635 F. Supp. 2d 1253,
1256 n.3 (W.D. Okla. 2009). IMSI numbers are the “unique
identifying numbers assigned to the computer chips installed
on cellular phones.” United States v. Green, No. 09-cv-
10183,
2011 WL 86681, at *2 (D. Mass. Jan. 11, 2011). Each
chip is removable and “may be placed in another similarly
equipped telephone.” See
Fletcher, 635 F. Supp. 2d at 1256
n.2.>
With these amendments, the panel has voted to deny
Appellant Oliva’s petition for rehearing en banc and to deny
Appellee’s petition for panel rehearing.
The full court has been advised of the petition for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellant Oliva’s petition for rehearing en banc, filed
August 31, 2012, is DENIED.
Appellee’s petition for panel rehearing, filed October 5,
2012, is DENIED.
No future petitions for rehearing or rehearing en banc will
be entertained.
OPINION
FISHER, Circuit Judge:
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 18 U.S.C. §§ 2510–2522, governs
UNITED STATES V . OLIVA 7
interception of wire, oral and electronic communications.
Jorge Ortiz Oliva appeals the district court’s denial of his
motion to suppress evidence obtained from a series of
electronic surveillance orders authorizing interception of
communications over cellular phones associated with him and
his alleged co-conspirators.1 Oliva contends these orders by
their terms authorized more than “standard” intercepts,
permitting more intrusive “roving” intercepts without
meeting the statutory prerequisites of § 2518(11).2
Specifically, he contends that the orders in essence authorized
the government to transform the cellular phones into roving
electronic bugs through use of sophisticated eavesdropping
technology. We agree that if the government seeks
authorization for the use of new technology to convert
cellular phones into “roving bugs,” it must specifically
request that authority, the court must scrutinize the need for
such surveillance and the authorization orders must be clear
and unambiguous. In this case, however, we credit the
district court’s finding that the orders were intended only to
authorize standard interception techniques and the
government did not do otherwise, and we therefore reject
Oliva’s argument. We also reject Oliva’s related argument
that the surveillance applications and orders failed to meet the
specification requirements of § 2518 to qualify even as
standard intercepts. We therefore affirm the district court’s
denial of Oliva’s motion to suppress.
1
Pablo Barajas Lopez joined Oliva’s suppression motion in the district
court and he joins Oliva’s appeal here. For the purposes of this opinion,
we analyze the motion as it pertains to Oliva. Our analysis and rulings as
to the standing issue and the merits, however, apply to both appellants.
2
All citations to §§ 2510 and 2518 will refer to 18 U.S.C. §§ 2510 and
2518 respectively, unless otherwise noted.
8 UNITED STATES V . OLIVA
BACKGROUND
In January 2006, the Drug Enforcement Agency began
investigating a drug trafficking conspiracy involving
numerous participants, including Oliva and Lopez. In August
2006, and over the course of the next 10 months, the
government obtained a series of 30-day electronic
surveillance orders that authorized the monitoring of 23
cellular phones used by 10 persons, nine of whom, including
Oliva and Lopez, ultimately became defendants in the
underlying criminal proceeding.
In February 2007, the government indicted Oliva, Lopez
and multiple alleged co-conspirators for their participation in
a drug trafficking conspiracy involving the distribution of
methamphetamine, cocaine and marijuana. A jury convicted
Oliva and Lopez of all drug counts in October 2009. They
have raised various issues on appeal, but here we deal only
with Oliva’s appeal of the district court’s denial of his pretrial
motion to suppress evidence obtained from the surveillance
orders.3
Specifically, Oliva argues that the surveillance orders
improperly authorized roving intercepts and failed to meet the
statutory specification requirements, and were thus facially
invalid. He raises questions about interception of
communications over cellular phones, whose technology
differs from conventional land line phones.
3
W e address Oliva’s and Lopez’s remaining challenges to their
convictions and sentences in a concurrently filed memorandum
disposition.
UNITED STATES V . OLIVA 9
DISCUSSION
I. STANDING
As a preliminary matter, we reject the government’s
contention that Oliva lacks standing to challenge the
interceptions because he has neither admitted that the voices
in the conversations intercepted were his nor asserted that any
of the intercepts took place on his premises. We review a
defendant’s standing under § 2518 de novo. See Vaughn v.
Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir. 2009)
(holding that questions of statutory standing are reviewed de
novo).
Under federal law, any “aggrieved person” has standing
to bring a motion to suppress the contents of intercepted wire
or oral communications or evidence derived therefrom.
§ 2518(10)(a). An “aggrieved person” means a person “who
was a party to any intercepted wire, oral, or electronic
communication or a person against whom the interception
was directed.” § 2510(11) (emphasis added); see Alderman
v. United States, 394 U.S. 165, 173 (1969) (“In order to
qualify as a person aggrieved by an unlawful search and
seizure one must [be] . . . one against whom the search was
directed.” (quoting Jones v. United States,
362 U.S. 257, 261
(1960)) (internal quotation marks omitted)); see also In re
Flanagan,
533 F. Supp. 957, 960 (E.D.N.Y. 1982) (“In the
context of wiretapping, the rule has crystalized that the only
persons with standing to suppress the fruits of an illegal
wiretap are parties at whom the wiretaps were directed,
parties to the call that was intercepted, or parties owning the
premises where the conversations were intercepted.”), aff’d
in relevant part, In re Grand Jury Subpoena of Flanagan,
691 F.2d 116, 118 n.2 (2d Cir. 1982). Irrespective of Oliva’s
10 UNITED STATES V . OLIVA
refusal to admit that the voices in the conversations
intercepted included his own or that any of the intercepts took
place on his premises, Oliva was one of the individuals
“against whom the interception[s] w[ere] directed.”
§ 2510(11). The affidavits in support of the surveillance
orders included investigators’ statements certifying their
beliefs that he was using the individual cellular phones at
issue. Oliva’s conversations were the target of the
surveillance. See United States v. Benjamin,
72 F. Supp. 2d
161, 185 (W.D.N.Y. 1999) (holding that the defendant had
standing to challenge a pager wiretap where he was named in
the intercept order and there was probable cause to believe
that the defendant’s electronic communications would be
obtained through the interceptions). We therefore hold that
Oliva has standing.
II. SUFFICIENCY OF THE ELECTRONIC SURVEILLANCE
ORDERS
We turn to the language of the surveillance orders at
issue. As we shall explain, we agree with Oliva that certain
terminology in the orders is problematical in the context of
cellular phones. Nonetheless, we disagree that the orders
must be construed as having authorized improper roving
bugs, requiring suppression of the intercepted evidence. We
also reject Oliva’s argument that the orders were facially
invalid for failure to meet the statutory specification
requirements.
A. Standard and Roving Intercepts
Federally authorized interception of wire, oral and
electronic communications is governed by Title III of the
Omnibus Crime Control and Safe Streets Act of 1968. Title
UNITED STATES V . OLIVA 11
III “ties wiretap authority to specific communications
facilities or locations.” United States v. Hermanek, 289 F.3d
1076, 1086 (9th Cir. 2002). To obtain authorization for what
is commonly known as a “standard” intercept, the statute
requires the government to include in its application, as
relevant here, “a particular description of the nature and
location of the facilities from which or the place where the
communication is to be intercepted.” § 2518(1)(b)(ii). The
court must “determine[] on the basis of the facts submitted by
the applicant that . . . (d) . . . there is probable cause for belief
that the facilities from which, or the place where, the wire,
oral, or electronic communications are to be intercepted are
being used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the
name of, or commonly used by such person.” § 2518(3)(d).
The court’s order in turn must specify “the nature and
location of the communications facilities as to which, or the
place where, authority to intercept is granted.” § 2518(4)(b).4
4
The statute has been understood to apply to both land line phones and
cellular phones. Although the “nature and location” of a cellular phone
cannot be described in the same way as that of a land line phone, a cellular
phone is itself a “facilit[y]” that can be sufficiently identified by such
features as its telephone number, electronic serial number (ESN) or
international mobile subscriber identity number (IMSI). See United States
v. Goodwin, 141 F.3d 394, 403 (2d Cir. 1997) (holding that the
government’s affidavits met the requirements of § 2518 because they
“clearly identified the facilities to be tapped by their telephone numbers
and by their electronic serial numbers”). An ESN “is a unique number
hardwired into every cell phone.” United States v. Fletcher,
635 F. Supp.
2d 1253, 1256 n.3 (W .D. Okla. 2009). IMSI numbers are the “unique
identifying numbers assigned to the computer chips installed on cellular
phones.” United States v. Green, No. 09-cv-10183, 2011 W L 86681, at
*2 (D. Mass. Jan. 11, 2011). Each chip is removable and “may be placed
in another similarly equipped telephone.” See
Fletcher, 635 F. Supp. 2d
at 1256 n.2.
