If Technology is the Hare, Is Congress the Tortoise? Split Circuits in the Wake of Dahda
If Technolog y is the Hare, Is Congress the Tortoise? Split Circuits in the Wake of Dahda
Michael Koch 0 1 2 3
0 Michael Koch, If Technology is the Hare, Is Congress the Tortoise? Split Circuits in the Wake of Dahda , 59 B.C.L. Rev. E. Supp. 45, 2018
1 Part of the Communications Law Commons, Criminal Law Commons, Law Enforcement and Corrections Commons, Privacy Law Commons, and the Science and Technology Law Commons
2 Boston College Law School
3 This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
1 See Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. §§ 2510–2520 (2012)
(covering the entire text of Title III).
2 Id. at §§ 2515, 2516. Section 2516 provides for a small number of law enforcement officers
who may apply for authorization to intercept communicationsS.ee id. § 2516. Law enforcement
may seek authorization to intercept communications during investigations of certain crimnes- i
cluding embezzlement, murder, terrorism, bribery of public officials, and a number of other
federal crimes. See id. § 2516(1)(a)–(t).
3 See S. REP. NO. 90-1097, at 2153 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2153. In
enacting Title III, Congress sought to implement the dual purposes of protecting oral and wire
communications’ privacy and creating a uniform set of circumstances and conditions under which
authorizations for interception may be issued.See id. To protect privacy, Congress forbade
wiretapping and electronic surveillance by any person other thana law enforcement officer. See id. To
ensure a uniform set of circumstances and conditions for authorization, wiretapping and electronic
surveillance are only allowed for the investigation or prevention of specified kinds of serious
crimes and require a showing of probable cause and authorization by a judge. See id.
4 Compare United States v. Dahda, 853 F.3d 1101, 1114 (10th Cir. 2017) (limiting the
definition of interception devices to those devices that are mobile), with United States v. Ramirez, 112
In the 2017 decision United States v. Dahda, the Tenth Circuit declined
to follow the Seventh Circuit’s definition for the term “mobile interception
device.”5 The Tenth Circuit held that aseries of extraterritorial wiretap
uathorizations were facially insufficient based on a plain language definition of
mobile intercept device.6 Ultimately, however, the Tenth Circuit upheld the
district court’s denial of the defendant’s motion to supprtehses evidence
gathered.7 The U.S. District Court for the District of Kansas convicted the
defendant, Los Dahda, of crimes related to an alleged marijuana distribution
conspiracy.8 The court accordingly sentenced Dahda to imprisonment and a
fine of nearly seventeen million dollars.9 The defendant appealed the verdict,
focusing on nine orders issued by the district court authorizing wiretaps on
the defendant’s and his co-conspirators’ cell phones.10 The orders further
provided that interception could take placein any other jurisdiction within the
United States, should the targeted cell phone leave the issuing judge’s jusr-i
diction.11 At trial, the defendant moved to suppress the intercepted
communications, asserting that the wiretap orders violated Title III’s mliitation on
interceptions outside the issuing court’s territorial jurisdictio12n.The district
court denied the motion and the defendant appealed to the Tenth Circuit on
the grounds that the facial insufficiency of the authorizations entitled him to
suppression of the evidence gathered from the related interceptions.13
This Comment argues thatneither the Tenth Circuit’s nor the Seventh
Circuit’s definition, in the modern context, is consistent with the
congressionF.3d 849, 853 (7th Cir. 1997)de(fining devices for intercepting mobile communications more
5 Dahda, 853 F.3d at 1114.
6 Id. The court held that the wiretap orders authorized the use osftationary listening posts to
intercept cell phone communications, both of which could be beyond the cou’rst territorial
jurisdiction. Id. The Tenth Circuit, however, defined“mobile interception device” as an interception
device that can be easily moved,thus excluding stationary listening posts from the exception in
Section 2518. See id. Used in this context, an extraterritorial wiretap authorization refers to an
order authorizing a wiretap outside of the issuing judge’s territorial jurisdictionS.ee id. at 1111
(noting that the wiretap orders under which evidence was gathered exceeded the issuing judge’s
territorial jurisdiction); see also Extraterritoria,l BLACK’S LAW DICTIONARY (10th ed. 2014)
(defining “extraterritorial” as “occurring beyond the geoagprhic limits of a particular juriscd-i
tion”). A facially insufficient authorization order is an order that does not conform to the requei-r
ments under 18 U.S.C. § 2518(1).
7 Dahda, 853 F.3d at 1116.
8 Id. at 1105. According to the trial court findings, Dahda helped the network by driving cash
from Kansas to California, helping with the purchasing, packaging, and shipping of the marijuana,
and selling the marijuana in Kansas. Id. The charges levied against Dahda and his co-conspirators
alleged a conspiracy to distribute in excess of 1,000 kilograms of marijuana. Id.
10 Id. at 1111.
11 Id. at 1112.
12 Id. at 1111.
13 Id. at 1105.
al intent underlying Title III because both definitions are overly broad and do
not accomplish Congress’s goals for the statute.14 Part I of this Comment
presents an overview of Title IIIand its provisions, and outlines the state of the
law prior toDahda.15 Part II examines and discusses the Tenth Circuit’s
Dahda decision and how the court analyzed Title IIaInd the specific term
“mobile intercept device,” and ultimately arrived at its definiti1o6n.Part II
additionally considers the Dahda concurrence.17 Part III argues that neither
court has accounted for technological changes in formulating its definition for
“mobile interception device” and that a more narrow definition would better
serve the congressional intent underlying the statute.18
I. TITLE III: LEGAL FRAMEWORK PRE-DAHDA
Title III permits law enforcement officers to apply for, and courts to
issue, authorizations to intercept telephone communications using wiretaps or
other means of interception.19 To obtain a wiretap authorization order under
Title III, an application must be filed with the court.20 This application must
contain the applicant’s identifying information andthe facts and
circmustances justifying the wiretap, including the nature and location of the
facilities from which, or the place where,the communications are to be
intrecepted.21 Upon review of the application, a judge may enter anex parte
order authorizing the requested wiretap within the territorial jurisdiction of the
court in which the judge is sitting.22 In most cases, judges may only
author14 See infra notes 114–145 and accompanying text.
15 See infra notes 19–48 and accompanying text.
16 See infra notes 49–113 and accompanying text.
17 See infra notes 109–113 and accompanying text
18 See infra notes 114–145 and accompanying text.
19 18 U.S.C. §§ 2516(1), 2518(1) (2012). Section 2516(1) authorizes specific law enforcement
personnel to file an application seeking authorization for the Federal Bureau of Investigation (or
other responsible federal agency) to intercept wire or oral communicationSse.e id. § 2516(1).
Section 2516(1) further authorizes federal judges to approve such applications in conformity with
Section 2518. See id. Section 2518 details the procedure by which law enforcement must make an
application and the procedure by which the judge reviews, approves, and issues anorder
authorizing the requested interceptions. See id. § 2518.
