Whether the Wiretap Act's mandatory suppression provision in 18 U.S.C. § 2515 permits judicial creation of exceptions based on analogies to Fourth Amendment doctrines, or whether the statute's plain text precludes judge-made exceptions to its suppression requirement

No question identified. : TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, AND CIRCUIT JUSTICE FOR THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT: Pursuant to this Court’s Rule 13.5, Applicant Michael Carey respectfully requests a 30-day extension of time, to and including Friday, September 15, 2023, in which to file a petition for a writ of certiorari to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit entered its judgment affirming the district court on March 9, 2023. United States v. Carey, No. 18-50393, 2023 WL 2423338 (9th Cir. Mar. 9, 2023) (Carey IT) (attached as Exhibit A). On May 18, 2023, the Ninth Circuit denied Carey’s timely petition for rehearing en banc. Order, Carey II, No. 18-50393 (9th Cir. May 18, 2023) (attached as Exhibit B). Unless extended, the time in which to file a petition for a writ of certiorari will expire on August 16, 2023. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 1. This case involves an important, recurring issue about the proper interpretation of a foundational criminal-procedure statute, the Wiretap Act— whether the Ninth Circuit’s creation of a “plain hearing” exception to the Act’s suppression provision is inconsistent with the Act’s plain text. United States v. Carey, 836 F.3d 1092, 1093-94 (9th Cir. 2016) (Carey I) (attached as Exhibit C). 2. The Wiretap Act categorically mandates that “no part” of any communication intercepted in violation of the Act and “no evidence derived therefrom” “may be received in evidence.” 18 U.S.C. § 2515. But the Ninth Circuit has crafted an exception to this mandatory rule, so that evidence obtained in violation of the Act before officers “knew or should have known” that “they [welre listening to conversations outside the scope of the wiretap order” need not be suppressed. Carey I, 836 F.3d at 1098. The Ninth Circuit made no attempt to ground its plain-hearing exception in any provision of the Act. Instead, it fashioned the exception “by analogy” to the Fourth Amendment’s plain-view doctrine. Id. at 1097. 3. The Ninth Circuit’s plain-hearing exception warrants this Court’s review because it is unmoored from statutory text, in conflict with the Sixth Circuit’s refusal to create judge-made exceptions to the Wiretap Act’s suppression provision, and has profound implications regarding a foundational criminal-procedure statute. First, the Ninth Circuit’s “plain hearing” exception defies the Act’s plain text. That text is unequivocal: if the government “unlawfully intercept[s]” communications, or if interception is “not made in conformity with” the wiretap order, the communications—and all evidence derived from them—must be suppressed. 18 U.S.C. §§ 2515, 2518(10)(a)(i), Gi). What’s more, because “Congress provideld] exceptions” in other parts of the Act, but not to the suppression provision, “[t]he proper inference” is that Congress “limited the statute to the [exceptions] set forth.” United States v. Johnson, 529 U.S. 53, 58 (2000). If Congress “intended to provide additional exceptions, it would have done so in clear language.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) (internal quotation marks omitted). In search of a justification for its statutory rewrite, the Ninth Circuit pointed to the Fourth Amendment’s plain-view exception. Carey I, 836 F.3d at 1093, 1097. But the textual differences between the Fourth Amendment and the Wiretap Act only confirm the Ninth Circuit’s error. The Fourth Amendment prohibits only “unreasonable searches and seizures.” U.S. Const. amend. IV (emphasis added). So its “warrant requirement” permits “certain reasonable exceptions,” Kentucky v. King, 563 U.S. 452, 459 (2011), including the “plain-view” exception, see, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 464-65 (1971) (plurality). The text of the Wiretap Act by contrast, admits of no exceptions—for reasonableness or otherw