F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

M I C H A E L C A R

E Y , AKA Garrocha, Defendant-Appellant. No. 14-50222

D.C. No. 3:11-cr-00671-W QH-1

OPI N I ON

A ppeal from the United States District Court for the Southern District of California W illiam Q. Hay es, District J udg e, Presiding

Arg ued and Submitted May 6, 2016 Pasadena, California

F iled September 7, 2016

B efore: Alex Koz inski, W illiam A. F letcher, and Ronald M. Gould, Circuit J udg es.

Opinion by

J udg e Gould; Dissent by

J udg e Koz inskiU N I T E D S T A T E S V

. C A R E Y 2

SUMMARY *

Crim inal Law

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

The p anel held that police may use evidence o btained in “plain hearing ” when they overhear speakers unrelated to the targ e t conspiracy while listening to a valid wire t a p, without havi n g complied with the Wiretap Act requirements o f probable cause and necessity as to those specific speakers, but that ag ents must discontinue m o nitoring the wiretap once they know or reasonably should k now that t h e p h one calls only involved speakers outside the targ e t conspiracy

.

B e cause the record d oes not show e x actly when ag ents knew or should have known that the phone conversations did
not involve the persons involved in the targ et conspiracy

, the panel vacated the district court’s denial o f t h e motion to suppress and remanded to the district court on an open record
to determine what evidence was lawfully obtained in “plain hearing

. ”

J udg e K oz inski d issented fr o m t he part of the opinion where the majority remands on an o pen record. He wrote that if the record does not show whether the ag ents reasonably believed that the conspiracies were related until after a traffic

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. C A R E Y 3

stop, the defendant, who presented no e vidence contradicting
an ag ent’s sworn declaration, has only himself to blame.

COUNSEL

Knut Sveinbjorn J ohnson (arg u ed) and Emerson W heat, San Dieg o, California, for Defendant-Appellant.

Peter Ko (arg

ued), Assistant United States Attorney
, Chief, Appellate Section, Criminal Division; L aura E. Duffy

, United States Attorney ; United States Attorney ’s Office, San Dieg o, California; for Plaintiff-Appellee.U N I T E D S T A T E S V

. C A R E Y 4

OP INION

GOUL D, Circuit J udg e :

Acting pursuant to the W iretap Act, 18 U .S.C. §§ 2510–22, federal ag ents secured a w iretap order for a San D ieg o phone number based on evidence that I g n a c i o Escamilla Estrada (Escamilla) w as using the number in a d rug smug g ling and distribution c o nspiracy

. Ag ents monitoring the wiretap overheard drug -related phone conversations. At

some point during a seven-day period, the ag ents realiz e d that Escamilla was n o t using the p hone. Ag ents continued listening

, however, believing at least initially that the people speaking on the p hone mig ht have been part of the Escamilla conspiracy

. The seven day s of wir e t a p monitoring

cu l m i n a t e d in a traffic stop, and a g ents then confirmed that the persons on the phone had no connection to Escamilla.

Appellant Michael Carey w as eventually identifi e d a s a speaker in some of the phone calls, and he was then charg ed with co n s p i r a cy to distribute c ocaine. Carey moved to suppress the evidence obtained from the w i retaps, arg uing that the g overnment violated the W iretap Act by never apply ing for a wiretap a s t o him or his coconspirators. The district court de n ied the motion, r uling that the g overnment could rely o n the Escamilla order to liste n t o C arey ’s conversations.

The F ourth A mendment provides an ex ception to the
warrant or probable cause requirement when poli ce see contraband in “plain view.” W e adopt a similar pr inciple tod a y a nd h o ld that the police may use evidence o btained in “plain h earing ” when they overhear speakers unrelated to the targ e t con s p iracy while listening to a valid w iretap, withoutU N I T E D S T A T E S V

. C A R E Y 5

having c omplied w ith t he Wiretap Act requirements o f probable cause and necessity as to those specific speakers. However, the ag ents must discontinue monitoring the wiretap

once they know or reas o n a b l y should know that the phone calls only involved speak er s o utside the targ et conspiracy

. Cf. Maryland v. Garrison , 480 U.S. 79, 87 (1987).

The d istrict court did not apply these principles, an d the record in this case does not show ex actly when a g ents knew

or should have known that the p h o n e conversations did not involve Escamil l a and his coconspirators. We vacate the district court’s denial of Care y ’s motion to suppress a nd

r e m a n d t o the district court on an open record to determine what evidence was lawfully obtained in “plain hearing .”