20 Id. § 2518(1) (requiring an application for an order authorizing or approving the
interception of a wire, oral, or electronic communication to be made in writing to a judge).
21 Id. § 2518(1) (detailing what information must be included in the application for a wiretap
authorization order). Further information that must be contained in the application includes other
investigative procedures (if any) used and their success or failure, the period of time for which the
interception is required to be maintained, statement of the facts concerning all previous appal-ic
tions known to the applicant related to the same persons, facilities, or places specified, and, if
applicable, a statement settnig forth the results thus far obtained from the interception, or a
reasonable explanation of failure to obtain such results. See id.
22 Id. § 2518(3). An ex parte order is a judicial order issued in the presence of only one party
and without opposition from the adverse party.See Ex Parte, BLACK’S LAW DICTIONARY (10th
ize wiretaps where the interception takes place within the judge’s territorial
The term “intercept” under Title III is defined atshe “aural or other
acquisition of the contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device2”4. Title III
does not define where an interception takes place, leaving open the question
of whether interception occurs at the site where the telephone is being
wiretapped or at the site where law enforcement hears the communications2.5 In
the 1992 case United States v. Rodriguez, however, the Second Circuit held
that interception takes place in both locations—at the site of the phone and
at the site of hearing.26 Relying on Rodriguez, a court could issue a wiretap
authorization order allowing law enforcement to listen to communications
within the judge’s territorial jurisdiction, even though the wiretapped device
may be outside the judge’s territorial jurisdiction. 27
Title III specifically includes an exception allowing for interceptions
outside of a judge’s territorial jurisdiction, provided that the order limits those
interceptions to instances involving a “mobile interception device.”28 As with
the term “intercept,” the statute does not define “mobilteercienption
device.”29 The seminal case defining “mobile interception device,” until
recently, was the 1997 Seventh Circuit decisionin United States v. Ramire.z30 In
Ramirez, the Seventh Circuit concluded that theterm described a device that
intercepts mobile communications, such as a device designed to intercept
23 18 U.S.C. § 2518(3); see United States v. Dahda, 853 F.3d 1101, 1111 (10th Cir. 2017).
Judges may issue orders authorizing interception outside of their territorial jurisdiction in the
event that law enforcement plans to use a mobile interception devicSee.e 18 U.S.C. §2518(3).
The statute is silent on the definition of mobile interception device.See id. As will be discussed in
the remainder of this comment, at least two United States Circuit Courts of Appeal have written
opinions containing their respective definitions for mobile interception device, though the
definitions are divergent.[See supra note 4?]Compare Dahda, 853 F.3d at 1104 (limiting the definition
of interception devices to those devices that are mobile),with United States v. Ramirez, 112 F.3d
849, 853 (7th Cir. 1997) (defining devices for intercepting mobile communications more broadly).
24 18 U.S.C. § 2510(4).
25 See United States v. Rodriguez, 968 F.2d 130, 136(2d Cir. 1992). Interception consists of
two parts: where the device used acquires the content of the message being intercepted (e.g. where
a traditional wiretap receives a signal through a phone line) and where the law enforcement oi-ff
cial hears the contents of the message acquired through the device. See id.
26 Id. (holding that because the definition of“intercept” under Title III includes actually
hearing the message, the interception must also be considered to occur at the place where the contents
of the message being intercepted are heard).
27 See id. at 132, 136 (upholding the denial of the defendan’ts motion to suppresswiretap
evidence obtained in New Jersey by agents in New Yorakuthorized by a New York magistrate
28 18 U.S.C § 2518(3).
29 Id. § 2510.
30 Ramirez, 112 F.3d at 853.
mobile phone calls3.1 Under Ramirez, the statutory exception accordingly
applied where a judge issued a wiretap authorization order allowing for
interception of communications originating from a mobile phone.32 Moreover, the
limitation carried no further jurisdictional limitations.33
The definitions and legal framework above carry particular importance
when analyzing the availability of suppression as a remedy under Article
III.34 Suppression is available as a remedy in cases where, (1) a
communication was unlawfully intercepted, (2) a facially insufficient order authorized
the interception, or (3) an interception occurred that was not in conformance
with the order authorizing it.35
With regard to the first category, Article III expressly forbids, except in
a narrow band of circumstances, the interception of wire, oral, or electronic
31 Id. One modern and controversial device fitting this definition is the class of devices called
StingRays. See generally Linda Lye, New Docs: DOJ Admits hTat StingRays Spy on Innocent
Bystanders, ACLU N. CAL. (Oct. 28, 2015),
https://www.aclunc.org/blog/new-docs-doj-admitsstingrays-spy-innocent-bystanders [https://perma.cc/X5F3-PV3U]. Public documents obtained by
the ACLU indicate that some stingray devices may have the functionality to intercept wireless
communications. See Documents Obtained by ACLU Pursuant to FOIA Reques,t ACLU N. CAL.
11, https://www.aclunc.org/docs/20151027-crm_lye.pdf [https://perma.cc/W4PH-TYML]
[hereinafter StingRay Documents]. These StingRay devices, if possessing the functionality to intercept
wireless communications, would not be subject to the territorial restrictions Soefction 2518(3)
under the Seventh Circui’ts definition for mobile interception deviceS.ee Ramirez, 112 F3.d at
853; see also StingRay Documents, supra, at 11 (claiming that digital analyzers/cell site
simulators/triggerfish and similar devices, like the StingRay, may be able to intercept the contents of
wireless communications if the function is not disabled). This definition, therefore, could lead to
the widespread use of a controversial piece of technology by placing it within the statutory
exception. See Ramirez, 112 F.3d at 853.
32 See Ramirez, 112 F.3d at 853 (holding thatthe orders fell within the exception under Title
III, because a mobile interception device is a device used to intercept mobile communications and
the wiretap authorization order authorized interception of communications from a mobile phone).
33 See id. (“[S]o understood [the definition for mobile interception device] authorized the
district judge in the Western District of Wisconsin to order a tap on the phone..r.egardless of
where the phone or listening post was.”).
34 See 18 U.S.C. § 2518(10) (providing suppression as a remedy).
35 Id. § 2518(10)(a); see, e.g., United States v. Giordano, 416 U.S. 505, 525, 533 (1974)
(fafirming grant of motion to suppress and holding that communications were unlawfully intercepted
where the Attorney Gener’asl executive assistant approved the application);nitUed States v.
