                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 14-50222
         Plaintiff-Appellee,
                                         D.C. No.
             v.                   3:11-cr-00671-WQH-1

MICHAEL CAREY, AKA
Garrocha,                               OPINION
       Defendant-Appellant.


      Appeal from the United States District Court
        for the Southern District of California
      William Q. Hayes, District Judge, Presiding

          Argued and Submitted May 6, 2016
                Pasadena, California

                  Filed September 7, 2016

      Before: Alex Kozinski, William A. Fletcher,
         and Ronald M. Gould, Circuit Judges.

              Opinion by Judge Gould;
              Dissent by Judge Kozinski
2                   UNITED STATES V. CAREY

                           SUMMARY*


                          Criminal Law

    The panel vacated the district court’s order denying the
defendant’s motion to suppress evidence derived from the use
of wiretaps.

    The panel held that police may use evidence obtained in
“plain hearing” when they overhear speakers unrelated to the
target conspiracy while listening to a valid wiretap, without
having complied with the Wiretap Act requirements of
probable cause and necessity as to those specific speakers, but
that agents must discontinue monitoring the wiretap once they
know or reasonably should know that the phone calls only
involved speakers outside the target conspiracy.

    Because the record does not show exactly when agents
knew or should have known that the phone conversations did
not involve the persons involved in the target conspiracy, the
panel vacated the district court’s denial of the motion to
suppress and remanded to the district court on an open record
to determine what evidence was lawfully obtained in “plain
hearing.”

     Judge Kozinski dissented from the part of the opinion
where the majority remands on an open record. He wrote that
if the record does not show whether the agents reasonably
believed that the conspiracies were related until after a traffic


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. CAREY                    3

stop, the defendant, who presented no evidence contradicting
an agent’s sworn declaration, has only himself to blame.


                       COUNSEL

Knut Sveinbjorn Johnson (argued) and Emerson Wheat, San
Diego, California, for Defendant-Appellant.

Peter Ko (argued), Assistant United States Attorney, Chief,
Appellate Section, Criminal Division; Laura E. Duffy, United
States Attorney; United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.
4                 UNITED STATES V. CAREY

                          OPINION

GOULD, Circuit Judge:

     Acting pursuant to the Wiretap Act, 18 U.S.C.
§§ 2510–22, federal agents secured a wiretap order for a San
Diego phone number based on evidence that Ignacio
Escamilla Estrada (Escamilla) was using the number in a drug
smuggling and distribution conspiracy. Agents monitoring
the wiretap overheard drug-related phone conversations. At
some point during a seven-day period, the agents realized that
Escamilla was not using the phone. Agents continued
listening, however, believing at least initially that the people
speaking on the phone might have been part of the Escamilla
conspiracy.    The seven days of wiretap monitoring
culminated in a traffic stop, and agents then confirmed that
the persons on the phone had no connection to Escamilla.

    Appellant Michael Carey was eventually identified as a
speaker in some of the phone calls, and he was then charged
with conspiracy to distribute cocaine. Carey moved to
suppress the evidence obtained from the wiretaps, arguing
that the government violated the Wiretap Act by never
applying for a wiretap as to him or his coconspirators. The
district court denied the motion, ruling that the government
could rely on the Escamilla order to listen to Carey’s
conversations.

    The Fourth Amendment provides an exception to the
warrant or probable cause requirement when police see
contraband in “plain view.” We adopt a similar principle
today and hold that the police may use evidence obtained in
“plain hearing” when they overhear speakers unrelated to the
target conspiracy while listening to a valid wiretap, without
                 UNITED STATES V. CAREY                     5

having complied with the Wiretap Act requirements of
probable cause and necessity as to those specific speakers.
However, the agents must discontinue monitoring the wiretap
once they know or reasonably should know that the phone
calls only involved speakers outside the target conspiracy.
Cf. Maryland v. Garrison, 480 U.S. 79, 87 (1987).

    The district court did not apply these principles, and the
record in this case does not show exactly when agents knew
or should have known that the phone conversations did not
involve Escamilla and his coconspirators. We vacate the
district court’s denial of Carey’s motion to suppress and
remand to the district court on an open record to determine
what evidence was lawfully obtained in “plain hearing.”

