NCJ Number
59903
Journal
FBI Law Enforcement Bulletin Volume: 48 Issue: 8 Dated: (AUGUST 1979) Pages: 24-27
Date Published
1979
Length
4 pages
Annotation
THE U.S. SUPREME COURT'S DECISION IN UNITED STATES V. DALIA (1979), WHICH SANCTIONED CONVERT ENTRIES INTO PRIVATE AREAS TO INSTALL COURT-ORDERED LISTENING DEVICES, IS DISCUSSED BY A SPECIAL AGENT FOR THE FBI.
Abstract
A BRIEF REVIEW OF THE CONFLICTING VIEWS THAT PREVAILED IN THE FEDERAL APPELLATE COURTS PRIOR TO THE DALIA DECISION, NOTING THAT THE FEDERAL STATUTE AUTHORIZING ELECTRONIC SURVEILLANCE (TITLE III) MADE NO MENTION OF COVERT ENTRY PROCEDURES TO INSTALL MONITORING DEVICES, LEADS INTO AN ANALYSIS OF THE DALIA DECISION. IN NOTING THAT COVERT ENTRIES ARE UNIQUE BECAUSE THEY MUST BE CARRIED OUT WITHOUT PRIOR NOTICE, THE SUPREME COURT EXPRESSED THE VIEW THAT TITLE III PROVIDES A CONSTITUTIONALLY ADEQUATE SUBSTITUTE FOR NOTICE BY REQUIRING THAT NOTIFICATION BE GIVEN TO CERTAIN CLASSES OF PEOPLE UPON COMPLETION OF THE OPERATION. ALTHOUGH THE COURT IN THE DALIA CASE CONCLUDED THAT PRIOR JUDICIAL NOTIFICATION OF AN APPROVAL FOR THE COVERT ENTRY IS NOT CONSTITUTIONALLY REQUIRED, LAW ENFORCEMENT AGENCIES WOULD BE WELL-SERVED TO ESTABLISH DEPARTMENTAL RULES THAT SURPASS CONSTITUTIONAL REQUIREMENTS. LAW ENFORCEMENT OFFICERS SHOULD REALIZE THAT MANY CITIZENS AND JUDGES IN THIS POST-WATERGATE ERA, VIEW WIRETAPPING AND COVERT ENTRIES AS SERIOUS ISSUES, WITH THE POTENTIAL FOR ABUSE OF PRIVACY RIGHTS AND PROPERTY INTERESTS. IN THOSE STATES WHICH PERMIT COURT-ORDERED ELECTRONIC LISTENING DEVICES, THE FOLLOWING DEPARTMENTAL POLICIES SHOULD BE CONSIDERED: (1) THE PROBABLE CAUSE AFFIDAVIT SHOULD INCLUDE A STATEMENT JUSTIFYING THE NEED FOR A COVERT ENTRY; AND (2) THE APPLICATION FOR THE COURT ORDER SHOULD INCLUDE A REQUEST TO AUTHORIZE COVERT ENTRY TO INSTALL, SERVICE, AND REMOVE THE DEVICE. ADDITIONALLY, OFFICERS SHOULD FURNISH A DESCRIPTION OF THE AREA WHERE THE LISTENING DEVICE IS TO BE INSTALLED, ESTABLISH THE NECESSITY OF COVERT ENTRY, AND INCLUDE AN ASSERTION THAT OFFICERS WERE INFORMED TO LIMIT ENTRY TO INSTALLATION PURPOSES ONLY. IF A DEPARTMENT VIOLATES ITS INTERNAL REGULATIONS REGARDING PRIVACY, DUE PROCESS, ETC., THE VIOLATION, JUDGING FROM RECENT U.S. SUPREME COURT DECISIONS (I.E., UNITED STATES V. CACERES), SHOULD NOT RESULT IN APPLICATION OF THE EXCLUSIONARY RULE WHEREBY STATEMENTS OBTAINED IN VIOLATION OF AGENCY RULES COULD BE SUPPRESSED. FOOTNOTES ARE PROVIDED. (WJR)