Lomeli, 676 F.3d 734, 742 (8th Cir. 2012) (affirming district cou’rst grant of motion to suppress
evidence obtained by wiretap and holding that wiretaps were made unlawfully where applications
for authorization did not identify the law enforcement officers authorizing the applications); State
v. Mazzone, 648 A.2d 978, 987–88 (Md. 1994) (vacating Court of Special Appea’lsjudgment
denying motion to suppress and holding that failure to minimize interception is tantamount to
intercepting beyond the scope of an authorization)S.uppression is a remedy by which the court
stops certain evidence from being introduced at trial. Suppress, BLACK’S LAW DICTIONARY (10th
ed. 2014). In cases under Title III, suppression prevents the introduction at trial of content from
wrongfully intercepted communications. See, e.g., Giordano, 416 U.S. at 509 (noting that
suppression hearings began when the government announced that it would use intercepted commuan-ic
communications.36 Therefore, any person who intercepts a communication
and is not otherwise authorized by Title III has done so unlawfully,
rendreing the intercepted communication vulnerable to suppress3io7nS.econd,
Article III sets forth specific requirements for orders authorizing the lawful
interception of communications.38 Orders issued by courts that do not
satisfy these requirements are deemed facially invalid.39 Communications
intercepted pursuant to a facially invalid order are similarly susceptible to
psupression.40 Finally, otherwise lawful interceptions performed after issuance
of a facially valid order, but intercepted in a manner that is not in
conformity with the wiretap authorization order, could be suppressed. 41
An aggrieved party may assert any of the defects above and move for
suppression, but bears the burden of proving the defec4t2. If the burden is
met, the analysis then proceeds to a second step in which the court dert-e
mines whether or not suppression is appropriate based on the nature of the
defect.43 If a court decides that the defect interferes with the implementation
of the congressional intent of Article III, suppression may be the appropriate
remedy.44 The legislative history of Title IIIreveals the goals of the statute
and provides examples of how Title III accomplishes such goals4.5 Its two
36 18 U.S.C. §§ 2511(1), 2516.
37 Id. §§ 2511(1), 2516, 2518(10); see, e.g., Lomeli, 676 F.3d at 742 (affirming grant of
defendant’s motion to suppress and holding that wiretap authorization applications that did not
identify the law enforcement officer who approved the application violated the statutory requirements
under Section 2518(1)).
38 See 18 U.S.C. § 2518(1)–(4) (detailing the procedure by which law enforcement files its
application and the authorizing judge reviews and approves or denies the application).
39 See Dahda, 853 F.3d at 1114 (holding that a wiretap authorization order that violated Title
III’s territorial jurisdiction restriction was facially insufficient).
40 18 U.S.C. § 2518(10)(a)(ii).
41 Id. § 2518(10)(a)(iii)
42 United States v. Radcliff, 331 F.3d 1153, 1160 (10th Cir. 2003) (citing United States v.
Mitchell, 274 F.3d 1307, 1309 (10th Cir. 2001)) (holdingthat wiretap authorizations carry a
presumption of validity and the defendant bears the burden of rebutting this presumption).
43 See Giordano, 416 U.S. at 527 (requiring suppression only where the defect is related to
one of “those statutory requirements that directly and substantially implement[s] the congressional
intention to limit the use of intercept procedures to those situations clearly calling for mth-e e
ployment of this extraordinary investigative device”).
44 See id.; see also Radcliff, 331 F.3d at 1162 (holding that the rule requiring suppression only
where a defect is related to a requirement directly and substantially implementing the
congressional intent underlying the statute, as established Giniordano, applies to facially insufficient
authorization orders or approvals as well).
45 See S. REP. NO. 90-1097, at 2153 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2153.
Congress passed Title III primarily for the dual purposes of protecting the privacy of wireless
communications and creating a uniform set of circumstances and conditions under which
interception of wireless communications may be authorized.Id. Furthermore, Congress sought to ensure
that the authority to authorize applications for the use of wiretapping was centralized as much as
possible in a publicly responsible official subject to the political processI.d. at 2185.
Centralization in politically-accountable public officials ensured that the public would be able to identify the
official responsible if abuses of the wiretap authority began to occuIrd.. With the threat of the
primary goals are to protect the privacy of oral and wire communications
and to establish a consistent set of circumstances under which wiretaps may
be authorized.46 Title III, however, does not explicitly identify whiche- r
quirements meaningfully implement these goals4.7 Accordingly, it has thus
far fallen to the courts to differentiate technical defects from defects
undermining the purpose of the statute.48
II. THE TENTH CIRCUIT BREAKS WITH THE SEVENTH CIRCUIT
IN UNITED STATES V. DAHDA
In 2017, in United States v. Dahda, the U.S. Court of Appeals for the
Tenth Circuit reviewed the denial of the defendant’s motion to
suppressnitercepted communications presented as evidence against him at tria49l. To
determine whether the motion was appropriately denied, the court analyzed
the denial in two steps.50 First, the court decided that the orders authorizing
the intercepted communications were facially deficien51t. The court
ulitmately concluded, however, that the facial deficiency was technical ina-n
political process hanging over their heads, Congress hoped that law enforcement officials would
be sufficiently deterred from abusing wiretap authority. See id.
46 Id. at 2185. The legislative history also states that Title III was intended to delineate on a
uniform basis the circumstances and conditions under which the interception of wire and oral
communications may be authorized. Id.
47 See generally 18 U.S.C. §§ 2510–2520 (covering the entire text of Title III).Section 2518
in particular contains a large number of requirements for applications for and authorizations of
wiretap approvals. See Id. at § 2518. None of these requirements, however,are explicitly
identified as more important than the others and a large body of case law has arisen around what
consittutes a material defect as opposed to a technical defect.See, e.g., Lomeli, 676 F.3d at 742
(affirming the district court’s grant of motion to suppress evidence obtained by wiretap and holding that
wiretaps were made unlawfully where applications for authorization did not identify the law
enforcement officers authorizing the applications); Radcliff, 331 F.3d at 1162–63 (holding that
omission of the requesting official’s name from the authorization order was a technical defect that did
not disrupt the purpose of the statute and therefore suppression was not required).
48 See Radcliff, 331 F.3d at 1162–63 (holding that omission of the requesting officia’ls name
from the authorization order was a technical defect that did not disrupt the purpose of the statute
and therefore suppression was not required).
49 United States v. Dahda, 853 F.3d 1101, 1111 (10th Cir. 2017).
50 Id. at 1114. This two-part analysis is consistent with the history of cases related toSection
2518(10). See, e.g., United States v. Giordano, 416 U.S. 505, 527 (1974) (holding that suppression
is only appropriate where an identified defect relates to a requirement that directly and
substantially carries out the congressional intent underlying Title III); United States v. Radcliff, 331 F.3d
1153, 1162 (10th Cir. 2003) (holding that the rule limiting suppression as a remedy to defects
related to requirements that directly and substantially carry out the congressional intent underlying
Title III applied to suppression for facial insufficiency as well as illegal interceptions).
