United States v. Oliva

An electronic surveillance order authorizing interception of background conversations while the telephone is "off the hook or otherwise in use" satisfies the requirements of § 2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 as a "standard" intercept and does not constitute a "roving" intercept.

The district court denied Jorge Ortiz Oliva’s motion to suppress evidence obtained from cellular phone interceptions. On appeal, Oliva argued that the surveillance orders were invalid because the government used “roving bugs” without meeting the statutory requirements of § 2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. For a “standard” intercept, the statute requires the government to specify “the nature and location of the facilities . . . where the communication is to be intercepted.” “Roving” intercepts are permitted when the locations of conversations are “not practical to specify.” The first surveillance order authorized interception of “background conversations . . . while the telephone is off the hook or otherwise in use.” Oliva asserted that the language “off the hook or otherwise in use” permitted the government to use the microphone in his cell phone as a listening device when the phone was not actively engaged in a call. The Ninth Circuit agreed with the government’s interpretation, which was limited to the interception of background conversations while the cell phone was engaged in a call. The Court acknowledged the problematic language of “off the hook” as applied to cell phones, suggesting that if the government intends to use a “roving bug,” it cannot do so by using such “outmoded terminology.” The second surveillance order authorized interception of “any changed telephone number . . . used by the instrument bearing the same ESN and/or IMSI as the Target Phones.” Oliva argued that “any changed phone number” did not meet the statutory requirement of “facility” for a “standard” intercept, and therefore the order constituted a “roving” intercept. In United States v. Duran, the Court held that "interception of any phone number, so long as the phone used an ESN or IMSI specified in the order," was valid as a "standard" intercept. AFFIRMED.