REVISED SEPTEMBER 6, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60763

UNITED STATES OF AMERICA, 

Plaintiff - Appellee 

v.

RICHARD NORTH,

Defendant - Appellant 

Appeal from the United States District Court 

for the Southern District of Mississippi

Before STEWART, Chief Judge, and DeMOSS and GRAVES, Circuit Judges.

PER CURIAM:

Appellant Richard North appeals the district court’s denial of his motion

to suppress evidence obtained from the interception of his cellular phone.

Information obtained from the interception led to North’s arrest for possession

of cocaine. For the following reasons, we reverse the district court’s denial of his

motion to suppress. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2013

Lyle W. Cayce

Clerk
No. 11-60763

2

I. 

This case stems from the government’s investigation of Kenneth Lofton,

a Jackson, Mississippi-based cocaine and marijuana distributor. As part of its

investigation, the government sought wiretaps on various cell phones. Judge

Wingate in the United States District Court for the Southern District of

Mississippi authorized wiretaps on two cell phones (Target Telephone 1 and

Target Telephone 2) that were used by Lofton. From these wiretaps, Drug

Enforcement Agency (DEA) agents intercepted phone conversations between

Lofton and a person known as “Jack,” arranging an upcoming cocaine

transaction. On March 16, 2009, Lofton and “Jack” met in a parking lot in

Jackson. The truck driven by “Jack” was registered to Jerry Primer. On March

18, 2009, the government obtained a third wiretap warrant for “Jack’s” cell

phone (Target Telephone 3). On March 19, 2009, DEA agents obtained a driver’s

license photograph confirming that “Jack” was in fact Primer.

On March 28, 2009, Primer received a phone call from “Billy,” during

which the two agreed to meet at a Jackson home used by Primer. Agents

followed Primer to the residence, where they observed a Ford Explorer with a

Texas license plate parked in the driveway. The Ford Explorer was a rental car

that was later determined to have been rented by Richard North. 

Based on surveillance and information gathered from intercepted phone

calls between Primer and “Billy,” the government applied for a warrant

authorizing interception of phone calls to and from the phone used by “Billy”

(Target Telephone 4). The government stated that it had probable cause to

believe the targeted phone was “in the possession of and [was] being used by

[BILLY],” and further declared that “Billy” had been identified as a member of

a narcotics trafficking organization. The application for the warrant was

supported by an affidavit from DEA agent Christopher Gale, and stated that
No. 11-60763

3

“alternative investigative procedures [had] been tried and failed or appear[ed]

unlikely to succeed if tried,” and that interception was therefore necessary. The

district court approved the application.

Based on phone calls intercepted pursuant to the wiretap of Target

Telephone 4,the government concluded that “Billy” was Richard North, and that

North and Primer were planning a delivery of cocaine to Jackson on May 16,

2009. Agents also received a copy of North’s drivers license photograph. On the

date in question, agents learned that North was traveling en route to Jackson

from Houston, Texas. Texas state troopers stopped North for speeding. North’s

vehicle was searched by officers and drug sniffing dogs, but no cocaine was

found. Three hours after he was stopped, North was released. Immediately after

the stop, a third party listening agent in Metairie, Louisiana intercepted a call

on North’s cell phone between North and a female friend. Approximately one

hour into the call, North revealed that he had cocaine hidden in the car and was

returning to Houston. The listening agentforwarded this information to officers

in Texas, who intercepted North at his home. North was subsequently arrested

for possession of cocaine. 

II.

In November 2009, North and his co-conspirators were indicted for, inter

alia, conspiring to distribute more than fifty grams of cocaine. North moved to

suppress the evidence gathered pursuant to the wiretaps on Target Telephones

3 and 4. North moved to suppress the evidence gathered pursuantto the wiretap

on TargetTelephone 4 on the grounds that(1)the district courtlacked territorial

jurisdiction and (2) agents failed to minimize the May 16, 2009 phone call. North

moved to suppress the wiretap authorizations for both Target Telephones 3 and

4 on the grounds that the applications contained material misrepresentations

and omissions. After an evidentiary hearing, the district court denied North’s

motion. 
No. 11-60763

4

On appeal, North argues that: (1) the district court in Mississippi lacked

territorial jurisdiction to authorize the interception of his May 16, 2009 call

because his phone was located in Texas and the listening post was located in

Louisiana; (2) the government’s applications for authorizations contained

material misrepresentations and omissions, which undermine the government’s

required showings of necessity to resort to wiretaps as an investigative tool; and

(3) the government did not comply with monitoring minimization requirements.