51 Dahda, 853 F.3d at 1114 The orders were facially insufficient because they authorized law
enforcement to use stationary listening posts located outside the authorizing ’csoutretrritorial
jurisdiction to intercept calls from mobile phones also located outside the authorizing cour’ts
territorial jurisdiction. Id. This holding was written in light of the newly adopted definition for mobile
interception device as an interception device that is mobile—a categorizatiothnat excludes
stationary listening posts. See id.
ture and did not undermine the congressional intent behind Title III5.2 In so
concluding, the Tenth Circuit declined to adopt the definition for “mobile
interception device” adopted previously by the Seventh Circuit.53 Section A
of this Part discusses the Tenth Circuitdeclining to adopt the Sevenht
Circuit’s definition for “mobile interception device” and why this led to the
conclusion that the authorization orders were facially deficient.54 Section B
of this Part discusses the court’s conclusion that, despite the facial
deficiency, suppression was not an appropriate remedy.55 Section C of this Part
discusses the Dahda concurrence and its focus on Title III’s age, evolving
technology, and the need for Congress’ attention to bring it into modernity.56
A. The Tenth Circuit’s Analysis
Prior to trial, Dahad moved to suppress communications intercepted
pursuant to nine wiretap authorization orders issued by the U.S. District
Court for the District of Kansa5s7. The primary challenge to these orders
contended that the orders authorized interception outside the bounds of the
court’s territorial jurisdiction in violation of Title III5.8 The analysis to
determine whether the orders were facially siunfficient involved a two-step
inquiry: whether the orders permitted interception outside the court’s teir-r
torial jurisdiction and, if so, whether the orders limited such interception to
instances involving a mobile interception device.59
The court disposed of the first question—whether the orders exceeded
the district court’s territorial jurisdiction—by relying on the definition
porvided by Title III for intercept, paired with an earlier decisidoinscussing
how to determine where interception has taken place.60 The Tenth Circuit,
in the 1994 case United States v. Tavarez, interpreted the Oklahoma
counterpart to Title III andheld that interception occurs both where the tapped
telephone is located and where the intercepted communications are first
52 See id. at 1116. The court reviewed the legislative history, noting several examples of how
Congress carried out its intent in the construction of the statute, though none of the examples
indicated that the territorial limitation was significant to the congressional intent. Id. at 1114–15.
53 Id. at 1114. The Seventh Circuit defined mobile interception device as a device used to
intercept mobile communications. United States v. Ramirez, 112 F.3d 849, 853 (7th Cir. 1997).
54 See infra notes 57–92 and accompanying text.
55 See infra notes 93–108 and accompanying text.
56 See infra notes 109–113 and accompanying text.
57 Dahda, 853 F.3d at 1111.
58 Id.; see 18 U.S.C § 2518(3) (allowing a judge to enter anex parte order authorizing or
approving interception of communications within the territorial jurisdiction in which the judge sits,
or outside that jurisdiction in the case of a mobile interception device).
59 Dahda, 853 F.3d at 1114.
60 Id. at 1112 (citing United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994)). The
definition for intercept under Title III includes acquiring the contents of a phone call using a
device. See 18 U.S.C. § 2510.
heard by law enforcement6.1 In Dahda, the court concluded that the
nlaguage of the orders lacked geographic restrictions on both thelocations of
the cell phones and the locations of the listening posts to be used6.2 The
orders therefore violated the statutory limitation on territoriality. 63
The inquiry, however, moved on to the issue ofwhether these orders
triggered the “mobile interception device” exception.64 This question
necessarily depended on the definition of “mobile interception device,” whichis
not defined by Title III.65 The court offered three possibilities for the
necessary definition: (1) a listening device that is mobile; (2) a cell phone that is
being intercepted; or (3) a device that intercepts mobile communications,
such as cell phone calls.66 The analysis began with the plain meaning of the
statutory language, with an eye toward whether the plain meaning would
conflict with the legislative history. 67
The court began by considering the language of Title III itself and
relied on grammatical structure todetermine the plain meaning.68 The court
noted that the word “mobile” was an adjective, modifying the noun
“interception device,” and thus concluded that the plain meaning of the phrase
referred to the mobility of the device used to facilitate the intercepti6o9n.
Proceeding to the second possible interpretation—a cell phone that was
being intercepted—the court dismissed it as contrary to the intent of Title III.70
Because the statute defined a device as something used to intercept a call,
the court held that it would be contradictory to define “mobile interception
device” as the cell phone being intercepted.71
Finally, the court addressed the third possible interpretation—a device
used to intercept mobile communication—swhich was also the
interpreattion that the Seventh Circuit adopted inUnited States v. Ramirez in 1997.72
The Tenth Circuit turned, as with the first interpretation, to the grammatical
construction of the phrase, concluding that the third interpretation would
require the court to rewrite the statute. 73
The Seventh Circuit in Ramirez declined to adopt the plain meaning of
the phrase “mobile interception device,” concluding that it seemed
inapplicable in context.74 Under the literal meaning of the phrase, obtaining
facially sufficient orders to tap cell phones becomes a function of chance rather
than prudent investigation.75 Because cell phones are meant to be mobile,
the Seventh Circuit reasons that they are likely, at some point, to be carried
out of the territorial jurisdiction of the district in which the crime is being
investigated.76 Therefore, if law enforcement officers wished to use a as-t
tionary listening post outside of the district to maximize the chances
ofniterception, they would be required to obtain subsequent orders authorizing
wiretaps in other districts7.7 The Seventh Circuit concluded thaat literal
reading of the phrase “mobile interception device” imposedillogical
limitations on law enforcement’s ability to practically investigate crimes using
70 Dahda, 853 F.3d at 1113.
72 Id.; Ramirez, 112 F.3d at 853.
73 Dahda, 853 F.3d at 1113. The court again referred to the term“mobile” as an adjective and
“interception” and “device” as nouns. Id. The court concluded, considering the words’ roles in the
phrase, that “mobile” must modify “interception,” “device,” or both. Id. The third interpretation,
however, uses “mobile” to modify “telephone,” which is not present in the phrase in question. Id.
74 Ramirez, 112 F.3d at 852.
77 See id. (noting that the literal interpretation would meanthat “if . . . the listening post is
stationary and is for practical reasons to be located outsidethe district in which the crime is being
investigated and the cellular phone is believed to be located, the governmen.t. . must obtain the
wiretap order from the district in which the listening post is located, even though that location is
entirely fortuitous from the standpoint of the criminal investigation”).
78 Id. The Seventh Circuit observed that the literal statutory language would: (1) forbid a
judge in State 1 from authorizing use of a stationary listening post located in State 2 to intercept
calls from a phone located in State 2; (2) allow a judge in State 1 to authorize use of a stationary
listening post in State 2 to intercept calls from a phone in State 1; (3) allow a judge in State 1 to
authorize use of a stationary listening post in State 1 to intercept calls from a phone anywhere.See
The Seventh Circuit concluded further that the legislative history of
Title III indicated that the term “mobile interception device” should have a
broader meaning than the limited literal definition7.9 The legislative history
indicates that the provision allowing for “mobile interception devices”
applies equally to a physical bug planted on a car and to taps on phones in the
car.80 Because there is no specific reference or limitation to vehicles within
Title III, the court concluded that the examples in the legislative history
were offered as inclusive illustrations of mobile interception devices rather
than exclusive definitions.81 The court reasoned that a device planted in a
car is not a “mobile interception device” because the device itself is
stationary.82 Likewise a tap on a phone is not placed on the phone, rather on a
telephone line through which the phone’s communications are transmitt8e3d.