                              I

    On March 5, 2010, the district court granted FBI Special
Agent Christopher Melzer’s application for a wiretap order
for several phone numbers thought to be associated with a
drug conspiracy led by Ignacio Escamilla Estrada
(Escamilla). The phone number designated “T-14” was
believed to belong to Escamilla. The wiretap of T-14 went
live on March 5, although no calls were intercepted until
March 10.

    Starting on the 10th, the agents overheard “drug-related”
calls, but at some point the agents realized that the person
using T-14 was not Escamilla. The agents did not know who
the people speaking on T-14 were, although Melzer initially
“thought the callers and calls might still be affiliated with
[the] known targets or part of the criminal activity [he] was
investigating.” Melzer consulted with federal prosecutors,
and agents continued to monitor the calls.
6                       UNITED STATES V. CAREY

    On the morning of March 17, 2010, agents intercepted a
call indicating that someone would be traveling with
“invoices” (believed to be code for drug money). The agents
coordinated with local police officers to execute a traffic stop
on a car involved in the phone calls. Officers identified the
driver as Adrian Madrid and searched the vehicle, finding
cash and a cellphone tied to the T-14 number. Officers then
obtained a search warrant for a related residence and found
cocaine. Now knowing Madrid’s identity, Melzer learned
that there was an ongoing DEA/ICE investigation into Madrid
and his associates. Melzer met with ICE and DEA agents,
and they concluded that there was no “overlap” between the
Madrid and Escamilla conspiracies.

    Agents later identified Carey as a member of Madrid’s
conspiracy.1 Carey was indicted in February 2011 for
conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. He filed a motion to suppress “any and
all evidence derived from the use of wiretaps,” arguing that
the government failed to comply with the Wiretap Act,
18 U.S.C. §§ 2510–22, with respect to Carey and his
coconspirators. In Carey’s view, the government instead had
unlawfully “relie[d] on the validity of the Escamilla order to
justify the independent and unrelated use of wiretap
surveillance against Mr. Carey.” Carey also requested a
Franks2 hearing to “fill in the holes” of a declaration by


        1
     Phone calls intercepted by the wiretap referred to “Garrocha,”
apparently Carey’s nickname, but the record does not show when agents
made that connection. The record also does not reveal how Carey’s
associate, Jose Antonio Hernandez-Gutierrez, ended up with Escamilla’s
phone number.
    2
        See Franks v. Delaware, 438 U.S. 154 (1978).
                  UNITED STATES V. CAREY                      7

Special Agent Melzer that had been submitted to the district
court to explain the agents’ and officers’ actions in
connection with the wiretap.

    The district court denied the motion to suppress,
reasoning that the government had complied with the statute
to obtain the wiretap order against Escamilla and holding that
“[t]here was no requirement for a separate showing of
necessity once the agents concluded that T-14 was not
primarily used by Escamilla. The agents reasonably believed
that the callers and calls might be affiliated with Escamilla or
other offenses.” Carey pled guilty in an agreement that
preserved his right to appeal the denial of his motion to
suppress. Carey’s appeal was timely and we have jurisdiction
under 28 U.S.C. § 1291.

                              II

    In 1967, the Supreme Court issued two opinions
discussing the constitutionality of certain phone surveillance
techniques. In Berger v. New York, 388 U.S. 41 (1967), the
Court invalidated a New York wiretap statute as “too broad
in its sweep resulting in a trespassory intrusion into a
constitutionally protected area.” Id. at 44. Then in Katz v.
United States, 389 U.S. 347 (1967), the Court held that
federal agents violated the Fourth Amendment by
eavesdropping on and recording a telephone call without a
warrant. Id. at 348, 357–59.

    Congress took note of these foundational decisions when
passing the Omnibus Crime Control and Safe Streets Act of
1968. See United States v. U.S. Dist. Ct. for the E. Dist. of
Mich., 407 U.S. 297, 302 (1972). Title III, which is known
colloquially as the Wiretap Act, prescribes certain procedures
8                UNITED STATES V. CAREY

that the government must follow to secure judicial
authorization for a wiretap. See United States v. Giordano,
416 U.S. 505, 507 (1974) (citing 18 U.S.C. §§ 2510–20). The
government must demonstrate probable cause that a particular
offense has been or will be committed, see 18 U.S.C.
§ 2518(1)(b); United States v. Kahn, 415 U.S. 143, 155
(1974), and the government must demonstrate “necessity” for
the wiretap by showing that traditional investigative
procedures did not succeed or would be too dangerous or
unlikely to succeed if tried, see 18 U.S.C. § 2518(1)(c);
United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.
2001). The statute also requires the government to adopt
minimization techniques to “reduce to a practical minimum
the interception of conversations unrelated to the criminal
activity under investigation.” United States v. McGuire,
307 F.3d 1192, 1199 (9th Cir. 2002); see 18 U.S.C.
§ 2518(5).

