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Bad Wiretap Warrant Gets Defendants New Trial

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By Brett Snider, Esq. on November 12, 2013 12:37 PM

No one likes wiretaps, but the D.C. Circuit isn't particularly fond of wiretap warrants which are facially deficient. And the remedy in U.S. v. Glover was a new trial.

You can't exactly blame the court for its inclinations; an obviously legally lacking warrant that is executed to spy on domestic suspects isn't exactly the fantasy of any enlightened democracy.

So why exactly did the D.C. Circuit knock this case back to trial?

A Braaaand Newwwwww Triallllllll!!!

This wasn't exactly Lonell Glover and co-defendant's first time around the criminal justice system. The narrative leading to their convictions for cocaine-related charges started around 2007, and Glover was indicted by a grand jury.

However, the trial court dismissed Glover and co-defendant's charges under the Speedy Trial Act, as Glover had -- with both parties' agreement -- not been brought to trial within 70 days. The government rolled with the punches and simply reindicted the pair, who were eventually convicted. It helped that the trial court had dismissed their cases without prejudice.

Before the D.C. Circuit, Glover argued that the subsequent reindictment and the conviction that followed violated the Speedy Trial Act as well as his Sixth Amendment speedy trial rights. The Glover court disagreed, saying the lower court's decision to dismiss without prejudice was fine, given the serious nature of the crime. (P.S.: The court considers drug trafficking crimes "serious.")

Luckily, the court also believed that it was plain error for the trial court to admit evidence from a facially deficient warrant, and those circumstances warrant a remand for a new trial.

Warrants Do Not Have Plenary Jurisdiction

Down to the meat of the appeal, the Glover court was displeased that the lower court allowed evidence from a wiretap warrant, despite the fact that the warrant lacked jurisdiction for the place the tap gathered the evidence.

We've seen this problem before in the Fifth Circuit. The government tries to argue that the jurisdiction provision in the federal wiretap statute doesn't really mean what the literal reading is: "within the territorial jurisdiction of the court in which the judge is sitting."

The Glover court agrees with the Fifth Circuit, but thinks this case is even easier since it doesn't involve mobile devices. In short, the warrant was signed by a D.C. judge but executed in Maryland, making it facially insufficient. And since, unlike typical Fourth Amendment challenges, exclusion of evidence is actually included in the same statute, it was a no-brainer for the lower court to keep that evidence out.

Bottom Line

It's uncertain whether Glover will slip the noose on this third time through the criminal system, but the D.C. Circuit joins the Fifth and others in disapproving of this sort of "anywhere" jurisdiction of wiretap warrants.

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