III.

This court reviews “factual findings of a ruling on a motion to suppress for

clear error and legal conclusions de novo.” United States v. Moore, 452 F.3d 382,

386 (5th Cir. 2006). North’s challenge to the district court’s territorial

jurisdiction to issue the wiretap warrant is a matter of statutory interpretation

that we review de novo. See United States v. Richardson, 713 F.3d 232, 234-35

(5th Cir. 2013).

A.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968

authorizes the use of wiretap surveillance in the context of a criminal

investigation. 18 U.S.C. § 2516. To intercept communications between private

persons, law enforcement officers must apply for authorization from a federal

judge. Id. The judge may enter an ex parte order authorizing the interception of

“wire, oral, or electronic communications within the territorial jurisdiction of the

court in which the judge is sitting (and outside that jurisdiction but within the

United States in the case of a mobile interception device authorized by a Federal

court within such jurisdiction) . . . .” Id. § 2518(3). This court has stated that

“interception includes both the location of a tapped telephone and the original

listening post, and that judges in either jurisdiction have authority under Title

III to issue wiretap orders.” United States v. Denman, 100 F.3d 399, 403 (5th Cir.

1996).
No. 11-60763

5

We interpret the above authorities to mean that, except in the case of a

mobile interception device, a district court cannot authorize interception of cell

phone calls when neither the phone nor the listening post is present within the

court’s territorial jurisdiction. This, however, is exactly what the district court

did in this case. The order authorizing the wiretap provided that “in the event

that TARGET TELEPHONE 4 is transferred outside the territorial jurisdiction

of this Court, interceptions may take place in any other jurisdiction within the

United States.” Furthermore, the district court did not require that the listening

post remain within its territorial jurisdiction, and the affidavit accompanying

the government’s application for a wiretap explicitly stated that the listening

post would be located in Louisiana. In short, the district court, located in the

Southern District of Mississippi, lacked the authority to permit interception of

cell phone calls from Texas at a listening post in Louisiana.

The government argues that the district court’s order was proper because

it involved a “mobile interception device.” This court has not yet determined

what “mobile interception device” means. In United States v. Ramirez, 112 F.3d

849 (7th Cir. 1997), the Seventh Circuit was tasked with determining whether

a district court in Wisconsin had the authority to issue a warrant to intercept

calls on a Minnesota cell phone being listened to at a post in Minnesota. The

court first looked to the legislative history of § 2518(3), which states that the

term “mobile interception device” “applies to both a listening device installed in

a vehicle and to a tap placed on a cellular or other telephone instrument

installed in a v ehicle.” 112 F.3d at 852 (quoting S. Rep. No. 541, at 30 (1986)).

Rejecting a literal interpretation of the phrase “mobile interception device,” the

court found that the “emphasis in ‘mobile interception device’ falls . . . on the

mobility of what is intercepted rather than on the irrelevant mobility or

stationarity of the device.” Id. at 853. The court concluded that “[t]he term in

context means a device for intercepting mobile communications,” and held that
No. 11-60763

1 We recognize that this holding yields a strange result in this case. Although the

Mississippi district court judge did not have territorial jurisdiction under the statute, he

arguably was in the best position to balance privacy concerns with the appropriateness of

interception.See UnitedStatesDepartment of Justice Electronic Surveillance Manual, DOJML

Comment § 9-7.000 (instructing that when requesting interception of a cellular or mobile

telephone,“[t]he order shouldspecifically authorize suchextra-jurisdictional interceptions, and

should be sought in the jurisdiction having the strongest investigative nexus to the object in

which the monitoring device is installed”) (emphasis added). However, we are bound to apply

the law as it written. See United States v. Guidry, 456 F.3d 493, 501-02 (5th Cir. 2006) (“When

the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its

terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). It is for the United

States Congress to determine whether, in light of technological advances, the statute should

be amended. See Caminetti 242 U.S. at 490 (“If the words are plain, they give meaning to the

act, and it is neither the duty nor the privilege ofthe courts to enter speculative fields in search

of a different meaning.”)

