Court Says 'Plain Hearing' Applies To Wiretaps, But Eavesdropping Must Stop If Target Isn't Actually Using The Targeted Phone

from the no-EOP-in-mistakenly-intercepted-calls? dept

The Fourth Amendment contains an exception for "plain view:" evidence of criminal activity seen by law enforcement, whether it's through a cracked-open doorway, on a vehicle's seat, etc., can be seized and used without seeking a warrant. The government would also like to avail itself of a "plain hearing" exception, which it can use to salvage evidence of criminal activity in overheard conversations intercepted with a wiretap.

The Ninth Circuit Court of Appeals agrees with the government's "plain hearing" theory, though not with its assertions on how far the exception should stretch.

The FBI obtained a wiretap warrant for a number it believed belonged to the target of its drug investigation, Ignacio Escamilla. After listening to several conversations about drug dealing, the agents came to the conclusion that Escamilla wasn't actually using the phone number targeted by the wiretap. However, they felt the conversations they were overhearing were related to the Escamilla drug conspiracy they were investigating. So, they kept listening.

These conversations -- which didn't include the target of the wiretap -- led to the arrest of Michael Carey, who pled guilty to drug charges while reserving the option to move to suppress the evidence. The lower court concluded that the government could use wiretap warrants to gather evidence against other individuals, even if they weren't actually targeted by the wiretap. This was the "plain hearing" holding.

The Appeals Court agrees [PDF] to a certain extent. While the government is welcome to make use of some unrelated evidence it comes across while eavesdropping, it cannot simply continue to intercept conversations once it's established the target of the warrant is not actually using that phone number.

In short, we see no reason to depart from principles requiring cessation of a wiretap once the government knows or reasonably should know that the person speaking on the tapped line is not involved in the target conspiracy. See Ramirez, 112 F.3d at 851–52. The government may use evidence obtained from a valid wiretap “[p]rior to the officers’ discovery of [a] factual mistake” that causes or should cause them to realize that they are listening to phone calls “erroneously included within the terms of the” wiretap order. Cf. Garrison, 480 U.S. at 87–88. And once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.

However, this conclusion doesn't automatically result in suppression of the recorded evidence. The Appeals Court notes that the defendant and the government are diametrically opposed on the admissibility of the evidence.

It is unclear how much of the government’s wiretap evidence may fall outside of the “plain hearing” doctrine. Because the parties staked out polarized positions before the district court—the government arguing for all wiretap evidence, Carey for none of it—and because the district court adopted the government’s position in denying the motion to suppress, the record lacks the findings necessary to determine what evidence was admissible against Carey. We vacate the district court’s order denying the motion to suppress and remand on an open record to determine what evidence is admissible against Carey under the legal framework set forth above.

So, we can add "plain hearing" and "plain sight" to the "plain smell" exception used by far too many law enforcement officers to begin fishing expeditions and wander outside the confines of the Supreme Court's Rodriguez decision.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, eavesdropping, plain hearing, wiretaps