Police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while monitoring a valid federal wiretap. Federal agents obtained a wiretap order for a San Diego phone number based on evidence that Escamilla was using that number in a drug trafficking operation. Agents monitoring the wiretap heard a number of drug-related conversations, but soon realized that Escamilla was not using the phone. They continued listening on the theory that the people using the phone were part of Escamilla’s conspiracy. Based on the evidence gathered, the agents initiated a traffic stop, at which time they learned the phone had nothing to do with Escamilla. However, defendant Carey, who was identified as one of the speakers, was charged with conspiracy to distribute cocaine. Carey’s motion to suppress the wiretap evidence was denied and he appealed. Held: Reversed and remanded. The federal Wiretap Act (18 U.S.C. §§ 2510-22) outlines steps the government must follow to secure a judicially authorized wiretap: it must show probable cause to believe that a particular offense has been or will be committed and demonstrate the necessity for the wiretap. The government must make efforts to minimize the interception of conversations unrelated to the criminal activity under investigation. The court noted that the Fourth Amendment provides an exception to the warrant requirement when police see contraband in “plain view.” Similar to the “plain view” exception in the Fourth Amendment context, police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the offense they are investigating while monitoring a valid wiretap, but must stop monitoring the wiretap once they know or reasonably should know that the calls involve only persons outside the target conspiracy. On remand the district court, which did not apply these principles, may determine what evidence was lawfully obtained in “plain hearing.”

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/14-50222.pdf