Therefore, the court held that the emphasis in “mobile interception device”
is on the mobility of the communications rather thanon the devices used to
intercept them.84 Thus the Seventh Circuit defined “mobile interception
device,” in the context of legislative history, as a device used to intercept
mobile communications.85 The Seventh Circuit further held that the
literalniterpretation would not serve the legislative intent to protect the privacy of
communications because it does nothing to prevent law enforcement from
id. In the Seventh Circuit’s opinion, this system relied too heavily on chance to be consistent with
the congressional goal of establishing a uniform system for the authorization of wiretap orders.
80 See id. (quoting S. REP. NO. 99-541, at 30 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555,
3584). Congress recognized the possibility that in either of these cases the vehicle is likely to
move, at some point, out of the authorizing judges’ territorial jurisdiction. S. REP. NO. 99-541, at
30. Such a change in location would not be problematic, provided the device was installed in the
authorizing judge’s territorial jurisdiction. Id. Where the vehicle is moved prior to installation,
installation may not occur until the vehicle is returned to the issuing judge’s territorial jurisdiction.
81 Ramirez¸ 112 F.3d at 852.
82 Id. at 852–53.
83 Id. at 853. In Ramirez, a judge in the District Court for the Western District of Wisconsin
authorized law enforcement to intercept mobile phone calls made from a cell phone in the
possession of a co-conspirator who traveled back and forth from Wisconsin to Minnesota1.12 F.3d at
851. The listening post was then set up in Minnesota for practical reasonsa:wl enforcement was
fearful that they would be recognized in the defendan’st hometown. Id. After tapping the phone,
law enforcement discovered that the user of the phone they had tapped was not who they believed
it would be previously, and that the actual user of the phone never left MinnesoItda. Thus, no
part of the interceptions took place in the issuing judge’s territorial jurisdiction triggering the need
to examine the exception under Title III. See id.; 18 U.S.C. § 2518(3).
84 Ramirez, 112 F.3d at 853.
85 Id. With this definition established, the Seventh Circuit went on to conclude that the order
issued by the district court in Wisconsin aws within the exception under Title III because they
authorized interception of mobile communications, even though both the listening post and the
phones used for the communications were located outside the court’s territorial jurisdiction. Id.
seeking the necessary orders in other courts8.6 Rather, the literal definition
would only serve to complicate law enforcement efforts.87
The Tenth Circuit in Dahda, however, held the opposite view.88 In
addressing the legislative history, the court concludethdat the illustrations
provided lent further support to the plain language of the statute.89 Both
examples depicted in the legislative history are interception devices that are
mobile, bringing them in line with the plain language of the phrase.90 In
keeping with the interpretive canon adopted, the court held that, because the plain
meaning is not demonstrably at odds with the legislative history, thewyere
unable to interpret the statute differently.91 Therefore, because the orders in
question authorized interception of cell phones using a stationary listening
post, all of which were located outside of the court’s jurisdiction, the orders
were facially insufficient under Title III.92
B. Suppression as a Remedy After Defining “Mobile Interception Device”
Facial invalidity in itself does not justify suppression as a reme9d3y.
Rather, suppression requires that the deficient element directly and
substantially carries out the congressional intent behind the statute9.4 By analyzing
the legislative history behind Title III, the court sought to determine
whether the territorial limitation substantially implemented Congress’s inte9n5t.
The Tenth Circuit extracted two primary goals from the legislative history:
protecting the privacy of communications and creating a uniformset of
circumstances and conditions under which interception may be authorized.96
The court found in the legislative history two examples of how Title III
protects the privacy of communications9.7 First, Congress limited lawful
interception to certain law enforcement officers’ investigation of a particular set
of crimes, to ensure that wiretaps would be used only in circumstances
warranting them.98 Second, Congress created a “probable cause” evidentiary
burden that must be overcome before a wiretap may be authorized.99
The territorial limitation was not identified as one of the limitations
directly protecting privacy.100 Therefore, the Tenth Circuit held that the
terirtorial limitation under Title III did not substanatilly implement Congress’s
goal to protect the privacy of wire and oral communications.101
The court continued its analysis by addressing the second legislative
goal of establishing uniformity in authorizations for wiretap1s0.2 Congress
sought to centralize wiretap decisions with the chief prosecuting officers in
the state in which the wiretap is sough10t.3 The goal of this centralization
was to place responsibility for wiretaps in the hands of publically and
politically accountable officials who would bear the consequences of any abuse
of the method.104 The court concluded that not only did the territorial
limitation fail to substantially implement this goal, ailtso may have detracted
from it by requiring cooperation of multiple prosecutors in multiple jsu-ri
dictions during the course of an investigation.105 If multiple prosecutors
became involved, the clear lines of responsibility Congress envisioned would
become muddled.106 Indirect lines of responsibility would make it more
ficult to hold officials accountable foarbuses of the wiretap authority10.7
Therefore, because the legislative history did not identify the territorial
limitation as central to the implementation of Congress’s intent, the Tenth
Circuit concluded that suppression was not required.108
C. Judge Lucero’s Concurrence
Judge Lucero’s concurrence is primarily a cautionary note and a call to
action, warning that technology has significantly surpassed the wording fo
Title III.109 Exploring the legislative history used throughout the majority
opinion, Judge Lucero criticized the statute as “trapped in history” and
intended only to cover situations in which a phone being monitored leaves the
original jurisdiction.110 It appeared to Judge Lucero that Congress ie-nv
sioned that law enforcement would need to affix a phycsial device on
mobile phones to monitor their ca1l1l1s. As Judge Lucero notes, however,
evolving technology has enabled law enforcement to monitor phone calls
without such physical device, thus rendering Congress’s presumption from
the 1960’s inaccurate.112 In light of this evolved technology, Judge Lucero
called Congress to action in updating the language of the statute to more
closely reflect current technology.113
III. KEEPING UP WITH THE TECHNOLOGY: BOTH CIRCUITS FAIL TO
ADDRESS THE MODERN CONTEXT
The differing definitions for “mobile interception device” highlight the
tension between the statute’s purpose, language, evolving technology, and
107 Id. Congress likely placed such high value on accountability for law enforcement officials
due to their vulnerability to the political process, as opposed to appointed judges who are
generlaly insulated from the same forces. Id.