I

On March 5, 2010, the district court g ranted F B I Special Ag ent Christopher Melz e r ’s application for a wiretap order for several phone numbers thoug ht to be a s s o c i ated with a drug conspira c y l ed by I g nacio Escamilla Estrada (Escamilla). The phone number desig nated “T

- 1 4 ” was believed to belong to Escamilla. The wiretap of T-14 went live on March 5, althoug h no calls were int e r cepted until March 10.

Starting o n the 10th, the a g ents overheard “drug -related”

ca l l s , but at some point the ag ents realiz ed that the person using T-14 was not Escamilla. The ag ents did not know w ho the people speaking on T-14 were, althoug h Melz er initially “thoug ht the callers and calls m ig ht still be affiliated with [ the] known targ ets or p a r t of the criminal a ctivity [he] was investig ating .” Melz er consulted w ith federal prosecutors, and ag ents continued to monitor the calls.U N I T E D S T A T E S V

. C A R E Y 6

On the morning of March 17, 2010, ag ents intercepted a call indicating that someone would be traveling with “invoices” ( believed to be code for drug money ). The ag ents coordinated with local police officers to ex ecute a traffic stop

on a c a r involved in the phone calls. O fficers identified the driver as Adrian Madrid a n d s earched the vehicle, finding cash and a cellphone tied to the T-14 number. Officers then obtained a search warrant for a related residence a nd f ound cocaine. N ow knowing Madrid’s identity

, Melz er l e ar n ed that there w as an ong oing DEA/I CE investig ation into Madrid and his associa t e s

. Melz er met with I CE and DEA ag e nts, and they concluded that there was no “overlap” between the Madrid and Escamilla conspiracies.

Ag ents later ident i f

i e d Carey a s a member o f Madrid’s conspiracy

. 1 Carey was i n d i c t e d in F ebruary 2011 for conspiracy to distribute cocaine in viola t i o n of 21 U .S.C. §§ 841(a)(1) and 846. H e filed a motion to suppress “any a nd all evidence derived from the use of wiretaps,” arg uing that the g o vern ment failed to comply with the W iretap Act, 1 8 U

. S .C. §§ 2510–22, with respect to Carey and h i s coconspirators. I n Carey ’ s view, the g overnment instead h ad unlawfully

“relie[ d] on the validity of the Escamilla order to justify the in d e pendent and unrelated use of wiretap

s u r veillance ag ainst Mr. Carey .” Carey also requested a Franks 2 he a ri n g t o “fill in the holes” of a declaration b y

1 P h o n e calls in tercep t ed b y th e w iretap ref erred to “ Garro ch a,”
ap p aren t ly C arey ’ s n ick

n am e, b u t th e reco rd d o es n o t sh o w w h en ag en ts

m ad e th at co n n ectio n

. T h e reco rd also d o es n o t rev eal h o w Carey ’ s

asso ciate, J ose A n to n i o Hern an d ez- Gu tierrez, en d ed u p w ith Escam illa’ s p h o n e n u m

b er.

2 S ee Fra n ks v. Dela wa re , 4 3 8 U.S. 1 5 4 (1 9 7 8).U N I T E D S T A T E S V

. C A R E Y 7

Special Ag ent Melz er that had been submitted to the district
court t o ex p lain the ag ents’ and officers’ actions in connection with the wiretap.

The distric t court denied the motion to suppress, reasoning that the g overnment had complied with the statute to obtain the wiretap order a g ainst Escamilla and holding that “[ t] here w as no requirement for a separate showing o f necessity once th e a g ents concluded that T-14 was not primarily used by E scamilla. The ag e n ts reasonably believed that the callers and calls mig h t be affiliated with Escamilla o r other o ffenses.” C a r e y p led g uilty in an ag reement that preserved his rig ht to appeal th e denial of his motion to suppress. Carey ’s appeal was timely and we have jurisdiction under 28 U.S.C. § 1291.

II

I n 1967, the Supreme C o u rt issued two o p inions discussing the constitutionality o f c e rtain phone surveillance techniques. I n Berger v. New Y ork

, 388 U.S. 41 (1967), the Court invalidated a New York wiretap s t a t ute as “too broad in its sweep resulting in a trespassory intrusion i nto a constitutionally p r o t ected area.” Id. at 44. Then in Katz v

. United States
, 389 U.S. 347 (1967), the Court h eld that fed e r a l ag ents violated the F ourth Amendment b y eavesdropping on and recording a telephone cal l w ithout a warrant. I

d. at 348, 357–59.

