original recordings and that “under the original order to seal the evidence,” they were not to be unsealed. The clerk took custody of the recordings, signed the evidence receipt, and wrote in the “purpose of сhange of custody” column: “Sealed in Stephens County Clerk of Court.” At the suppression hearing, the clerk testified that the tamper-proof evidence bag holding the recordings “ha[d] stayed with [him] the entire time because [it] ha[d] not been unsealed.” Additionally, both he and the judge testified that the evidence bag “ha[d] never been opened” after being sealed. The clerk explained that “when you open these, you can tell they have been opened and you can see [this seal] has never been broken.”
B. Procedural Background
Each defendant was charged with conspiring to traffic cocaine, methamphetamine, or both. Because the wiretap evidence
The magistrate judge‘s order reasoned that
It found those beliefs reasonable because Agent Bridges had relied on the judge‘s orders, which the district attorney had reviewed, and on previous orders that other judges and attorneys had approved and which other officers had successfully used. It also found that the previous “go-bys” that Agent Bridges had reviewed included the ten-day language and that Agent Bridges had talked to his supervisors and the prosecutor about preparing the application. Further, it found that the delay was not lengthy, that there was no evidence of bad faith or tactical advantage, and that the recordings had not been altered. Finally, it held that the state court did not exceed its jurisdiction in authorizing the wiretaps because the calls were intercepted at a listening post in Georgia.
The district court adopted the R&R as the opinion of the court and made a few additions. The district court reasserted the magistrate judge‘s holding that the “receipt and sealing of the recordings was not defective.” And it found that no one had accessed the recordings since they had been sealed. In fact, the district court found that the recordings were still with “the Clerk in a sealed bag with an unbroken seal.” The district court concluded that suppression was not warranted here because an agent could “reasonably rely upon” a judge‘s signed order.
The defendants then conditionally pleaded guilty, waiving their right to appeal matters other than the denial of the motion to suppress the wiretap evidence. The defendants timely appealed, and the appeals were consolidated. The defendants filed multiple briefs raising a variety of arguments. Although we generally “limit each defendant‘s appeal to the issues raised in his brief,” United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980), we proceed in this case as if all the defendants have raised all the arguments raised in any brief. See United States v. McGarity, 669 F.3d 1218, 1238 n.23 (11th Cir. 2012) (citing United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980)); United States v. Gari, 572 F.3d 1352, 1361 (11th Cir. 2009); United States v. Rivera Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir. 1988)).
II. STANDARD OF REVIEW
A district court‘s ruling on “a motion to suppress evidence is reviewed as a mixed question of law and fact, with the
III. DISCUSSION
Title III of the Omnibus Crime Control and Safe Streets Act “regulates the interception of wire, oral, and electronic communications.” United States v. Ojeda Rios, 495 U.S. 257, 259 (1990). Generally, evidence gathered from interceptions that violate this statute must be suppressed.
A. Sealing Order
Title III,
The state judge properly sealed the wiretap recordings. Agent Bridges and the district attorney took the four original recordings to the judge in a tamper-proof evidence bag, Agent Bridges placed a seal on the tamper-proof evidence bag in front of the judge, and both the judge and Agent Bridges initialed the bag. The judge directed Agent Bridges to place the sealed recordings in the custody of the clerk, and
The defendants assert without any support that “the recordings were later accessed” and that “[t]he district attorney was actually the one to physically ‘unseal’ the recordings.” But the district court dismissed those accusations based on the evidence
introduced at the suppression hearing. It found that “the recordings were retained by the Clerk in a sealed bag with an unbroken sеal” so they were not altered after being sealed. And the record supports that finding. The clerk testified that since the day it was sealed, the tamper-proof evidence bag holding the recordings “ha[d] stayed with [him] the entire time” and had “not been unsealed” or accessed by anyone. If that left any doubt, he further explained that “when you open these, you can tell they have been opened and you can see [this seal] has never been broken.” Indeed, both he and the sealing judge testified that the bag that had been physically sealed under the judge‘s directions “ha[d] never been opened.”
That is enough to satisfy
B. Satisfactory Explanation
Not only does
Here, one could argue that the recordings were sealed immediately. The statute puts judicial officers—not law enforcement—in charge of sealing wiretap recordings, which necessarily gives authorizing judges some control over the deadline for sealing. See
Nonetheless, the parties litigated the immediacy issue based on the assumption that these recordings were not returned “immediately.” So we, too, will assume that the recordings were returned late. The statute states that a delay in sealing should be excused if the government provides a “satisfactory explanation” for the delay. Ojeda Rios, 495 U.S. at 262-63;
The government gave three related reasons for the delay. One, the government followed the judge‘s order, which established a ten-day return period. Two, the government independently thought that ten days was the correct period because previous judge-approved orders had included the ten-day period. Three, the government thought that it had to finish making all the transcripts and copies of the recordings before returning the originals.
