9th Circuit: A “Plain Hearing” Exception to the Warrant Requirement When Valid Wiretap is Used

• Carey, ___ F3 ___ (9 Cir. 16) #14-50222

 The facts are pretty simple. Federal agents secured a wiretap order for a San Diego phone number based on evidence that one Escamilla was using the number in a drug smuggling and distribution conspiracy. Agents monitoring the wiretap overheard drug-related phone conversations. At some point during a seven-day period, the agents realized that Escamilla was not using the phone.

Agents continued listening, believing the people speaking on the phone might have been part of the Escamilla conspiracy. The seven days of wiretap monitoring culminated in a traffic stop, and agents then confirmed that the persons on the phone had no connection to Escamilla.

Michael Carey was eventually identified as a speaker in some of the phone calls, and he was then charged with conspiracy to distribute cocaine. Carey moved to suppress the evidence obtained from the wiretaps, arguing that the government violated the Wiretap Act (18 U.S.C. §§ 2510–22) by never applying for a wiretap as to him or his coconspirators. The district court denied the motion, ruling that the government could rely on the Escamilla order to listen to Carey’s conversations.

The 9th Circuit Court of Appeals has a two-fold holding:

The Fourth Amendment provides an exception to the warrant or probable cause requirement when police see contraband in “plain view.” We adopt a similar principle today and hold that the police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers. However, the agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Cf. Maryland v. Garrison, 480 U.S. 79, 87 (1987).

Case was vacated and remanded for fact-finding on the issue of when agents knew or should have known that the phone conversations did not involve Escamilla and his coconspirators. 

The Exclusionary Rule is Full of Streiff

Let’s take further stock of last term’s U.S. Supreme Court decision in Utah v. Strieff, 136 SC 2056 (16) [See the July, 2016 Poop Sheet].

The Court in Strieff held that an investigatory stop was unlawful, the discovery of an outstanding arrest warrant on a traffic ticket was sufficiently “attenuated” that a search incident to arrest was valid. Justice Thomas, writing for the majority, did so by analyzing the “three factors” explicated in Brown v. Illinois, 422 US.590 (1975).

It should be noted that legal analysts are split on whether “Three-Finger Brown” is truly that doctrinal. (That’s my own designation, by the way. There was a famous baseball pitcher named Mordecai “Three Finger” Brown, thus called that because a farming accident severed most of the index finger of his right hand. However, the resulting grip on a baseball enabled him to put extra spin on his curve. He was elected to the Baseball Hall of Fame in 1949.)

Orin Kerr, at SCOTUSblog (June 20, 2016), had this to say:

The Court presents the Brown three-factor test as if it were obviously the settled doctrine a court should apply. It’s worth noting that this is hardly so.

First of all, Brown itself does not say that the attenuation doctrine is a three-factor test. Brown suggests more of a “totality of the circumstances” analysis, with no exclusive list of considerations. As Brown stresses, there is no “talismanic test” for attenuation. Second, post-Brown attenuation cases have not focused on Brown or applied a three-factor test.

Given that, it’s a little odd that the Court proceeds through the three factors from Brown in an almost mathematical way. Two factors are strongly against suppression and only one is for it, the Court rules, so on balance the evidence isn’t suppressed.

***

All the Justices agreed on how to apply the first factor, which concerns the temporal proximity of the violation. The evidence was discovered just minutes after the illegal stop, so that weighs pretty clearly in favor of Edward Strieff. The Justices then divided on the remaining two factors, and I think the majority’s argument on these points was unpersuasive.

Consider the second factor, which looks to whether “intervening circumstances” made the discovery of evidence remote from the violation. The Court concludes that the officer’s discovery of the warrant was an “intervening circumstance” that was “entirely unconnected with the stop.” …

[Re: the] Court’s application of the third Brown factor, the purpose and flagrancy of the violation. Although the majority opinion nowhere notes it, the government has the burden of proof in establishing attenuation. (Note the holding of Brown: “We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.”) And in recent decades, the Court has gone out of its way to make clear that an officer’s intent is completely irrelevant to whether the Fourth Amendment was violated. That means that there is usually nothing in the record relevant to the officer’s purpose. How can the government meet its burden when there is no evidence in the record?

The majority largely fills this in, concluding that the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.”

***

I think Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.

JSB: Much hangs in the balance now, of course. A 4-4 Court is split along discernable lines. Kerr noted that the socially-progressive Part IV of Justice Sotomayor’s dissent was not joined by any other justice. But as Prof. Lawrence Rosenthal notes in his SCOTUS post of Sept. 9, 2016, pondering the future of the 4th Amendment after Scalia:

Whether a future Court embraces Fourth Amendment originalism portends less for how any particular case will be decided than it does for the methodology of constitutional adjudication. The next Justice will decide whether the Court will struggle overtly with the difficult balance between liberty and order, or continue the even more fraught business of trying to apply eighteenth-century legal doctrine and expectations to twenty-first-century problems.