6

when the device being intercepted is mobile, a judge may issue a wiretap

warrant on that device “regardless of where the phone or the listening post” is

located. Id.

We disagree that Congress intended to expand the scope of a district

court’s authority to issue wiretap warrants in any jurisdiction in the United

States when the device to be intercepted is a cell phone. Generally, the plain

meaning of a statute controls unless the literal interpretation produces a result

demonstrably at odds with the legislative intent. See United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 242 (1989); New Orleans Depot Servs., Inc. v. Dir.,

Office of Worker’s Comp. Programs, —F.3d—, 2013 WL 1798608, at *7 (5th Cir.

Apr. 29 2013) (en banc) (“[T]he first rule of statutory construction is that we may

not ignore the plain language of a statute.”). “Mobile” modifies “device,” thus the

phrase “mobile interception device” on its face appears to refer to the mobility

of the device used to intercept communications, not the mobility of the tapped

phone. We decline to interpret the statute in any way that eliminates important

provisions regarding territorial restrictions in the case of cell phones,

particularly when such an interpretation is not obvious from the statutory

language.1
No. 11-60763

7

The government has not offered any evidence showing that North’s cell

phone communications were intercepted using a device that was itself mobile.

Accordingly, we find the “mobile interception device” clause inapplicable.

B.

As explained above, the district court lacked authority to permit the

interception of cell phone calls from Texas at a listening post in Louisiana. Title

III provides thatinterception of a wire communication may be suppressed if“the

order of authorization or approval under which it was intercepted is insufficient

on its face.” 18 U.S.C. § 2518(10)(a)(ii). However, not every failure to comply

with Title III’s statutory requirements mandates suppression. Suppression is

required “only for a ‘failure to satisfy any of those statutory requirements that

directly and substantially implement the congressional intention to limit the use

of intercept procedures to those situations clearly calling for the employment of

this extraordinary investigative device.’” UnitedStates v. Donovan, 429 U.S. 413,

433-34 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)). 

North urges this court to find that the district court’s lack of territorial

jurisdiction “is not a mere ‘technical defect’ butis in fact a central and functional

safeguard underlying [Title III].” The government argues that suppression is not

warranted because the territorial jurisdiction requirement was not among

Congress’s core concerns when enacting Title III. The district court held that

territorial jurisdiction was not a central or functional safeguard in the statutory

scheme. 

The purpose of Title III “was effectively to prohibit, on the pain of criminal

and civil penalties, all interceptions of oral and wire communications, except

those specifically provided for in the Act, most notably those interceptions

permitted to law enforcement officers when authorized by court order in

connection with the investigation of the serious crimes listed in § 2516.”

Giordano, 416 U.S. at 514 (footnote omitted). “Title III has as its dual purpose
No. 11-60763

8

(1) protecting the privacy of wire and oral communications, and (2) delineating

on a uniform basis the circumstances and conditions under which the

interception of wire and oral communications may be authorized.” Adams v.

Lankford, 788 F.2d 1493, 1498 (11th Cir. 1986) (quoting S. Rep. No. 1097).

Other courts have determined that the territorial jurisdiction limitation

in Title III does not “directly and substantially implement the congressional

intention to limit the use of intercept procedures to those situations clearly

calling for the employment of this extraordinary investigative device.” See, e.g.,

Lankford, 788 F.2d at 1500; United States v. Rodriguez, 734 F. Supp. 116, 120

(S.D.N.Y. 1990) aff’d, 968 F.2d 130 (2d Cir. 1992). In Lankford, a case dealing

with wiretaps authorized by a state court judge, the Eleventh Circuit court found

thatthe legislative history was silent regarding the core concerns of Title III and

the requirement that a judge authorize interceptions within the court’s

territorial jurisdiction. 788 F.2d at 1498. Further, the court found that because

the territorial jurisdiction of a state court is subject to state determination, and

Congress gave no indication of a desire to counter this uncertainty by defining

“territorial jurisdiction” for purposes of wiretapping, Congress did not consider

this geographical limitation a core concern. Id. at 1499-1500. 

