                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0631n.06

                                           No. 08-5911                                   FILED
                                                                                     Sep 17, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,
                                                              ON APPEAL FROM THE
               Plaintiff-Appellee,                            UNITED STATES DISTRICT
                                                              COURT FOR THE EASTERN
v.                                                            DISTRICT OF TENNESSEE

MAURICE A. JOHNSON,

            Defendant-Appellant.
________________________________________/


BEFORE:        SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*

       Jonker, District Judge. Maurice Johnson appeals the denial of his motion to suppress

evidence obtained through a state-authorized wiretap in an investigation conducted primarily by state

agents. Mr. Johnson asserts that the wiretap did not comply with Tennessee state law and that

evidence derived from the wiretap must therefore be suppressed even in federal court. Mr. Johnson's

claim fails because the wiretap plainly complied with Tennessee law. The district court properly

denied the motion to suppress.

                              Factual and Procedural Background

       On February 9, 2006, Tennessee Bureau of Investigation (“TBI”) Special Agent Luke

Muhonen submitted an affidavit and application to authorize a wiretap on Mr. Johnson’s cellular

phone for the investigation of a triple homicide. That same day, William H. Cox, the District

       *
       The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
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United States v. Johnson                         2

Attorney General for the Eleventh Judicial District of Tennessee, authorized the wiretap application,

and Criminal Court Judge Rebecca Stern of the Eleventh Judicial District of Tennessee authorized

the wiretap itself. The TBI maintained its listening post in the Eleventh Judicial District of

Tennessee. Immediately following the implementation of the wiretap, law enforcement officials

intercepted calls made to Mr. Johnson’s cell phone suggesting that Mr. Johnson was involved in drug

trafficking. On February 10, 2006, Agent Muhonen sought permission to expand the scope of the

wiretap beyond the triple homicide to include drug trafficking. Judge Stern approved the request

in writing the same day.

       On April 11, 2006, a federal grand jury returned an indictment against Mr. Johnson. The

indictment charges Mr. Johnson with multiple drug-related offenses, including, among others,

conspiracy to distribute fifty grams or more of cocaine base. Mr. Johnson moved to suppress the

evidence obtained through the wiretap. Mr. Johnson asserted that the wiretap violated Tennessee

law because (1) the authorization of the wiretap occurred in a judicial district other than the one

where the phone to be monitored was located; (2) the Tennessee wiretap statute does not permit

wiretapping in connection with cocaine-related crimes involving less than 300 grams of cocaine; and

(3) the Tennessee wiretap statute does not authorize the wiretapping of cellular phones. Mr. Johnson

did not argue that the wiretap at issue violated the federal wiretap act, Title III of the Omnibus Crime

Control and Safe Streets Act (“Title III”), 18 U.S.C. § 2510, et seq., or the Fourth Amendment.

       Magistrate Judge William Carter conducted an evidentiary hearing on the motion to suppress

on September 12, 2006. On February 16, 2007, Magistrate Judge Carter issued a Report and

Recommendation recommending that the district court deny Mr. Johnson’s motion to suppress.

Mr. Johnson timely objected. After de novo review, the district court rejected Mr. Johnson’s

objections and adopted the Report and Recommendation.
No. 09-5911
United States v. Johnson                        3

       Under a conditional plea agreement reserving his right to appeal the denial of his motion to

suppress, Mr. Johnson pleaded guilty to the charge of conspiracy to distribute fifty grams or more

of cocaine base. Because Mr. Johnson had an earlier felony drug conviction, an enhanced statutory

mandatory minimum sentence of twenty years applied to him. Accordingly, the district judge

imposed a sentence of twenty years. Mr. Johnson promptly filed a notice of appeal.

       On appeal, Mr. Johnson asserts that under Title III, evidence obtained through a state-

authorized wiretap that does not comply with state law is not admissible in federal court. He argues

that the wiretap at issue violated Tennessee state law because (1) the authorization of the wiretap

occurred in a judicial district other than the one where the phone to be monitored was located; and

(2) the Tennessee wiretap statute does not permit wiretapping in connection with cocaine-related

crimes involving less than 300 grams of cocaine.

                                          Legal Standard

       The Court reviews the district court’s factual findings concerning suppression issues for clear

error and its legal determinations de novo. United States v. Stewart, 306 F.3d 295, 304 (6th Cir.

