FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL CAREY, AKA

Garrocha,

Defendant-Appellant.

No. 14-50222

D.C. No.

3:11-cr-00671-WQH-1

OPINION

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
2 UNITED STATES V. CAREY

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 necessityas to those specific speakers, but

that agents must discontinuemonitoring the wiretap once they

know or reasonably should know that the phone calls only

involved speakers outside the target conspiracy.

Because the record does not show exactly when agents

knew or should have known that the phone conversations did

not involve the persons involved in the target conspiracy, the

panel vacated the district court’s denial of the motion to

suppress and remanded to the district court on an open record

to determine what evidence was lawfully obtained in “plain

hearing.”

Judge Kozinski dissented from the part of the opinion

where the majority remands on an open record. He wrote that

if the record does not show whether the agents reasonably

believed that the conspiracies were related until after a traffic

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CAREY 3

stop, the defendant, who presented no evidence contradicting

an agent’s sworn declaration, has only himself to blame.

COUNSEL

Knut Sveinbjorn Johnson (argued) and Emerson Wheat, San

Diego, California, for Defendant-Appellant.

Peter Ko (argued), Assistant United States Attorney, Chief,

Appellate Section, Criminal Division; Laura E. Duffy, United

States Attorney; United States Attorney’s Office, San Diego,

California; for Plaintiff-Appellee.
4 UNITED STATES V. CAREY

OPINION

GOULD, Circuit Judge:

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 Escamilla

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 Escamilla order to listen to Carey’s

conversations.

The Fourth Amendment provides an exception to the

warrant or probable cause requirement when police see

contraband in “plain view.” We adopt a similar principle

today and hold that the police may use evidence obtained in

“plain hearing” when they overhear speakers unrelated to the

target conspiracy while listening to a valid wiretap, without
UNITED STATES V. CAREY 5

having complied with the Wiretap Act requirements of

probable cause and necessity as to those specific speakers. 

However, the agents must discontinue monitoring the wiretap

once they know or reasonably should know that the phone

calls only involved speakers outside the target conspiracy. 

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

The district court did not apply these principles, and the

record in this case does not show exactly when agents knew

or should have known that the phone conversations did not

involve Escamilla and his coconspirators. We vacate the

district court’s denial of Carey’s motion to suppress and

remand to 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 granted FBI Special

Agent Christopher Melzer’s application for a wiretap order

for several phone numbers thought to be associated with a

drug conspiracy led by Ignacio Escamilla Estrada

(Escamilla). The phone number designated “T-14” was

believed to belong to Escamilla. The wiretap of T-14 went

live on March 5, although no calls were intercepted until

March 10.

Starting on the 10th, the agents overheard “drug-related”

calls, but at some point the agents realized that the person

using T-14 was not Escamilla. The agents did not know who

the people speaking on T-14 were, although Melzer initially

“thought the callers and calls might still be affiliated with

[the] known targets or part of the criminal activity [he] was

investigating.” Melzer consulted with federal prosecutors,

and agents continued to monitor the calls.
6 UNITED STATES V. CAREY

On the morning of March 17, 2010, agents intercepted a

call indicating that someone would be traveling with

“invoices” (believed to be code for drug money). The agents

coordinated with local police officers to execute a traffic stop

on a car involved in the phone calls. Officers identified the

driver as Adrian Madrid and searched the vehicle, finding

cash and a cellphone tied to the T-14 number. Officers then

obtained a search warrant for a related residence and found

cocaine. Now knowing Madrid’s identity, Melzer learned

that therewas an ongoingDEA/ICE investigation into Madrid

and his associates. Melzer met with ICE and DEA agents,

and they concluded that there was no “overlap” between the

Madrid and Escamilla conspiracies.

Agents later identified Carey as a member of Madrid’s

conspiracy.

1 Carey was indicted in February 2011 for

conspiracy to distribute cocaine in violation of 21 U.S.C.