We disagree and find that the territorial jurisdiction limitation serves

important substantive interests and implicates core concerns of the statute,

despite the lack of legislative history. In Giordano, the Supreme Court held that

a provision requiring a Department of Justice officialto authorize an application

for a wiretap was “intended to play a central role in the statutory scheme,”

because the requirement substantively limited the use of wiretaps. 416 U.S. at

527-28. “[S]uch a precondition would inevitably foreclose resort to wiretapping

in various situations where investigative personnel would otherwise seek

intercept authority from the court and the court would very likely authorize its

use.” Id. at 528. Title III’s territorial restrictions prevent forum manipulation by
No. 11-60763

9

law enforcement, similarly preventing wiretap authorizations in cases where

investigators would otherwise be able to obtain them. Limiting the number of

districtjudges authorized to issue a wiretap warrant reduces the opportunity for

the government to use forum manipulation to obtain a warrant that may not be

approved elsewhere. We fail to see how this is not a significant protection of

privacy. Territorial limitations on a district court directly implicate Congress’s

intent to guard against the unwarranted use of wiretapping. 

C.

North further argues thatthe government’s applications for authorizations

contained material misrepresentations and omissions, which undermine the

government’s required showings of necessity to resort to wiretaps as an

investigative tool. 

Whether an affidavit used to secure a Title III wiretap authorization

contains “intentional or reckless” misrepresentations or omissions is a factual

determination reviewed for clear error. See United States v. Tomblin, 46 F.3d

1369, 1376-77 (5th Cir. 1995) (citing UnitedStates v. Williams, 737F.2d 594, 602

(7th Cir. 1984) (citations omitted)). “Under the clearly erroneous standard, we

may not reverse the district court’s findings of fact unless the review of the

relevant evidence leaves us with ‘the definite and firm conviction that a mistake

has been committed.’” Broussard v. United States, 989 F.2d 171, 178 (5th Cir.

1993) (per curiam) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)). “A factual finding is not clearly erroneous as long as it is plausible in

light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427

(5th Cir. 2001) (per curiam) (citation omitted). A district court’s ultimate

determination that an adequate Title III necessity showing has been made is a

legal conclusion we review de novo. See United States v. Guerra-Marez, 928 F.2d

665, 671 (5th Cir. 1991) (citation and footnote omitted).
No. 11-60763

10

Title III requires that each affidavit in support of an application for a

wiretap contain “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably

appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. §

2518(1)(c). Nevertheless,“the purpose of § 2518(1)(c) is notto foreclose electronic

surveillance until every other imaginable method of investigation has been

unsuccessfully attempted.” United States v. Webster, 734 F.2d 1048, 1055 (5th

Cir. 1984). “Rather, the section is designed to inform the issuing judge of the

difficulties involved in the use of conventional techniques and to insure that

wiretapping is not resorted to in a situation in which traditional investigative

techniques will suffice to expose crime.” Id. This court is “reluctant to impose

[our] hindsight upon law enforcement agencies.” Guerra-Marez, 928F.2d at 670.

Therefore, an affidavit in support of a wiretap “need not establish that every

other imaginable mode of investigation would be unsuccessful.” Id. (internal

quotation marks omitted). “Instead, we take a common sense view of the

statements contained in the application to determine if the necessity

requirement is satisfied.” Id. (internal quotation marks omitted).

