U.S. v. RAMIREZ Nos. 96-2237, 96-2257, 96-2276 and 96-2340.
112 F.3d 849 (1997)
UNITED STATES of America, Plaintiff-Appellee, v. Ken RAMIREZ, Peter Hotchkiss, Paul Hotchkiss, and Patrick Flynn, Defendants-Appellants.
United States Court of Appeals, Seventh Circuit.
Decided April 28, 1997.
Larry Wszalek (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Charles L. Hawkins, Minneapolis, MN (argued), Douglas W. Thomson (argued), Earl P. Gray (argued), and Paul Applebaum (argued), St. Paul, MN, for Defendants-Appellees.
Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.
POSNER, Chief Judge.
The four appellants were tried together in the U.S. District Court for the Western District of Wisconsin, convicted by a jury of conspiracy to distribute methamphetamine, and sentenced to long prison terms. They raise a number of issues, but only one has possible merit, and only one other has sufficient colorable merit to warrant discussion. The details of the conspiracy are irrelevant to these issues, except that it is important to keep in mind that the conspiracy straddled the border between two states, Wisconsin and Minnesota.
The substantial issue, which is presented by appellants Patrick Flynn and Paul Hotchkiss,
Within a few days after the order was issued the agents manning the post learned from conversations that they intercepted that the cellular phone was not being used by Hotchkiss — that he was using a different phone — and that the user of the phone that they were tapping did not seem to travel outside Minnesota. The user was, however, talking with Flynn over this phone and the conversations concerned the drug conspiracy that the government was investigating. At the end of the 30 days in which the order was in force the government asked the district judge for an extension of the order for another 30 days but did not disclose to the judge either that the listening post was located in Minnesota rather than in the Western District of Wisconsin or that the user of the phone they were tapping was using it only in Minnesota. The judge granted the motion for an extension. The case was later reassigned to a different judge, who when she learned that the communications and interceptions were entirely within Minnesota ordered the evidence obtained by the wiretap after the expiration of the original 30-day period suppressed on the authority of 18 U.S.C. § 2518(10)(a)(i), which directs the suppression of information obtained by an unlawful interception. The court's reasoning was that the statute which authorized the wiretap, Title III of the Safe Streets and Crime Control Act of 1968, does not permit a federal district court to authorize wiretapping in another federal district. The court refused to suppress the evidence obtained during the term of the original order, however, because that order had been issued in response to an application that had been based upon the government's reasonable and good-faith belief that the phone line was being used in the Western District of Wisconsin.
There is a difficulty with the court's reasoning concerning the period between the discovery by the government agents that the cellular phone was not being used in Wisconsin and the expiration of the original order. It is true that if government agents execute a valid wiretap order and in the course of executing it discover that it was procured by a mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible in evidence. United States v. London,
No doubt the agents were entitled to some leeway to continue listening until they were sure that Hotchkiss hadn't just lent the phone to his coconspirator and would soon retrieve it and carry it back with him to his home in Wisconsin. But it appears that this uncertainty was dissipated before the order expired, rather than conveniently ending at the precise moment of expiration.
We need not pursue this issue. We do not think that the location of the phone affected the legality of the tap, and we do not understand anyone to be arguing that it matters who was using the phone, since the person to whom Hotchkiss gave it and whose conversations the agents overheard was (and this was obvious from the conversations) a participant in the same conspiracy. Nor must the evidence be suppressed because the tap was not authorized by the order. 18 U.S.C. § 2518(10)(a)(iii). The order contains no geographical limitation. Indeed, it provides that "in the event that the cellular telephone is transferred outside the territorial jurisdiction of this Court, interceptions may take place in any other jurisdiction within the United States." It is not certain that the phone in issue was transferred outside of the Western District of Wisconsin; it may never have been there; but we do not read the order as limited to the case in which the phone was at some time in the district.
The statute authorizes a district judge to approve a tap "within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)." 18 U.S.C. § 2518(3). An interception takes place both where the phone is located (including, we suppose, although we can find no cases, where the receiving phone is located) and where the scanner used to make the interception is located. United States v. Denman,
The legislative history of Title III suggests, unsurprisingly, that "mobile interception device" was intended to carry a broader meaning than the literal one. The history describes the term as applicable "to both a listening device installed in a vehicle and to a tap placed on a cellular or other telephone instrument installed in a vehicle." S.Rep. No. 541, 99th Cong., 2d Sess. 30 (1986), U.S.Code Cong. & Admin.News 1986, pp. 3555, 3584. We take this description to be illustrative rather than definitional because there is no limitation to vehicles in the statute. Now a "bug" planted in a car phone is not a "mobile interception device" in an
The second issue is raised by appellant Ramirez. He was arrested at home, sitting in the living room with his pregnant girl friend and his teenaged daughter. The arresting agents took him into a bedroom and asked him to cooperate with them. He asked them what was in it for him and they told him that if he cooperated the U.S. Attorney could ask the judge for a downward departure from the guidelines sentence. Ramirez said he was willing to talk and the agents took him to a police station and read him the Miranda warnings, after which he gave them an incriminating statement that at trial he moved to suppress on the ground that it had been coerced. He argues that he was coerced to agree to cooperate and that once he agreed, the warnings, assuring him that silence wouldn't be used against him, were a formality — almost as if by agreeing to cooperate he had bound himself contractually to speak and could not refuse no matter what he was later told.
There are indeed steps that police might take in conjunction with or in advance of giving the Miranda warnings that would nullify or at least undermine them — for example, telling the suspect that if he refuses to talk to them his lack of cooperation will be reported to the prosecutor. E.g., Collazo v. Estelle,
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