State v. Nettles (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Nettles, Slip Opinion No. 2020-Ohio-768.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-768
THE STATE OF OHIO, APPELLEE, v. NETTLES, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Nettles, Slip Opinion No. 2020-Ohio-768.]
For purposes of R.C. 2933.53, an interception of a cell-phone call takes place both
at the location of the cell phone and at the location of the government agent
listening in on the call.
(No. 2019-0078—Submitted October 23, 2019—Decided March 5, 2020.)
APPEAL from the Court of Appeals for Sandusky County, No. S-17-053,
2018-Ohio-4908.
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DEWINE, J.
{¶ 1} A statute, R.C. 2933.53(A), says that a warrant allowing law
enforcement to listen in on telephone conversations may be issued by the common
pleas court in a county “in which the interception is to take place.” The rule was
relatively easy to understand back in the days of wiretaps and landlines, but the
advent of cell phones has made things a bit more difficult.
SUPREME COURT OF OHIO
{¶ 2} We deal here with a warrant issued by a Sandusky County judge that
allowed Drug Enforcement Agency (“DEA”) agents sitting in Toledo (Lucas
County) to listen to cell-phone calls of an alleged drug trafficker who was based in
Sandusky County. The drug trafficker says the warrant is no good because it was
issued by a judge in the wrong county. He argues that his calls were intercepted in
Toledo when the agents listened to them. The state agrees that the calls were
intercepted at the Toledo listening post, but it says an interception also occurred in
Sandusky County, where the cell phone was used. From the language of the
statute—and taking into account the manner in which the interception technology
works—we conclude that the state is right.
The interception warrant
{¶ 3} A DEA agent obtained a warrant to intercept the cell-phone calls of
Keith Nettles, a suspected drug trafficker. The warrant was issued by the common
pleas court in Nettles’s home county, Sandusky. According to the warrant
application, the calls would be intercepted in Sandusky County and listened to by
agents at their Toledo office in Lucas County.
{¶ 4} Based in part on information obtained as a result of the warrant,
Nettles was arrested and charged with multiple counts of drug trafficking. Before
trial, Nettles moved to suppress all evidence derived from the warrant. He
challenged the Sandusky County court’s jurisdiction to issue the warrant and argued
that the federal agent should have gone to Lucas County, where the listening post
was, for a warrant. The trial court denied the motion. Nettles was convicted by a
jury and sentenced to a long prison term.
{¶ 5} The Sixth District Court of Appeals affirmed Nettles’s convictions
and held that the interception took place both at the location of the phone and at the
listening post. We accepted Nettles’s discretionary appeal on a proposition of law
that asserts that under R.C. 2933.53, an interception occurs only at the listening
point.
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January Term, 2020
Interception of Nettles’s phone calls
{¶ 6} Before we get to the statute at issue, it is helpful to understand the way
in which Nettles’s calls were intercepted. Largely gone are the days when law-
enforcement agents could install a physical wiretap on a phone line. So, to allow
for surveillance of cell-phone communications, federal law requires that
telecommunications carriers maintain technology that isolates, and enables the
government to intercept, targeted communications pursuant to lawful authorization.
47 U.S.C. 1002(a).
{¶ 7} Here, DEA agents sought assistance from Verizon, Nettles’s cell-
phone provider. Pursuant to the federal mandate, Verizon has the ability to isolate
a targeted call and transmit it to law enforcement during the course of a
conversation. See id.; Justin (Gus) Hurwitz, EncryptionCongress Mod (Apple +
CALEA), 30 Harv.J.L. & Tech. 355, 376 (2017). At trial, a Verizon representative,
and the federal agent who had applied for the warrant, explained how the
interception process worked. Upon receiving the warrant, Verizon captured the
contents of Nettles’s incoming and outgoing calls while he was speaking and then
funneled—redirected—the calls to the federal agents. When Verizon captures and
redirects a call in this manner, it is not doing so at a precise point in space but rather
across the entire network to which the government has gained access. See Hurwitz
at 372. The moment a speaker speaks into a phone connected to the network, the
interception—capture and redirection—takes place.
Interception occurs both at the place where agents are listening and at the
place where the phone is used
{¶ 8} We start and—because it provides a clear answer—end with the
language of the statute. R.C. 2933.53(A) provides that an appropriate official “may
authorize an application for an interception warrant to a judge of the court of
common pleas of the county in which the interception is to take place or in which
the interception device is to be installed.”
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SUPREME COURT OF OHIO
{¶ 9} The wiretap statutes do not specify where an interception is deemed
to occur. They do, however, broadly define the term “intercept.” “Intercept” means
“the aural or other acquisition of the contents of any wire, oral, or electronic
communication through the use of an interception device.” R.C. 2933.51(C).
