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.


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  • icon
    That One Guy (profile), 14 Sep 2016 @ 12:45pm

    Trying to have it both ways

    So they are supposed to stop listening in when they realize or should realize that the target of the warrant isn't actually using the line in question, but they don't actually lose out on whatever evidence they gather prior to that point, and can still potentially use it in court.

    The judges really need to grow some spines and decide one way or the other. If listening in once it's revealed that the target isn't using the line isn't acceptable then treat it as a bogus/faulty warrant and toss out all evidence acquired.

    On the other hand if they can use any evidence then clearly the court doesn't think it's that big of a deal that a wiretap is being used against the wrong person, so it's pretty obvious that they don't really think they should have to stop.

    Allowing evidence obtained from bogus/faulty warrants, or any other otherwise illegal source just encourages sloppy police work and ignoring what few limits remain in the law, and if the courts are going to support that the least they can do is be honest about it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Sep 2016 @ 7:24am

      Re: Trying to have it both ways

      Well, to me what would seem reasonable is either of these possibilities:

      1. Police (FBI, etc) get a valid wiretap order for a phone, believing it belongs to Criminal A.

      2a. While listening in, they get clear evidence of criminal activity by Criminal B, THEN realize that this isn't Criminal A's phone.

      OR:

      2b. While listening in, they get evidence that leads them to suspect criminal activity by Criminal B, THEN realize that this isn't Criminal A's phone.

      So, in case 2a, the "clear evidence" should be usable in a prosecution. In case 2b (and in 2a), if the evidence is enough to provide a suspicion (i.e., probable cause), the investigators should then be able to take that back to the judge, and get a new wiretap order that covers the person(s) they now believe to control the phone, since it's not Criminal A. (Although this is obviously *not* what happened in the case at hand.) Basically, the idea that, so long as either it was something clearly criminal ("Billy, you go and kill Jonny, I've had enough of that guy ripping me off") or enough probable cause ("Billy, you're gonna get the package from Jonny, so we can get it out on the street"), that even if the original wiretap was a mistake, it's not enough to suppress evidence (either directly, or if it was used as the basis for a new warrant that gathered more evidence).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2016 @ 8:04pm

    Do Tell!

    The Fourth Amendment contains an exception

    Could you point to the sequence of letters in the 4th that indicates this exception? Fuck me, but I see no such exception mentioned anywhere. I mean, a "person shall be security in their person, papers, and effects EXCEPT if they are in plain site" should stand right the fuck out if just such an exception existed. Is there some invisible ink somewhere?

    Only a tool believes this tripe, and are there plenty too! This exception is nothing more than a very mentally sick and sadly successful attempt to skull fuck citizens out of their liberty. So far... so very few gives a fuck!

    reply to this | link to this | view in chronology ]

  • icon
    art guerrilla (profile), 14 Sep 2016 @ 9:12pm

    got back from seeing 'snowden' and chat afterwards w lead cast, stone and snowden... pretty cool, only a couple minor glitches on hookup (thought the enn ess ehh was better than that; *know* they are as eee-vil as that)...
    that guy ! that guy !
    what a great citizen, what a great guy...
    not only is my 'protest vote' of snowden/manning one of my proudest votes (did it in 2012, too), it is actually one of the BEST votes if i want to elect moral humans who are great patriots and love their country and fellow citizens...
    sure, ALL politicians make that claim; they ain't risked SHIT for it: THESE HEROES (manning, snowden, drake, binney, sterling, kiriakou, etc)risked EVERYTHING for OUR country, OUR rights, OUR duty to maintain a nation of laws, not of a few self-selected people...
    yeah, ANY ONE of those people, by virtue of standing up for the precept of an informed citizenry as a prerequisite for a functioning small-dee democracy, would be qualified to lead our nation...
    the candidates of the two faces of the one Korporate Money Party ?
    disgust...
    disgust is the only reaction i can have to these 'choices'...
    it is disgusting, we must demand better...