    If the government uses a wiretap in violation of the
statute, evidence obtained from the wiretap is inadmissible
against the conversation’s participants in a criminal
proceeding. Giordano, 416 U.S. at 507–08; see 18 U.S.C.
§ 2515. Carey argues that suppression is warranted here
because the government did not comply with these statutory
requirements as to him or his coconspirators—the
government’s wiretap application instead demonstrated
probable cause and necessity only as to Escamilla’s
conspiracy.

    As a preliminary matter, the government argues that the
only Wiretap Act argument Carey has preserved is his
necessity argument: whether the agents violated 18 U.S.C.
§ 2518(1)(c) by listening to Carey’s phone calls without first
trying “other investigative procedures” or explaining “why
                 UNITED STATES V. CAREY                      9

they reasonably appear to be unlikely to succeed if tried or to
be too dangerous.” At oral argument on appeal, the
government further suggested that Carey’s argument that the
government could not rely on the Escamilla wiretap to listen
to Carey’s calls was an argument about the proper “execution
of the order” rather than “the necessity showing.”

    In this context, however, we see no meaningful difference
between the argument presented to the district court and that
presented on appeal. While Carey’s suppression brief
primarily discussed necessity, he argued in substance that the
government could not “rel[y] on the validity of the Escamilla
order to justify the independent and unrelated use of wiretap
surveillance against Mr. Carey.” The government recognized
that this was the premise of Carey’s argument, responding
with its view that “agents properly continued to intercept T-
14 even after determining Escamilla was not the primary
user.” And this claim was further fleshed out before the
district court when, in dialogue with the judge, Carey’s
lawyer argued that “[a]t the point in that time during that 15-
day period they [the agents] realize this is a separate and
distinct conspiracy group of people, they have to stop” and
“make the required showing, obtain the authorization for the
wiretap for that separate and distinct group of people.” Even
on appeal the government recognizes in its brief that “the
circumstances under which interception occurred” were
placed “squarely at issue” in Carey’s suppression motion,
which charged that “Melzer knew, at the time of interception,
the T-14 calls were ‘unrelated to the Escamilla
investigation.’”

   Carey’s arguments to the district court adequately
conveyed the thrust of his argument on appeal that the
10                   UNITED STATES V. CAREY

Escamilla wiretap order did not authorize the government to
listen to Carey’s phone calls. Carey’s claim is preserved.

                                    III

    Turning to the question whether agents could lawfully use
the Escamilla wiretap to listen to Carey’s conversations, we
note that there is a lack of Ninth Circuit precedent squarely
on point. While the Wiretap Act allows officials to intercept
and use calls “relating to offenses other than those specified
in the order of authorization or approval,” 18 U.S.C.
§ 2517(5), we have found no case in which this statutory
provision was used to authorize officers to listen to people
who were unaffiliated with the initial wiretap subjects.3
Carey cites several cases for the proposition that the necessity
showing in a wiretap application must be specifically tailored
to the target subjects,4 but none of these cases involves a
situation in which a concededly valid wiretap order was used
to obtain evidence of an unrelated person’s crime.