North argues thatthe evidence gathered from both his phone andPrimer’s

phone should be suppressed because the wiretap applications and supporting

affidavits failed to satisfy Title III’s necessity requirement. First, North asserts

thatthe applications for both wiretaps “failed the necessity requirement because

Agent Gale’s affidavits in support of the applications contained material

misrepresentations and omissions, without which there was an insufficient

showing of necessity for the wiretaps.” Second, North maintains that “even if

there were no misrepresentations or omissions, necessity was still lacking as the

applications failed to present actual facts–as contrasted with boilerplate

allegations that would be true in any large scale drug trafficking

conspiracy–suggesting why alternative investigative techniques had not been
No. 11-60763

11

tried and/or would not likely have succeeded.” The government contends that

Agent Gale’s affidavits did not contain any material misrepresentations or

omissions.The government does not respond to North’s “boilerplate allegations.”

i.

We apply a two-step analysis to alleged misrepresentations and omissions.

First, the criminal defendant must show that misrepresentations or omissions

were knowingly or recklessly included in, or omitted from, the affidavit

supporting the wiretap application. Id.The reviewing court may infer this intent

if the affidavit misrepresented or omitted facts that were “clearly critical” to the

finding of necessity. Cf. United States v. Cronan, 937 F.2d 163, 165 (5th Cir.

1991) (citation omitted). Second, once the criminal defendant makes this

requisite showing, the court will reconstruct the affidavit by striking the

misrepresentations and including the omissions. See Guerra-Marez, 928 F.2d

at 670. Then, looking only to the reconstructed affidavit, the court will

determine whether § 2518(1)(c)’s necessity requirement was satisfied. See id.

Here, North argues that the affidavit used to obtain the wiretap of

Primer’s phone contained “material misrepresentations and omissions made

with reckless disregard for the truth.” Specifically, he contends that Agent

Gale’s affidavit (1) failed to disclose that, by March 16, 2009, agents had

determined that the truck driven by “Jack” was registered to Primer; and (2)

failed to mention that, on that same day, agents had observed Lofton meet

“Jack” in a Jackson parking lot. Additionally, North asserts that Agent Gale’s

statement in the affidavit, that a wire tap was “essential . . . in order to fully

identify JACK,” was a misrepresentation made with reckless disregard for the

truth because agents could have used other means to reveal Primer’s true

identity.
No. 11-60763

12

The district court rejected these arguments. We do the same, and hold

that the district court did not clearly err by concluding that Agent Gale’s

affidavit did not contain intentional misrepresentations or omissions.

First, North does not identify anything in the record establishing that

Agent Gale made his alleged misrepresentation or omissions intentionally.

Therefore, North must infer intent by pointing to “clearly critical”

misrepresented or omitted facts. See Cronan, 937 F.2d at 165. He fails to do so.

Concerning the alleged misrepresentation, North entirely decontextualizes

the statement that he isolates from Agent Gale's affidavit. Contrary to what

North suggests, the affidavit did not merely state that a wiretap was essential

to identifying “Jack.” Rather, the relevant portion of the affidavit stated:

According to the investigation to date, LOFTON is a

major drug distributor in Mississippi. LOFTON works

closely with JACK and LEDBETTER who are also

major cocaine distributors in Mississippi. Accordingly,

it is essential to intercept wire communications over

TARGET PHONE 3 in order to fully identify JACK and

obtain a clear understanding of the drug trafficking

activities of JACK and others, as well as to have the

best opportunity to identify all of the importation,

transportation, and distribution routes and the persons

that are participating in and facilitating the criminal

activities of the distribution groups. 

Given the broad scope of the government’s investigation, which extended

to “all of the importation, transportation, and distribution routes and the

persons that[were] participating in and facilitating the criminal activities ofthe

distribution groups,” we simply cannot say that the “essential . . . in order to

fully identify JACK” language in the affidavit was “clearly critical” to

establishing the government’s need to wiretap Primer’s phone. For similar

reasons, we also cannot say that the omitted information concerning Primer’s

identity was “clearly critical.” Accordingly, the district court did not clearly err
No. 11-60763

2 Because the district court did not clearly err by concluding that Agent Gale’s affidavit

in support of the wiretap of Primer’s phone did not contain intentional misrepresentations or

omissions, we need not reconstruct the affidavit in accordance with the second step of the

Guerra-Marez framework. See 928 F.2d at 670.