§§ 841(a)(1) and 846. He filed a motion to suppress “any and

all evidence derived from the use of wiretaps,” arguing that

the government failed to comply with the Wiretap Act,

18 U.S.C. §§ 2510–22, with respect to Carey and his

coconspirators. In Carey’s view, the government instead had

unlawfully “relie[d] on the validity of the Escamilla order to

justify the independent and unrelated use of wiretap

surveillance against Mr. Carey.” Carey also requested a

Franks2hearing to “fill in the holes” of a declaration by

1 Phone calls intercepted by the wiretap referred to “Garrocha,”

apparently Carey’s nickname, but the record does not show when agents

made that connection. The record also does not reveal how Carey’s

associate, Jose Antonio Hernandez-Gutierrez, ended up with Escamilla’s

phone number.

 

2

See Franks v. Delaware, 438 U.S. 154 (1978).
UNITED STATES V. CAREY 7

Special Agent Melzer that had been submitted to the district

court to explain the agents’ and officers’ actions in

connection with the wiretap.

The district court denied the motion to suppress,

reasoning that the government had complied with the statute

to obtain the wiretap order against Escamilla and holding that

“[t]here was no requirement for a separate showing of

necessity once the agents concluded that T-14 was not

primarily used by Escamilla. The agents reasonably believed

that the callers and calls might be affiliated with Escamilla or

other offenses.” Carey pled guilty in an agreement that

preserved his right to appeal the denial of his motion to

suppress. Carey’s appeal was timely and we have jurisdiction

under 28 U.S.C. § 1291.

II

In 1967, the Supreme Court issued two opinions

discussing the constitutionality of certain phone surveillance

techniques. In Berger v. New York, 388 U.S. 41 (1967), the

Court invalidated a New York wiretap statute as “too broad

in its sweep resulting in a trespassory intrusion into a

constitutionally protected area.” Id. at 44. Then in Katz v.

United States, 389 U.S. 347 (1967), the Court held that

federal agents violated the Fourth Amendment by

eavesdropping on and recording a telephone call without a

warrant. Id. at 348, 357–59.

Congress took note of these foundational decisions when

passing the Omnibus Crime Control and Safe Streets Act of

1968. See United States v. U.S. Dist. Ct. for the E. Dist. of

Mich., 407 U.S. 297, 302 (1972). Title III, which is known

colloquially as the Wiretap Act, prescribes certain procedures
8 UNITED STATES V. CAREY

that the government must follow to secure judicial

authorization for a wiretap. See United States v. Giordano,

416 U.S. 505, 507 (1974) (citing 18 U.S.C. §§ 2510–20). The

governmentmust demonstrate probable cause that a particular

offense has been or will be committed, see 18 U.S.C.

§ 2518(1)(b); United States v. Kahn, 415 U.S. 143, 155

(1974), and the government must demonstrate “necessity” for

the wiretap by showing that traditional investigative

procedures did not succeed or would be too dangerous or

unlikely to succeed if tried, see 18 U.S.C. § 2518(1)(c);

United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.

2001). The statute also requires the government to adopt

minimization techniques to “reduce to a practical minimum

the interception of conversations unrelated to the criminal

activity under investigation.” United States v. McGuire,

307 F.3d 1192, 1199 (9th Cir. 2002); see 18 U.S.C.

§ 2518(5).

If the government uses a wiretap in violation of the

statute, evidence obtained from the wiretap is inadmissible

against the conversation’s participants in a criminal

proceeding. Giordano, 416 U.S. at 507–08; see 18 U.S.C.

§ 2515. Carey argues that suppression is warranted here

because the government did not comply with these statutory

requirements as to him or his coconspirators—the

government’s wiretap application instead demonstrated

probable cause and necessity only as to Escamilla’s

conspiracy.

As a preliminary matter, the government argues that the

only Wiretap Act argument Carey has preserved is his

necessity argument: whether the agents violated 18 U.S.C.

§ 2518(1)(c) by listening to Carey’s phone calls without first

trying “other investigative procedures” or explaining “why
UNITED STATES V. CAREY 9

they reasonably appear to be unlikely to succeed if tried or to

be too dangerous.” At oral argument on appeal, the

government further suggested that Carey’s argument that the

government could not rely on the Escamilla wiretap to listen

to Carey’s calls was an argument about the proper “execution

of the order” rather than “the necessity showing.”