108 Dahda, 853 F.3d at 1116. The defendant argued that the territorial limitation wma-s i
portant in thwarting forum shopping by law enforcement and reduced opportunities to choose
forums where an application is more likely to be approvedI.d. at 1115. The court was not
persuaded. Id. The court reasoned that law enforcement seeking approval in a specific court would
only need to use a mobile interceptiondevice—defined a few paragraphs earlier in the decision as
a mobile device to intercept communication—sor using a listening post in the preferred foru’ms
territorial jurisdiction. Id. Therefore, the territorial limitation does not meaningfully curb the
dnager of forum shopping. Id.
109 Id, at 1118 (Lucero, J., concurring).
110 Id.at 1118–19.
111 Id. at 1119.
113 See id. (agreeing with the majority that the statutory text need not be tortured to apply to
all calls placed from a mobile phone, but indicating that it is for Congress to update Title III to
account for modern devices if it so chooses).
judicial response to such evolutions in technology.114 The U.S. Court of
Appeals for the Tenth Circuit’s 2017 decision inDahda creates a circuit split
between the Tenth and Seventh Circuits, creating the possibility that the
U.S. Supreme Court steps in to resolve it1.15 Yet neither circuit has directly
addressed what is, perhaps, the central issue: the fact that technology has
infinitely outpaced the evolution of wiretap regulation and has left the
“quaint language” of the statute in its dust.116 With the prevalence of mobile
phones in modern times, it is abundantly clear that Title III is in need of an
overhaul.117 This Part considers the reasoning in bothRamirez and Dahda
and concludes that the reasoning falls short of considering the broader
technological context within which these cases and their accompanying criminal
The Seventh Circuit adopts a definition that would potentiallymake
every call made over a cell phone vulnerable toa wiretap if either caller is
involved in a criminal investigation under Title III1.19 Thus, under the
Seventh Circuit’s definition, the territorial restriction’s applicability turns solely
on whether the intercepted communications are placed from a mobile
phone.120 In a modern context, this holding may prove to be overbroad and
may open a significant number of phone calls placed to potential
intercpetion without territorial restriction on judges issuing authorizations to do
so.121 Although this definition may fit within the legislative history
underlying Title III, it is unlikely that Congress, in 1968, could have conceived of
the prevalence of mobile communications five years befothree modern
cellphone was patented.122
In contrast, the Tenth Circuit in Dahda was given the opportunity to
revisit the definition for “mobile interception device” with full knowledge
of the technological advancements since Title III’s passage and the Seve nth
Circuit’s decision in Ramirez.123 The court’s decision shifted the question to
the definition of “mobile” rather than closing the door entirely1.24 The court
identified a bug attached to a car phone as an interception device that is
mobile, but does not indicate how far that example stretch12e5sT. he only
attempt to define the term in the opinion comes from distinguishineg- b
tween mobile interception devices and stationary listening p.o12s6tsThe
Tenth Circuit fell victim to the same pitfall as the Seventh Circuit in
Ramirez—it is unlikely that Congress, more thanforty years prior, could
have accounted for the evolution of wiretap and other interception
technloogy.127 In relying on a device’s mobility, the Tenth Circuit comes closer to
addressing the crux of the matter, but ultimately falls short.128
The analysis would be better focusedon the impact that these
definitions would have on the number of wiretap authorization applicaotni s that
surveyed that owned cell phones made at least one voice call per daNyA);T’L 911 PROGRAM,
2015 NATIONAL 911 PROGRESS REPORT (2016) (showing the prevalence of cell phone calls over
wireline calls in terms of number of 911 calls placed). The National911 Program reported that the
percentage of 911 calls originating from cell phones increased bysix percentage points from 2013
data. 2015 NATIONAL 911 PROGRESS REPORT, supra, at 2. This increase was accompanied by a
corresponding decrease in wireline 911 calls, which fell four percentage points from 2013. Id.
122 See Ramirez, 112 F.3d at 852–53 (analyzing the legislative history and holding that the
examples offered were illustrative rather than definitional and that the phrase was intended to be
interpreted broadly rather than literally). See generally James Janega, The Cell Phone (1973), CHI.
TRIB. (Nov. 1, 2013),
http://www.chicagotribune.com/bluesky/series/chicago-innovations/chi-cellphone-1973-innovations-bsi-series-story.html [https://perma.cc/SUA3-KFJE] (exploring the
history of the invention and patenting of the modern cell phone in 1973 by Martin Cooper).
123 See Dahda, 853 F.3d at 1114 (addressing the Seventh Circu’ist decision in Ramirez and
holding that the legislative history does not permit a departure from the plain meaning of the
124 See id. (holding that a “mobile interception device” is an interception device that is mobile
but not defining mobility).
125 See id. (holding that the legislative history underscores the statute’s plain language).
126 See id. (concluding that because the authorization orders authorized intercepting mobile
calls from cell phones outside the court’s territorial jurisdiction to be heard at stationary listening
posts outside of the court’s territorial jurisdiction, the orders were facially insufficient).
127 See id. at 1119 (Lucero, J,. concurring) (concluding that Congress presumed a physical
device would need to be attached to monitored phones and indicating that evolving technology has
rendered this presumption invalid). See generally 18 U.S.C. §§ 2510–2520 (2012)
the entirety of Title III enacted in 1968n,early 49 years before the Tenth Circu’sit opinion in
128 See Dahda, 853 F.3d at1119 (Lucero, J., concurring) (identifying that the statute is in
need of congressional attention and writing separately to address the issue).
would be filed and the number of communications that would be exposed to
potential interception.129 Both the Seventh Circuit and the Tenth Circuit
definitions for mobile interception device create broad classes of moderne-d
vices that could be used without concern for territorial limitations on the
authorizing court by invoking the mobile interception device exception
under Title III.130 By creating broad classes of devices that can circumvent the
statutory territorial limitations, both courts have detracted from the primary
congressional goals underlying Title III.131
First, creating broad classes of devices that are not subject to territorial
limitations does not protect the privacy of communication1s3.2 Such broad
definitions subject a significantly greeart number of communications to
possible interception.133 Privacy is reduced rather than protected if more
129 See Lye, supra note 31 (discussing the controversial StingRay device and its potential use
in intercepting mobile communications;) Mobile Fact Sheet, supra note 117, at 1 (showing the
increase over time of cell phone ownership and usage in the United States).
130 See 18 U.S.C. § 2518(3) (limiting a judge’s ability to authorize interception outside the
court’s territorial jurisdiction to cases involving the use of a mobile interception deviceD);ahda,
853 F.3d at 1114 (defining mobile interception device as an interception devictheat is mobile);
Ramirez, 112 F.3d at 853 (defining mobile interception device as a device used to intercept mobile
communications). The Tenth Circuit’s definition appears only to distinguish between the use of a
stationary listening post and any other interception devicSe.ee Dahda, 853 F.3d at 1114. The
Seventh Circuit’s definition is even broader, distinguishing only between devices used to intercept
wireless and wired communications, a distinctionthat is becoming more meaningless as cellular
phones become more prominent.See Ramirez, 112 F.3d at 853.See generally 2015 NATIONAL
911 PROGRESS REPORT, supra note 121, at 2 (detailing the increase in cellular phone calls and the
corresponding decrease in wired telephone calls).
