The easy mobility, storage capacity and varied features of handheld communications devices like smartphones increase our efficiency and access to the ever-changing information superhighway. But, ironically, their mobile and anonymous character enhances criminal endeavors, including the ability to traverse historic jurisdictional boundaries, thereby complicating jurisdictional legal norms. In determining the legality of warrants targeting particular digital communications, the courts are more frequently facing jurisdictional challenges. A court’s power to issue a warrant for such digital communications that may take place outside of the court’s ostensible territorial jurisdiction have arisen with more frequency with varying results, which will be addressed in this article.
In 1976, a national commission created by Congress to report on the use and value of court-approved electronic surveillance described in their report the critical nature of law enforcement’s ability to combat organized crime through electronic surveillance.1 Indeed, the sentiments were echoed in 2000 by Judge Albert M. Rosenblatt of the New York Court of Appeals in People v. Darling, when he referred to electronic surveillance as an essential law enforcement tool that in its absence some criminal activity—often the most pernicious—would go undetected and unpunished.2 Fifty years ago, the hardline telephone was the communications device by choice and necessity. Today, with a varied assortment of digital devices to choose from, there are over 327 million cell phones in use in the United States.3 This shift from hardline telephone to mobile digital device challenges the historic jurisdictional limitations of fixed borders that until recently was an easily determined bright line in practice in the criminal courts of our nation.
One frequent argument propounded by defense counsel seeking to suppress court authorized electronic surveillance of cell phone communications relies on the assertion that the law imposes a limit on a court’s authorization to issue a warrant to the district in which the authorizing judge sits despite where the communications device may be located or where the communications are intercepted and overheard. This is the battleground where evolving communications technology, the ease in mobility of communications devices, their inherent anonymity, and their continued and growing use in criminal endeavors meets head-on with historic jurisdictional norms.
Point of Interception Doctrine
The so-called “point of interception doctrine” was adopted in 1992 by the U.S. Court of Appeals for the Second Circuit in United States v. Rodriguez. There, the Circuit Court affirmed the district court and held that for purposes of the jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communications are first heard. In Rodriguez, a Southern District Judge in New York City authorized eavesdropping on five phones, one in the Bronx and the remaining four in New Jersey, a different federal district. The monitoring plant was at the Drug Enforcement Administration’s (DEA) headquarters in Manhattan within the Southern District. The court relied upon the definition of “intercept” in 18 U.S.C. §2510(4), which was defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” The term “aural acquisition” means where the communication is actually heard or where it is recorded. The court further explained that a federal court sitting in the jurisdiction in which the to-be-tapped telephone is located has the authority under 18 U.S.C. §2518(3) to authorize a wiretap. Further, the court stated that since the definition of “interception” includes the “aural” acquisition of the contents of the communication, the interception must also be considered to occur at the place where the redirected contents are first heard, that is, the listening plant that police officers utilize to overhear the conversations.4
There are sound policy reasons for permitting a court in the jurisdiction where all the captured conversations are to be heard to grant authorization to authorities in a single jurisdiction to conduct electronic surveillance on phones that are often physically located in more than one jurisdiction. The court found that a key component of the legislative history of Title III5 was the protection of individual privacy rights from abuse by law enforcement. Accordingly, if all of the authorizations are sought from the same court that reviews the applications, the court reasoned, there is better chance that unnecessarily long interceptions will be avoided.
Thus, the plain language of §2510, the legislative history of that section, and the policy considerations of Title III supported the court’s view that for purposes of §2518(3)’s jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communication are first heard.
The U.S. Court of Appeals for the Third Circuit in 1997 wrestled with the question of territorial jurisdiction for electronic surveillance in United States v. Giampa,6 and came to a finding similar to the Second Circuit in Rodriguez. The defendant in Giampa argued for suppression of the evidence claiming that the electronic surveillance was improper because the issuing judge who was sitting in Newark, N.J. was not empowered to authorize electronic surveillance of a telephone line originating in the Southern District of New York. The court held that interception of wire communications, for §2518(3) purposes occurs not only where the wiretapped telephone is located, but also where law enforcement agents monitoring conversations are located.