13

by rejecting North’s argument that Agent Gale’s affidavit contained material

misrepresentations and omissions as to the wiretap of Primer’s phone.2

ii.

As stated above, Title III’s necessity requirement mandates that each

application for an order authorizing a wiretap contain “a full and complete

statement as to whether or not other investigative procedures have been tried

and failed or why they reasonably appear to be unlikely to succeed if tried or to

be too dangerous.” 18 U.S.C. § 2518(1)(c).

The Supreme Court has recognized that § 2518(1)(c) “is simply designed

to assure that wiretapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime.” United States v.

Kahn, 415 U.S. 143, 153 n.12 (1974). “While the government’s burden is not

great, it still may not make the required showing through a mere boilerplate

recitation of the difficulties of gathering usable evidence.” United States v.

Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995) (internal quotation marks omitted).

“Rather, the government must base its need on real facts and must specifically

describe how, in the case at hand, it has encountered difficulties in penetrating

[the] criminal enterprise or in gathering evidence with normaltechniques to the

point . . . where wiretapping becomes reasonable.” Id. (internal quotations

marks and citations omitted) (alterations in original). In the absence of Circuit

precedent on this point, distinguishing between “mere boilerplate recitation” and

“real” case-specific facts for the purposes of satisfying the government’s

§ 2518(1)(c) necessity showing, we hereby adopt the Fourth Circuit’s

well-reasoned approach from Oriakhi.
No. 11-60763

14

Here, North maintains that Agent Gale’s affidavit in support of the

government's application to wiretap Primer’s phone did not satisfy Title III’s §

2518(1)(c) necessity requirement because it lacked “real” case-specific facts.

According to North, the affidavit was defective because it contained mere

boilerplate generalities applicable to any large-scale drug trafficking

investigation. This position is not persuasive. Agent Gale’s affidavit contained

some language that could be read as boilerplate. However, the boilerplate

language was not in isolation. Agent Gale also described case-specific details

concerning the investigation as a whole, the agents’ use of confidential

informants, and the information agents previously had gathered from physical

surveillance. These “real facts” informed the district court of the case-specific

limitations of conventional investigative techniques, and demonstrated that

agents did not resort to wiretapping in a situation where conventional

techniques would have sufficed. Taking a “common sense view” of the facts in

Agent Gale’s affidavit, we conclude that those facts were enough to satisfy Title

III’s necessity requirement. See Guerra-Marez, 928 F.2d at 670 (internal

quotation marks omitted).

The district court did not clearly err by finding that the affidavit used to

obtain the wiretap of Primer’s phone did not contain intentional

misrepresentations or omissions. Additionally, the district court’s ultimate

necessity determination as to the wiretap of Primer’s phone was correct because

Agent Gale provided real case-specific facts in his affidavit in support of the

authorization. Accordingly, we affirm the district court’s denial of North’s

motion to suppress as it relates to the wiretap of Primer’s phone.

iii. 

Similar to his contentions concerning the wiretap of Primer’s phone, North

argues that Agent Gale’s affidavit supporting the wiretap of his phone contained

“material misrepresentations and omissions made with reckless disregard for
No. 11-60763

15

the truth.” Specifically, North maintains that the affidavit failed to mention

that agents knew North had rented the blue Ford Explorer with Texas plates,

which they had observed on March 28, 2009. North also asserts that the

affidavit omitted the fact that agents already had a physical description of

North, in addition to his Houston address.

The district court found these arguments unavailing. In its written

opinion, the district court concluded that Agent Gale's affidavit “did not contain

any intentional or reckless misrepresentations or falsehoods.” We agree, and

hold that the district court’s conclusion was not clearly erroneous.

As with his challenge to the wiretap of Primer’s phone, North does not

identify anything in the record establishing that Agent Gale intentionally

omitted information concerning agents’ prior knowledge of North’s identity.

Moreover, it is not at all clear that Agent Gale’s two alleged omissions were

“clearly critical” to the government’s necessity showing within the meaning of

Cronan. See 937 F.2d at 165. The relevant portion of Agent Gale’s affidavit

stated:

According to the investigation to date, PRIMER is a

major drug distributor in Jackson, Mississippi.

