Dahda v. United States , 200 L. Ed. 2d 842 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DAHDA v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 17–43. Argued February 21, 2018—Decided May 14, 2018*
Under federal law, a judge normally may issue a wiretap order permit-
ting the interception of communications only “within the territorial
jurisdiction of the court in which the judge is sitting.” 18 U.S. C.
§2518(3). Here, a judge for the District of Kansas authorized nine
wiretap Orders as part of a Government investigation of a suspected
drug distribution ring in Kansas. For the most part, the Government
intercepted communications from a listening post within Kansas.
But each Order also contained a sentence purporting to authorize in-
terception outside of Kansas. Based on that authorization, the Gov-
ernment intercepted additional communications from a listening post
in Missouri. Following the investigation, petitioners Los and Roose-
velt Dahda were indicted for participating in an illegal drug distribu-
tion conspiracy. They moved to suppress the evidence derived from
all the wiretaps under subparagraph (ii) of the wiretap statute’s sup-
pression provision because the language authorizing interception be-
yond the District Court’s territorial jurisdiction rendered each Order
“insufficient on its face.” §2518(10)(a)(ii). The Government agreed
not to introduce any evidence arising from its Missouri listening post,
and the District Court denied the Dahdas’ motion. On appeal, the
Tenth Circuit rejected the Dahdas’ facial-insufficiency argument on
the ground that the challenged language did not implicate Congress’
core statutory concerns in enacting the wiretap statute.
Held: Because the Orders were not lacking any information that the
statute required them to include and would have been sufficient ab-
sent the challenged language authorizing interception outside the
——————
* Together with Dahda v. United States (see this Court’s Rule 12.4),
also on certiorari to the same court.
2 DAHDA v. UNITED STATES
Syllabus
court’s territorial jurisdiction, the Orders were not facially insuffi-
cient. Pp. 6–12.
(a) The Tenth Circuit applied the “core concerns” test from United
States v. Giordano, 416 U.S. 505, and held that subparagraph (ii)
applies only where the insufficiency reflects an order’s failure to sat-
isfy the “statutory requirements that directly and substantially im-
plement the congressional intention to limit the use of ” wiretapping,
id., at 527. The court identified two such core concerns and conclud-
ed that neither applies to the statute’s territorial limitation. But
Giordano involved a different suppression provision—subparagraph
(i)—which applies only when a “communication was unlawfully inter-
cepted.” §2518(10)(a)(i). The underlying point of Giordano’s limita-
tion was to help distinguish subparagraph (i) of §2518(10)(a) from
subparagraphs (ii) and (iii). It makes little sense to extend the “core
concerns” test to subparagraph (ii) as well. Subparagraph (ii) there-
fore does not include a Giordano-like “core concerns” requirement.
Pp. 6–8.
(b) That said, this Court also cannot fully endorse the Dahdas’ in-
terpretation of the statute. The Dahdas read subparagraph (ii) as
applying to any legal defect that appears within the four corners of
an order. Clearly, subparagraph (ii) covers at least an order’s failure
to include information required by §§2518(4)(a)–(e). But that does
not mean that every defect that may conceivably appear in an order
results in an insufficiency. Here, the sentence authorizing intercep-
tion outside Kansas is surplus. Its presence is not connected to any
other relevant part of the Orders. Absent the challenged language,
every wiretap that produced evidence introduced at the Dahdas’ trial
was properly authorized under the statute. While the Orders do not
specifically list the territorial area where they could lawfully take ef-
fect, they clearly set forth the authorizing judge’s territorial jurisdic-
tion—the District of Kansas. And the statute itself presumptively
limits every Order’s scope to the issuing court’s territorial jurisdic-
tion. This interpretation of the term “insufficient” does not, as the
Dahdas contend, produce bizarre results. Rather, it makes sense of
the suppression provision as a whole. Pp. 8–12.
853 F.3d 1101 (first judgment) and 852 F.3d 1282 (second judgment),
affirmed.
BREYER, J., delivered the opinion of the Court, in which all other
Members joined, except GORSUCH, J., who took no part in the considera-
tion or decision of the cases.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 “inter-
cept[s]” along with any “evidence derived therefrom” if
“(i) the communication was unlawfully intercepted;
“(ii) the order of . . . approval under which it was in-
tercepted is insufficient on its face; or
“(iii) the interception was not made in conformity
with the order of authorization or approval.”
§2518(10)(a).
2 DAHDA v. UNITED STATES
Opinion of the Court
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 Govern-
ment must submit an application that describes the par-
ticular 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,
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
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 speci-
fied 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 commu-
nication 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 author-
ized.” §§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 communica-
tions “within the territorial jurisdiction of the court in
which the judge is sitting.” §2518(3). (There is an excep-
tion 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 acqui-
sition of the contents of any wire, electronic, or oral com-
munication 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.”
4 DAHDA v. UNITED STATES
Opinion of the Court
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 conversa-
tions 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
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
illegal drugs in California and sell them in Kansas. Prior
to trial, the Dahdas moved to suppress all evidence de-
rived 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 Mag-
istrate 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 sup-
pressed 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 (suppres-
sion was not required for orders authorizing suppression
beyond the District Court’s territorial jurisdiction), and
6 DAHDA v. UNITED STATES
Opinion of the Court
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 Gov-
ernment 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 em-
ployment 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 inter-
ception of wire and oral communications may be author-
ized’ ”—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
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
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 in-
tercepted 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 subpara-
graph 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 viola-
tions—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 provi-
sions that “implemented” the wiretap-related congres-
sional concerns the Tenth Circuit mentioned in its opinion.
Id., at 527. So construed, the suppression provision left
8 DAHDA v. UNITED STATES
Opinion of the Court
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 provi-
sion 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 subpara-
graphs. 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) specifi-
cally 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 inter-
cepted,” “a particular description of the type of communi-
cation sought to be intercepted, and a statement of the
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
particular offense to which it relates”); Brief for United
States 17. An order lacking that information would devi-
ate from the uniform authorizing requirements that Con-
gress 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 au-
thorizing the application); United States v. Vigi, 515 F.2d
290, 293 (CA6 1975) (same). We need not, however, re-
solve 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 Diction-
ary 1288 (2d ed. 1957). And, looking, as the Dahdas urge
10 DAHDA v. UNITED STATES
Opinion of the Court
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 “out-
side 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 pres-
ence 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 dis-
cussed 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 law-
fully take effect. Reply Brief 6. The Orders, however,
clearly set forth the authorizing judge’s territorial jurisdic-
tion: 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 “insuffi-
cient” as we have just done will produce “bizarre results.”
Reply Brief 5. They claim that, under the Government’s
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
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 suffi-
cient even if they lacked the language authorizing inter-
ception outside Kansas. And the Dahdas cannot seek
suppression under subparagraph (i) given that the unlaw-
fully intercepted communications from the Missouri listen-
ing post were not introduced at trial.
Our interpretation of subparagraph (ii) makes sense of
the suppression provision as a whole. Where the Govern-
ment’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 inter-
cepted,” 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
12 DAHDA v. UNITED STATES
Opinion of the Court
order of authorization or approval”).
For these reasons, the judgments of the Court of Ap-
peals are affirmed.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of these cases.