The law enforcement agents who intercepted and monitored the wiretap in Giampa were located in New Jersey. The agents monitored the phone in New Jersey by employing a device called a “slave line,” which transmitted the intercepted communications to the Garden State. The government contended, citing Rodriguez, that the eavesdropping order was proper because the employment of a “slave line” was held by the Rodriguez7 court to be consistent with 18 U.S.C. §2518(3). On the other hand, the defense argued §2518(3) should be read to limit the jurisdiction of a telephone surveillance order to the district in which the authorizing judge sits. The court rejected this interpretation and followed the Second Circuit’s decision in Rodriguez.
On the other hand, in United States v. Glover, the U.S. Court of Appeals for the D.C. Circuit reversed the drug conspiracy convictions, finding that the district court had erroneously admitted evidence obtained pursuant to a “facially insufficient” warrant. There, the FBI obtained court authorization for planting an audio recording device ( a “bug”) for defendant’s truck and eavesdropped on conversations in the vehicle. As a result, the government overheard key admissions by the defendant and his co-conspirators. However, the Circuit Court suppressed the evidence because the truck was parked at Baltimore BWI airport when the eavesdropping device was planted, outside of the issuing judge’s jurisdiction, and rejected the government’s contentions that “interception” under Title III takes place both at the location of the listening post and at the location of the eavesdropping device.8
State Courts and Jurisdiction
Under federal wiretap law, it is state law that defines the territorial parameters of the state court judge’s authority.9 If the communications device used by a target is a cell phone, then there is substantial legal authority that the court may issue the warrant if the communications are occurring within its territorial jurisdiction or if the law enforcement monitoring plant that intercepts, monitors and records the conversations is located within its territorial jurisdiction. In such cases, the accountability for the propriety of that investigation is clearly defined instead of being diffused in a number of law enforcement offices, thus satisfying one of the core goals of electronic surveillance law under Title III—clear accountability and responsibility for court authorized electronic surveillance by law enforcement.
In Castillo v. State,10 a state appellate court in Texas rejected the government’s arguments that the issuing court acted within its jurisdiction in issuing the surveillance warrants where the eavesdropping plant was located within its territorial jurisdiction but the subject phones were in another district. The court interpreted the then controlling Texas statute, Code of Criminal Procedure Article 18.20 subd. (b), as precluding the judge from issuing the warrant. The court examined the legislative history of the Texas statute and found that “the relevant location for judicial authorization purposes is not that of the listening post but rather where the wiretap device is physically located. Moreover, the court expressed its concern that to hold otherwise would allow “judge shopping.” It is worth noting that the Texas legislature later overturned Castillo by amending the statute so that a judge of competent jurisdiction may authorize a wiretap when the communication is intercepted in the judicial district.11
New York state courts have adopted the Rogriguez point of interception doctrine.12 In doing so, the courts have acknowledged that although Criminal Procedure Law (CPL) Article 700 does not specifically define where an interception occurs, a cell phone tap is “executed” in the county where the conversation is overheard or recorded by the police. Article 700 of the CPL provides the statutory framework for electronic surveillance orders, and was enacted to comply with federal standards. CPL §700.05(4) does not provide a statutory definition for the term “executed”; nevertheless, a “Justice” is further defined in CPL §700.05(4) and includes any “justice of an appellate division of the judicial department in which the eavesdropping warrant is to be executed, or any justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed, or any county court judge of the county in which the eavesdropping warrant is to be executed.”13 New York courts have analyzed three statutory provisions: CPL §700.05(3), the definition of intercepted communication; Penal Law §250.00(3), the definition of telephonic communication; and Penal Law §250.00(4), the definition of aural transfer. The statutory analysis, in pertinent part, is based on “intercepted communication” meaning a “telephonic communication,” that is, an aural transfer containing a human voice by the aid of a wire or cable or other connection including a switching station, which was intentionally overheard without the consent of the sender or receiver. Thus, New York courts have concluded that “to execute” an eavesdropping warrant intercepting a telephonic conversation is to order the intentional overhearing of a human voice as it is transferred through the use of wire, cable or other like communication, thus validating the jurisdiction of the issuing judge and the warrant when the conversations subject to the warrant were overheard (at the listening plant) within the court’s geographical jurisdiction.