131 See Dahda, 853 F.3d at 1114 (limiting the definition of interception devices to those
devices that are mobile); Ramirez, 112 F.3d at 853 d(efining devices for intercepting mobile
communications more broad)ly; S. REP. NO. 90-1097, at 2154 (1968), as reprinted in 1968
U.S.C.C.A.N. 2112, 2154. Congress recognized in 1968 that technological advances had already
made the prevalent use of wiretapping possible.S. REP. NO. 90-1097, at 2154. Congress also
recognized that these technological developments threatened the privacy of communications.Id. This
threat and the litigation that had been emerging indicated that the use of interception devices
needed limitation. Id.
132 See S. REP. NO. 90-1097, at 2154. (expressing concerns about rapidly advancing
technology and the possibility that a significant number of communications are already vulnerable to
133 See Ramirez, 112 F.3d at 853. The Seventh Circuit distinguishes mobile communications
from non-mobile communications in deciding that a mobile interception device is a device for
intercepting mobile communications, but does not define mobile communications explicitlyS.ee
id. The court does indicate htat, under either the narrow literal definition or the broad definiotin,
the government could always seek authorization to intercept cellular phone calls from a stationary
listening post within the authorizing cou’rst jurisdiction. See id. At the time of the decision in
1997, it could not have been predicted that cellular phone calls would eclipse wired phone calls.
See 2015 NATIONAL 911 PROGRESS REPORT, supra note 121, at 2. Nor could the Seventh Circuit
have foreseen the significant advances in interception technology. See, e.g., Lye, supra note 31. In
2016, eighty-four percent of interceptions took place via telephone wiretap, the majority of which
were placed on cellular phones.Wiretap Report 2016, ADMIN. OFFICE U.S. COURTS, http://www.
communications are vulnerable to interception.134 Therefore, the broad
definitions set by the Seventh and Tenth Circuits are at odds with this goal of
Second, such broad definitions grant law enforcementagencies a high
degree of flexibility in how they file applications for wiretap autha-oriz
tions.136 Providing for greater flexibility in filing applications for wiretap
authorizations conflicts with the second congressional goal for Title III:
creating a uniform set of circumstances and conditions for the authorization of
interception of communications.137 A diverse population of mobile
interception devices grants law enforcement a variety of option,sshould the
applicant wish to circumvent the territorial limitations under Title 1I3I8I.Both
definitions for mobile interception device create broad, flexible standards
for obtaining a wiretap authorization order1.39 Broad and flexible standards
do not further Congress’s second goal underlying Title III: uniformity.140
134 See S. REP. NO. 90-1097, at 2154 (expressing concern over the vulnerability of
communications and recognizing the need to restrict how and when communications are intercepted).
135 See Dahda, 853 F.3d at 1114;Ramirez, 112 F.3d at 853; S. REP. NO. 90-1097, at 2153.
The Seventh and Tenth Circuits both address congressional intent, but arrive at competing
conculsions. Compare Dahda, 853 F.3d at 1114 (holding that the narrower, literal interpretation is not at
odds with the goals underlying Title III), with Ramirez, 112 F.3d at 853 (holding that the
narrower, literal interpretation is at odds with the goals underlying Title III thus allowing the court to
interpret the phrase more broadly). Neither court addresses the implications of each definition and
the potential expansion of the use of mobile interception devices that could follow, thus detracting
from privacy protections intended by Congress.See Dahda, 853 F.3d at 1114;Ramirez, 112 F.3d
136 See Dahda, 853 F.3d at 1115. The Tenth Circuit addressed the concern of forum shopping
and indicated that law enforcement may already forum shop by simply employing an authorized
mobile interception device. Id. This concern was largely dismissed, however, because the Tenth
Circuit held that the territorial limitation did not directly and substantially implement either of
Congress’ goals in enacting Title III. Id.
137 See S. REP. NO. 90-1097, at 2154 (emphasizing the need to limit the use of wiretapping
and other forms of interception to a limited set of circumstances and conditions).
138 See 18 U.S.C. § 2518(3); Dahda, 853 F.3d at 1115 (concluding that a judge can authorize
interception of communications anywhere by permitting law enforcement to use a mobile
interception device); Ramirez, 112 F.3d at 853 (concluding that the Western District Court of
Wisconsin could authorize the tap of the defendant’s cell phone, regardless of where the phone was
located, from any listening post, regardless of its location).
139 See Dahda, 853 F.3d at 1114(defining mobile interception device as an interception
device that is mobile);Ramirez, 112 F.3d at 853 (defining mobile interception device as a device
used to intercept mobile communications).
140 See Dahda, 853 F.3d at 1114 (defining mobile interceptiondevice as an interception
device that is mobile);Ramirez, 112 F.3d at 853 (defining mobile interception device as a device
used to intercept mobile communications)S; . REP. NO. 90-1097, at 2153 (indicating
themiportance of limiting wiretapping activityonly to duly authorized law enforcement agents in a
narrow set of circumstances).
A narrower definition for mobile interception device would more
effcetively implement Congress’s goals for Title III.141 Interpreting the phrase
narrowly would restrict the number of devices that could be used to circumvent
the territorial limitation and would thus restrict law enforcement’s ability to
rely on such workarounds1.42 If law enforcement is allowed fewer ways to
work around the territorial restrictions within Title III, fewer communications
are likely to be vulnerable to intercepti—onmeaning that privacy is better
protected.143 Furthermore, careful consideration and a wel-ldefined, narrow
category of devices falling within the extraterritorial exception under Title III
would ensure that law enforcement looks to the exception only when necs-e
sary, creating more uniformity in the way applications are filed.144
Neither the U.S. Court of Appeals for the Seventh Circuit nor the U.S.
Court of Appeals for the Tenth Circuit fully addressed the underlying cause of
their circuit split. Both courts attempted to squeeze the square peg of modern
technology into the round legislative hole Congrecssreated in 1968.
Although the Tenth Circuit’s definition likelyprovided greater protection to the
privacy of phone calls, it did not close the loop entirely; it left open the
question of the definition of “mobile” while dispensing of the definition of
“interception device.” Updating a nearly haclfe-ntury-old piece of technological
legislation may be no smaltlask; however, it is a task of paramountm-i
portance to ensure the protection of the privacy of mobile communications.
Preferred Citation: Michael Koch, Comment, If Technology Is the Hare, Is Congress the
Tortoise? Split Circuits in the Wake ofDahda, 59 B.C. L. REV. E. SUPP. 45 (2018), http://lawdigital
62 Dahda, 853 F.3d at 1112.
63 Id. The exact wording of the orders authorized interception to take place in any other jursidiction within the United States if the cell phones to be tapped were transported outside the territorial jurisdiction of the court . See id.