In this context, however, we see no meaningful difference

between the argument presented to the district court and that

presented on appeal. While Carey’s suppression brief

primarily discussed necessity, he argued in substance that the

government could not “rel[y] on the validity of the Escamilla

order to justify the independent and unrelated use of wiretap

surveillance against Mr. Carey.” The government recognized

that this was the premise of Carey’s argument, responding

with its view that “agents properly continued to intercept T14 even after determining Escamilla was not the primary

user.” And this claim was further fleshed out before the

district court when, in dialogue with the judge, Carey’s

lawyer argued that “[a]t the point in that time during that 15-

day period they [the agents] realize this is a separate and

distinct conspiracy group of people, they have to stop” and

“make the required showing, obtain the authorization for the

wiretap for that separate and distinct group of people.” Even

on appeal the government recognizes in its brief that “the

circumstances under which interception occurred” were

placed “squarely at issue” in Carey’s suppression motion,

which charged that “Melzer knew, at the time of interception,

the T-14 calls were ‘unrelated to the Escamilla

investigation.’”

Carey’s arguments to the district court adequately

conveyed the thrust of his argument on appeal that the
10 UNITED STATES V. CAREY

Escamilla wiretap order did not authorize the government to

listen to Carey’s phone calls. Carey’s claim is preserved.

III

Turning to the question whether agents could lawfully use

the Escamilla wiretap to listen to Carey’s conversations, we

note that there is a lack of Ninth Circuit precedent squarely

on point. While the Wiretap Act allows officials to intercept

and use calls “relating to offenses other than those specified

in the order of authorization or approval,” 18 U.S.C.

§ 2517(5), we have found no case in which this statutory

provision was used to authorize officers to listen to people

who were unaffiliated with the initial wiretap subjects.3

Carey cites several cases for the proposition that the necessity

showing in a wiretap application must be specifically tailored

to the target subjects,4but none of these cases involves a

situation in which a concededly valid wiretap order was used

to obtain evidence of an unrelated person’s crime.

Here the government showed necessity and probable

cause for a wiretap of the target conspiracy. But what

3

See United States v. Reed, 575 F.3d 900, 911 (9th Cir. 2009) (allowing

government to introduce calls of Jackson intercepted on a wiretap for

Reed when agents initially thought the phone was Reed’s, Jackson was a

“previouslyunknown associate ofReed,” and “the record shows that TT10

was being used in the furtherance of Reed’s PCP enterprise”); United

States v. Baker, 589 F.2d 1008, 1011 (9th Cir. 1979) (per curiam)

(allowing government to introduce calls of Baker intercepted on a wiretap

for Judd when Baker was speaking to Judd). While the government relies

on these cases, it concedes that they “are not perfect fits.”

4

See, e.g., United States v. Staffeldt, 451 F.3d 578, 579 (9th Cir. 2006);

United States v. Gonzalez, Inc., 412 F.3d 1102, 1115 (9th Cir. 2005);

Blackmon, 273 F.3d at 1208–09.
UNITED STATES V. CAREY 11

happens when a wiretap that is valid at its inception is later

used to listen to someone who is not involved in the

conspiracy under surveillance? It is that novel question to

which we turn our attention.

The Seventh Circuit has addressed a similar situation in

dicta. Writing for that court, then-Chief Judge Posner

explained, “It is true that if government agents execute a valid

wiretap order and in the course of executing it discover that

it was procured by a mistake and at the same time overhear

incriminating conversations, the record of the conversations

is admissible in evidence. It is just the ‘plain view’ doctrine

translated from the visual to the oral dimension.” United

States v. Ramirez, 112 F.3d 849, 851 (7th Cir. 1997) (internal

citations omitted). “But,” the court continued, “once the

mistake is discovered, the government cannot use the

authority of the warrant, or of the [wiretap] order, to conduct

a search or interception that they know is unsupported by

probable cause or is otherwise outside the scope of the statute

or the Constitution.” Id. at 852 (citing Maryland v. Garrison,

480 U.S. 79, 87 (1987)).5 We conclude that the Seventh

Circuit’s observations are persuasive.

These conclusions are drawn by analogy to Fourth

Amendment case law. In Maryland v. Garrison, 480 U.S. 79

(1987), officers secured a warrant for Lawrence McWebb’s

residence at “2036 Park Avenue third floor apartment.” Id.

at 80. When the officers entered, they “reasonably

concluded” that the third floor was only one apartment unit,

but they soon discovered that the floor was divided into two

5 This discussion in Ramirez was dicta because the court held that the

wiretap was not being used illegally when agents mistakenly listened to

phone calls in Minnesota rather than Wisconsin. Id. at 852–53.
12 UNITED STATES V. CAREY

apartments—one McWebb’s, the other Garrison’s. Id. at 81. 

