United States v. Balbino Dejesus Tavarez, A/K/A Munchie, 40 F.3d 1136 (10th Cir. 1994). · Go Syfert
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United States v. Balbino Dejesus Tavarez, A/K/A Munchie, 40 F.3d 1136 (10th Cir. 1994). Cases Citing This Book View Copy Cite
46 citation events (28 in the last 25 years) across 17 distinct courts.
Strongest positive: Schneider v. Montegari (nyed, 2022-09-30)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Schneider v. Montegari
E.D.N.Y · 2022 · confidence medium
See, e.g., Rodriguez, 968 F.2d at 136 ; United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994); United States v. Denman, 100 F.3d 399, 404 (5th Cir. 1996); United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997); United States v. Luong, 471 F.3d 1107, 1108 (9th Cir. 2006); United States v. Henley, 766 F.3d 893, 912 (8th Cir. 2014); United States v. Cano-Flores, 796 F.3d 83 , 86–87 (D.C.
discussed Cited as authority (rule) United States v. Portillo-Uranga
10th Cir. · 2022 · confidence medium
We have held that a communication is intercepted for purposes of § 2518(3) either “where the tapped telephone is located” or “where the contents of the redirected communication are to first be heard.” United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (quoting United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992)).
discussed Cited as authority (rule) United States v. Dahda (2×)
10th Cir. · 2017 · confidence medium
United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994).
discussed Cited as authority (rule) United States v. Dominique Jackson
3rd Cir. · 2017 · confidence medium
Cir. 2015), cert, denied, — U.S. -, 136 S.Ct. 1688 , 194 L.Ed.2d 790 (2016) (adopting the “listening post” theory and reasoning that requiring a new “wiretap order in every district where [the government] thought a target could make calls ... seems unworkable”); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 2065 , 191 L.Ed.2d 968 (2015); United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006) (“The most reasonable interpretation of the statutory definition of interception is that an interception occurs where the tapped phone …
discussed Cited as authority (rule) State of Delaware v. Jermaine Brinkley
Del. Super. Ct. · 2016 · confidence medium
See Cano-Flores, 796 F.3d at 86-87 (upholding a district court ruling that an interception of a conversation that originated and was received in Mexico, but was intercepted in Texas, was lawful); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir.2014) (agreeing with the Second and Fifth Circuits' holdings that "interception includes both the location of a tapped telephone and the original listening post, and that judges in either jurisdiction have authority under Title III to issue wiretap orders.”); United States v. Luong, 471 F.3d 1107, 1109-10 (9th Cir.2006) ("The most reasonable int…
discussed Cited as authority (rule) United States v. Aurelio Cano-Flores
D.C. Cir. · 2015 · confidence medium
See United States v. Henley, 766 F.3d 893, 911-12 (8th Cir.2014); United States v. Luong, 471 F.3d 1107, 1109-10 (9th Cir.2006); United States v. Jackson, 207 F.3d 910 , 914-15 (7th Cir.), vacated on other grounds, 531 U.S. 953 , 121 S.Ct. 376 , 148 L.Ed.2d 290 (2000); United States v. Den *87 man, 100 F.3d 399, 402-03 (5th Cir.1996); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994).
discussed Cited as authority (rule) United States v. Banks
D. Kan. · 2015 · confidence medium
United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994) (citing Burford , but also noting “[b]ecause it is unnecessary to the disposition of this case, we do not address whether the location of an ‘interception’ also includes the location of the target telephone.”).
cited Cited as authority (rule) State of Tennessee v. Jeffrey Kristopher King and Kasey Lynn King
Tenn. Crim. App. · 2013 · confidence medium
Bellia, Law of Electronic Surveillance § 4:25 (Feb.2013) (citing United States v. Tavarez, 40 F.3d 1136, 1139 (10th Cir. 1994) (construing Oklahoma statute)). 16 .
discussed Cited as authority (rule) State v. Guerrero-Flores (2×)
S.C. Ct. App. · 2013 · confidence medium
Other courts have used phrases similar, if not identical, to "first heard.” See, e.g., Luong, 471 F.3d at 1109 (using the phrase "first overhear the call”); United States v. Denman, 100 F.3d 399, 403 (5th Cir.1996) (using the phrase "original listening post”); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994) (quoting Rodriguez for the phrase "first to be heard”).
discussed Cited as authority (rule) State v. Ates
N.J. Super. Ct. App. Div. · 2012 · confidence medium
See United States v. Duong, 471 F.3d 1107 , 1109 (9th Cir.2006), cert. denied, 552 U.S. 1009 , 128 S.Ct. 531 , 169 L.Ed.2d 371 (2007); United States v. Ramirez, 112 F.3d 849, 852 (7th Cir.), cert. denied, 522 U.S. 892 , 118 S.Ct. 232 , 139 L.Ed.2d 163 (1997); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996), cert. denied, 520 U.S. 1121 , 117 S.Ct. 1256 , 137 L.Ed.2d 336 (1997); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994).
