Elements of a Traditional Wiretap

iStock_000000350401XSmall.jpgThe government intercepts the phone calls of suspect criminals through the use of a wiretap. Wiretaps are search warrants that allow a law enforcement agency to eavesdrop on phone calls or internet communications (E.g. cell, land line, Skype calls). Law enforcement agencies can only eavesdrop after they obtain a court order from a judge authorizing them to listen in on certain conversations. In order to obtain a court order, the officer must file an application with the court requesting authorization from the court to conduct a wiretap. The application is an essential part of the process and is subject to strict compliance with 18 U.S.C.A. § 2518.

The first requirement is that the investigative or law enforcement officer making the application be identified along with the officer who authorized the application. This requirement is important for a couple of reasons. First, there are strict disclosure laws that prohibit liberal sharing of wiretaps. Officers cannot freely discuss wiretaps with whomever they want, even if they are talking to other officers. The disclosure must be permitted by statute. Second, it identifies the law enforcement agency that is conducting the wiretap. Particular agencies can conduct wiretaps for certain reasons. Certain agencies investigate certain crimes; not all crimes are subject to wiretap surveillance either. A law enforcement agency must be investigating a crime that is enumerated under 18 U.S.C.A. § 2703, and the crime must be one that the agency investigates.

The second requirement is that the application must give a full and complete statement of the facts and circumstances that the judge needs to rely upon. This section is fact intensive and quite possibly the most important part of the wiretap. The facts alleged must show to the judge that probable cause of a crime exists. Usually this comes from a confidential informant, but there are other ways to obtain these facts.

The third requirement is that the application must show whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. The Constitution protects the privacy of American citizens. If there are other ways to obtain evidence other than a wiretap, the judge will typically prefer that less intrusive means be used. This puts the burden on the police officers to show that less intrusive means cannot be used or if they were used, that they were ineffective.

The fourth and fifth requirement is that the application must state how long the eavesdropping will last, if there will be need for extensions, and if there is a need for an extension, how long will it last. 18 U.S.C.A. § 2518(1). Law enforcement agencies have time limits on how low they can conduct wiretap surveillance for, which is 30 days. Usually, law enforcement will request the full 30 days just in case there is a need for an extension. Wiretap warrants cannot go past this timeframe though.

The fifth requirement necessitates that any other wiretap applications that have been submitted regarding the target individual must be disclosed on the application. This requirement has two practical purposes. First, it is meant to prevent law enforcement officers from repeatedly conducting surveillance on a target. Second, it also shows any success that the wiretaps have had in the past. This will give the judge more confidence when he is considering rendering a court order.

The last requirement is that if an application is for an extension, then the application must contain facts stating why an extension is needed. Like the initial application, an extension has to allege facts showing that there is probable cause that a crime was committed. However, the facts must show that the officers are acquiring information regarding the underlying crime that they are investigating. It cannot be just any information regarding any crime, it has to link back to the original purpose of the application. Furthermore, it has to detail the results of the interception and how they have helped the investigation. If the interception has not produced any evidence, this does not stop the officer from applying for an extension. If there has been a failure to obtain evidence, then the officer must give a reasonable explanation detailing why there has been a failure.

These are not the only requirements that a wiretap application needs. Under 18 U.S.C.A. § 2518(2), a judge may require the applicant to furnish additional testimony or documentary evidence in support of the application. This is an extra provision that allows a judge who feels uneasy or lacks confidence granting a court order to demand extra evidence. When law enforcement invades your privacy, it has to be done for the sake of producing probative information. This provision demonstrates that judges can be exceptionally demanding when it comes down to wiretaps.

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com