12 UNITED STATES V . OLIVA
When the government cannot meet the specification
requirements of § 2518(1)(b)(ii) and (3)(d), it may still obtain
authorization for a different type of intercept – known as a
“roving” intercept – if it can satisfy enhanced authorization
requirements. See § 2518(11). There are two distinct types
of roving intercepts.
The first type is a “roving bug,” used to intercept oral
communications. See § 2510(2) (defining “oral
communication”). To justify a roving bug, the government
must set forth a “full and complete statement as to why . . .
specification is not practical,” and it must identify “the person
committing the offense and whose communications are to be
intercepted.” § 2518(11)(a)(ii). A roving bug permits
“interception of [a subject’s] conversations at locations that
were ‘not practical’ to specify” in the applications and orders.
United States v. Tomero, 462 F. Supp. 2d 565, 567 (S.D.N.Y.
2006).
The second type is a “roving wiretap,” used to intercept
wire communications. See § 2510(1) (defining “wire
communication”). For a roving wiretap, the government must
not only identify “the person believed to be committing the
offense and whose communications are to be intercepted,”
but also make “a showing that there is probable cause to
believe that the person’s actions could have the effect of
thwarting interception from a specified facility.”
§ 2518(11)(b)(ii).5 We have explained that “[r]oving wiretaps
are an appropriate tool to investigate individuals” who use
5
Sections 2518(11)(a)(i) and (b)(i) also require special levels of
approval from federal officials, beyond the approval required to obtain
standard intercepts.
UNITED STATES V . OLIVA 13
different telephone booths or “change numbers frequently to
avoid detection.” Hermanek, 289 F.3d at 1087.
B. Nature of the Orders Here
Beginning in August 2006, the government sought and
obtained a number of orders permitting surveillance of
cellular phones associated with Oliva, Lopez and other
subjects of the government’s investigation. Each order
authorized the government to intercept “wire
communications” to and from certain target phones and
phone numbers. Oliva argues that language in each order
actually gave the government broader authority, transforming
the orders from standard intercepts into authorizations for
roving bugs or roving wiretaps.
First, the orders authorized interception of “background
conversations intercepted in the vicinity of Target Phones 1
and 2 while the telephone is off the hook or otherwise in
use.”6 According to Oliva, this language authorized roving
bugs. Second, the orders authorized interception not only of
the target phone numbers but also of “any changed telephone
number or any other telephone number subsequently assigned
to or used by the instrument bearing the same ESN and/or
IMSI as the Target Phones 1 and 2 within the thirty (30) day
period.” Oliva reads this as authorizing roving wiretaps.
Oliva moved in the district court to suppress evidence
obtained pursuant to the orders, contending that each warrant
6
Each surveillance order applied to between one and five target phones
specified in the order. For the purposes of this opinion, because all orders
contained the same language, we cite to the order pertaining to “Target
Phones 1 and 2.” Our analysis, however, applies to all of the orders.
14 UNITED STATES V . OLIVA
on its face was invalid because the government had failed to
comply with the enhanced requirements for roving intercepts
under § 2518(11)(a) and (b). The government conceded it did
not meet the enhanced requirements, but argued it was not
required to do so because it had not requested, and the orders
did not authorize, the use of roving intercepts.
The district court rejected Oliva’s challenge, finding that
the orders did not authorize “roving bug[s] within the
meaning of the statute” or “roving wiretap[s],” and denied the
motion to suppress. We review de novo the denial of a
motion to suppress. See United States v. Lynch, 367 F.3d
1148, 1159 (9th Cir. 2004). We review the court’s
underlying findings for clear error. See United States v.