Before the officers realized that, they saw drug contraband in

Garrison’s apartment. Id. at 80. The Court held that the

search “[p]rior to the officers’ discovery of the factual

mistake” did not violate the Fourth Amendment so long as the

officers’ failure to realize the mistake “was objectively

understandable and reasonable.” Id. at 88.

But at the same time, the Court emphasized that the

officers “were required to discontinue the search of

respondent’s apartment as soon as they discovered that there

were two separate units on the third floor and therefore were

put on notice of the risk that they might be in a unit

erroneously included within the terms of the warrant.” Id. at

87. We have applied this rule from Garrison in similar

situations. See, e.g., Mena v. City of Simi Valley, 226 F.3d

1031, 1038–39 (9th Cir. 2000); Liston v. County of Riverside,

120 F.3d 965, 979 (9th Cir. 1997) (“Until the officers learned

that they were in the wrong house, the officers could have

reasonably believed . . . that the way they conducted the

search was lawful. . . . But once they knew the house

belonged to the Listons, their search was no longer

justified.”).

Despite the Seventh Circuit’s decision in Ramirez, both

the government and Carey resist the application of this

doctrine to the wiretap context. Carey states that Garrison

“has limited application to wiretaps” because of the

procedural requirements of the Wiretap Act. This argument

is unavailing because the government did comply with the

statute to get a valid wiretap for Escamilla on T-14. The

question here is whether the government could use that valid

wiretap to listen to unrelated people’s phone calls—a concern

that mirrors the question in Garrison whether officers could
UNITED STATES V. CAREY 13

rely on a valid warrant for entry into an unrelated person’s

apartment.

The government, on the other hand, argues that the agents

could continue monitoring the wiretap even after realizing

that they were not listening to the target conspiracy. The

government urges that the wiretap order in this case

authorized interception of drug calls by “others yet unknown”

over T-14. In the government’s view, Carey is such an

unknown person. Read in context, however, the wiretap

order does not extend to unknown people not involved in the

Escamilla conspiracy.

Having carefully reviewed the full record, including any

portions filed under seal, we conclude that the provisions of

the wiretap order persuasively indicate that the unknown

people referred to in the wiretap order must be involved with

the Escamilla conspiracy; the order does not authorize the

wiretap of “others yet unknown” participating in a conspiracy

“yet unknown.” Moreover, the wiretap order could not

authorize surveillance of an unknown conspiracy because the

statute requires agents to demonstrate probable cause and

necessity to procure a wiretap order. 18 U.S.C.

§ 2518(1)(b)–(c). Agent Melzer’s affidavit contained

probable cause that “others yet unknown” were participating

in the Escamilla conspiracy, but it understandably contained

no information about unknown people engaged in drug

trafficking outside the Escamilla conspiracy.

The government also argues that agents could listen to

Carey’s conversations because the Wiretap Act permits the

collection of evidence of other crimes under 18 U.S.C.

§ 2517(5). That provision authorizes the government to use

“communications relating to offenses other than those
14 UNITED STATES V. CAREY

specified in the order of authorization or approval.” But

importantly—and fatally to the government’s argument—the

statute does so only when officers are “engaged in

intercepting wire, oral, or electronic communications in the

manner authorized herein.” 18 U.S.C. § 2517(5). Because

the order does not authorize agents to listen to conversations

by individuals outside the Escamilla conspiracy for the

reasons stated above, this provision does not help the

government here.

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. Cf. id. at 87.

IV

Applying this rule to Carey’s case, we first note that

Carey does not challenge the validity of the wiretap order as

to Escamilla, so the agents were justified in initially listening

to the conversations on T-14. But because the order did not

authorize agents to listen to Carey or his associates, the

government may only use evidence obtained in accordance

with the “plain hearing” doctrine discussed above.
UNITED STATES V. CAREY 15

The record does not indicate what evidence was obtained

before the agents knew or should have known that they were

listening to calls outside of the Escamilla conspiracy. 