Cong r ess took note of these foundational decisions when passing the Omnibus Crime Control and Safe Streets Act o f 1968. S ee United States v. U.S. Dist. Ct. for the E. Dist. of M i ch.

, 407 U.S. 297, 302 (1972). Title I I I
, which is known colloquially as the W iretap Act, prescribes certain proceduresU N I T E D S T A T E S V

. C A R E Y 8

that the g overnme n t must follow to secure judicial authoriz atio n f

or a wiretap. See United States v. Giordano

, 416 U.S. 505, 507 ( 1974) (citing 18 U.S.C. §§ 2510–20). The
g o v e r n m e n t m ust demonstrate p robable cause that a particular offense has b e e n o r will be committed, see 18 U .S.C. § 2518(1)( b); United States v. Kahn

, 415 U .S. 143, 155 (1974), and the g overnment must demonstrate “necessity ” for the wire t ap by showing that traditional investig ative procedures did not succeed or would b e too dange rous o r unlikely to succeed if tried, s e e 1 8 U.S.C. § 2518(1)(c); United States v

. Blackmon

, 273 F .3d 1204, 1207 (9th Cir. 2001). The statute a lso requir es the g overnment to adopt minimiz ation techniques to “reduce to a practical minimum
t h e interception of conversations unrelated to the crimin al activity under investig ation.” Un i t e d States v. McGuire
, 307 F .3d 1192, 1199 (9th Cir. 2002); see 1 8 U

. S .C. § 2518(5).

I f the g ove r nment uses a wiretap in violation of the statute, evidence obtained from the wir e t a p is inadmissible
ag ainst the convers ation’s participants in a criminal proceeding

. Giordano

, 416 U.S. at 507–08; see 1 8 U

. S .C. § 2515. Carey arg ues that suppression is warranted h e re because the g overnment did not comply with these statutory requirements as to him or his coconspirators—the
g overnment’s wiretap application instead demonstrated probable cause and necess i t y only as to Escamilla’s conspiracy

.

As a preliminary matter, the g overnment ar gu e s t h at the only W iretap Act arg ument Carey has pre s e r ved is his necessity arg ument: wheth er the ag ents violated 18 U .S.C. § 2518(1)(c) by listening to Carey ’s phone calls without first try ing “other investig at i v e procedures” or ex plaining “whyU N I T E D S T A T E S V

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they reasonably appear to be unlikely to succeed if tried or to be too d a ng erous.” A t o ral arg ument on appeal, the
g overnment further sug g e sted that Carey ’s arg ument that the
g overnment could not rely on the Escamilla wiretap to listen
to Carey ’ s calls was an arg ument about the proper “ex e cution of the order” rather than “the necessity showing .”

I n this contex t, however, we see n o meaning ful difference between the arg ument presented to the district court and that presented o n appeal. W h il e Carey ’s suppression brief primarily discussed necessity

, he arg u ed in substance that the
g overnment could not “ rel[ y ] on the validity of the Escamilla order to justify

the independent and unrelated use of wiretap surveillance ag ainst Mr. Carey

. ” The g overnment recog niz ed that this was the premise o f Carey ’ s a r g ument, responding with its view that “ag ents p roperly c ontinued to intercept T14 e ven a fter determining Escamilla was not the primary user.” And this claim was further fl e s h e d o ut before the district court when, in dialog ue with t h e judg e, Carey ’s lawy er a rg ued that “[ a] t the p oint in that time during that 15- day period they [ the a g ents] realiz e t h i s i s a separate a nd distinct c onspiracy g roup of peop le, they have to stop” a nd “make the required showing

, obtain the authoriz ation f or the wiretap for that separate a nd distinct g roup of people.” Even

on appeal the g overnment recog niz e s i n its brief that “the circumstanc e s under which interception occurred” were placed “squarely at issue” in Carey ’s suppress i o n m otion, which c harg ed that “Melz er knew, at the time of interception, the T -14 c alls were ‘ u n r el a t ed to the Escamilla investig ation.’”

Carey ’s arg u ments to the distric t court adequately
convey ed the thrust o f his a rg ument o n a ppeal that theU N I T E D S T A T E S V

. C A R E Y 10

Escamilla wiretap order did not authoriz e the g overnment to listen to Carey ’s phone calls. Carey ’s claim is preserved.