   Here the government showed necessity and probable
cause for a wiretap of the target conspiracy. But what

 3
   See United States v. Reed, 575 F.3d 900, 911 (9th Cir. 2009) (allowing
government to introduce calls of Jackson intercepted on a wiretap for
Reed when agents initially thought the phone was Reed’s, Jackson was a
“previously unknown associate of Reed,” and “the record shows that TT10
was being used in the furtherance of Reed’s PCP enterprise”); United
States v. Baker, 589 F.2d 1008, 1011 (9th Cir. 1979) (per curiam)
(allowing government to introduce calls of Baker intercepted on a wiretap
for Judd when Baker was speaking to Judd). While the government relies
on these cases, it concedes that they “are not perfect fits.”
 4
   See, e.g., United States v. Staffeldt, 451 F.3d 578, 579 (9th Cir. 2006);
United States v. Gonzalez, Inc., 412 F.3d 1102, 1115 (9th Cir. 2005);
Blackmon, 273 F.3d at 1208–09.
                    UNITED STATES V. CAREY                          11

happens when a wiretap that is valid at its inception is later
used to listen to someone who is not involved in the
conspiracy under surveillance? It is that novel question to
which we turn our attention.

    The Seventh Circuit has addressed a similar situation in
dicta. Writing for that court, then-Chief Judge Posner
explained, “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. It is just the ‘plain view’ doctrine
translated from the visual to the oral dimension.” United
States v. Ramirez, 112 F.3d 849, 851 (7th Cir. 1997) (internal
citations omitted). “But,” the court continued, “once the
mistake is discovered, the government cannot use the
authority of the warrant, or of the [wiretap] order, to conduct
a search or interception that they know is unsupported by
probable cause or is otherwise outside the scope of the statute
or the Constitution.” Id. at 852 (citing Maryland v. Garrison,
480 U.S. 79, 87 (1987)).5 We conclude that the Seventh
Circuit’s observations are persuasive.

    These conclusions are drawn by analogy to Fourth
Amendment case law. In Maryland v. Garrison, 480 U.S. 79
(1987), officers secured a warrant for Lawrence McWebb’s
residence at “2036 Park Avenue third floor apartment.” Id.
at 80. When the officers entered, they “reasonably
concluded” that the third floor was only one apartment unit,
but they soon discovered that the floor was divided into two


  5
   This discussion in Ramirez was dicta because the court held that the
wiretap was not being used illegally when agents mistakenly listened to
phone calls in Minnesota rather than Wisconsin. Id. at 852–53.
12               UNITED STATES V. CAREY

apartments—one McWebb’s, the other Garrison’s. Id. at 81.
Before the officers realized that, they saw drug contraband in
Garrison’s apartment. Id. at 80. The Court held that the
search “[p]rior to the officers’ discovery of the factual
mistake” did not violate the Fourth Amendment so long as the
officers’ failure to realize the mistake “was objectively
understandable and reasonable.” Id. at 88.

    But at the same time, the Court emphasized that the
officers “were required to discontinue the search of
respondent’s apartment as soon as they discovered that there
were two separate units on the third floor and therefore were
put on notice of the risk that they might be in a unit
erroneously included within the terms of the warrant.” Id. at
87. We have applied this rule from Garrison in similar
situations. See, e.g., Mena v. City of Simi Valley, 226 F.3d
1031, 1038–39 (9th Cir. 2000); Liston v. County of Riverside,
120 F.3d 965, 979 (9th Cir. 1997) (“Until the officers learned
that they were in the wrong house, the officers could have
reasonably believed . . . that the way they conducted the
search was lawful. . . . But once they knew the house
belonged to the Listons, their search was no longer
justified.”).

    Despite the Seventh Circuit’s decision in Ramirez, both
the government and Carey resist the application of this
doctrine to the wiretap context. Carey states that Garrison
“has limited application to wiretaps” because of the
procedural requirements of the Wiretap Act. This argument
is unavailing because the government did comply with the
statute to get a valid wiretap for Escamilla on T-14. The
question here is whether the government could use that valid
wiretap to listen to unrelated people’s phone calls—a concern
that mirrors the question in Garrison whether officers could
                 UNITED STATES V. CAREY                   13

rely on a valid warrant for entry into an unrelated person’s
apartment.

    The government, on the other hand, argues that the agents
could continue monitoring the wiretap even after realizing
that they were not listening to the target conspiracy. The
government urges that the wiretap order in this case
authorized interception of drug calls by “others yet unknown”
over T-14. In the government’s view, Carey is such an
unknown person. Read in context, however, the wiretap
order does not extend to unknown people not involved in the
Escamilla conspiracy.

