Should wiretap evidence be allowed when it exceeds jurisdiction?

The U.S. Supreme Court has agreed to hear an appeal of a 10th Circuit drug case involving wiretap evidence. A federal judge in the District of Kansas issued a wiretap order against two suspects, but the modern wiretap process allowed law enforcement to listen even when the phones were outside that district. Should a Kansas District wiretap order be effective wherever its targets travel? Should evidence collected outside of the Kansas District be allowed against the defendants?

The federal judge in Kansas issued the wiretap under the authority of the Omnibus Crime and Safe Streets Act of 1968, a law written long before modern cellphone technology. It authorizes federal judges to issue wiretap orders within their territorial jurisdiction. When all phones were land lines, there would have been no question of those phones moving outside the judge’s jurisdiction.

Fast forward to the modern era, and phones can easily move outside the jurisdiction of the judge who issued the wiretap order. Now, it’s quite possible for authorities to continue collecting evidence as the phone’s user travels from state to state.

The Omnibus crime act also authorizes federal trial judges to suppress the wiretap evidence if the original judge’s wiretap order is found “insufficient on its face.” Was a Kansas District order insufficient on its face to collect communications outside of the Kansas District?

The 10th Circuit found that the order was indeed insufficient on its face. However, it did not find that the trial judge was required to suppress such evidence. Instead, they determined that Congress’s core concerns when passing the measure were privacy and uniformity. The two defendants in this case merely argued that the order exceeded the Kansas District’s jurisdiction. That concern has nothing to do with privacy and uniformity.

The two defendants describe their appeal as having “immense practical importance for criminal defendants,” as indeed it does. Not only is wiretap evidence increasingly used in a variety of cases but it is often the central type of evidence, as was the case here. It’s essential for defendants to know whether judges have the power to issue wiretap orders that can follow them from one jurisdiction to another.

Justice Neil Gorsuch heard the case at oral argument before the 10th Circuit but did not take part in the ruling. Nevertheless, he has recused himself from the Supreme Court hearing.