There is a rational and practical reason justifying the judicial determination permitting the jurisdiction of a judge to issue an eavesdropping warrant to turn on the place of interception, that is the first overhearing of the conversation, rather than on the location of the cell phones that are the subject of the order, as the location and jurisdiction of the cell phones could change as they are moved from one place to another. Accordingly, it is eminently logical that a cell phone eavesdropping warrant may authorize interception of cell phone conversations provided authorities overhear the conversations in the jurisdiction in which the warrant is issued, even if the conversations actually occurs in another jurisdiction.14
Many other state appellate courts have followed the Rodriguez point of interception doctrine, including Delaware, Florida, Georgia, Kansas, Maryland, New Jersey, and South Carolina.15 California recently updated its electronic surveillance law to ostensibly conform with this jurisdictional interpretation.16
The cases discussed illuminate the challenges courts face in warrant litigation concerning jurisdiction of interception of cell phone communications, and their methodology in resolving these matters involving evolving digital communications technologies. In weighing all the pertinent considerations, the courts endeavor to interpret and adhere to the intent and purposes of electronic surveillance statutes, including scrupulously protecting core concerns of individual privacy, and government accountability.
1. See Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Eavesdropping Surveillance, pp. 28-29 (1976).
2. People v. Darling, 95 N.Y.2d 530, 535 (2000).
3. See https://en.wikipedia.org/wiki/List_of_countries_by_number_of_mobile_phones _in_use.
4. United States v. Rodriguez, 734 F. Supp 116, 120 (S.D.N.Y. 1990), aff’d 968 F.2d 130, 134-35 (2d Cir. 1992) cert. denied, 506 U.S. 847 (1992); see also United States v. Gotti, 42 F. Supp 252, 286, aff’d 155 F.3d 144 (2d Cir. 1998).
5. Title III refers to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§2510, et. seq.
6. United States v. Giampa, 904 F. Supp 235 (D.C.N.J. 1995), aff’d 107 F.3d 9 (3d Cir. 1997).
7. See United States v. Rodriguez, 968 F.2d at 136, supra. Rodriguez held that “for the purposes of §§2518(3)’s jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communications are first to be heard.”
8. United States v. Glover, 736 F.3d 509, 513-15 (D.C. Cir. 2013).
9. It has been held that territorial jurisdiction limitations do not implicate Congress’ core concerns in passing Title III. See U.S. v. Nelson, 837 F.2d 1519 (11th Cir. 1987), cert den., 109 S. Ct. 82 (1988). Congress intended that state law would define the territorial jurisdiction of each state court. SeeAdams v. Lankford, 788 F.2d 1493,1499-1500 (8th Cir. 1986).
10. Castillo v. State, 810 S.W. 2d 180 (Tex. Crim. App. 1990).
11. State v. Brinkley, 132 A.3d 839, 850 (Sup. Ct. Del. 2016).
12. See People v. Delacruz, 156 Misc.2d 284 (Bx. Co. Sup. Ct., 1992); People v. Perez, 18 Misc.3d 582 (N.Y. Co. Sup. Ct. 2007).
13. NY CPL §§700.10(1); CPL §§700.05(4).
14. See, e.g., Nelson, 837 F.2d 1519 and Adams, 788 F.2d 1493. The same argument is applicable to the interception of text messages and other cell phone apps available to smartphone users that are the subject of court ordered eavesdropping warrants.
15. See, e.g., State v. Brinkley, 132 A.3d 839, 850 (Sup. Ct. Del. 2016); Luangkhot v. State, 292 Ga. 423 (2013); Davis v. State, 426 Md. 211 (2012); State v. Ates, 217 N.J. 253 (2013); 402 S.C. 530 (2013); State v. McCormick, 719 So. 2d 1220 (5th Dst. App. 1998).
16. See Brinkley, 132 A.3d at 850-51.