In Dahda v. United States, the federal government obtained a wiretap order from a federal court in Kansas that authorized the interception of communications in Kansas and, if the telephones were taken outside of the state, “any other jurisdiction in the United States.” The defendants were charged with drug offenses and the government sought to introduce communications obtained through the wiretaps as evidence against them. The defendants sought to suppress that evidence arguing that the Kansas federal judge could not authorize a wiretap to obtain communications outside of the court’s jurisdiction. The order was, in the defendants’ view, “insufficient on its face” and improper under 18 U.S.C. § 2518(10)(a)(ii). The Supreme Court, in a unanimous decision (without Judge Gorsuch participating) held that the warrant was not invalid as “facially insufficient.” Justice Breyer, writing for the Court, found that the warrant appropriately noted the court from which the order was issued and that the challenged language was “surplus” since, if deleted, it would not impact any other aspect of the order. Moreover, the statute authorizing wiretaps presumptively limited their scope to the jurisdiction of the court from which the order was issued. And, in any event, the statute permitted the interpretation of communications outside of that jurisdiction so long as the federal listening station was within the jurisdiction.
At its broadest, therefore, Dahda stands for the proposition that a wiretap order that contains extra language that has no legal significance does not invalidate the order. It confirms, however, that a district court cannot order the interception of communications outside of the state in which it sits simply by adding language to that effect. But the federal government can sidestep that prohibition by using a listening post inside the state.
There was one more important procedural point that Dahda raises and answers. As Judge Breyer noted, the basis for the Court’s decision was not one that the Government had argued before the lower Court of Appeals. Although generally speaking, the Supreme Court will not hear arguments that were not presented to the lower appellate court, Justice Breyer found that the new argument was “closely related to the arguments the Government made below” and that both sides had argued its merits in the Supreme Court. While this case suggests that there may be limited circumstances in which new arguments can be presented at the last minute, the fact that Justice Breyer went out of his way to justify the Court’s ruling based on such a new argument underscores the importance of ensuring that clients have experienced counsel at all stage of their cases to ensure that all potential claims are available for later review.
If you have any questions about criminal appeals or wiretap evidence, please contact Andrew Horne at firstname.lastname@example.org or call (212) 374-9791.
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