In United States v. Stowers, No. 18-12569 (Apr. 20, 2022) (Jordan, Brasher, Anderson), the Court affirmed the district court's denial of the defendants' motions to suppress.
In this consolidated appeal, the Court answered several questions of first impression regarding Title III of the Omnibus Crime Control and Safe Streets Act, which regulates the interception of wire, oral, and electronic communications. While investigating a suspected drug trafficking conspiracy, a Georgia Bureau of Investigation agent secured a wiretap authorization order from a state judge. The wiretap ultimately implicated the nine named defendants in the conspiracy. When federal authorities prosecuted them based on this state-gathered evidence, the defendants asked the district court to suppress the evidence on three grounds: (1) the state judge did not correctly seal the wiretap recordings as required under Title III; (2) the government impermissibly delayed sealing the wiretap recordings without providing a satisfactory explanation for the delay; and (3) the state court's wiretap authorization order exceeded its jurisdiction.
The order authorizing the wiretap contained the following language: “Let return hereof and report as required by law be made before me within forty (40) days of date hereof or ten (10) days from the date of the last interception, whichever is earlier.” The authorization also stated that all applications, affidavits, orders, reports, court reporter’s notes, tapes, and disks, “and all other matters filed or received herein shall remain sealed until further Order of this Court … [and] remain in the custody of the Clerk.” Finally, each wiretap authorized the State to continue to monitor and electronically intercept transmissions to and from the target telephone during any out of state travels.
As to the first ground, the Court held that nothing in the text of Title III requires that the judge issue a separate, written sealing order after receiving the recordings. What occurred in this case--taking the original recordings to the judge, placing a seal on a tamper-proof evidence bag in front of the judge, initialing the bag along with the judge, and leaving the evidence bag in the possession of the court clerk--satisfies the statute's requirements for sealing.
As to the second ground, the Court held that the government provided a "satisfactory explanation" for any delay in sealing. As an initial matter, the Court noted, in line with its sister circuits, that the recordings were sealed immediately--in line with the statute's express language--because the statute puts judicial officers--not law enforcement--in charge of sealing wiretap recordings, and here, the agents met the authorizing judge's ten-day deadline. But, even assuming the recordings were returned late, as both parties argued, the government provided a "satisfactory explanation" to excuse the delay. In so holding, the Court found that the government had met two threshold requirements: that the recordings had not been tampered with, and that the government had acted in good faith. The Court then found that the other factors also weighed in favor of finding the government's explanation "satisfactory." More specifically, with regard to the third factor--whether the government's reasons for delaying were objectively reasonable--the Court held, in line with its sister circuits, that it was objectively reasonable for the officers to rely on the ten-day period in the authorizing court's order. Law enforcement agents do not act unreasonably when they decline to doublecheck a judge’s wiretap order with their own independent legal research. Title III puts the court in charge of the process, not law enforcement.
As to the third ground, the Court held that the state court did not exceed its jurisdiction in authorizing the interception of calls made outside of the state because under Georgia law, Georgia courts have the authority to issue wiretap warrants for the interception of calls if either the tapped phones or the listening post are located within Georgia. Here, the listening post was in Georgia. The Court noted that the safeguard on the scope of state court’s wiretap authority is the requirement that law enforcement establish probable cause for the intrusion, not a geographical limit on the phone calls that can be monitored.
Judge Jordan wrote separately, concurring in part, and concurring in the judgment. He agreed that the government explanation for the delay in sealing was "satisfactory," but for different reasons. Because the interception orders at issue here were sought by a state law enforcement officer and issued by a state judge pursuant to Georgia law, Judge Jordan would have determined whether the government's explanation for the delay in sealing was satisfactory by reference to Georgia law as well as federal law.