    Having carefully reviewed the full record, including any
portions filed under seal, we conclude that the provisions of
the wiretap order persuasively indicate that the unknown
people referred to in the wiretap order must be involved with
the Escamilla conspiracy; the order does not authorize the
wiretap of “others yet unknown” participating in a conspiracy
“yet unknown.” Moreover, the wiretap order could not
authorize surveillance of an unknown conspiracy because the
statute requires agents to demonstrate probable cause and
necessity to procure a wiretap order.             18 U.S.C.
§ 2518(1)(b)–(c). Agent Melzer’s affidavit contained
probable cause that “others yet unknown” were participating
in the Escamilla conspiracy, but it understandably contained
no information about unknown people engaged in drug
trafficking outside the Escamilla conspiracy.

    The government also argues that agents could listen to
Carey’s conversations because the Wiretap Act permits the
collection of evidence of other crimes under 18 U.S.C.
§ 2517(5). That provision authorizes the government to use
“communications relating to offenses other than those
14                UNITED STATES V. CAREY

specified in the order of authorization or approval.” But
importantly—and fatally to the government’s argument—the
statute does so only when officers are “engaged in
intercepting wire, oral, or electronic communications in the
manner authorized herein.” 18 U.S.C. § 2517(5). Because
the order does not authorize agents to listen to conversations
by individuals outside the Escamilla conspiracy for the
reasons stated above, this provision does not help the
government here.

    In short, we see no reason to depart from principles
requiring cessation of a wiretap once the government knows
or reasonably should know that the person speaking on the
tapped line is not involved in the target conspiracy. See
Ramirez, 112 F.3d at 851–52. The government may use
evidence obtained from a valid wiretap “[p]rior to the
officers’ discovery of [a] factual mistake” that causes or
should cause them to realize that they are listening to phone
calls “erroneously included within the terms of the” wiretap
order. Cf. Garrison, 480 U.S. at 87–88. And once the
officers know or should know they are listening to
conversations outside the scope of the wiretap order, they
must discontinue monitoring the wiretap until they secure a
new wiretap order, if possible. Cf. id. at 87.

                              IV

    Applying this rule to Carey’s case, we first note that
Carey does not challenge the validity of the wiretap order as
to Escamilla, so the agents were justified in initially listening
to the conversations on T-14. But because the order did not
authorize agents to listen to Carey or his associates, the
government may only use evidence obtained in accordance
with the “plain hearing” doctrine discussed above.
                     UNITED STATES V. CAREY                            15

     The record does not indicate what evidence was obtained
before the agents knew or should have known that they were
listening to calls outside of the Escamilla conspiracy.
Melzer’s declaration stated, “Within that time frame [March
10–17], after an amount of time that I do not recall exactly,
we concluded that the person using T-14 was not Ignacio
Escamilla Estrada. We also did not know the identities of the
persons calling T-14.” While Melzer’s declaration suggests
that he “thought the callers and calls might still be affiliated
with” the Escamilla conspiracy, the record does not show
whether he continued or reasonably could have continued to
hold that belief through March 17. In fact, at some point
agents consulted with federal prosecutors about whether they
could or should continue to intercept calls on the wiretap.

    It is unclear how much of the government’s wiretap
evidence may fall outside of the “plain hearing” doctrine.
Because the parties staked out polarized positions before the
district court—the government arguing for all wiretap
evidence, Carey for none of it—and because the district court
adopted the government’s position in denying the motion to
suppress, the record lacks the findings necessary to determine
what evidence was admissible against Carey.6 We vacate the
district court’s order denying the motion to suppress and
remand on an open record to determine what evidence is



 6
    Carey “alternatively” sought a Franks hearing to “fill in the holes” in
Melzer’s declaration. But this request does not fit into the Franks v.
Delaware, 438 U.S. 154 (1978), framework because the Melzer
declaration was not an affidavit supporting a wiretap application. See id.
at 171–72 (explaining purpose of Franks hearing is to explore possible
falsehoods in affidavit supporting request for search warrant); United
States v. Ippolito, 774 F.2d 1482, 1484–85 (9th Cir. 1985) (applying
Franks to wiretap applications).
16               UNITED STATES V. CAREY

admissible against Carey under the legal framework set forth
above.