III

Turning to the question whether ag ents could lawfully use the Escamilla wiretap to listen to Carey ’s conv e r s a t i ons, we note that there is a lack of Ninth Circuit precedent squarely

on point. W hile the W iretap Act allows officials to intercept and u se calls “relating to offenses other than those specified in the o rder of authoriz ation or a p p r o val,” 18 U .S.C. § 2517(5), we have f

o u n d no case in which this statutory provision was use d to authoriz e officers to listen to people who were unaffiliated with the initial wiretap subjects. 3 Carey cites several c ases for the proposition that the necessity showing in a wiretap application must b e specifically tailored
to the t a r g et subjects, 4 but none of these cases involves a situation in which a concededly v alid wiretap order w as used to obtain evidence of an unrelated person’s crime.

Here the g overnment showed necessity a n d probable

ca u s e f o r a wiretap of the targ et conspiracy

. B ut what

3 S ee U n ited S ta tes v. Reed

, 5 7 5 F.3 d 9 0 0, 9 1 1 (9 th Cir. 2 0 09 ) (allo w in g g o v ern m en t to in tro d u ce ca l l s o f J ack so n in tercep ted o n a w iretap f or Reed w h en ag en ts in itially th ou g h t th e p h o n e w as Reed ’ s, J ack so n w as a

“ prev io u sly u n k

n o w n asso ciate o f R eed ,” an d “ th e reco rd sh o w s th at T T 1 0

w as b ein g u sed in th e f

u rth era n c e of Reed ’ s P CP en t erp rise”); Un ited S ta tes v. Ba ker

, 5 8 9 F.2 d 1 0 0 8
, 1 0 1 1 (9 th Cir. 1 9 7 9 ) (p er cu riam ) (allo w in g g ov ern m en t to in tro d u ce calls o f B ak er in tercep ted o n a w iretap f o r J u dd w h en B ak er w as sp eak in g to J u d d ). W h ile th e g o v ern m en t relies

o n th ese cases, it co n ced es th at th ey “ are n o t p erf

ect f its.”

4 S ee, e.g

. , Un ited S ta tes v. S ta ffeld t , 4 5 1 F.3 d 5 7 8
, 5 7 9 (9 t h Cir. 20 0 6 ); Un ited S t a tes v. Go n z a lez, In c. , 4 1 2 F.3 d 1 10 2
, 1 1 1 5 (9 th Cir. 20 0 5 ); Bla ckmo n , 2 7 3 F.3 d at 1 2 0 8

– 0 9

.U N I T E D S T A T E S V

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happens when a wiretap that is v alid at i t s inception is later used to listen to someone w ho is not involved in the conspir a c y under surveillance? I t is that novel question to which we turn our attention.

The Seventh Circuit has addressed a similar situation in dicta. W riting for that court, then- C hief J u dg e Posner

ex p lained, “I t is true that if g o vernment ag ents e x ecute a valid wi retap order and in the c o urse of ex e cuting it discover that it was procured by a mistake and at the same tim e o v e rhear incriminating c onversations

, the record of the conversations is admissible in evidence. I t is just the ‘plain view’ doctrine translated from the visual to the oral d imens i on.” United States v. Ramirez
, 112 F .3d 849, 851 (7th Cir. 1997) (internal citations omitted). “B ut,” the court conti n u e d, “once the mistake is discovered, the g ov e r n m ent cannot use the authority of the warrant, or of the [ wiretap] order, to conduct

a search or interception that they kn ow is unsupported b y probable cause or is otherwise o utside the scope of the statute

or the Constitution.” Id. a t 852 (citing Maryland v. Garrison
, 480 U.S. 79, 87 (1987)). 5 W e conclude that the Seventh Circuit’s observations are persuasive.

These c onclusions a

re d r a wn by analog y to F ourth Amendment case law. I n Maryland v. Garrison
, 480 U .S. 79 (1987), o fficers secured a warrant for L awrence McW ebb’s residence at “2036 P a rk Avenue third floor a partment.” Id.
at 80. When the officers entered, the y “reasonably concluded” that the third floor was only one apartment un i t , but they soon d iscovered that the floor was divided into two

5 T h is discu ssio n in Ra m irez w as d icta b ecau s e th e co u rt h eld th at th e

w iretap w as n o t b e i n g u sed illeg ally w h en ag en t s m istak en l y listen ed to p h o n e calls in Min n eso ta rath er th an W isco n sin

. Id

. at 8 5 2

– 5 3

.U N I T E D S T A T E S V

. C A R E Y 12

apartments—one McW ebb’s, the other Garrison’s. Id. a t 81. B efore the officers realiz ed that, they saw drug contraband in G a rrison’s apartment. Id. a t 80. The Court held that t h e search “[ p] rior to the o f f icers’ discovery of the f actual mistake” did not violate the F ourth Amendment so long as the officers’ failure to r eal iz e the mistake “was objectively understandable and reasonable.” Id. at 88.