examined Cited as authority (rule) Davis v. State (4×) also: Cited "see"
Md. · 2012 · confidence medium
United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994) (Oklahoma Security of Communication Act); State v. McCormick, 719 So.2d 1220, 1222 (Fla.App.1998) (Florida Wiretap Statute); Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178 , 829 P.2d 1061, 1065 (1992) (Washington Privacy Statute). .
discussed Cited as authority (rule) United States v. Edwards (2×) also: Cited "see"
10th Cir. · 1995 · confidence medium
Under the federal wiretap statute, 18 U.S.C. § 2516 (2), we must defer to state law “ ‘on the question of the validity of [a] wiretap order obtained in state court under state law.’ ” United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)).
discussed Cited as authority (rule) United States v. Milton Edwards, United States of America v. Terry Ratliff, Sr., United States of America v. William Thomas Lawrence, United States of America v. Kerry Chaplin (2×) also: Cited "see"
10th Cir. · 1995 · confidence medium
Sec. 2516 (2), we must defer to state law " 'on the question of the validity of [a] wiretap order obtained in state court under state law.' " United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)).
discussed Cited as authority (rule) United States v. Jerry Grist
10th Cir. · 1995 · confidence medium
Sec. 2516 (2), requires federal courts to defer to state law "on the question of the validity of [a] wiretap order obtained in state court under state law." United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994)(citing United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)).
discussed Cited "see" State v. Edward Ronald Ates (070926)
N.J. · 2014 · signal: see · confidence high
See United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994) (interpreting Oklahoma law to allow district attorney for Judicial District 21, where listening post was located, to apply for wiretap order for telephones in District 19); State v. McCormick, 719 So.2d 1220,1223 (Fla.App.1998) (finding that Melbourne police officer had authority under Florida law to seek wiretap order for cell phone subscribed to resident of Merritt Island because listening post was in Melbourne), review denied sub nom.
discussed Cited "see" State v. McCormick
Fla. Dist. Ct. App. · 1998 · signal: accord · confidence high
See, e.g., United States v. Denman, 100 F.3d 399, 403 (5th Cir.1996) (noting that in Nelson "the court did not rule out the possibility that the initial listening to the recording by the intercepting agent might also be considered part of the interception"), cert. denied, ___ U.S. ___, 117 S.Ct. 1256 , 137 L.Ed.2d 336 (1997); accord United States v. Tavarez, 40 F.3d 1136 , 1138 n. 1 (10th Cir.1994).
cited Cited "see, e.g." United States v. Maurice Johnson
6th Cir. · 2010 · signal: see also · confidence medium
See also United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994).
discussed Cited "see, e.g." United States of America, Plaintiff-Appellee-Cross-Appellant v. Harold Jackson, Kevin Williams, Dion Lewis & Jathel Garrett, Defendants-Appellants-Cross-Appellees and Derrick Mallett, Richard Wash, Scott Davis, James Doty, Michelle Gaines, Clarence Haywood, Cedric Parks & James A. Yates
7th Cir. · 2000 · signal: see also · confidence medium
This is literally true and has persuaded the other courts in which the issue has arisen to uphold the government's position, United States v. Denman, 100 F.3d 399, 402-04 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130, 135-36 (2d Cir. 1992); see also United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994); cf. United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997), but it creates, as the government's lawyer acknowledged with refreshing candor at argument, a potential for abuse that resembles the familiar problem of "judge shopping" for conventional search and arrest warra…
discussed Cited "see, e.g." United States v. Jackson, Harold (2×)
7th Cir. · 2000 · signal: see also · confidence medium
This is literally true and has persuaded the other courts in which the issue has arisen to uphold the government’s position, United States v. Denman, 100 F.3d 399, 402-04 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130, 135-36 (2d Cir. 1992); see also United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994); cf. United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997), but it creates, as the government’s lawyer acknowledged with refreshing candor at argument, a potential for abuse that resembles the familiar problem of "judge shopping" for conventional search and arrest w…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Balbino DeJesus TAVAREZ, A/K/A Munchie, Defendant-Appellant
94-6048.
Court of Appeals for the Tenth Circuit.
Nov 22, 1994.
40 F.3d 1136
Joseph Luis Ruffin, Oklahoma City, OK, for defendant-appellant., Vicki Miles-LaGrange, U.S. Atty., and Frank Michael Ringer, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff-appellee.
Tacha, Kelly, Vratil.
Cited by 51 opinions  |  Published
TACHA Circuit Judge.

