Argument preview: Should courts read statutory exclusionary rules broadly?
on Feb 14, 2018 at 2:28 pm
Dahda v. United States arguably poses a clash between two of the Supreme Court’s recent passions: strict adherence to statutory texts and cutting back on the exclusionary rule. This tension is unusual because the court’s exclusionary-rule decisions typically involve Fourth Amendment violations. By contrast, this case involves Title III of the Omnibus Crime Control and Safe Streets Act of 1968. And that statute contains an explicit exclusionary rule.
The case arose from a Kansas district court order that authorized surveillance of certain cellphones even if they were transported out of Kansas. The parties agree that the order violated Title III’s general requirement that district courts authorize intercepts only within their own territorial jurisdiction. And Title III provides in part that evidence is suppressible when it results from a wiretap order that “is insufficient on its face.” In Los Rovell Dahda’s view, those simple facts prove that any evidence collected under the defective order must be suppressed. Unless the Supreme Court is prepared to revise the regulatory scheme that Congress enacted, Title III’s express exclusionary rule must apply.
In suppression cases, government briefs often read like a series of interstate signs, relentlessly marking one off-ramp after another on the road to application of the exclusionary rule. The government’s brief in this case fits that pattern. The first opportunity to exit has to do with the statutory term “insufficient.” In the government’s view, the wiretap order at issue was overbroad in that it authorized too much surveillance — namely, interception outside of Kansas. But that overbreadth doesn’t make the order “insufficient” under the statute. As the government puts it, “Adding more usually does not give an order less of something necessary.” That point seems a bit too clever. Calling something “insufficient” invites the question, “Insufficient for what?” And if we ask whether the order in this case was “insufficient” to authorize intercepts outside of Kansas, as it purported to do, the natural answer is “yes.”
Next, the government contends that only a “fundamental defect” in a wiretap order can render it facially insufficient under the statute. This claim represents the government’s main argument, and it finds some support in case law. In a subsection of Title III adjacent to the one at issue in this case, Congress provided for suppression of communications that are “unlawfully intercepted.” That language seems quite broad, yet the Supreme Court has adopted a narrowing construction: For suppression to occur, the transgressed requirement must “directly and substantially implement” Congress’ objectives. Under that test, merely technical violations of Title III do not trigger suppression. The government argues that a similar approach should apply in this case, even though it involves a different statutory provision. In referencing orders that are “insufficient,” perhaps Congress meant to demand only reasonable adequacy, not perfection.
To reinforce that textual point, the government argues that the order at issue resulted from a reasonable error of statutory interpretation. Though district courts are generally prohibited from authorizing extraterritorial intercepts, there is a statutory exception for any “mobile interception device.” The government now concedes that the exception applies only when investigators use a mobile surveillance tool, such as by bugging a car. But the district court may have believed that the exception applied simply because the devices being monitored were “mobile” cellphones. In fact, some case law supports that broad view of the exception. Because the order seemed reasonably lawful at the time it issued, the government denies that it was “insufficient on its face.” That argument parallels Fourth Amendment suppression case law, under which judges’ and investigators’ reasonable mistakes are often overlooked.
In response, Dahda insists that the statute is “unambiguous” in requiring suppression when an order authorizes surveillance that the statute prohibits. Of course, Dahda acknowledges that the Supreme Court has already read implied limitations into nearby suppression provisions in Title III. But Dahda contends that the court adopted that narrow reading precisely to preserve a unique role for the provision now at issue. Building on that point, Dadha tries to move Title III case law onto his side of the board by observing that the government’s position comes close to reading the “insufficient on its face” provision out of the statute. Dadha also makes a forceful case that he should prevail even under the government’s test. Because the statutory rule against extraterritorial intercepts is key to preventing forum shopping, violations of that rule play an important role in safeguarding individual privacy, even if (as the government contends) the surveillance at issue could lawfully have been authorized by a different district court.
Finally, the government points to perhaps the most interesting of its off-ramps — namely, the possibility that there can be lawful applications of admittedly unlawful wiretap orders. This important issue has widespread currency in Fourth Amendment cases heard in the courts of appeals but has largely escaped the Supreme Court’s attention. Sometimes, a warrant will contain a defect that seems “severable” from the rest of the warrant. For example, the warrant might authorize a search in two locations, even though there is probable cause to search only one location. Courts will then admit evidence discovered in the location where the police had probable cause to search. A similar principle could apply in this case. Though the order at issue was wrong to authorize interception outside Kansas, the only evidence admitted at trial was intercepted within Kansas. So, no harm, no foul. Dahda responds by returning to his central theme: Title III is different. If the district court’s admitted error really rendered its order unlawful “on its face,” then the entire order must be invalid. Further, Congress plausibly desired Dahda’s approach in order to encourage strict adherence to Title III.
What makes this case interesting is that it invites the Supreme Court to think about the exclusionary rule in a context in which Congress has explicitly provided for it. That changed context creates room for arguments that aren’t available in Fourth Amendment cases. For example, there may be good reason to construe statutory exclusionary rules broadly, on the theory that the government has more ability than criminal defendants to lobby Congress and fix any judicial misinterpretations. That line of reasoning could support a “canon in favor of statutory suppression” as a criminal-procedure counterpart to the rule of lenity.
Further, the presence of a statutory exclusionary rule could alleviate some of the legitimacy concerns that have led the Supreme Court to cut back on Fourth Amendment suppression. Although some judges and writers (myself included) argue that the Constitution requires an exclusionary rule, the court has long expressed qualms about whether the rule has a firm legal foundation. So perhaps the court should be more willing to suppress when the political branches have explicitly chosen to put suppression on the table. Yet there is at least some wiggle room in the statutory text. And when searching for Congress’ aims, the justices may be drawn to their own views of when suppression is appropriate.