Davis,
530 F.3d 1069, 1077 (9th Cir. 2008).
1. Authorization to Intercept “Background
Conversations” While the Telephone is “Off
the Hook or Otherwise in Use”
The surveillance orders authorized the government to tap
“background conversations intercepted in the vicinity of [a
target phone number] while the telephone is off the hook or
otherwise in use.”7 Oliva asserts that this language, as
applied to cellular phones, authorized the government to
7
The 2011 U.S. Attorneys’ Manual includes the terminology used in
these orders, specifying that an application for electronic surveillance
“[w]ith regard to a cellular telephone” should “request that the
authorization apply to background conversations intercepted in the vicinity
of the target phone while the phone is off the hook or otherwise in use.
See United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990).” U.S.
Attorneys’ Manual, Criminal Resource Manual 28, available at
http ://www.justice.go v/usao /eo usa/fo ia_ read ing_room/usam/title 9/
crm00028.htm (last visited July 13, 2012).
UNITED STATES V . OLIVA 15
intercept “background communications when the cell phones
were powered on but not actively engaged in a call.” He
contends such authority allowed the government to employ
advanced technology to convert the targeted cellular phones
into general listening devices, picking up any conversations
within the range of the phone even when it was not actively
in use during a telephone conversation. According to Oliva,
by authorizing such technology each order permitted use of
a roving bug.
Oliva’s argument rests on his claim that law enforcement
authorities have the technology to transform cellular phones
into listening devices – i.e., roving bugs – that record ambient
conversations even when the user thinks the phone is “off.”
Whether, and to what extent, this technology exists is not
clear. In the district court, Oliva produced a December 1,
2006 article from CNET News entitled, “FBI taps cell phone
mic as eavesdropping tool.” The article reports that “[t]he
FBI appears to have begun using a novel form of electronic
surveillance in criminal investigations: remotely activating a
mobile phone’s microphone and using it to eavesdrop on
nearby conversations.” According to the article, the
technique, described as a roving bug, “came to light” in
Tomero, 462 F. Supp. 2d 565, a 2006 case from the Southern
District of New York. Tomero referred to the “installation of
a listening device in [a] cellular telephone. The device
functioned whether the phone was powered on or off,
intercepting conversations within its range wherever it
happened to be.”
Id. at 567 (footnote omitted). The CNET
article also referred to a 2005 report from Financial Times
describing a possibly related technology. The Financial
Times article reported that, “[i]f ordered to do so, mobile
telephone operators can . . . tap any calls, but more
significantly they can also remotely install a piece of software
16 UNITED STATES V . OLIVA
on to any handset, without the owner’s knowledge, which
will activate the microphone even when its owner is not
making a call, giving security services the perfect bugging
device.” Mark Odell, Use of Mobile Helped Police Keep
Tabs on Suspect and Brother, Fin. Times, Aug. 2, 2005,
a v a i l a b l e a t h t t p : / / ww w . f t . c o m / i n t l / c m s / s / 0 /
4239e29e-02f2-11da-84e5-00000e2511c8.html (last visited
July 13, 2012). Without resolving whether this technology
exists, the district court rejected Oliva’s theory.
The language of the orders is susceptible to Oliva’s
interpretation. The terminology – “background conversations
intercepted in the vicinity of [a target phone number] while
the telephone is off the hook or otherwise in use” – could
encompass the use of the alleged technology described by
Oliva. But the government’s interpretation, accepted by the
district court, is equally if not more plausible: the intent was
to authorize interception of background conversations
overheard while the cellular phones were actually being used
to communicate. The government represented and the district
accepted that no evidence was detected or offered that came
from “background conversations from cellular telephones that
were powered on, but not connected to . . . a live call.”
The terminology “off the hook” is problematical,
however, when applied to cell phones, the term having been
borrowed from orders concerning land lines, for which the
concept has meaning because land line phones typically have
hooks, referred to as switch hooks.8 “The hook switch is used
8
See Definition of: switch hook, PC Magazine, available at
http://www.pcmag.com/encyclopedia_term/0,1237,t=hook+switch&i=5
2310,00.asp (last visited July 13, 2012) (“Definition of: switch hook. Also
called a ‘hook switch,’ it is the control mechanism that answers and hangs
UNITED STATES V . OLIVA 17
to connect or disconnect the receiver and transmitter from the
line.” Cyril M. Jansky & Daniel C. Faber, Principles of the
Telephone 5 (1916). When the receiver is “on the hook,” its
weight pulls the switch down and holds the receiver circuit
open, leaving the line free for signaling purposes. Id. at 72.