To evaluate whether an explanation is “satisfactory” and whether a delay is “excusable,” we first assess two threshold requirements that are necessary, but not sufficient, to establish that an explanation is satisfactory. One, we must assess whether “the integrity of the recording[s] was preserved,” United States v. Suarez, 906 F.2d 977, 982 (4th Cir. 1990), meaning that there was no tampering during the period of delay. See United States v. Rodrigues, 850 F.3d 1, 11 (1st Cir. 2017); United States v. Maldonado-Rivera, 922 F.2d 934, 950 (2d Cir. 1990); United States v. Bansal, 663 F.3d 634, 653 (3d Cir. 2011); United States v. Wilkinson, 53 F.3d 757, 760 (6th Cir. 1995); Coney, 407 F.3d at 875; United States v. Cline, 349 F.3d 1276, 1284 (10th Cir. 2003). And two, we decide whether the government has acted in good faith. See Rodrigues, 850 F.3d at 11; Bansal, 663 F.3d at 653; Cline, 349 F.3d at 1284. That means that its proffered reasons must be its actual reasons, Bansal, 663 F.3d at 652; Coney, 407 F.3d at 875, and it must have relied on them at the suppression hearing. Ojeda Rios, 495 U.S. at 267 (“[T]hat explanation is not ‘satisfactory’ within the meaning of the statute unless it was relied on at the suppression hearing to explain the sealing delays.“). It also means that any delay-causing mistake must have been an honest one. See Suarez, 906 F.2d at 982; Coney, 407 F.3d at 875.
Here, neither of the two threshold requirements are seriously disputed.
First, there is no reasonable argument that the tapes were tampered with before
To raise an inference of potential tampering, the defendants assert that the “government had unilateral control over the five sealed envelopes at the Clerk‘s office which were later opened upon direction from the District Attorney,” and that “the discs were kept in Agent Bridges’ car while it was parked outside of his house.” But the first assertion—besides being false (as explained above)—is irrelevant. Even if there were, as the defendants argue, the “opportunit[y] for tampering” after the recordings were sealed and in the clerk‘s control, that says nothing about the integrity of the recordings during the alleged delay. As for the second assertion, it is factually true, but legally insufficient. After receiving the recordings from the secure servers, Agent Bridges put them in a tamper-proof evidence bag and stored the bag in a locked evidence vault in the back of his state-issued Suburban until he could meet with the judge to seal them the following day. Nothing suggests that the recordings were touched after being placed in the vault. The district court found that the tapes were not altered and that finding is amply supported by the record.
Second, the district court found that the government‘s actions were not in bad faith. Specifically, the district court found that the government‘s proffered reasons for the sealing delay were “the actual reasons for the delay, i.e., [Agent Bridges] believed and relied on the reasons he testified to at the hearing.” It further found that the delay resulted from Agent Bridges‘s “good faith mistaken belief” that he had ten days to return the recordings for sealing. In other words, it found that any delay-causing mistake was an honest one. Cf., e.g., Suarez, 906 F.2d at 982 (considering “whether deliberate or gross dereliction of duty or honest mistake cause the failure to file“). The defendants agree that the district court found Agent Bridges‘s belief “credible and reasonable.” Nothing in the record contradicts that finding, and we find no reason to question it.
Because the government has met the two threshold requirements, we weigh three additional factors to determine whether the government‘s explanation is satisfactory. We look to: (1) the length of the delay, see Rodrigues, 850 F.3d at 11; United States v. Suarez, 906 F.2d 977, 982 (4th Cir. 1990); United States v. Coney, 407 F.3d 871, 875 (7th Cir. 2005); (2) whether the delay gave the government a tactical advantage or prejudiced the defendant, see Rodrigues, 850 F.3d at 11; Maldonado-Rivera, 922 F.2d at 950; Suarez, 906 F.2d at 982; Wilkinson, 53 F.3d at 760; Cline, 349 F.3d at 1284; and (3) whether the government‘s explanation is objectively reasonable under the circumstances. See Ojeda Rios, 495 U.S. at 266-67. No one factor is dispositive; instead, they must be considered as a composite. And they may overlap. For instance, the longer the delay, the greater the chance of prejudice and the more likely that an explanation is not objectively reasonable. Indeed, there is “no stock formula by which
As to the first factor, the district court correctly found that the delay was not lengthy. Because some defendants count the weekend as part of the relevant gap and others do not, they contend that either seven or nine days passed between when the order expired and when the recordings were sealed. So, after subtracting the two-day safe harbor, the delay was either seven or five days. Even assuming the longer seven-day period, that delay is brief. By way of comparison, in Ojeda Rios the Supreme Court concluded that a misunderstanding of law could excuse a delay of 118 days. 495 U.S. at 262, 267.