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 14 Sep 2016 @ 9:55pm

    Why does it seem the DOJ seems to think that rules governing wiretapping are allowed to be stretched at their very whim despite the laws that are on the books about it.

    The ninth may have said that it must be done this way accept... and that is the problem. The courts are stuck with archaic laws passed ages ago that have not caught up with modern times and now seem to be bending it to fit with todays tech and this is a problem.

    So instead of lawmakers updating the laws to work with the advances in technology which they choose to leave sitting by the wayside because there is all that Lobbyist cash to go after to fill their pockets, the courts are left to deal with the issues, but are continually ruling all over the map in their decisions because of how technology has outpaces the laws on the books covering wire tapping etc.

    The SCOTUS isnt doing it's part to clear up the matters like this or that relate to spying on citizens or a lot of other technological questions either. There seems to be the we dont want to deal with it so we will send it back to the lower court to do and the mess continues on and on.

    The rules are on the books, if the DOJ finds the rules are not fitting the advances in technology then get law makers to pass new legislation to bring certain acts up to todays age, but in no way should the courts tell the DOJ do one thing and but say it's okay to bend the rules to allow it to do so.

    All these rulings that are all over the map are just mudding up the waters even further than it already is. The courts seem to believe that if the government wants to bend the rules it is okay, even if that gives the government an unfair tactical advantage over a defendant.

    It seems more and more that a defendants rights and rules of the court are not black and white and that all grey areas are allowed to be put forth. Rules, statues, law and the constituion be damned

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 15 Sep 2016 @ 5:41am

      Re:

      I think, if the courts and legislators were to do just a few things, this problem would go away.

      First, legislate principles, not specifics. This will lead to more lawsuits, likely. But those decisions taken together will ultimately lead to far more workable specifics.

      Second, courts should adjudicate principles, not specifics. This may lead to some oddities in precedent, but principles should be far more applicable to a broader array of disparate sets of facts, and hence be more equitable and far more capable of extension to new circumstances.

      Third, judges at all levels need to recognize that they and their colleagues are fallible, and act on that knowledge. A district court judge should be willing to acknowledge that an appellate ruling is wrong for whatever reason, and ignore that ruling if there is strong reason to do so.

      Fourth, the legislature should periodically go back and review its collective work in light of changes in technology and understanding, with an eye toward taking that new knowledge into account in existing legislation.

      Finally - and most importantly - the courts need to go back to first principles. courts need to apply the Constitution and its amendments as written. No more of this nonsense of (for example) "papers shall not be searched except under these circumstances".

      It sounds like I'm starting to talk out of both sides of my mouth. I'm not. The Bill of Rights, especially, codifies principles, not specifics. You don't see things like (again, for example) "the right to keep and bear arms shall not be infringed except in cases of mental illness". There's no wiggle room there and courts need to rule accordingly.

      reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 15 Sep 2016 @ 5:02am

    More giggles

    I love how stories like this bring out the true looney fringe types. At least one of these posts makes me think of a guy in a wood cabin in a rocking chair polishing his AK and making rude gestures at the door...

    Anyway, that said, comment on the story:

    The courts seem to be pretty reasonable here. They didn't give a carte blanche, rather they said in basic terms that the police can't magically "unhear" something that is said while executing a listen warrant on someone else.

    There may be discussion of the continued listening if they did not get a warrant based on what they had heard. There is a point (that must be decided as a fact of law) where too much was gathered while knowing they were listening to the wrong person.

    It's seems to be a pretty fair ruling and lets the lower court back into the game to take a swing at it.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 15 Sep 2016 @ 7:21am

    I just don't expect anyone to follow these new rules because they know they won't be held accountable for breaking them. They do what they want and no oversight is done because no one in power seems to care that by constantly breaking the laws no one has respect for them.

    Enforcing at the point of a gun only works as long as you have bully boys to enforce for you.

    reply to this | link to this | view in chronology ]


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