B u t a t the same time, the Court emphasiz ed tha t t h e officers “ were r e q u ired to discontinue the search o f respondent’s apartment as soon as they discovered that there

were two separate units o n the third floor and therefore were put o n notice of the risk that they mig ht be in a unit erroneously included within the terms of the warrant.” Id. at 87. W e have applied t h i s r u le from Garrison in similar situations. See, e.g. , Mena v. City o f Simi V alley

, 226 F .3d 1031, 1038–39 (9th Cir. 2000); Liston v

. County of Riverside

, 120 F .3d 965, 9 79 (9th Cir. 1997) (“Until the officers learned that they were in the w rong house, the officers c ould have reasonably believed

. . . that the way t hey conducted the search was lawful.

. . . B ut once they knew the h ouse belong ed to t he L istons, their search was no long er justified.”).

Despite the Seven th Circuit’s decision in Ramirez
, both the g o vernment and Car e y resist the application of this doctrin e to the wiretap contex t. Carey states that Garrison “has l i m i ted application to wiretaps” because of the procedural requirements of the W iretap Act. This arg ument is u navailing be c ause the g overnment did comply with the
statute to g et a v alid w ire t a p f o r Escamilla on T

- 14. The question here is whether the g overnment could use that valid wiretap to listen to unrelated people’s phone calls—a concern that mirrors the question in Garrison w hether officers couldU N I T E D S T A T E S V

. C A R E Y 13

rely on a valid w a r rant for entry into an unrelated person’s apartment.

The g o vernment, on the other hand, arg ues that the ag ents could c ontinue monitoring the wiretap even a fter real i z i n g that they w ere not lis tening to the targ et conspiracy

. The
g overnment urg es that the wiretap o r d e r in this case authoriz ed interception of drug calls by “others y et unknown”

over T -14. I n the g overnment’s v i e w, Carey is such an unknown person. Read in contex t, howe ver, the wiretap order does not ex tend to u nknown people not involved in the Escamilla conspiracy

. Having carefully reviewe d the full record, including any portions filed u nder seal, we conclude that the provisions o f the wiretap order persuasively i n d icate that the unknown people referred to in the wiretap order must be involved with the Escamilla conspiracy ; the order does not authoriz e the wiretap of “ others y e t unknown” participating in a conspiracy “y et unkno w n

. ” Moreover, the wiretap o rder could not authoriz e surveillance of an unknown c o n spiracy because the
statute requires ag ents to demonstrate pr o b a ble cause a nd

nec es sity to procure a wiretap order. 18 U .S.C. § 2518(1)(b)–(c). Ag ent Melz er’s affidavit co n tained probable cause that “others y et unknown” were participating in the Escamilla conspiracy

, but it understandably contained

no information about unknown people eng ag ed in d rug trafficking outside the Escamilla conspiracy

.

The g overnment a l s o a rg ues that ag ents could listen to Carey ’s c onversations because the W iretap Act perm i ts the collection of evidence of othe r crimes under 18 U .S.C. § 2517(5). That provision authoriz es the g overnment to use “communications relating to of f e nses other than thoseU N I T E D S T A T E S V

. C A R E Y 14

s p e c ified in the order of authoriz a tion or approval.” B u t importantly

—and f atally to the g overnment’s arg ument—the

s t a t ute d oes so only when officers are “eng ag ed i n in t ercepting wire, oral, or electronic communications in the

manner authoriz ed herein

. ” 1 8 U.S.C. § 2517(5). B ecause the order does not authoriz e ag ents to listen to conversations by individuals o utside the Escamilla conspiracy for the

reasons stated above, th i s p rovision does not help the
g overnment here.

I n short, we see no r eason t o depart from principles requiring cessation of a wiretap o nce the g overnment knows

or reasonably should know that t h e p e r son speaking on the tapped line is not involved in the targ et co nspiracy

. See Ramirez
, 112 F .3d at 8 51–52. The g overnment may use evidence obtained from a v al id wiretap “[ p] rior to the officers’ discovery of [a] factual mistak e ” that causes o r

s hould cause them to realiz e that they are listening to phone calls “erroneously included within the terms of t h e ” wiretap order. Cf. Garrison
, 480 U.S. at 87–88. And once the officers know or s h o u l d know they are listening to conversations outside the scope o f t h e wiretap order, they
must d iscontinue monitoring th e w iretap until they secure a new wiretap order, if possible. Cf. id. at 87.