    The dissent argues that Carey forfeited this relief by
“fail[ing] to demonstrate in the district court that any
evidence should be suppressed under the rule he advocated.”
Dissent at 22. This conclusion appears to stem from the
dissent’s premise that “Carey can hardly be surprised by the
‘plain hearing’ rule we adopt today” because he advocated for
a similar rule in the district court. Dissent at 18.

     We disagree with this conclusion and its premise.
Carey’s primary argument in the district court was broader
than the rule we adopt today. He did not concede that any
evidence should be admitted under a plain hearing rule.
Instead, Carey contended that “any and all evidence derived
from the use of wiretaps” should be suppressed. Carey
argued that the agents learned at some point that they were
listening to an unrelated conspiracy, and therefore the wiretap
order was invalid because it did not establish necessity as to
him.

    Also, while the dissent is correct that Carey did not
present evidence “contradicting Agent Melzer’s sworn
declaration,” dissent at 18, Carey argued to the district court
that Melzer’s declaration was lacking “specifically what level
of knowledge [the agents] had between – when the wiretap
started on March 10th through to March 17th.” The dissent
repeatedly emphasizes that Carey did not contest the accuracy
of Agent Melzer’s declaration. This is true, but beside the
point. Carey’s objection was not that the declaration was
inaccurate; his objection was that it was incomplete. The
district court recognized Carey’s belief that “there are things
that are not in his declaration that you believe would be
                     UNITED STATES V. CAREY                               17

relevant facts,” and the court was aware of Carey’s alternate
request to take evidence about Melzer’s level of knowledge
regarding the relationship between Escamilla and the phone
calls. But because the district court then applied the wrong
legal standard, the district court did not believe that any
additional evidence was necessary.7

    As stated above, Carey and the government took
polarized positions before the district court, and the correct
legal standard lay somewhere in between. In such
circumstances, we conclude that the proper course is to
allow the parties to present more evidence on remand to
determine whether any evidence should be suppressed under
the proper legal standard that we have now declared.

    VACATED AND REMANDED.



KOZINSKI, Circuit Judge, dissenting:

    I join my colleagues insofar as they hold that the
government may use evidence obtained from a valid wiretap
until “officers know or should know they are listening to
conversations outside the scope of the wiretap order.” Op. at

  7
    The dissent faults us for this “oblique suggestion,” dissent at 21, but it
is clear to us that Carey was seeking a Franks hearing to learn more about
Melzer’s knowledge of the speakers heard over the wiretap. As we
acknowledged above, see note 6 supra, that is not a proper purpose of a
Franks hearing. But counsel’s mislabeling of his request does not change
the fact that Carey’s counsel put the district court on notice that counsel
thought additional evidence could be necessary to resolve the suppression
motion. And had the district court applied the correct legal standard, it
would have recognized additional evidence was needed.
18               UNITED STATES V. CAREY

14. But I dissent from Part IV of the opinion where the
majority remands with instructions that the district court
apply this rule to Carey’s case on an open record. If, as the
majority recognizes, the “record does not show” whether the
federal agents reasonably believed that the conspiracies were
related until after the traffic stop, op. at 15, Carey has only
himself to blame. He presented no evidence contradicting
Agent Melzer’s sworn declaration.

     Carey can hardly be surprised by the “plain hearing” rule
we adopt today: As the majority acknowledges, “Carey
argued that the agents learned at some point that they were
listening to an unrelated conspiracy,” op. at 16, but he failed
to identify a specific point. Instead, Carey relied only on the
fact that the officers listened for seven days to the
conversations on the phone.

    But the length of time the officers listened is hardly
dispositive of whether they realized or should have realized
they were listening to a different conspiracy than the one
covered by the warrant. That depends on what the officers
heard and when they heard it. While agents eventually
realized that Escamilla wasn’t using the phone, the wiretap
order also permitted them to intercept conversations of
Escamilla’s unknown co-conspirators. The agents could have
reasonably believed that Escamilla had passed the phone to
a confederate. FBI Agent Melzer declared under oath that he
“thought the callers and calls might still be affiliated with
[the] known targets or part of the criminal activity [he] was
investigating.” He claims he didn’t definitively learn until
after the traffic stop that the calls were unrelated to the
Escamilla conspiracy. By expressly refusing to challenge the
Melzer declaration, Carey conceded the point.
                UNITED STATES V. CAREY                   19

