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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–43
_________________
LOS ROVELL DAHDA, PETITIONER v. UNITED
STATES
ROOSEVELT RICO DAHDA, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the tenth circuit
[May 14, 2018]
Justice Breyer delivered the opinion of the
Court.
A federal statute allows judges to issue wiretap
orders authorizing the interception of communications to help
prevent, detect, or prosecute serious federal crimes. See Omnibus
Crime Control and Safe Streets Act of 1968, 18 U. S. C.
§2510 et seq. The statute requires the judge to find
“probable cause” supporting issuance of the order, and it sets
forth other detailed requirements governing both the application
for a wiretap and the judicial order that authorizes it. See
§2518.
The statute provides for the suppression of “the
contents of any wire or oral communication” that a wiretap
“intercept[s]” along with any “evidence derived therefrom” if
“(i) the communication was unlawfully
intercepted;
“(ii) the order of . . . approval
under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in
conformity with the order of authorization or approval.”
§2518(10)(a).
This litigation concerns the second of these
provisions—the provision that governs the “insufficien[cy]” of an
order “on its face.” §2518(10)(a)(ii).
Los and Roosevelt Dahda—defendants in the trial
below and petitioners here—sought to suppress evidence derived from
nine wiretap Orders used to obtain evidence of their participation
in an unlawful drug distribution conspiracy. They argue that each
Order is “insufficient on its face” because each contains a
sentence authorizing interception “outside the territorial
jurisdiction” of the authorizing judge, App. 97 (emphasis added),
even though the statute normally allows a judge to authorize
wiretaps only within his or her “territorial jurisdiction,”
§2518(3).
In deciding whether each Order was “insufficient
on its face,” we assume that the Dahdas are right about the
“territorial” requirement. That is to say, we assume the relevant
sentence exceeded the judge’s statutory author- ity. But none of
the communications unlawfully inter- cepted outside the judge’s
territorial jurisdiction were intro- duced at trial, so the
inclusion of the extra sentence had no significant adverse effect
upon the Dahdas. Because the remainder of each Order was itself
legally sufficient, we conclude that the Orders were not
“insufficient” on their “face.”
I
A
As we just said, the relevant statute permits
a judge to issue an order authorizing the Government to intercept
wire communications for an initial (but extendable) period of 30
days. §2518(5). To obtain that order, the Government must submit an
application that describes the particular offense being
investigated as well as the type of communications it seeks to
intercept; that sets forth the basis for an appropriate finding of
“probable cause”; that explains why other less intrusive methods
are inadequate, have failed, or are too dangerous to try; and that
meets other requirements, showing, for example, authorization by a
specified governmental official. §2518(1). If the judge accepts the
application, finds probable cause, and issues an authorizing order,
that order must itself contain specified information, including,
for example, the identity of the “person” whose “communications are
to be intercepted”; the “nature and location of the [relevant]
communications facilities”; a “particular description of the type
of communication sought to be intercepted”; a statement of the
“particular offense” to which the intercept “relates”; the
“identity of the agency authorized to intercept”; the iden- tity of
the “person authorizing the application”; and “the period of time
during which” the “interception is authorized.”
§§2518(4)(a)–(e).
A judge’s authorizing authority normally extends
only within statutorily defined bounds. The statute specifies that
an order can permit the interception of communications “within the
territorial jurisdiction of the court in which the judge is
sitting.” §2518(3). (There is an exception allowing interception
beyond the judge’s territorial jurisdiction if the judge authorizes
a “mobile interception device,” ibid., but the parties now
agree that exception does not apply to these Orders.) The
Government here adds (without the Dahdas’ disagreement) that an
intercept takes place either where the tapped telephone is
located or where the Government’s “listening post” is
located. See §2510(4) (defining “intercept” as “the aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or
other device”); see also Brief for Petitioners 11; Brief for United
States 6. As so interpreted, the statute generally requires that
one or the other or both of these locations must be found within
the authorizing judge’s “territorial jurisdiction.”