IV

Apply ing this rule to Carey ’s case, we f irst note that Carey does not challeng e the validity of the wiretap order as
to Escamilla, so the ag ents were justified in initially listening
to the conversations o n T -14. B ut because the order did not authoriz e ag ents to listen t o C arey or his associates, the
g overnment may o nly use evidence obtained in accordance with the “plain hearing ” doctrine discussed above.U N I T E D S T A T E S V

. C A R E Y 15

The record does not indicate w hat evidence w a s obtained before the ag e nts knew or should have known that they were listening to call s o u tside of the Escamilla conspiracy

. Melz er’s declaration stated, “W ithin that time frame [March 10–17]
, after an amount of tim e t h at I do not recall ex actly

, we c oncluded that the person usi n g T -14 was not I g nacio Escamilla E strada. W e also d id not know the identities of the
persons calling T-14.” W hile Melz e r’s declaration sug g ests that h e “thoug ht the c allers and calls mig ht still be affiliated with” the E s c a m i l la conspiracy

, the record does not show whether h e continued or reasonably could have c ontinued to hold that belief throug h March 17. I n fact, at s o m e p o int
ag ents consulted with federal prosecutors about whether they could or should continue to intercept calls on the wiretap.

I t is u nclear how much o f the g overnment’s wiretap evidence may fall outside of the “plain hearing ” doctrine. B ecause the parties staked out polariz ed positions before the d i s t r ict court—the g overnment arg uing for all wiretap evidence, Carey f

or none of it—and b ecause the district court adopted the g overnment’s position in d eny ing the motion to suppress, the record lacks the finding s necessary to determine what evidence was a dmissible ag ainst Carey

. 6 W e vacate the district court’s order d eny ing the motion t o suppress a nd remand o n an open record to d etermi n e w h a t evidence is

6 Carey “ altern ativ ely ” so u g h t a Fra n ks h earin g to “ f ill in th e h o les” in Melzer’ s declaratio n

. B u t th is req u e s t d o e s n ot f it in to t h e Fra n ks v. Del a w a re , 4 3 8 U.S. 1 5 4 (1 97 8), f ram ew o rk b ecau se th e Melzer d eclaratio n w as n o t an af

f id av i t su p p o rtin g a w iretap ap plicatio n

. S ee id

. at 1 7 1

– 7 2 (ex p lain i n g p u rp o s e of Fra n ks h earin g is to ex p lo re p o ssib le f alseh o o d s in af

f id av it su p p o rtin g req u est f

o r search w arran t) ; Un ited S ta tes v. Ip

p o lito

, 7 7 4 F .2 d 14 8 2, 1 4 8 4

– 85 (9 th Cir. 1 9 8 5 ) (ap p ly in g Fra n ks to w i retap ap p licatio n s).U N I T E D S T A T E S V

. C A R E Y 16

admissible ag ainst Carey under the leg al framework set forth above.

The dissent arg ues that Carey forfeited this relie f b y “fail[ ing ] to demonstrate in the district court that any evidence should be suppressed under the rule he advocated.” Dis s e n t a t 22. This conclusion a ppears to stem from the dissent’s premise that “ Carey can hardly b e surprised by the ‘plain hearing ’ rule we adopt today ” because he advocated for a similar rule in the district court. Dissent at 18.

W e disag ree with this conclusion and its premise. Carey ’s p rimary arg ument in the district cour t wa s broader than the rule we adopt today

. He did not co n c ed e t h at any evidence should be adm i tted u nder a plain hearing rule. I nstead, Carey contended that “any a n d all evidence d e rived from the use of wiretaps” should b e suppressed. Carey
arg ued that the ag e nts learned at some point that they were listening to an unrelated conspiracy

, a nd therefore the wiretap order was invalid because it did not establish necessity as to him.