{¶ 10} The common meaning of “aural” is “of or relating to the ear” or “to
the sense of hearing.” Webster’s Third New International Dictionary 144 (2002).
Thus, an aural acquisition of the contents of a cell-phone call occurs at the place
where the contents are first heard. United States v. Rodriguez, 968 F.2d 130, 136
(2d Cir.1992). So, Nettles is correct that Lucas County, where DEA agents
overheard his phone calls, had jurisdiction to issue the interception warrant.
{¶ 11} But the definition of “intercept” also includes “other acquisition.”
The disjunctive phrase “aural or other acquisition” indicates that the acquisition
may be “aural” but that other methods of acquisition count, too. As explained, the
government, with the aid of phone companies, captures and redirects a phone call
the moment a speaker speaks into a phone connected to the telecommunications
network. Thus, a nonaural form of acquisition—capture and redirection—occurs
at that point because the call is transmitted in an additional direction for the
government’s use. See Rodriguez at 136. The upshot is that an interception of a
cell-phone call first occurs when the government captures and redirects the contents
of the call at the place where a speaker uses the phone (other acquisition); an
interception also occurs when the government overhears the call at the listening
post (aural acquisition).
{¶ 12} Nettles, however, focuses solely on the word “aural” and asserts that
an interception occurs only once, at the listening point. To support his argument,
he compares the wiretap of a phone call to a football interception: when a
quarterback’s pass is intercepted by a defensive player, the interception is deemed
to have occurred at the point where the defensive player took possession of the ball.
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January Term, 2020
Similarly, here, he contends that the interception takes place only where the agent
overhears the calls.
{¶ 13} But his argument ignores the term “other acquisition” and fails to
account for modern interception technology. Even before the government acquires
the contents of a phone call by hearing it, it has possessed its contents—by way of
capture and redirection—at the moment the call occurs. Modern wiretap
technology can achieve a dual-locus interception in real time that a football
cornerback cannot.
{¶ 14} Though Nettles does not, one could argue that the statute’s reference
to “the county” suggests that an interception takes place in only one county. But
the legislature has instructed us that when it comes to the construction of statutes,
“the singular includes the plural, and the plural includes the singular.” R.C.
1.43(A); see also State v. D.B., 150 Ohio St. 3d 452, 2017-Ohio-6952, 82 N.E.3d
1162, ¶ 16. Thus, we have little difficulty in concluding that Nettles’s cell-phone
calls were intercepted in both Lucas and Sandusky Counties.
{¶ 15} We point out also that federal courts applying a nearly identical
provision have come to the same conclusion that we do. Federal law permits a
judge to authorize “interception of wire, oral, or electronic communications within
the territorial jurisdiction of the court in which the judge is sitting.” 18 U.S.C.
2518(3). “Intercept” is defined as the “aural or other acquisition” of
communications. 18 U.S.C. 2510(4). Based on this definition, federal circuit
courts have uniformly held that an interception occurs not only where the tapped
phone is located but also where law-enforcement officers first overhear the call.
See, e.g., United States v. Jackson, 849 F.3d 540, 551 (3d Cir.2017); United States
v. Dahda, 853 F.3d 1101, 1112 (10th Cir.2017); United States v. Cano-Flores, 796
F.3d 83, 87 (D.C.Cir.2015); United States v. Henley, 766 F.3d 893, 911-912 (8th
Cir.2014); United States v. Luong, 471 F.3d 1107, 1109 (9th Cir.2006); United
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States v. Ramirez, 112 F.3d 849 (7th Cir.1997); United States v. Denman, 100 F.3d
399, 403 (5th Cir.1996); Rodriguez, 968 F.2d at 136.
{¶ 16} State courts interpreting similar statutes have reached the same
conclusion. See, e.g., State v. Ates, 217 N.J. 253, 272-273, 86 A.3d 710 (2014);
Davis v. State, 426 Md. 211, 229-230, 43 A.3d 1044 (2012); State v. McCormick,
719 So. 2d 1220, 1222 (Fla.App.1998).
Conclusion
{¶ 17} Nettles’s calls were intercepted—captured and redirected—by law
enforcement in Sandusky County where he used his cell phone to facilitate drug
trafficking. Thus, the government properly obtained the interception warrant in the
Sandusky County Common Pleas Court. We affirm the judgment of the Sixth
District.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and
STEWART, JJ., concur.
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Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor,
Zachery P. Keller, Deputy Solicitor General, and Christopher Kinsler, Assistant
Attorney General, for appellee.
Patrick J. Milligan Co., L.P.A., Patrick J. Milligan, and James E. Kocka, for
appellant.
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