PRIMER works closely with LOFTON and FNU LNU

a/k/a/ BILLY who are also major cocaine distributors in

Mississippi. Accordingly, it is essential to intercept

wire communications over TARGET TELEPHONE 4 in

order to fully identify FNU LNU a/k/a/ BILLY and

obtain a clear understanding of the drug trafficking

activities of FNU LNU a/k/a BILLY and others, as well

as to have the best opportunity to identify all of the

importation, transportation, and distribution routes

and the persons that are participating in and

facilitating the criminal activities of the distribution

groups.

Given the broad scope of the government’s investigation, which extended to “all

of the importation, transportation, and distribution routes and the persons that
No. 11-60763

3 Because the district court did not clearly err by concluding that Agent Gale’s affidavit

in support of the wiretap of North’s phone did not contain intentional misrepresentations or

omissions, we need not reconstruct the affidavit in accordance with the second step of the

Guerra-Marez framework. See 928 F.2d at 670.

16

[were] participating in and facilitating the criminal activities of the distribution

groups,” we cannot say thatthe omitted information concerning North’s identity

was “clearly critical.” Accordingly, the district court did not clearly err by

rejecting this portion of North’s necessity argument as to the wiretap of his

phone.3

iv.

As discussed above, a supporting affidavit must provide “real” case-specific

facts, rather than “mere boilerplate recitation,” to satisfy § 2518(1)(c)’s

requirement of necessity for a wiretap. See Oriakhi, 57 F.3d at 1298. Here,

North asserts that Agent Gale’s affidavit, which he used to obtain the

authorization to wiretap North’s phone, lacked the requisite case-specific details.

To North, the affidavit was deficient because it contained mere boilerplate

generalities applicable to any large-scale drug trafficking investigation. We

disagree.

Like Agent Gale’s affidavit in support of the wiretap of Primer’s phone,

this affidavit appears to have contained some boilerplate language. However,

as with the other affidavit, the boilerplate language was not in isolation. Agent

Gale provided “real facts,” which demonstrated to the district court that agents

did not resort to wiretapping in a situation where conventional investigative

techniques would have sufficed. Taking a “common sense view” of the facts in

Agent Gale’s affidavit, we conclude that those facts were enough to satisfy Title

III’s necessity requirement. See Guerra-Marez, 928 F.2d at 670 (internal

quotation marks omitted), 
No. 11-60763

4 One additional point warrants mention. To support his argument that both wiretap

affidavits contained mere boilerplate, North compares the affidavit that Agent Gale drafted

to support the wiretap application for his phone with the affidavit Agent Gale drafted to

supportthe application for Primer’s phone. North argues that the textual similarities between

the two affidavits establishes that neither was case-specific. This argument is unpersuasive

for two reasons. First, the similarities between the two affidavits are not surprising. After all,

both were used to obtain wiretaps relating to the same investigation and, thus, necessarily

involved the same set of facts. Those similarities do not undermine the validity of either

affidavit. Second, and more fundamentally, Title III does not require case agents to reinvent

the wheel every time they draft affidavits. So long as an affidavit contains “real” case-specific

facts, and both of Agent Gale’s affidavits did, Title III’s necessity requirement is satisfied.

17

The district court did not clearly err by finding that the affidavit used to

obtain the wiretap of North’s phone did not contain intentional

misrepresentations or omissions. Additionally, the district court’s ultimate

necessity determination as to the wiretap of North’s phone was correct because

Agent Gale provided real case-specific facts in his affidavit in support of the

authorization. Accordingly, we affirm the district court’s denial of North’s

motion to suppress as it relates to the wiretap of his phone on these grounds.4

IV.

Finally, North argues that the government failed to follow minimization

protocols during interception of the May 16, 2009 phone call between North and

a female friend who was not under investigation. 

North was stopped for speeding on May 16, 2009. After three hours, he

was released. Within minutes of his release, North called a female friend. The

call lasted just over one hour. North argues that the evidence gathered as a

result of the interception of his cellular phone should be suppressed because the

agents listening in Metairie did not comply with minimization requirements.