B
In 2011, the Government began investigating a
sus- pected drug distribution ring based in Kansas. It submitted an
application asking a federal judge for the District of Kansas to
issue nine related wiretap Orders, and the judge issued them. For
present purposes we assume, see infra, at 10–11, that all
nine Orders met all statutory requirements with one exception. Each
Order contained a sentence that read as follows:
“Pursuant to Title 18, United States Code
§2518(3), it is further Ordered that, in the event TARGET TELEPHONE
#1, TARGET TELEPHONE #3 and TARGET TELEPHONE #4, are transported
outside the territorial jurisdiction of the court,
interception may take place in any other jurisdiction within the
United States.” App. 105 (under seal) (emphasis added); see also
id., at 97, 114, 123, 132, 140, 149, 158, 166, 174 (Orders
containing identical language but targeting different
telephones).
Although they disputed it below, the parties now
agree that this sentence could not lawfully allow a wiretap of a
phone that was located outside Kansas in instances where the
Government’s listening post was also located outside of Kansas.
Pursuant to these Orders, the Government
listened from a listening post within Kansas to conversations on
mobile phones that were located within Kansas and conversations on
mobile phones that were located outside of Kansas. But, in one
instance, the Government listened from a listening post
outside of Kansas (in Missouri) to conversations on a mobile
phone that was also outside of Kansas (in California). That one
instance concerned a mobile phone (Target Telephone #7) belonging
to Philip Alarcon.
In 2012, the Government indicted the Dahdas and
several others, charging them with conspiracy to buy illegal drugs
in California and sell them in Kansas. Prior to trial, the Dahdas
moved to suppress all evidence derived from the wiretaps authorized
by the nine Orders on the ground that the District Court could not
authorize the interception of calls from the Missouri listening
post to and from Alarcon’s mobile phone in California. In its
response, the Government said it would not introduce any evidence
arising from its Missouri listening post. A Magistrate Judge and
subsequently the District Court denied the Dahdas’ suppression
motion. App. to Pet. for Cert. 59a–76a.
The Dahdas appealed. They argued that, even
though the Government did not use any wiretap information from the
Missouri listening post, the court should have suppressed all
evidence derived from any of the Orders. That, they said, is
because each Order was “insufficient on its face” given the extra
sentence authorizing interception outside Kansas. Hence the second
subparagraph of the statute’s suppression provision required the
evidence to be suppressed. §2518(10)(a)(ii).
The U. S. Court of Appeals for the Tenth
Circuit rejected this argument on the ground that the claimed
insuffi- ciency concerned the statute’s territorial requirement.
853 F. 3d 1101, 1114–1116 (2017). That requirement, in its
view, did not “ ‘implemen[t]’ ” Congress’ core statutory
concerns in enacting the wiretap statute. Id., at 1114
(quoting United States v. Giordano, 416 U. S.
505, 527 (1974)). And for that reason a violation of the
territorial requirement did not warrant suppression. See also 852
F. 3d 1282, 1290 (2017).
The Dahdas filed a petition for certiorari,
seeking review of the Tenth Circuit’s determination. And, in light
of different related holdings among the Circuits, we granted that
petition. Compare 853 F. 3d, at 1114–1116 (suppression was not
required for orders authorizing suppression beyond the District
Court’s territorial jurisdiction), and Adams v.
Lankford, 788 F. 2d 1493, 1500 (CA11 1986) (same), with
United States v. Glover, 736 F.3d 509, 515 (CADC
2013) (suppression required for territorial defect).
II
A
The question before us concerns the
interpretation of the suppression provision’s second subparagraph,
which requires suppression where a wiretap order is “insufficient
on its face.” §2518(10)(a)(ii). The Dahdas ask us to read
subparagraph (ii) as applying to any legal defect that appears
within the four corners of the order. The Government replies that
the Dahdas’ approach would require suppression of evidence of
serious criminal behavior due to the most minor of technical
failures, including those that have little or no relation to any
statutory objective.
The Tenth Circuit, agreeing with the Government,
held that subparagraph (ii) applies only where the “insuffi-
ciency” constitutes an order’s failure to satisfy a
“ ‘statutory requiremen[t] that directly and substantially
implement[s] the congressional intention to limit the use of
intercept procedures to those situations clearly calling for the
employment of this extraordinary investigative device.’ ” 853
F. 3d, at 1114 (quoting Giordano, supra, at 527;
second alteration in original). The court identified two such core
concerns—“ ‘(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’ ”—and concluded
that neither applies to the statute’s territorial limitation. 853
F. 3d, at 1114 (quoting S. Rep. No. 90–1097, p. 66
(1986)).
