As laws adapt to new technologies and societal norms, new questions arise as to the correct way they should be administered.1 Dahda v. United States is one episode in a series of pending cases in which the Supreme Court of the United States has granted certiorari that attempts to address some of these concerns.2 Along with United States v. Carpenter and United States v. Microsoft, the Supreme Court this term will make decisions that will significantly influence law enforcement activity in the digital age.3
Dahda concerns a question of whether communications that are intercepted under a facially insufficient wiretap order should be suppressed under the exclusionary rule.4 The petitioners are twin brothers, Los and Roosevelt Dahda, charged with conspiracy to acquire and distribute marijuana.5 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 allowed authorities in this case to access several cell phones through nine wiretap orders, issued by the United States District Court for the District of Kansas.6 Evidence collected from these surveillance actions was used in trial and led to a verdict finding the Dahda brothers guilty.7
The appeal to the Tenth Circuit, and the case now pending before the Supreme Court, focuses on the admissibility of the cell phone evidence.8 Title III contains a general requirement that district courts only authorize wiretap orders that take effect within their territorial jurisdiction.9 The wiretap orders in Dahda authorized a stationary listening post in Kansas to tap the phones, but because the cellphones under surveillance were transported outside of the state boundaries, Dahda claims that wiretap order violated the territorial requirement.10 Further, the appeal raises questions about the application of a statutory exclusionary rule. Title III explicitly requires suppression for evidence that results from a wiretap order “insufficient on its face.”11
The Tenth Circuit, in reviewing the case, determined that “interception” occurs in two places.12 First, interception happens at the tapped phones’ location, and second, at the listening post.13 Because the orders in Dahda were not narrowly restricted to either the phone or the listening post, communication could reasonably be intercepted outside of the territory of the issuing court.14 Recognizing this ability, the Tenth Circuit reasoned that the territorial issue ultimately did not violate the congressional intent of the statutory exclusionary rule, rendering it inapplicable.15 Despite finding the wiretap orders “insufficient on [their] face,” the Tenth Circuit reasoned that statutory suppression was only warranted when a “core concern” of the Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was implicated.16 Alluding to privacy and uniformity as “core concerns,” the court discussed, then held, that the territorial jurisdiction limitation ultimately did not raise issues that implicated them.17
The Tenth Circuit decision could have a number of potential ramifications. The territorial jurisdiction limitation previously provided a safeguard against abuse of wiretaps. By limiting wiretaps orders to a given jurisdiction, law enforcement was forced to seek judicial orders within geographic territories.18 Thus, a certain level of accountability was imposed by restricting the ability to forum shop.19 If the Supreme Court were to agree with the Tenth Circuit, authorities would be allowed to seek out lenient judges in other jurisdictions to obtain wiretaps.20 On the legal prong, questions arise as to the ability of the Court to ascertain a “core concern” requirement in interpreting the law. In light of Congress’s evident inclusion of a statutory exclusionary rule, it appears contrary to legislative purpose to add a prerequisite to its application.
Cellphones, cloud storage, and data itself have evolved in the digital age. People and society interact in ways that were unimaginable in 1968.21 Dahda, as well as Microsoft and Carpenter, will allow the Court to shape how law enforcement will function in this new society.22 Dahda was argued on Wednesday, February 21, before an engaged and probing Court and the public eagerly awaits what comes next.23