Specifically, North argues that listening agents conducted essentially

uninterrupted monitoring of a conversation that had no objective connection to

the drug smuggling investigation.The Government argues that the agents made

reasonable minimization efforts, emphasizing that during the call North
No. 11-60763

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complained about racial profiling and what occurred during the traffic stop; and

thatthe conversation occurred immediately after North’s car had been searched

for drugs and the agents knew from other tapped conversations that drugs were

concealed in the vehicle. 

“This court reviews the district court’s determination of the reasonableness

of minimization efforts for clear error.” United States v. Brown, 303 F.3d 582,

603 (5th Cir. 2002). “Under the clearly erroneous standard, we may not reverse

the district court’s findings of fact unless the review of the relevant evidence

leaves us with ‘the definite and firm conviction that a mistake has been

committed.’” Broussard v. United States, 989 F.2d 171, 178 (5th Cir. 1993)

(quoting U.S. Gypsum, 333 U.S. at 395). Electronic surveillance must “‘be

conducted in such a way as to minimize the interception of communications not

otherwise subject to interception.’” Brown, 303 F.3d at 604 (quoting 18 U.S.C. §

2518(5)). To comply with § 2518(5), the “government’s efforts to minimize

interception of non-pertinent conversations must be objectively reasonable in

light of the circumstances confronting the interceptor.” Id. (internal quotation

marks omitted). This court has set forth a three-part test to determine whether

the government’s minimization efforts were objectively reasonable: “‘(1) the

nature and scope of the criminal enterprise under investigation; (2) the

Government’s reasonable inferences of the character of a conversation from the

parties to it; and (3) the extent of judicial supervision.’” Id. at 604 (quoting

United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999)).

The government contends, and the district court appears to have accepted

the fact that, during the conversation, the listening agents stopped listening in

on the call eight times, for a total of six minutes and seventeen seconds.

However, we can find no evidence in the record to support the government’s

contention that the phone call was minimized. The record cite provided by the

government does not speak to the minimization efforts made during the May 16,
No. 11-60763

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2009 phone call. Because there is no evidence of minimization, the district court

clearly erred in finding that the government’s minimization attempts were

objectively reasonable. 

Even if the minimization did occur, we do not find the effort to have been

objectively reasonable. The instructions provided to the agents “authorized spot

monitoring for not more than two minutes, and authorized continued monitoring

when the conversation relate[d] to the alleged crimes under investigation.” The

agents did not stop listening when it was made clear that the conversation was

not criminal in nature and then conduct subsequent spot checks by “dropping in”

to the conversation to check if it had turned to criminal matters. Rather, the

agents listened to the conversation for several minutes, “dropping out” for less

than one minute at a time before resuming their near continuous listening.

Although the government asserts that the context supports continuous listening

because North had been stopped on what the government believed to be a drug

run, it seems just as likely that North’s failure to immediately discuss his near

miss during the conversation demonstrated that the phone call was not related

to the drug crimes under investigation. Additionally, while North discussed the

stop at various times during the first fifty minutes of the call, North reiterated

throughout the conversation that he had been the victim of racial profiling,

which falls outside the scope of the crimes being investigated. Moreover, North

was not speaking to a member of the drug smuggling conspiracy. Until the very

end of the conversation, nothing of the conversation was criminal in nature or

referenced the smuggling activities. Under these circumstances, it was not

objectively reasonable for agents to listen in for nearly one hour to a

conversation that did notturn to criminal matters until the last few minutes. As

such, the evidence obtained from the May 16, 2009 interception of North’s cell

phone must be suppressed. 

V.
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20

For the foregoing reasons, we find that the district court did not have the

requisite territorial jurisdiction and such non-compliance implicates a core

concern of the statute and requires suppression of the evidence obtained from

the wiretap. We further find that the government failed to comply with

minimization protocols when monitoring North’s May 16, 2009 phone call. We

therefore REVERSE the district court’s denial of North’s motion to suppress and

REMAND for further proceedings.