ID of Authorizing Officer in Title III Affidavit Enough, Even Though Not In Orders

US v. Brunson: Brunson was charged with multiple offenses arising from a drug conspiracy in South Carolina. Much of the evidence leading to those charges, and presented at trial, came from a series of wiretaps authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Each order was the same – the applications for the orders were made in the names of particular Assistant Attorney Generals, but the resulting orders did not name them. However, the applications were incorporated by reference. Brunson sought suppression of the wiretap evidence, arguing that Title III requires the “identity . . . of the person authorizing the application” be on the order. The district court denied the motion and Brunson was convicted at trial.

A divided Fourth Circuit affirmed Brunson’s conviction. First, the court concluded that the Supreme Court’s recent decision in Dahda did not answer the question, and thus turned to established Fourth Circuit law. Then the court turned a concession of Brunson’s back on him. He had agreed that if the wiretap orders had said only “the Attorney General,” without specifically naming him, that would be sufficient, since there is only one Attorney General. However, since there were multiple Assistant Attorney General’s, the title alone would not suffice. This, the court held, was a concession that something less than the full name of the authorizing officer was required. The orders here, which referenced the applications where the Assistant Attorney General was specifically named met the standard under Title III because it substantially complied with the statute. In the alternative, the court held that the Leon good-faith exception would apply and not require suppression of the evidence.

Judge Motz dissented, arguing that Dhada does decide the issue and in Brunson’s favor. She also argued that Leon did not apply to a statutory scheme that included no good-faith exception in its text.