Also, while the dissent is correct th a t C ar ey did not present eviden ce “contradicting Ag ent Melz er’s sworn declaration,” dissent at 18, Carey arg ued to the district court that Melz e r’s declaration was lacking “specifically what level of know l e dg e [ the ag ents] had between – when the wiretap started o n March 10th throug h t o M a r c h 17th.” The dissent repeatedly emphasiz es that Carey did not contest the accuracy of Ag ent Melz er’s declaration. This is true, but be side the point. Carey ’s objection wa s not that the declaration was inaccurate; his objection w a s t h at it was incomplete

. The district court r ecog niz ed Carey ’s belief that “there are thing s that are not in his d eclaration that y ou believe woul d b eU N I T E D S T A T E S V

. C A R E Y 17

relevant facts,” and the court was aware of Carey ’s alternate

r e q u e st to take evidence about Melz er’s level of knowled ge reg arding the relationship between E scamilla and the ph o ne calls. B ut because the district cour t t h e n applied the wrong leg al standard, the distr i c t c o u rt did not believe that any additional evidence was necessary

. 7

A s stated above, Carey a n d the g overnment to o k polariz ed positions before the district court, and the correct l e gal standard lay somewhere in between. I n su c h ci r c u m stances, we c onclude that the proper course is to allow t he parties to present more e v idence on r e mand to determine whether a

n y evidence should be suppressed under the proper leg al standard that we have now declared.

VACATED AND REMANDED

.

KOZ I NSKI , Circuit J udg e, dissenting :

I j o i n my colleag ues insofar as they h old that t h e g overnment may use evidence obtained from a valid wiretap

u n til “officers know or should know they are listening to conversations outside the scope of the wiretap order.” Op. at

7 T h e d issen t f

au lts u s f o r th is “ o b liq u e su g g estio n ,” d issen t at 2 1
, b u t i t is clear t o u s th at C arey w as seek in g a Fra n ks h earin g to learn m o re ab o u t Melzer’ s k

n ow led g e o f th e sp eak ers h eard o v er th e w iretap

. A s w e ack n o w led g ed ab o v e, see n o te 6 su p r a , t h at is n o t a pro p er p u r p ose o f a Fra n ks h earin g

. B u t co u n sel’ s m islab elin g of h is req u est d o es n o t ch an g e t h e f act th at Carey ’ s co u n sel p u t th e d istrict co u rt o n n o tice th at co u n s e l th o u g h t ad d itio n al ev id en ce co u l d b e n ecessary t o reso lv e t h e su p p ressio n

m o tio n

. A n d h ad th e d istrict c o u rt ap p lied th e co rrect leg al s tan d ard

, i t

w o u ld h av e reco g n ized ad d itio n al ev id en ce w as n eed ed

.U N I T E D S T A T E S V

. C A R E Y 18

14. B ut I dissent from Part I V of the op i n i o n w here the

m a jority remands with instructions that the district cou r t apply this r

ule to Carey ’s c ase on an open record. I f, a s the majority recog niz es, the “ record does not show” whether the federal a g ents reasonably believed that the c onspiracies were related until a fter the traffic stop, op. at 15, Carey has only himself to blame. He pres e n ted no evidence contradicting Ag ent Melz er’s sworn declaration.

Carey can hardly be surprised by the “plain h earing ” rule

we adopt today : As the majority ac k nowledg e s, “Carey
arg ued that the ag e nts learned at some point that they were listening to a

n unrelated conspiracy

, ” op. at 1 6, but h e failed
to identify a specific point. I nstead, Carey relied only on the fact that the o ffi c ers listened for seven day s to the conversations on the phone.

B u t the leng th of time the officers list e n e d is hardly dispositive of whether they realiz ed or should h a v e r ealiz ed they were listening to a different con s piracy than the o ne covered b y the warrant. That depends o n wh at the officers heard and when t h e y heard it. W hile ag ents eventually realiz e d that Escamilla wasn’t u s i n g the phone, the wiretap order also p e rmitted them to intercept conversations o f Escamilla’s unknown co-c o nspirators. The ag ents could have reasonably believed that Escamil l a had passed the phone to

a confederate. F B I Ag ent Melz er declared under oath that he “thoug ht the callers and calls mig ht still be affili a ted with [ the] known targ ets or part of the criminal a c t ivity [he] was investig ating .” He claims he didn’t d efinitively learn until after t h e t r affic stop that the c alls were unrelated to the Escamilla c onspiracy

. B y ex pressly refusing to challeng e the Melz er declaration, Carey conceded the point.U N I T E D S T A T E S V

. C A R E Y 19

The majority is mistaken in say ing that “Carey ’s primary
arg ument in the district c ourt was b r o a d er than the rule we adopt today .” Op. at 16. Here’s what Carey ’s lawy e r a rg u ed in his motion in the district court:

Mr. Carey concedes the F B I reasonably believed the intercepted calls from T-14 could be related to the Esca m i l la conspiracy

, at the b e gi n ning of interception. At some point, however, during the d aily interc e p t ions, with the number of calls mounting w ith new interceptees, it became less reasonable for the F B I to c ontinue to believe this new conspiracy

was related to Escamilla. As the Court is well
aware, t h e F B I ’s investig ation into the Escamilla conspiracy was v ast and ex tensive. A t some point, between March 10 to Ma r c h 17, 2010, the F B I had to have re a l i z ed that
t h [ e ] T -14 interceptions w ere part of a separate conspiracy

– separate from, a nd unrelated to, the Escamilla conspiracy for which the wiretap was authoriz ed.