Like the Dahdas, we believe that the Tenth
Circuit’s interpretation of this provision is too narrow. The Tenth
Circuit took the test it applied from this Court’s decision in
United States v. Giordano, supra, at 527. But
Giordano involved a different provision. Keep in mind that
the statute sets forth three grounds for suppression:
“(i) the communication was unlawfully
intercepted;
“(ii) the order of . . . approval
under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in
conformity with the order of authorization or approval.”
§2518(10)(a).
Giordano focused not, as here, on the
second subparagraph but on the first subparagraph, which calls for
the suppression of “unlawfully intercepted” communications.
In Giordano, a criminal defendant sought
suppression of wiretap-gathered information on the ground that the
wiretap application was unlawfully authorized. 416 U. S., at
525. A provision of the wiretap statute that has since been amended
required an application to be approved by either the Attorney
General or a designated Assistant Attorney General. See 18
U. S. C. §2516(1) (1970 ed.). But, in Giordano’s case, an
executive assistant to the Assistant Attorney General—not the
Assistant Attorney General himself—had approved the application.
416 U. S., at 510.
The Government argued that this statutory
violation did not violate the first subparagraph, i.e., it
did not lead to an “unlawfu[l] intercept[ion],” 18
U. S. C. §2518(10)(a)(i), because that subparagraph
covers only violations of the Constitution, not statutes.
Giordano, 416 U. S., at 525–526. Otherwise, the
Government added, subparagraphs (ii) and (iii)—which clearly cover
some statutory violations—would be superfluous. Id., at 526.
But this Court held that the first subparagraph did cover
certain statu- tory violations, namely, violations of those
statutory provisions that “implemented” the wiretap-related
congres- sional concerns the Tenth Circuit mentioned in its
opinion. Id., at 527. So construed, the suppression
provision left room for the second and third subparagraphs to have
separate legal force. The Court went on to hold that a violation of
the approval-by-the-Attorney-General provision implicated Congress’
core concerns. Subparagraph (i) thus covered that particular
statutory provision. And, finding the provision violated, it
ordered the wiretap evidence suppressed. Id., at
527–528.
Here, by contrast, we focus upon subparagraph
(ii), which requires suppression when an order is facially
insufficient. And in respect to this subparagraph, we can find no
good reason for applying Giordano’s test. The underlying
point of Giordano’s limitation was to help give independent
meaning to each of §2518(10)(a)’s subparagraphs. It thus makes
little sense to extend the core concerns test to subparagraph (ii)
as well. Doing so would “actually treat that subparagraph as
‘surplusage’—precisely what [this] Court tried to avoid in
Giordano.” Glover, 736 F. 3d, at 514. We
consequently conclude that subparagraph (ii) does not contain a
Giordano-like “core concerns” requirement. The statute means
what it says. That is to say, subparagraph (ii) applies where an
order is “insufficient on its face.” §2518(10)(a)(ii).
B
Although we believe the Tenth Circuit erred in
applying Giordano’s core concerns test to subparagraph (ii),
we cannot fully endorse the Dahdas’ reading of the statute either.
In our view, subparagraph (ii) does not cover each and every error
that appears in an otherwise sufficient order. It is clear that
subparagraph (ii) covers at least an order’s failure to include
information that §2518(4) specifically requires the order to
contain. See §§2518(4)(a)–(e) (requiring an order to specify,
e.g., the “identity of the person, if known, whose
communications are to be intercepted,” “a particular description of
the type of communication sought to be intercepted, and a statement
of the particular offense to which it relates”); Brief for United
States 17. An order lacking that information would deviate from the
uniform authorizing requirements that Congress explicitly set
forth, while also falling literally within the phrase “insufficient
on its face.”
But the Dahdas would have us go further and
conclude that any defect that may appear on an order’s face would
render it insufficient. The lower courts in various contexts have
debated just which kinds of defects subparagraph (ii) covers. See,
e.g., United States v. Moore, 41 F. 3d 370,
375–376 (CA8 1994) (order missing judge’s signature); United
States v. Joseph, 519 F. 2d 1068, 1070 (CA5 1975)
(order identifying the wrong Government official as authorizing the
application); United States v. Vigi, 515 F. 2d
290, 293 (CA6 1975) (same). We need not, however, resolve the
questions that these many different cases raise. We need only
determine whether the defects in the Orders before us render them
“insufficient.” We conclude that they do not.