When the receiver is “off the hook,” the switch hook raises
and closes the receiver circuit to incoming calls, so that the
line can be used for communication.
Id. Judicial decisions
talking about telephones being off the hook have involved
traditional land line technology, referring to the situation in
which a receiver is off the hook and a telephone call is not
necessarily in progress. See, e.g., United States v. Baranek,
903 F.2d 1068, 1069 (6th Cir. 1990) (concerning a
conversation recorded by agents after the phone line “stayed
open” because the defendant had “neglected to replace the
telephone properly”); United States v. Willoughby,
860 F.2d
15, 18 (2d Cir. 1988) (concerning a conversation that was
“automatically recorded” because it “took place while [the
defendant] was holding the . . . telephone’s handset off the
hook”); United States v. Blanco, No. 93-CV-20042,
1994 WL
695396, at *8 (N.D. Cal. Dec. 8, 1994) (upholding an order
authorizing law enforcement to intercept from a land line
“background conversations . . . in the vicinity of the target
telephone while the telephone is off the hook or otherwise in
use”); United States v. Feola,
651 F. Supp. 1068, 1107
(S.D.N.Y. 1987) (upholding an order allowing “interception
of conversations had in [the defendant’s] apartment while his
telephone was off the hook”).
up a call on a telephone. W hen you place the handset in the telephone
cradle, it depresses the switch hook’s button and hangs up (puts the phone
‘on hook’).”).
18 UNITED STATES V . OLIVA
The “off the hook” language, however, lacks meaning
when applied to cellular phones. Terminating a call on a
cellular phone does not turn the phone completely off. To do
so requires a separate and more deliberate step that the user
may not appreciate is necessary, and may leave the cellular
phone open to electronic eavesdropping quite different from
what can occur with accidentally failing to hang up a land
line phone. Unlike a relatively stationary land line phone, a
cellular phone whose microphone remains on even though the
call is terminated becomes a truly “roving bug.” If that is
what the government’s application for a warrant actually
seeks, it cannot do so using arcane, outmoded terminology
like “off the hook.”
Title III makes clear that the government cannot obtain –
nor may courts approve – electronic surveillance orders by
using ambiguous terminology that can be misconstrued to
authorize interception of communications beyond what is
intended. Before the government can employ technologies
that can eavesdrop on background conversations even if the
cell phone is “off” – essentially converting the phone to a
bugging device – it would have to comply with the statutory
requirements for such intrusive surveillance. That means
specifically requesting such authority, the court scrutinizing
the need for it and the order authorizing the surveillance in
clear and unambiguous terms with respect to the use of the
technology permitted and its boundaries. See § 2518(1)
(“Each application for an order authorizing or approving the
interception of a wire, oral, or electronic communication . . .
shall include . . . (b) . . . (iii) a particular description of the
type of communications sought to be intercepted”);
§ 2518(3)(c) (requiring the court to determine that other
investigative procedures are inadequate); § 2518(4) (“Each
order authorizing or approving the interception of any wire,
UNITED STATES V . OLIVA 19
oral, or electronic communication under this chapter shall
specify . . . (c) a particular description of the type of
communication sought to be intercepted . . . .”).9 Cf. United
States v. Jones, 132 S. Ct. 945, 951 n.3 (2012) (noting that
Fourth Amendment analysis remains the same irrespective of
“[w]hatever new methods of investigation may be devised”);
Kyllo v. United States,
533 U.S. 27, 36 (2001) (noting that
when considering the effect of technology on Fourth
Amendment rights, we must adopt rules that “take account of
more sophisticated systems that are already in use or in
development”).
In this case, notwithstanding the opportunity for abuse
that the orders’ ambiguous language may have afforded the
government, the government disavowed that it intended to or
did obtain evidence that came from other than direct or
background conversations while the cellular phones were
being used for conversations. There is no showing that the
district court clearly erred in accepting those representations.