Turning to the second factor, the district court found that the delay did not give the government a tactical advantage. We agree. No evidence in the record suggests, nor do the defendants argue, that the government gained any tactical advantage or that the defendants were prejudiced in any way.
The only factor in any real contention is the third factor: whether the government‘s reasons for delaying were objectively reasonable. The defendants argue that the state law enforcement officers should have conducted legal research to determine the appropriate period for sealing. And, having done that legal research, the defendants contend that the officers would have discovered our two-day safe harbor and known that the ten-day period in the order was incorrect, making the government‘s reason for delaying unreasonable. We disagree. We hold instead that it was objectively reasonable for the officers to rely on the ten-day period in the authorizing court‘s order.
In all but the most unusual circumstances, it is objectively reasonable for a law enforcement officer to rely on a court order. As the Supreme Court has explained in the search-warrant context, suppression is not warranted “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” United States v. Leon, 468 U.S. 897, 920-21 (1984). That is because, “[i]n the ordinary case, an officer cannot be expected to question” the court‘s “judgment that the form of the warrant is technically sufficient.” Id. at 921. And suppressing evidence that officers obtained in compliance with a court order “cannot logically contribute to . . . deterrence” of officer overreach. Id. at 921. This reasoning “applies to wiretap applications and authorizations.” United States v. Hawkins, 934 F.3d 1251, 1259 (11th Cir. 2019). So “[w]hen law enforcement officers act in good faith and in reasonable reliance upon a judge‘s [wiretap] order, exclusion is not warrаnted.” United States v. Goldstein, 989 F.3d 1178, 1196 (11th Cir. 2021); see Bansal, 663 F.3d at 652 (“Understandable mistakes of law” are objectively reasonable explanations.).
Indeed, the whole point of Title III‘s sealing requirement is that the records be sealed under the authority of a neutral and detached third party—namely, the court—and not by law enforcement. See United States v. Mendoza, 574 F.2d 1373, 1377 (5th Cir. 1978). The judgment of a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer,” no matter how much independent
Several of our sister circuits agree. For example, in United States v. Maxwell, an authorizing judge set the sealing date for seven days after the wiretap authorization terminated. 25 F.3d 1389, 1394 (8th Cir. 1994). The recordings were sealed on that date, and the Eighth Circuit affirmed the district court‘s refusal to suppress the recordings. Id. It explainеd that following a judge‘s schedule is a “satisfactory explanation[] for slight delays in presenting wiretap recordings for sealing.” Id.; see also United States v. Pedroni, 958 F.2d 262, 266 (9th Cir. 1992) (holding that the unavailability of the issuing judge is a satisfactory explanation for a delay); United States v. Ardito, 782 F.2d 358, 362-63 (2d Cir. 1986) (holding that an intervening holiday coupled with the unavailability of the judge excused a brief delay); cf. Wilkinson, 53 F.3d at 760 (affirming that a “good faith misunderstanding of the law” is a satisfactory explanation for a delay); Maldonado-Rivera, 922 F.2d at 951-52 (holding that a mistaken view of Title III‘s requirements was a satisfactory explanation for delay because the mistaken belief was “genuine” and “credible“).
It would have been less reasonable for the officers to rely on the state court‘s order if the state court judge had “wholly abandoned his judicial role” in authorizing the return within ten days or if the order was “so facially deficient” that an officer could not “reasonably presume it to be valid.” Leon, 468 U.S. at 923. But neither exception applies here.
As to the first exception, the judge did not abandon his judicial role. He scrutinized the draft orders, changed them, and specifically told Agent Bridges to add the ten-day language to the orders before signing them. The process was firmly under the judge‘s control.
We also cannot say that the authorizing order‘s ten-day period was “so facially deficient” that the agents could not “reasonably presume it to be valid.” Id. For one, ten days is the typical period for search warrants. See United States v. Gerber, 994 F.2d 1556, 1559-60 (11th Cir. 1993) (citing
First, that statement is factually incorrect, at least in part. Although Agent Bridges did not read the federal statute because he “was intending on taking it to a superior court judge on the state side,” he did review the Georgia wiretap statute, as well as the “go-bys,” which had the ten-day language. Agent Bridges also met and consulted with an assistant United States attоrney before applying for the state wiretap. When preparing the application, he “dis-cuss[ed] it with prosecutors, as well as [his] supervisors.” In fact, the district attorney reviewed and edited all of Agent Bridges‘s applications and orders. The district court expressly found that the state prosecutor worked with and reviewed Agent Bridges‘s work and that his superior agents provided advice and materials for this wiretap application specifically. See Carson, 969 F.2d at 1494-95 (opining that a person cannot be faulted for following instructions from the person in charge of the case or investigation” and that relying on a supervisor‘s opinion could make actions objectively reasonable); cf. United States v. Maldonado-Rivera, 922 F.2d 934, 951-52 (2d Cir. 1990) (affirming the district court‘s holding that reliance on a co-worker‘s instructions about the sealing requirement, which was a mistake of law, was a satisfactory explanation).