We rest that conclusion upon an argument that
the Government did not make below but which it did set forth in its
response to the petition for certiorari and at the beginning of its
brief on the merits. That argument is closely related to the
arguments the Government did make below. It has been fully briefed
by both sides. And as we may “affir[m]” a lower court judgment “on
any ground permitted by the law and the record,” Murr v.
Wis- consin, 582 U. S. ___, ___ (2017) (slip op., at
19), we see little to be gained by remanding this litigation for
further consideration.
The argument is simply this: Subparagraph (ii)
refers to an order that is “insufficient on its face.” An order is
“insufficient” insofar as it is “deficient” or “lacking in what is
necessary or requisite.” 5 Oxford English Dictionary 359 (1933);
accord, Webster’s New International Dictionary 1288 (2d ed. 1957).
And, looking, as the Dahdas urge us to do, at “the four corners of
the order itself,” Reply Brief 4, we cannot find any respect in
which the Orders are deficient or lacking in anything necessary or
requisite.
The Orders do contain a defect, namely, the
sentence authorizing interception outside Kansas, which we set
forth above. See supra, at 4. But not every defect results
in an insufficiency. In that sentence, the District Court “further”
ordered that interception may take place “outside the territorial
jurisdiction of the court.” App. 97. The sentence is without legal
effect because, as the parties agree, the Orders could not legally
authorize a wiretap outside the District Court’s “territorial
jurisdiction.” But, more importantly, the sentence itself is
surplus. Its presence is not connected to any other relevant part
of the Orders. Were we to remove the sentence from the Orders, they
would then properly authorize wiretaps within the authorizing
court’s territorial jurisdiction. As we discussed above, a
listening post within the court’s territorial jurisdiction could
lawfully intercept communications made to or from telephones
located within Kansas or outside Kansas. See supra, at 3.
Consequently, every wiretap that produced evidence introduced at
the Dahdas’ trial was properly authorized under the statute.
The Dahdas argue that, without the offending
sentence, the Orders are “insufficient” because they then do not
specifically list the territorial area where they could lawfully
take effect. Reply Brief 6. The Orders, however, clearly set forth
the authorizing judge’s territorial jurisdiction: the “District of
Kansas.” See App. 100. And the statute itself presumptively limits
every Order’s scope to the issuing court’s territorial
jurisdiction. See §2518(3). We consequently fail to see how the
additional language here at issue could render the Orders facially
insufficient.
The Dahdas add that interpreting the term
“insufficient” as we have just done will produce “bizarre results.”
Reply Brief 5. They claim that, under the Government’s logic, an
order authorizing interception for 180 days would not be facially
insufficient even though the wiretap statute expressly limits the
maximum duration of a wiretap order to 30 days. §2518(5). To be
sure, a 180-day order may raise problems that the language at issue
here does not. On the one hand, it may be argued that such an order
would be facially insufficient because without the 180-day
provision the order would not contain any time limit at all. See
§2518(4)(e). On the other hand, one might argue that such an order
merely would be overly broad—not facially insufficient—and that
suppression would be warranted only for those communications
unlawfully intercepted after 30 days. See §2518(10)(a)(i).
Regardless, we need not now address the Dahdas’
180-day hypothetical. It is enough to say that the problems that
may be associated with such an order are not present in this
litigation. Here, the Orders would have been sufficient even if
they lacked the language authorizing interception outside Kansas.
And the Dahdas cannot seek suppression under subparagraph (i) given
that the unlawfully intercepted communications from the Missouri
listening post were not introduced at trial.
Our interpretation of subparagraph (ii) makes
sense of the suppression provision as a whole. Where the
Government’s use of a wiretap is unconstitutional or violates a
statutory provision that reflects Congress’ core concerns, an
aggrieved person may suppress improperly acquired evidence under
subparagraph (i) (as “unlawfully intercepted,” see Giordano,
416 U. S., at 527). Where an order lacks information that the
wiretap statute requires it to include, an aggrieved person may
suppress the fruits of the order under subparagraph (ii) (as
“insufficient on its face”). And where the Government fails to
comply with conditions set forth in the authorizing order, an
aggrieved person may suppress its fruits under subparagraph (iii)
(as an “interception . . . not made in conformity with
the order of authorization or approval”).
For these reasons, the judgments of the Court of
Appeals are affirmed.
It is so ordered.
Justice Gorsuch took no part in the
consideration or decision of these cases.
