When your phone’s been wiretapped
The Federal Wiretap Act, 18 U.S.C. §§ 2510‐2522, better known as “Title III,” prohibits the interception and disclosure of wire, oral and electronic communications, as well as the manufacture, distribution and possession of such interception devices, 18 U.S.C. §§ 2511‐15. However, it does authorize federal and state government authorities in certain criminal investigations to intercept, disclose and use such communications, which include e‐mails, faxes and pager numbers, as well as telephone calls.
The scope of Title III is also defined by the conduct under investigation. State officials may apply under Title III to investigate a broad range of generic crimes, including murder, kidnapping, drug dealing and any other crime “dangerous to life, limb, or property” punishable by more than one year’s imprisonment. 18 U.S.C. § 2516(2).
Federal authorities may intercept electronic communications for investigations of any felony. 18 U.S.C. § 2516(3). For wire or oral intercepts, however, they are limited to investigations of a long and wide-ranging list of specific crimes. See 18 U.S.C. § 2516(1)(a)‐(s).
State authorities applying in state court under Title III must be authorized by state statute. 18 U.S.C. § 2516(2). Any federal Title III application seeking a wire or oral communication must first be authorized by the attorney general or another specified high‐level DOJ official. 18 U.S.C. § 2516(1). The federal interception of electronic communications, however, requires no such approval. 18 U.S.C. § 2516(3). Failure to obtain the required approvals can result in suppression.
As a search and seizure, Title III interceptions are subject to the Fourth Amendment just as more traditional searches. For starters, this means that the government must secure a court order permitting the interception after a probable cause showing that a listed crime has occurred or will occur and that particular communications concerning that crime will be obtained through the intercept. 18 U.S.C. § 2518(3).
If you’ve been charged in a federal indictment and the evidence against you consists of Title III wiretap conversations, there may be several ways to challenge the legality of the wiretap.
First, an application to obtain permission to perform a wiretap requires a “full and complete statement of the facts and circumstances,” including “details” underlying the alleged offense and a “particular description” of the nature and location of the facilities or place to be wiretapped, the type of communication to be intercepted, and the persons committing the offense and whose communications are to be intercepted. 18 U.S.C. § 2518(1)(b). A wiretap application can be attacked for lack of probable cause just as any search warrant.
Significantly, Title III applications also requires an additional showing of necessity. The government’s application must provide a “full and complete statement” describing all other investigative techniques that have been tried and failed or explaining why such techniques are likely to be unsuccessful or too dangerous. 18 U.S.C. § 2518(1)(c). The court must determine that “normal investigative procedures” have been or would be unsuccessful or excessively dangerous. Id. § 2518(3)(c). A faulty necessity showing can result in suppression.
In United States v. Rajaratnam, the government stumbled on the necessity prong by failing to disclose in its application that it was working closely with the SEC, which had at its disposal document subpoenas, witness interviews and depositions, and the defendants sought to suppress the intercepted statements. The court permitted a hearing (known as a Frank’s hearing) to determine whether the government’s application included a false statement or omission and if so whether it had been material to the court’s prior finding of probable cause or necessity.
The court found that the government was reckless in failing to disclose the U.S. Securities and Exchange Commission investigation but that the omission had not affected the necessity finding. The defendant had been careful to conduct most of his business over the phone, so any information available through the SEC’s procedures would still have been insufficient. In addition, the SEC’s investigation had produced only circumstantial evidence and had “hit a wall.” Finally, the court found that conventional techniques such as introducing an undercover agent or a wired informant were likely to be unsuccessful.
The application also must set forth the period of time, not more than 30 days, that the government seeks to maintain the interception. 18 U.S.C. § 2518(1)(d), (5). Interceptions should terminate as soon as the government first obtains the type of communication described in the application, but if the government establishes probable cause to believe that additional communications will occur thereafter the interceptions can continue for the full 30 days. Id. § 2518(1)(d), (5).
Regardless of the 30‐day time frame, Title III requires every order to provide that the authorization to intercept “must terminate upon attainment of the authorized objective.” § 2518(5). In those instances where the government has taken the position that the conduct under investigation requires continuing interceptions, no court has yet ruled that interception should have terminated at a point sooner than the full time period permitted by the order.
The government may apply for an unlimited number of 30‐day extensions. 18 U.S.C. § 2518(5). Each application is subject to the same requirements and standards as the original with the added requirement that the government report its results so far obtained from the interception or explain why it has failed to obtain any. Id. § 2518(1)(f). The court must again find probable cause, necessity and a nexus between the crime and the place or device to be wiretapped to extend the authorization.
The government’s obligations continue even after it obtains an order authorizing an intercept. That order is required to direct the government to take steps to minimize the interception of irrelevant conversations. 18 U.S.C. § 2518(5).
The government typically minimizes by turning off monitoring equipment once it determines a conversation is irrelevant. The government’s failure to minimize is another basis for suppression. For example, in United States v. Renzi, the district court suppressed all of the wiretap evidence because the government failed to minimize attorney‐client conversations.
Finally, Title III requires the contents of the intercepts to be recorded on tape or wire or other comparable device. 18 U.S.C. § 2518(8)(a). Once the wiretap order has expired the recordings must be turned over to the court and then sealed. A delay or failure in sealing requires a “satisfactory explanation” in order for the evidence to be used or disclosed. These requirements provide defendants with a further avenue for suppressing wiretap evidence.
If you’ve been charged with a federal crime and the subject of a federal wiretap it would be advisable to consult an attorney who has significant experience in Title III wiretap cases. As an assistant United States Attorney, John Caudill oversaw numerous investigations in which a Title III wiretap was the primary source of evidence.