W h en they knew, they s h ould have stopped, worked with other law enforcement
ag enci es investig ating the Carey conspiracy and proceeded w ith a proper , t raditional investig ation. I nstead, the F B I
, knowing at

some point t hat they were no long er i n v e s t i g a t i n g E s c a m i l l a a n d h i s c o

conspirators, continued to monitor T-14 under the ausp i c e s and authority of the Escamilla wiretap.U N I T E D S T A T E S V

. C A R E Y 20

And here’s what Care y ’s lawy er said to the district court during oral arg

ument:

I t is our position that at some p oint along that week as the c alls were coming in, as the interceptees were being i n t e rcepted and they

were not connected to the Escamilla ex tensive investig ation, that th e reasonableness of that
ag ent to believe that was somehow related to Escamilla diminished. I t d imini s h e d per c all
p e r day

, all the way to the e n d of the week that where it is unreasonable then – wh er e it started out being reasonable by the end of the week [ sic]

. Carey never identified a s p e cific point w hen it became unreasonable for the ag ents to believe that they w ere still listening to the Escamilla conspiracy

. Carey was g i v e n f ull discovery and thus had ac c e s s to the recording s a nd transcripts of the intercepted phone conversations. I f he believed that the ag ents should have known prior to the traffic stop that this was a d ifferent conspiracy

, he co u l d h ave pointed this out to the distri c t c o u r t. I n stead, he offered no evidence and e x p licitly dec l ined to dispute the accuracy o f Melz er’s statement:

The Court: F rom y our standpoint i t i s

fair to say that y ou don’t dispute the accuracy that Mr. Melz er set forth in his d e c l a r a t i o n ? Y o u r arg ument is t hat, well, there are thing s that a r e not in his dec l aration thatU N I T E D S T A T E S V

. C A R E Y 21

y ou bel ieve would be releva n t facts, but that a s far as a – there is no d i s a g r e e m e n t w i t h h i s declaration.

[ Carey ’s lawy er] : T h a t i s a n a c c u r a t e

statement.

The Court: So in deciding the motion,

there is no objection to the Court rely ing on facts set forth i n this declaration a s true and as p a r t of the record.

[ Carey ’s lawy er] : I t h i n k t h a t i s a f a i r statement.

The majority is a lso mistaken in its oblique su gge s t i on t h a t Carey was seeking to obtain additional evidence o r requested an evidentiary hearing “to take eviden ce about Melz er’s level of k

no w l edg e reg arding the relationship between Escamilla and the p h o n e calls.” Op. at 1 7. Here’s what actually

happened in the district court:

[ The Court] : I s t h e re any evidenti a r y

–

any witnesses in y our v iew that w ould b e necessary for a n evidentiary h earing ? I t seems like it is a leg al
matter to me.U N I T E D S T A T E S V

. C A R E Y 22

[ Carey ’s lawy er] : E x c e p t f o r t h e F r a n k s hearing – outside o f the F ranks hearing

, I don’t see

a need for a n evidentiary h e a r i n g , o t h e r t h a n p e r h a p s A g e n t C r a w l (phonetic) fr o m the DEA

w a s c o n d u c t i n g t h e investig ation while the F B I w a s c o n d u c t i n g the wiret a p. Outside o f that I don’t see any other relevant evidentiary
purposes.

Carey thus e x pressly disown ed the p urposes the majority
g enerously attributes to him. As for the Franks hearing

, the

m a j o r ity recog niz es that it’s inapplicable to this situation. Op. at 15.

This isn’t a c ase wh er e we’ve announced an unforeseen rule, surprising a defendant who didn’t have the opportunity
to arg ue about its applicat i o n i n the d istrict court. Carey ’s problem is that h e failed to demonstrate in the district court t h a t a n y evidence should be suppressed under the rule he advocated. I would affirm the district court’s judg ment rather than g ive Carey

a mullig a n

.