Second, as we have already explained, law enforcement agents do not act unreasonably when they decline to doublecheck a judge‘s wiretap order with their own independent legal research. Title III puts the court in charge of the process, not law enforcement. Here, because the court controlled the process and the ten-day deadline was not facially deficient, we conclude that the agents reasonably complied with that deadline.
Considering the absence of tampering, the government‘s good faith, the short delay, the lack of tactical advantage to the government or prejudice to the defendants, and the objective reasonableness of the agents’ actions, the government has provided a satisfactory explanation for any delay in sealing.
C. Jurisdictional Issue
Lastly, we turn to the jurisdictional issue. Under Title III, if a wiretap “unlawfully intercept[s]” a communication or “the order of authorization . . . under which [a communication] was intеrcepted is insufficient on its face,” the communication should be suppressed.
Although the defendants say that they are resting their jurisdictional argument only on state law, they also allude to federalism concerns and raise the specter of limitless state-court jurisdiction. But this problem—if it is a problem—“stems from the statutory language.” United States v. Cano-Flores, 796 F.3d 83, 88 (D.C. Cir. 2015). “Whatever boundlessness the theory may imply is due to the fact that phones used” outside of an authorizing court‘s territorial jurisdiction “can be tapped in a way that allows agents to first hear them” within the authorizing court‘s territorial jurisdiction. Id. That is why our sister circuits have held that Title III “permits [state] courts to authorize within-jurisdiction interceptions of conversations that took place wholly outside of [the state],” United States v. Jackson, 849 F.3d 540, 551-52 (3d Cir. 2017), or even wholly outside of the country, Cano-Flores, 796 F.3d at 87. The safeguard on the scope of state court‘s wiretap authority is the requirement that law enforcement establish probable cause for the intrusion, not a geographical limit on the phone calls that can be monitored. Under Georgia law and consistent with Title III, the state court here did not exceed its jurisdiction when it authorized the interception of calls made outside of the state but first heard at a listening post within the state.
IV. CONCLUSION
For the foregoing reasons, the district court is AFFIRMED. To the extent he challenges his sentence, Mayfield‘s appeal is DISMISSED based on the appeal waiver in his plea agreement.
JORDAN, J., Concurring
JORDAN, Circuit Judge, Concurring in Part and Concurring in the Judgment:
I join all of Judge Brasher‘s well-written opinion for the court except for Part III.B, which addresses whether the government presented a “satisfactory explanation” for the delay in sealing under
The government provided three reasons for the nine-day delay in presenting the recordings to the state judge for sealing. First, it followed the judge‘s order, which provided for a ten-day return period. Second, it believed that the 10-day period was correct because previous orders had contained that same period of time. Third, the government thought that it had to finish all of the transcripts and copies of the recordings before returning the originals to the judge for sealing.
One of our early wiretap decisions, United States v. Sklaroff, 506 F.2d 837, 840-41 (5th Cir. 1975), held that a 14-day delay in presenting the recordings to the judge who issued the interception order did not violate
The interception orders at issue here were sought by a state law enforcement officer and issued by a state judge pursuant to
In 1993, the Georgia Court of Appeals held that a three-week delay in presenting wiretap recordings to a judge for sealing violated
But as we (and other circuits) have explained, state courts are not bound by the decisions of the lower federal courts on issues of federal law. See, e.g., Pitts v. United States, 4 F.4th 1109, 1116 n.3 (11th Cir. 2021); Mass. Delivery Ass‘n v. Coakley, 671 F.3d 33, 47 (1st Cir. 2012); Magourik v. Phillips, 144 F.3d 348, 361 (5th Cir. 1998). So, the Georgia courts could have disagreed with our interpretation of the word “immediately” in
“In establishing a reasonable excuse for a sealing delay, the [g]overnment is not required to prove thаt a particular understanding of the law is correct but only that the interpretation was objectively reasonable at the time.” Ojeda Rios, 495 U.S. at 266. As noted, one of the reasons the government provided for the delay in sealing was its reliance on the 10-day return period in the interception orders issued by the state judge. That reason was, in my view, satisfactory under the “totality of the circumstances.” Anne T. McKenna & Clifford S. Fishman, Wiretapping and Eavesdropping § 19:19 (Dec. 2021 update). First, although the government‘s reliance on the order turned out to be misplaced, the absence of caselaw from the Georgia courts about what “immediately” meant under