United States v. Michael Carey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50222 Plaintiff-Appellee, D.C. No. v. 3:11-cr-00671-WQH-

MICHAEL CAREY, AKA

Garrocha, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted May 6, 2016 Pasadena, California

Filed September 7, 2016

Before: Alex Kozinski, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould; Dissent by Judge Kozinski SUMMARY*

Criminal Law

The panel vacated the district court’s order denying the defendant’s motion to suppress evidence derived from the use of wiretaps.

The panel held that 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, but that agents must discontinue monitoring the wiretap once they know or reasonably should know…

Dissent by Judge Kozinski Acting pursuant to the Wiretap Act, 18 U.S.C. §§ 2510-22 , federal agents secured a wiretap order for a San Diego phone number based on evidence that Ignacio Escamilla Estrada (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, however, believing at least initially that the people speaking on the phone might have been part of the Escam-illa 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.

Appellant 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 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…

dissenting:

I join my colleagues insofar as they hold that the government may use evidence obtained from a valid wiretap until “officers know or should know they are listening to conversations outside the scope of the wiretap order.” Op. at 1098. But I dissent from Part IV of the opinion where the majority remands with instructions that the district court apply this rule to Carey’s case on an open record. If, as the majority recognizes, the “record does not show” whether the federal agents reasonably believed that the conspiracies were related until after the traffic stop, id., Carey has only himself to blame. He presented no evidence contradicting Agent Melzer’s sworn declaration.

Carey can hardly be surprised by the “plain hearing” rule we adopt today: As the majority acknowledges, “Carey argued that the agents learned at some point that they were listening to an unrelated conspiracy,” id. at 1099, but he failed to identify a specific point. Instead, Carey relied only on the fact that the officers listened for seven days to the conversations on the phone.

But the length of time the officers listened is hardly dispositive of whether they realized or should have realized they…