2002); United States v. Hill, 142 F.3d 305, 310 (6th Cir. 1998). The Court views the evidence in the

light most favorable to the district court’s findings. United States v. Jenkins, 124 F.3d 768, 772 (6th

Cir. 1997).

                                              Analysis

       It is well-established that federal law, not state law, governs the admissibility of evidence in

federal court. See, e.g., Elkins v. United States, 364 U.S. 206, 223-24 (1960); United States v.

Bennett, 170 F.3d 632, 635 (6th Cir. 1999) (“[W]e acknowledge the longstanding precept that federal

law controls federal proceedings, and we continue to support it.”). But Title III itself appears to
No. 09-5911
United States v. Johnson                          4

require compliance with state law provisions in at least some wiretap situations. In particular, Title

III provides the following procedure for wiretaps authorized by a state court judge:

        The principal prosecuting attorney of any State, or the principal prosecuting attorney
        of any political subdivision thereof, if such attorney is authorized by a statute of that
        State to make application to a State Court judge of competent jurisdiction for an
        order authorizing or approving the interception of wire, oral, or electronic
        communications, may apply to such judge in conformity with section 2158 of this
        chapter and with the applicable State statute an order authorizing, or approving the
        interception of wire, oral, or electronic communications by investigative or law
        enforcement officers. . . .

18 U.S.C. § 2516(2) (emphasis added). Mr. Johnson's sole claim on appeal is that the wiretap

violated Tennessee state law because the state judge lacked jurisdiction to order the wiretap, and

because the state judge had no authority to expand the scope of the wiretap to cover possible drug

dealing in he quantities mentioned. Mr. Johnson is wrong on both claims, and so his appeal

necessarily fails.

        1.      The authorizing judge had jurisdiction to authorize the wiretap under Tennessee law.

        Mr. Johnson argues that Judge Stern lacked jurisdiction to authorize the wiretap because she

was located in the Eleventh Judicial District of Tennessee, while Mr. Johnson and his phone were

located in the Tenth Judicial District of Tennessee. This argument fails. Tennessee law requires that

an application “authorizing the interception of a wire, oral, or electronic communication [] be made

. . . to a judge of competent jurisdiction in the district where the interception . . . is to occur.” TENN .

CODE ANN . § 40-6-304(a). The Tennessee statute, like Title III, defines “intercept” as “the aural or

other acquisition of the contents of any wire, electronic, or oral communication through the use of

any electronic, mechanical, or other device.” TENN . CODE ANN . § 40-6-303(11); 18 U.S.C.

§ 2510(4). The post at which the investigators listened to the communications – aurally acquired the

communications, to use the statutory language – was in the Eleventh Judicial District of Tennessee.
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United States v. Johnson                       5

“[I]nterception includes both the location of a tapped telephone and the original listening post.”

United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996). See also United States v. Tavarez, 40

F.3d 1136, 1138 (10th Cir. 1994). Accordingly, Judge Stern had jurisdiction to authorize the

wiretap.

       2.      The extension of the properly-authorized wiretap to include drug-related
               conversations was proper under Tennessee law.

       Mr. Johnson also argues that it was improper to extend the scope of the wiretap to include

communications regarding drug offenses, asserting that the quantity of cocaine involved was too low

to justify a wiretap under state law. Mr. Johnson's argument ignores the original basis for the

wiretap, which was a triple homicide investigation. Tennessee law plainly allows a judge of

competent jurisdiction using the procedure described in TENN . CODE ANN . § 40-6-304 to authorize

a wiretap when an agent demonstrates the interception may provide evidence of the commission of

criminal homicide or conspiracy to commit criminal homicide. TENN . CODE ANN . § 40-6-305(1).

Once a valid wiretap exists, “[t]he contents and any evidence derived therefrom may be used [in

giving testimony under oath in a state or federal court proceeding] when authorized by a judge of

competent jurisdiction where the judge finds on subsequent application that the contents were

otherwise intercepted in accordance with [Tennessee law].” TENN . CODE ANN . § 40-6-306(e).

Agent Muhonen applied for and received judicial authorization to expand the scope of an initially

valid wiretap to cover the drug investigation too, satisfying the requirements of Tennessee law. The

same result would apply under the federal statute. See 18 U.S.C. § 2517(5). Mr. Johnson’s

argument that the scope of the wiretap was improperly extended fails.

                                           Conclusion

       For these reasons, the district court’s denial of the motion to suppress is AFFIRMED.