Melzer’s declaration stated, “Within that time frame [March

10–17], after an amount of time that I do not recall exactly,

we concluded that the person using T-14 was not Ignacio

Escamilla Estrada. We also did not know the identities of the

persons calling T-14.” While Melzer’s declaration suggests

that he “thought the callers and calls might still be affiliated

with” the Escamilla conspiracy, the record does not show

whether he continued or reasonably could have continued to

hold that belief through March 17. In fact, at some point

agents consulted with federal prosecutors about whether they

could or should continue to intercept calls on the wiretap.

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.

6 We vacate the

district court’s order denying the motion to suppress and

remand on an open record to determine what evidence is

 

6 Carey “alternatively” sought a Franks hearing to “fill in the holes” in

Melzer’s declaration. But this request does not fit into the Franks v.

Delaware, 438 U.S. 154 (1978), framework because the Melzer

declaration was not an affidavit supporting a wiretap application. See id.

at 171–72 (explaining purpose of Franks hearing is to explore possible

falsehoods in affidavit supporting request for search warrant); United

States v. Ippolito, 774 F.2d 1482, 1484–85 (9th Cir. 1985) (applying

Franks to wiretap applications).
16 UNITED STATES V. CAREY

admissible against Carey under the legal framework set forth

above.

The dissent argues that Carey forfeited this relief by

“fail[ing] to demonstrate in the district court that any

evidence should be suppressed under the rule he advocated.” 

Dissent at 22. This conclusion appears to stem from the

dissent’s premise that “Carey can hardly be surprised by the

‘plain hearing’ rule we adopt today” because he advocated for

a similar rule in the district court. Dissent at 18.

We disagree with this conclusion and its premise. 

Carey’s primary argument in the district court was broader

than the rule we adopt today. He did not concede that any

evidence should be admitted under a plain hearing rule. 

Instead, Carey contended that “any and all evidence derived

from the use of wiretaps” should be suppressed. Carey

argued that the agents learned at some point that they were

listening to an unrelated conspiracy, and therefore the wiretap

order was invalid because it did not establish necessity as to

him.

Also, while the dissent is correct that Carey did not

present evidence “contradicting Agent Melzer’s sworn

declaration,” dissent at 18, Carey argued to the district court

that Melzer’s declaration was lacking “specificallywhat level

of knowledge [the agents] had between – when the wiretap

started on March 10th through to March 17th.” The dissent

repeatedlyemphasizes that Carey did not contest the accuracy

of Agent Melzer’s declaration. This is true, but beside the

point. Carey’s objection was not that the declaration was

inaccurate; his objection was that it was incomplete. The

district court recognized Carey’s belief that “there are things

that are not in his declaration that you believe would be
UNITED STATES V. CAREY 17

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

request to take evidence about Melzer’s level of knowledge

regarding the relationship between Escamilla and the phone

calls. But because the district court then applied the wrong

legal standard, the district court did not believe that any

additional evidence was necessary.

7

As stated above, Carey and the government took

polarized positions before the district court, and the correct

legal standard lay somewhere in between. In such

circumstances, we conclude that the proper course is to

allow the parties to present more evidence on remand to

determine whether any evidence should be suppressed under

the proper legal standard that we have now declared.

VACATED AND REMANDED.

KOZINSKI, Circuit Judge, 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

7 The dissent faults us for this “oblique suggestion,” dissent at 21, but it

is clear to us that Carey was seeking a Franks hearing to learn more about

Melzer’s knowledge of the speakers heard over the wiretap. As we

acknowledged above, see note 6 supra, that is not a proper purpose of a

Franks hearing. But counsel’s mislabeling of his request does not change

the fact that Carey’s counsel put the district court on notice that counsel

thought additional evidence could be necessary to resolve the suppression

motion. And had the district court applied the correct legal standard, it

would have recognized additional evidence was needed.
18 UNITED STATES V. CAREY

14. 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, op. at 15, 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,” op. at 16, 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 were listening to a different conspiracy than the one

covered by the warrant. That depends on what the officers

heard and when they heard it. While agents eventually

realized that Escamilla wasn’t using the phone, the wiretap

order also permitted them to intercept conversations of

Escamilla’s unknown co-conspirators. The agents could have

reasonably believed that Escamilla had passed the phone to

a confederate. FBI Agent Melzer declared under oath that he

“thought the callers and calls might still be affiliated with

[the] known targets or part of the criminal activity [he] was

investigating.” He claims he didn’t definitively learn until

after the traffic stop that the calls were unrelated to the

Escamilla conspiracy. By expressly refusing to challenge the

Melzer declaration, Carey conceded the point.
UNITED STATES V. CAREY 19

The majority is mistaken in saying that “Carey’s primary

argument in the district court was broader than the rule we

adopt today.” Op. at 16. Here’s what Carey’s lawyer argued

in his motion in the district court:

