Page 31 - Texas Police Journal November- December 2013

party listening agent in Metairie, Louisiana intercepted a interception of non-pertinent conversations must be objec-
call on Norths cell phone between North and a female tively reasonable in light of the circumstances confronting
friend. For approximately the first fifty minutes of the call, the interceptor. Id. (internal quotation marks omitted).
North talked about a recent concert and about the traffic We consider three factors in determining the objective rea-
stop, complaining that he had been wrongfully detained sonableness of the governments efforts to minimize: (1)
and racially profiled. Approximately one hour into the the nature and scope of the criminal enterprise under
call, North revealed that he had cocaine hidden in the car investigation; (2) the Governments reasonable inferences
and was returning to Houston. of the character of a conversation from the parties to it;
The listening agent forwarded this information to offi- and (3) the extent of judicial supervision.
cers in Texas, whointercepted North at his home. North Even if the alleged minimization did occur, we do not
was subsequently arrested for possession of cocaine. find the effort to have been objectively reasonable. The
On appeal, North argues that: (1) the district court in affidavit in support of the application to wiretap Norths
Mississippi lacked territorial jurisdiction to authorize the phone stated that monitoring will be suspended if the
interception of his May 16, 2009 call because his phone conversation is not criminal in nature or is not otherwise
was located in Texas and the listening post was located in related to the offenses under investigation, and that spot
Louisiana; (2) the governments applications for autho- checks would be conducted to insure that the conversa-
rizations contained material misrepresentations and omis- tion ha[d] not turned to criminal matters. However, the
sions, which undermine the governments required show- agents did not stop listening when it was made clear that
ings of necessity to resort to wiretaps as an investigating the conversation was not criminal in nature and then con-
tool; and (3) the government did not comply with moni- duct brief spot checks. Rather, assuming the alleged
toring minimization requirements. minimization occurred, the agents listened to a non-perti-
Because we conclude that the government did not com- nent conversation for nearly one hour, suspending moni-
ply with minimization requirements, we do not reach toring only eight times for an average of less than one
Norths other arguments. North argues that the evidence minute each time. Although the government asserts that
gathered as a result of the interception of his May 16, 2009 the context supported continuous listening because North
phone call should be suppressed because the agents listen- had been stopped on what the government believed to be
ing in Metairie did not comply with minimization require- a drug run, it seems just as likely that Norths failure to
ments. Specifically, North argues that listening agents immediately discuss his near miss during the conversation
conducted essentially uninterrupted monitoring of a con- demonstrated that the phone call was not related to the
versation that had no objective connection to the drug drug crimes under investigation.
smuggling investigation.1 The government argues that the Until the very end of the conversation, nothing of the
agents made reasonable minimization efforts, emphasiz- conversation was criminal in nature or referenced the
ing that during the call North complained about racial pro- smuggling activities. Under these circumstances, it was
filing and what occurred during the traffic stop; and that not objectively reasonable for agents to listen in for near-
the 1 North contends, and the district court appears to have ly one hour to a conversation that did not turn to criminal
accepted, that the instructions provided to the agents matters until the last few minutes. We therefore conclude
authorized spot monitoring for not more than two min- that the district court clearly erred in finding that these
utes, and authorized continued monitoring when the con- minimization attempts were objectively reasonable. As
versation relate[d] to the alleged crimes under investiga- such, the evidence obtained from the May 16, 2009 inter-
tion. However, we can find no evidence in the record to ception of Norths cell phone must be suppressed.
support this claim. Norths motion to suppress filed in the U.S. v. North, No. 11-60763, Fifth Cir., Oct. 24th, 2013.
district court states that a copy of these instructions is
attached as an exhibit, but the record contains no such
exhibit. Electronic surveillance must be conducted in
such a way as to minimize the interception of communi- Continued next page
cations not otherwise subject to interception. Brown,
303 F.3d at 604 (quoting 18 U.S.C. § 2518(5)). To comply
with § 2518(5), the governments efforts to minimize

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