REVISED DATE SEPTEMBER 6, 2013
Appeal from the United States District Court for the Southern District of Mississippi
Before STEWART, Chief Judge, and DeMOSS and GRAVES, Circuit Judges.
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.
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 "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 agent forwarded this information to officers in Texas, who intercepted North at his home. North was subsequently arrested for possession of cocaine.
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 pursuant to the wiretap on Target Telephone4onthegrounds that (1) the district court lacked 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.
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.
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).
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).
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 ...