We therefore decline to adopt Oliva’s broader reading of the
disputed language as having authorized the government to
utilize unlawful roving bugs. Even if the language might be
construed as having done so, there is no showing the evidence
Oliva seeks to suppress resulted from such surveillance.
2. Authorization to Intercept Communications to
“Any Changed Telephone Number”
As noted earlier, under Title III, the district court may
authorize a standard intercept of communications over a land
9
W e express no opinion on whether use of the technology Oliva alleged
exists is authorized by federal law or permitted under the Fourth
Amendment.
20 UNITED STATES V . OLIVA
line or cellular telephone only if the government’s application
includes “a particular description of the nature and location
of the facilities from which or the place where the
communication is to be intercepted.” § 2518(1)(b)(ii). The
court must determine that “there is probable cause for belief
that the facilities from which, or the place where, the wire,
oral, or electronic communications are to be intercepted are
being used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in the
name of, or commonly used by such a person.” § 2518(3)(d).
Likewise, each surveillance order must specify “the nature
and location of the communications facilities as to which, or
the place where, authority to intercept is granted.”
§ 2518(4)(b).
Oliva argues that these specification requirements were
not satisfied here. Pursuant to the government’s requests, the
orders authorized interception not only of named target phone
numbers, but also of “any changed telephone number or any
other telephone number subsequently assigned to or used by
the instrument bearing the same ESN and/or IMSI as the
Target Phones 1 and 2 within the thirty (30) day period.”
Oliva maintains that these affidavits and orders did not
specify the “facilities,” and thus did not authorize valid
standard wire intercepts. From this premise, Oliva again
argues that the orders constituted roving intercepts –
specifically, roving wiretaps. The government concedes its
applications did not meet the requirements for roving
wiretaps, but disputes that is what it sought or the court
approved.
We do not accept Oliva’s fundamental premise. The
orders met the specification requirements and authorized
valid standard wire intercepts. The Second Circuit addressed
UNITED STATES V . OLIVA 21
a comparable situation in Goodwin, 141 F.3d 394. There, the
government’s surveillance applications specified the
telephone numbers and ESNs of certain target cellular
phones. See
id. at 397. The defendant argued that the
resulting orders authorized roving wiretaps because “a
cellular phone has no fixed location, and that it therefore
would be impossible for the government or the district court
to specify the facility from which or the place where the
communication was to be intercepted.”
Id. at 403. The court
rejected this argument, explaining:
The government’s affidavits in support of its
application clearly identified the facilities to
be tapped by their telephone numbers and by
their electronic serial numbers. The
requirements of 18 U.S.C. §§ 2518(1)(b)(ii)
and 2518(4)(b) were therefore satisfied, and
authorization by a Deputy Assistant Attorney
General was sufficient. In sum, [the
defendant’s] argument – that because one may
rove about with a cellular telephone
interception of a cellular telephone is
necessarily a “roving wiretap” – does not
comport with the terms or purposes of the
wiretap statute.
Id. at 403.
Oliva would distinguish Goodwin because the
applications there appear to have been limited to a phone with
a particular phone number and a particular ESN, whereas the
surveillance affidavits and orders here extended to any phone
number, so long as the phone used an ESN or IMSI specified
in the orders. This distinction is immaterial. See United
22 UNITED STATES V . OLIVA
States v. Duran,
189 F.3d 1071 (9th Cir. 1999). As in this
case, the surveillance orders in Duran authorized interception
of any phone number, so long as the phone used an ESN or
IMSI specified in the order. See
id. at 1083 (authorization
applied to “any changed telephone number assigned to a
telephone with the same electronic serial number” as the
target telephone number). We specifically held that under the
order, “the statutory preconditions to judicial authorization
were satisfied,”
id. at 1086, noting that the government had
not sought a roving wiretap. See
id. at 1084 n.7.
Accordingly, we hold that the similar orders in this case, and
the affidavits upon which they were based, satisfied the
standard wire intercept specification provisions of
§ 2518(1)(b)(ii) and (4)(b), and we reject Oliva’s argument
that they constituted de facto roving wiretaps.
AFFIRMED.