64 Id.; see 18 U.S.C. § 2518 ( 3 ).
65 See 18 U.S.C § 2510 (defining terms of art for Title III but not defining“mobile interception device”).
66 Dahda, 853 F.3d at 1112 -13.
67 Id. at 1113 (quoting Starzynski v . Sequoia Forest Indus., 72 F.3d 816 , 820 ( 10th Cir . 1995 ))
69 Id.; see also United States v. North, 735 F.3d 212 , 218 ( 5th Cir . 2013 ) (DeMoss , J., concurring) ( noting that, on its face,“mobile interception device” appears to refer to whether or not the device used to intercept communications is mobile, not whether the taped phone is mobile).
86 Id. As discussed above, the literal meaning of the term is an interception device that is, itself, easily movable . See id. at 852 . Had the district court adhered to the literal definition, law enforcement could have sought the same order in Minnesota and likely obtained it, though this would necessitate another application process . See id. at 853.
87 Id. at 853.
88 Dahda, 853 F.3d at 1114.
93 United States v. Dahda , 853 F.3d 1101 , 1114 ( 10th Cir . 2017 ) (quoting United States v . Foy , 641 F.3d 455 , 463 ( 10th Cir . 2011 )).
94 Id. (quoting United States v . Giordano , 416 U.S. 505 , 527 ( 1974 ) s)e;e United States v . Radcliff , 331 F.3d 1153 , 1162 ( 10th Cir . 2003 ) (extending the second step in the analysis to apply to suppression sought under Section 2518(10(a)(ii )).
95 Dahda, 853 F.3d at 1114 - 15 . Prior to the decision inDahda two courts had analyzed the same issue, coming out on opposite sidesC. ompare Adams v . Lankford , 788 F.2d 1493 , 1500 ( 11th Cir . 1986 ) (holding that violating the territorial restriction under Title III does not i mplicate Congress's core concerns underlying the statute),with United States v . Glover , 736 F.3d 509 , 515 (D.C. Cir . 2013 ) (holding that the territorial restriction is a core concern of Title III) .
96 Dahda, 853 F. 3d at 1114-15 (citing S. REP . NO. 90 - 1097 , at 2153 ( 1968 ), as reprinted in 1968 U.S. C.C. A .N. 2112 , 2153).
98 See generally S. REP . NO. 90 - 1097 , at 2153 ( detailing the legislative intent behind Title III, its purposes, and its development).
99 See Dahda , 853 F. 3d at 1115 (citingS. REP . NO. 90 - 1097 , at 2153). In placing this evidentiary burden on those seeking wiretap authorizations, Congress sought to deter law enforcement from filing frivolous applications that would needlessly interfere with the privacy of wireless communications . See S. REP. NO. 90-1097 , at 2153. Furthermore, a uniform evidentiary burden furthers the congressional goal of ensuring that wiretap authorization applications are made for a consistent set of circumstances under which the surveillance measure is justified . See id.
100 Dahda, 853 F.3d at 1115.
101 Id. at 1115 , 1116; see United States v. Chavez , 416 U.S. 562 , 578 ( 1974 ) (holding that the absence of legislative history concerning certain Title III provisions contributed to a finding that a statutory violation did not warrant suppression).
102 Dahda, 853 F.3d at 1115.
103 Id. (citing S. REP . NO. 90 - 1097 , at 2187).
104 S. REP . NO. 90 - 1097 , at 2185. Centralization of the decisions in approving applications for wiretap authorizations also avoids the possibility of divergent practices among law enforcement officials . Id . Because another goal for this legislation is delineating a uniform basis for thaepplication for and approval of wiretap authorizations divergent practices would significantly undermine this core aspect of Title III . Id. at 2153 , 2185 .
105 Dahda, 853 F.3d at 1115 (citing Adams, 788 F.2d at 1499).
106 See S. REP. NO. 90-1097 , at 2185 ( noting that the statute was designed to provide clear lines of responsibility to identifiable law enforcement officers).
114 Compare United States v . Dahda , 853 F.3d 1101 , 1114 ( 10th Cir . 2017 ) l(imiting the definition of interception devices to those devices that are mobile),with United States v . Ramirez , 112 F.3d 849 , 853 ( 7th Cir . 1997 ) de(fining devices for intercepting mobile communications more broadly).
115 See Wright v. North Carolina , 415 U.S. 936 , 937 ( 1974 ) (Douglas, ,J.dissenting) (noting that the Court is the only source for resolution of a split amongst the circuit courts and that it is the Court's obligation to create uniformity in the circuist) . Compare Dahda , 853 F. 3d at 1114 (defniing “mobile interception device” as a device used for interception that is mobile,)with Ramirez, 112 F.3d at 853 (defining“mobile interception device” as a device used to intercept mobile communications ).
116 See Dahda , 853 F. 3d at 1119 (Lucero , J., concurring).
117 See Mobile Fact Sheet , PEW RESEARCH CTR. (Jan. 12 , 2017 ), http://www.pewinternet.org/ fact-sheet/mobile/ [https://perma.cc/XSB6-PDUB] (presenting data on cell phone ownership and claiming ninety-five percent of Americans owned a smartphone as of the publishing date onJanuary 12 , 2017 ). According to the Mobile Fact Sheet, ethfigure of ninety-five percent cell phone ownership represents an increase from sixty-two percent as of October 2002 . See id .
118 See infra notes 114-145 and accompanying text.
119 See Ramirez , 112 F. 3d at 853 (holding a“mobile interception device” is a device used to intercept mobile communications ).
120 See id . (holding the emphasis in the phrase falls on the mobility of what is intercepted rather than on the mobility of the chosen device ).
121 See id . (holding that wiretap authorization orders authorizing interception of mobile communications originating from outside the cour'ts jurisdiction at a stationary listening post outside the court's jurisdiction were not facially deficie.ntS)ee generally Cell Phones and American Adults , PEW RESEARCH CTR. (Sept. 2 , 2010 ), http://www.pewinternet.org/ 2010 /09/02/cell-phonesand - american-adults/ [https://perma.cc/VWR5-DYTM] (finding that ninety-five percent of adults
141 See S. REP. NO. 90-1097 , at 2153. Congress expressed substantial concerns related to the widespread use and potential abuse of wiretap technology and the lack of legislation around it prior to Title III's passage in 1968.See id. Title III therefore sought primarily to limit the use of wiretapping rather than expand it . See id.
142 See Dahda , 853 F. 3d at 1115 (addressing the fact that law enforcement has the ability to forum shop by relying on a mobile interception device);Ramirez, 112 F.3d at 853 (noting that the narrower definition would complicate law enforcement).
143 See S. Rep . No, 90 - 1097 , at 2154 ( indicating that the privacy of communications is threatened by the potential pervasive use of electronic surveillance).
144 See id . at 2185 (expressing the importance of preventing the abuse of wiretaps by law enforcement).