I. Background

On June 2, 1993, defendant Balbino DeJe-sus Tavarez (a.k.a. “Munchie”) was indicted for one count of conspiracy to possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. § 841(a)(1). The government’s only evidence against defendant consisted of taped telephone conversations between defendant and several code-fendants. This evidence was obtained by a court-ordered wiretap of a codefendant’s telephone. After the district court denied defendant’s motion to suppress the wiretap evidence, defendant pleaded guilty to conspiracy. Defendant reserved his right to appeal the denial of the motion to suppress evidence, and this appeal followed. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

II. Discussion

Defendant contends that both the Application for Order Authorizing the Interception of Wire Communications (the “application”) and the Order Authorizing the Interception of Wire Communications (the “order”) were facially invalid and that all evidence obtained pursuant to the order should be suppressed. Defendant alleges two infirmities with the application and order: (1) the application was requested by a district attorney who lacked jurisdiction to do so; and (2) both the application and order were deficient in their descriptions of the locations of the wiretaps.

The order was obtained pursuant to the Oklahoma Security of Communications Act (the “Oklahoma Act”), Okla.Stat.Ann. tit. 13, §§ 176.1 through .14 (West 1994). The federal wiretap statute, 18 U.S.C. § 2516(2), requires federal courts to defer to state law “on the question of the validity of [a] wiretap order obtained in state court under state law.” United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc). We review a district court’s determination of state law de novo. Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 495 (10th Cir.1992) (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)).

A Authority of District Attorney McCoy to Apply for Order

Defendant first contends that the application and order were invalid because the district attorney who applied for the wiretap order lacked jurisdiction to do so. Because an order must conform to all provisions of the Oklahoma Act, an improper application results in an invalid order. See Okla.Stat.Ann. tit. 13, § 176.7 (West 1994).

The Oklahoma Act establishes a two-step application process for wiretap orders. Id. First, the district attorney for the jurisdiction in which the interception will take place must file an application with the state’s attorney general. The attorney general then applies for an order from the presiding judge of the Oklahoma Court of Criminal Appeals. Id; see also § 176.2(9) (defining a “judge of competent jurisdiction” as the presiding judge of the Court of Criminal Appeals). Upon the submission of an application by the attorney general, the presiding judge may issue an order “authorizing interception of wire ... communications -within the territorial jurisdiction of the judicial district of the district attorney requesting the order.” § 176.9(C).

[*1138] The application in the instant case sought authorization to intercept the communications from two specific telephone numbers. The application identified the same Atoka County, Oklahoma address for both telephone numbers. Atoka County is within the territorial jurisdiction of Oklahoma Judicial District 19. The district attorney for Oklahoma Judicial District 21, J. Tully McCoy, applied for the order. District 21 includes Cleveland County, the county in which law enforcement officers listened to the conversations.

Because the tapped telephones were physically located in District 19, defendant argues that the district attorney for District 21 did not have authority to apply for the order. Defendant further contends that, without such authority, the wiretap order was invalid and the district court should have suppressed all evidence obtained from the taps. See § 176.6.

