February 21, 2018
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
federal law, a judge normally may issue a wiretap order
permitting the interception of communications only
"within the territorial jurisdiction of the court in
which the judge is sitting." 18 U.S.C. §2518(3).
Here, a judge for the District of Kansas authorized nine
wiretap Orders as part of a Government investigation of a
suspected drug distribution ring in Kansas. For the most
part, the Government intercepted communications from a
listening post within Kansas. But each Order also contained a
sentence purporting to authorize interception outside of
Kansas. Based on that authorization, the Government
intercepted additional communications from a listening post
in Missouri. Following the investigation, petitioners Los and
Roosevelt Dahda were indicted for participating in an illegal
drug distribution conspiracy. They moved to suppress the
evidence derived from all the wiretaps under subparagraph
(ii) of the wiretap statute's suppression provision
because the language authorizing interception beyond the
District Court's territorial jurisdiction rendered each
Order "insufficient on its face."
§2518(10)(a)(ii). The Government agreed not to introduce
any evidence arising from its Missouri listening post, and
the District Court denied the Dahdas' motion. On appeal,
the Tenth Circuit rejected the Dahdas'
facial-insufficiency argument on the ground that the
challenged language did not implicate Congress' core
statutory concerns in enacting the wiretap statute.
Because the Orders were not lacking any information that the
statute required them to include and would have been
sufficient absent the challenged language authorizing
interception outside the court's territorial
jurisdiction, the Orders were not facially insufficient. Pp.
(a) The Tenth Circuit applied the "core concerns"
test from United States v. Giordano, 416 U.S. 505,
and held that subparagraph (ii) applies only where the
insufficiency reflects an order's failure to satisfy the
"statutory requirements that directly and substantially
implement the congressional intention to limit the use
of" wiretapping, id., at 527. The court
identified two such core concerns and concluded that neither
applies to the statute's territorial limitation. But
Giordano involved a different suppression
provision-subparagraph (i)-which applies only when a
"communication was unlawfully intercepted."
§2518(10)(a)(i). The underlying point of
Giordano's limitation was to help distinguish
subparagraph (i) of §2518(10)(a) from subparagraphs (ii)
and (iii). It makes little sense to extend the "core
concerns" test to subparagraph (ii) as well.
Subparagraph (ii) therefore does not include a
Giordano-like "core concerns" requirement.
(b) That said, this Court also cannot fully endorse the
Dahdas' interpretation of the statute. The Dahdas read
subparagraph (ii) as applying to any legal defect that
appears within the four corners of an order. Clearly,
subparagraph (ii) covers at least an order's failure to
include information required by §§2518(4)(a)-(e).
But that does not mean that every defect that may conceivably
appear in an order results in an insufficiency. Here, the
sentence authorizing interception outside Kansas is surplus.
Its presence is not connected to any other relevant part of
the Orders. Absent the challenged language, every wiretap
that produced evidence introduced at the Dahdas' trial
was properly authorized under the statute. While the Orders
do not specifically list the territorial area where they
could lawfully take effect, they clearly set forth the
authorizing judge's territorial jurisdiction-the District
of Kansas. And the statute itself presumptively limits every
Order's scope to the issuing court's territorial
jurisdiction. This interpretation of the term
"insufficient" does not, as the Dahdas contend,
produce bizarre results. Rather, it makes sense of the
suppression provision as a whole. Pp. 8-12.
853 F.3d 1101 (first judgment) and 852 F.3d 1282 (second
BREYER, J., delivered the opinion of the Court, in which all
other Members joined, except GORSUCH, J., who took no part in
the consideration or decision of the cases.
federal statute allows judges to issue wiretap orders
authorizing the interception of communications to help
prevent, detect, or prosecute serious federal crimes. See
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§2510 et seq. The statute requires the judge to
find "probable cause" supporting issuance of the
order, and it sets forth other detailed requirements
governing both the application for a wiretap and the judicial
order that authorizes it. See §2518.
statute provides for the suppression of "the contents of
any wire or oral communication" that a wiretap
"intercept" along with any "evidence derived
"(i) the communication was unlawfully intercepted;
"(ii) the order of . . . approval under which it was
intercepted is insufficient on its face; or
"(iii) the interception was not made in conformity with
the order of authorization or approval."
litigation concerns the second of these provisions- the
provision that governs the "insufficiency]" of an
order "on its face." §2518(10)(a)(ii).
Roosevelt Dahda-defendants in the trial below and petitioners
here-sought to suppress evidence derived from nine wiretap
Orders used to obtain evidence of their participation in an
unlawful drug distribution conspiracy. They argue that each
Order is "insufficient on its face" because each
contains a sentence authorizing interception
"outside the territorial jurisdiction" of
the authorizing judge, App. 97 (emphasis added), even though
the statute normally allows a judge to authorize wiretaps
only within his or her "territorial
jurisdiction, " §2518(3).
deciding whether each Order was "insufficient on its
face, " we assume that the Dahdas are right about the
"territorial" requirement. That is to say, we
assume the relevant sentence exceeded the judge's
statutory authority. But none of the communications
unlawfully intercepted outside the judge's territorial
jurisdiction were introduced at trial, so the inclusion of
the extra sentence had no significant adverse effect upon the
Dahdas. Because the remainder of each Order was ...