Mr. Carey concedes the FBI reasonably

believed the intercepted calls from T-14 could

be related to the Escamilla conspiracy, at the

beginning of interception. At some point,

however, during the daily interceptions, with

the number of calls mounting with new

interceptees, it became less reasonable for the

FBIto continue to believe this new conspiracy

was related to Escamilla. As the Court is well

aware, the FBI’s investigation into the

Escamilla conspiracy was vast and extensive. 

At some point, between March 10 to March

17, 2010, the FBI had to have realized that

th[e] T-14 interceptions were part of a

separate conspiracy – separate from, and

unrelated to, the Escamilla conspiracy for

which the wiretap was authorized.

When they knew, they should have

stopped, worked with other law enforcement

agencies investigating the Carey conspiracy

and proceeded with a proper, traditional

investigation. Instead, the FBI, knowing at

some point that they were no longer

investigating Escamilla and his coconspirators, continued to monitor T-14 under

the auspices and authority of the Escamilla

wiretap.
20 UNITED STATES V. CAREY

And here’s what Carey’s lawyer said to the district court

during oral argument:

It is our position that at some point along that

week as the calls were coming in, as the

interceptees were being intercepted and they

were not connected to the Escamilla extensive

investigation, that the reasonableness of that

agent to believe that was somehow related to

Escamilla diminished. It diminished per call

per day, all the way to the end of the week

that where it is unreasonable then – where it

started out being reasonable by the end of the

week [sic].

Carey never identified a specific point when it became

unreasonable for the agents to believe that they were still

listening to the Escamilla conspiracy. Carey was given full

discovery and thus had access to the recordings and

transcripts of the intercepted phone conversations. If he

believed that the agents should have known prior to the traffic

stop that this was a different conspiracy, he could have

pointed this out to the district court. Instead, he offered no

evidence and explicitly declined to dispute the accuracy of

Melzer’s statement:

The Court: From your standpoint it is

fair to say that you don’t

dispute the accuracy that

Mr. Melzer set forth in his

declaration? Your

argument is that, well,

there are things that are

not in his declaration that
UNITED STATES V. CAREY 21

you believe would be

relevant facts, but that as

far as a – there is no

disagreement with his

declaration.

[Carey’s lawyer]: That is an accurate

statement.

The Court: So in deciding the motion,

there is no objection to the

Court relying on facts set

forth in this declaration as

true and as part of the

record.

[Carey’s lawyer]: I think that is a fair

statement.

The majority is also mistaken in its oblique suggestion

that Carey was seeking to obtain additional evidence or

requested an evidentiary hearing “to take evidence about

Melzer’s level of knowledge regarding the relationship

between Escamilla and the phone calls.” Op. at 17. Here’s

what actually happened in the district court:

[The Court]: Is there any evidentiary –

any witnesses in your view

that would be necessary

for an evidentiary hearing?

It seems like it is a legal

matter to me.
22 UNITED STATES V. CAREY

[Carey’s lawyer]: Except for the Franks

hearing – outside of the

Franks hearing, I don’t see

a need for an evidentiary

hearing, other than

perhaps Agent Crawl

(phonetic) from the DEA

was conducting the

investigation while the

FBI was conducting

the wiretap. Outside of

that I don’t see any

other relevant evidentiary

purposes.

Carey thus expressly disowned the purposes the majority

generously attributes to him. As for the Franks hearing, the

majority recognizes that it’s inapplicable to this situation.

Op. at 15.

This isn’t a case where we’ve announced an unforeseen

rule, surprising a defendant who didn’t have the opportunity

to argue about its application in the district court. Carey’s

problem is that he failed to demonstrate in the district court

that any evidence should be suppressed under the rule he

advocated. I would affirm the district court’s judgment rather

than give Carey a mulligan.