Defendant’s argument is contradicted by the language of the Oklahoma Act. Section 176.9(C) authorizes the “interception of wire ... communications within the territorial jurisdiction ... of the district attorney requesting the order.” The Oklahoma Act defines “intercept” as “the aural acquisition of the contents of any wire ... communication through the use of any electronic, mechanical or other device.” § 176.2(8). “ ‘Aural acquisition’ means obtaining knowledge of a communication through the sense of hearing which is contemporaneous with the communication.” § 176.2(2). Thus, the statutory definition of “interception” includes the place where the contents of the communication are first heard by law enforcement officials; that is, where officials aurally acquire knowledge of the communication.

Although courts have not previously interpreted this provision of the Oklahoma Act, we note that our interpretation is in accordance with federal court interpretations of the similarly worded federal statute, 18 U.S.C. § 2518(3). Section 2518(3) authorizes a federal judge to approve the interception of wire communications “within the territorial jurisdiction of the court in which the judge is sitting.” The Second Circuit has held that “for purposes of § 2518(3)’s jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communication are first to be heard.” United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 140, 121 L.Ed.2d 92 (1992); accord United States v. Burford, 755 F.Supp. 607, 611 (S.D.N.Y.1991) (“Jurisdiction vests either in the location where the conversations are actually heard or where the mechanical device is inserted.”). [1]

We hold that the location of an “interception” for purposes of section 176.9(C) includes the place where the intercepted communication is heard. [2]

B. Sufficiency of Description of Location in Application and Order

Defendant also argues that both the application and the order were facially invalid because neither included a particular description of the nature and location of the facilities from which the wire communications were to be intercepted. We first address the adequacy of the description in the application, and then examine the adequacy of the order.

An application for an order authorizing the interception of a wire communication must include “a particular description of the nature and location of the facilities from[*1139] which, or the place where the wire ... communications are to be intercepted.” Okla. Stat.Ann. tit. 13, § 176.9(A)(2)(b) (West 1994). The district court noted in its order denying defendant’s motion that this statutory provision is worded in the disjunctive; thus, the application needed to specify the location of either “the facilities from which” or “the place where” the communications would be intercepted. Although the term “facilities” is not defined in the statute, we agree with the district court that usage of the term in other provisions of the Oklahoma Act indicates that “facilities” means the target telephones. See § 176.9(C)(4) (“the facilities from which ... the wire ... communications are to be intereepted[ ] are being used by an individual or are about to be used in connection with the commission of [an] offense”).

The application here requested authorization to intercept the wire communications of telephone instruments located at “Route 4, Box 175, Atoka, Oklahoma.” This is a sufficiently particular description of the nature and location of the target telephones, thereby fulfilling the requirements of section 176.9(A)(2)(b).

Defendant’s argument that the order lacks particularly also fails. Like section 176.9(A)(2)(b), section 176.9(D)(2)’s requirements are worded disjunctively. The order must specify “[t]he nature and location of the communications facilities as to which, or the place where, authority to intercept is granted.” § 176.9(D)(2). Again, “facilities” is used elsewhere in the Oklahoma Act to mean the targeted telephones. The order issued here authorized interception of wire communications “which occur on telephone(s) operating with [specific telephone numbers] located at Route 4, Box 175, Atoka, Oklahoma.” Because the targeted telephones were specified in the order, the order complied with section 176.9(D)(2).

Conclusion

The district court’s order denying defendant’s motion to suppress evidence is AFFIRMED.

1

. Although defendant argues that United States v. Nelson, 837 F.2d 1519 (11th Cir.), cert. denied, 488 U.S. 829, 109 S.Ct. 82, 102 L.Ed.2d 58 (1988), supports his contention that an interception occurs only at the location of the tapped telephone, Nelson's narrow holding does not advance his argument. The defendant in Nelson argued that a communication is intercepted only in the place where the communication is listened to — the reverse of defendant's argument in the case at bar. In its decision finding the wiretap order valid, the Eleventh Circuit held that "the term 'intercept' as it relates to 'aural acquisitions' refers to the place where a communication is initially obtained regardless of where the communication is ultimately heard.” Id. at 1527. Thus, while Nelson holds that an interception occurs where the telephone is tapped, it does not exclude from the definition of "intercept” the place where the communication is heard.

2

. Because it is unnecessary to the disposition of this case, we do not address whether the location of an "interception” also includes the location of the target telephone.