    The majority is mistaken in saying that “Carey’s primary
argument in the district court was broader than the rule we
adopt today.” Op. at 16. Here’s what Carey’s lawyer argued
in his motion in the district court:

       Mr. Carey concedes the FBI reasonably
       believed the intercepted calls from T-14 could
       be related to the Escamilla conspiracy, at the
       beginning of interception. At some point,
       however, during the daily interceptions, with
       the number of calls mounting with new
       interceptees, it became less reasonable for the
       FBI to continue to believe this new conspiracy
       was related to Escamilla. As the Court is well
       aware, the FBI’s investigation into the
       Escamilla conspiracy was vast and extensive.
       At some point, between March 10 to March
       17, 2010, the FBI had to have realized that
       th[e] T-14 interceptions were part of a
       separate conspiracy – separate from, and
       unrelated to, the Escamilla conspiracy for
       which the wiretap was authorized.

           When they knew, they should have
       stopped, worked with other law enforcement
       agencies investigating the Carey conspiracy
       and proceeded with a proper, traditional
       investigation. Instead, the FBI, knowing at
       some point that they were no longer
       investigating Escamilla and his co-
       conspirators, continued to monitor T-14 under
       the auspices and authority of the Escamilla
       wiretap.
20               UNITED STATES V. CAREY

And here’s what Carey’s lawyer said to the district court
during oral argument:

       It is our position that at some point along that
       week as the calls were coming in, as the
       interceptees were being intercepted and they
       were not connected to the Escamilla extensive
       investigation, that the reasonableness of that
       agent to believe that was somehow related to
       Escamilla diminished. It diminished per call
       per day, all the way to the end of the week
       that where it is unreasonable then – where it
       started out being reasonable by the end of the
       week [sic].

     Carey never identified a specific point when it became
unreasonable for the agents to believe that they were still
listening to the Escamilla conspiracy. Carey was given full
discovery and thus had access to the recordings and
transcripts of the intercepted phone conversations. If he
believed that the agents should have known prior to the traffic
stop that this was a different conspiracy, he could have
pointed this out to the district court. Instead, he offered no
evidence and explicitly declined to dispute the accuracy of
Melzer’s statement:

       The Court:          From your standpoint it is
                           fair to say that you don’t
                           dispute the accuracy that
                           Mr. Melzer set forth in his
                           declaration?         Your
                           argument is that, well,
                           there are things that are
                           not in his declaration that
                UNITED STATES V. CAREY                  21

                         you believe would be
                         relevant facts, but that as
                         far as a – there is no
                         disagreement with his
                         declaration.

       [Carey’s lawyer]: That is       an accurate
                         statement.

       The Court:        So in deciding the motion,
                         there is no objection to the
                         Court relying on facts set
                         forth in this declaration as
                         true and as part of the
                         record.

       [Carey’s lawyer]: I think that is a fair
                         statement.

    The majority is also mistaken in its oblique suggestion
that Carey was seeking to obtain additional evidence or
requested an evidentiary hearing “to take evidence about
Melzer’s level of knowledge regarding the relationship
between Escamilla and the phone calls.” Op. at 17. Here’s
what actually happened in the district court:

       [The Court]:      Is there any evidentiary –
                         any witnesses in your view
                         that would be necessary
                         for an evidentiary hearing?
                         It seems like it is a legal
                         matter to me.
22               UNITED STATES V. CAREY

       [Carey’s lawyer]: Except for the Franks
                         hearing – outside of the
                         Franks hearing, I don’t see
                         a need for an evidentiary
                         hearing, other than
                         perhaps Agent Crawl
                         (phonetic) from the DEA
                         was conducting the
                         investigation while the
                         FBI was conducting
                         the wiretap. Outside of
                         that I don’t see any
                         other relevant evidentiary
                         purposes.

Carey thus expressly disowned the purposes the majority
generously attributes to him. As for the Franks hearing, the
majority recognizes that it’s inapplicable to this situation.
Op. at 15.

    This isn’t a case where we’ve announced an unforeseen
rule, surprising a defendant who didn’t have the opportunity
to argue about its application in the district court. Carey’s
problem is that he failed to demonstrate in the district court
that any evidence should be suppressed under the rule he
advocated. I would affirm the district court’s judgment rather
than give Carey a mulligan.
