Dahda v. United States: Supreme Court explains when wiretap orders are “insufficient on their face”

Even though an order for a wiretap under the Omnibus Crime Control and Safe Streets Act contained a presumptively-invalid authorization to tap phones outside the territorial jurisdiction of the authorizing judge, the order was not “insufficient on its face” with regard to communications within the jurisdiction, the Supreme Court held May 14 in Dahda v. United States.
 
The Act at issue, 18 U.S.C. Sec. 2510, allows judges to authorize wiretaps under certain conditions.
           
The Act also allows criminal defendants to move to suppress an intercepted communication if “the order … of approval under which it was intercepted is insufficient on its face.”
 
The order at issue authorized interception of communications both within and outside the territorial jurisdiction of the judge who issued the order.  Los and Roosevelt Dahda claimed that this rendered the order “insufficient on its face” for both types of communications.
 
The Supreme Court, in an 8-0 opinion, disagreed.
 
The Court assumed that the portion of the order authorizing interception of communications outside the jurisdiction was invalid.
 
But the Court found that language to be merely “surplus,” because the Government here used only the communications from within the jurisdiction at the Dahdas’ trial.
 
“[N]one of the communications unlawfully intercepted outside the judge’s territorial jurisdiction were introduced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas,” the Court said.  “Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not ‘insufficient’ on their ‘face.’”
 
The Act requires that certain facts be included within an order, such as the identity of the person (if known) whose communications are to be intercepted; a description of the type of communications to be intercepted; and a statement of the particular offense to which it relates. 
 
“An order lacking that information would deviate from the uniform authorizing requirements that Congress explicitly set forth, while also falling literally within the phrase ‘insufficient on its face,’” the Court said.
 
Here, the order contained all the required information from the Act.
 
The “sentence” authorizing interception outside the judge’s jurisdiction “is surplus,” the Court said.  “Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction.”
 
Justice Gorsuch did not participate in the case.