NCJ Number
44853
Journal
Journal of Criminal Law and Criminology Volume: 68 Issue: 4 Dated: (DECEMBER 1977) Pages: 505-516
Date Published
1977
Length
12 pages
Annotation
PROCEDURAL REQUIREMENTS AND LEGAL CONSTRAINTS INVOLVED IN THE PRACTICE OF WIRETAPPING TO OBTAIN EVIDENCE IN A CRIMINAL CASE AND IN THE ADMISSIBILITY OF THAT EVIDENCE IN COURT ARE EXAMINED.
Abstract
THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 SETS OUT A DETAILED PROCEDURE FOR THE JUDICIAL AUTHORIZATION OF WIRETAPS AND OTHER FORMS OF ELECTRONIC SURVEILLANCE DESIGNED TO MEET FOURTH AMENDMENT STANDARDS. THE GOVERNMENT MUST NAME THOSE INDIVIDUALS WHOSE CONVERSATIONS ARE TO BE INTERCEPTED; IT MUST ALSO IDENTIFY THOSE NAMED IN THE ORIGINAL AUTHORIZATION BUT WHOSE INTERCEPTED CONVERSATIONS ARE TO BE INTERCEPTED; IT MUST ALSO IDENTIFY THOSE NOT NAMED IN THE ORIGINAL AUTHORIZATION BUT WHOSE INTERCEPTED CONVERSATIONS GIVE THE GOVERNMENT PROBABLE CAUSE TO BELIEVE THEM GUILTY OF A CRIME. IN ADDITION, TE JUDGE ISSUING THE AUTHORIZATION ORDER MUST CAUSE NOTICE TO BE GIVEN TO THE PERSONS NAMED IN THE ORDER, AND ANY OTHERS WHOSE COMMUNICATIONS WERE INTERCEPTED, NO LATER THAN 90 DAYS AFTER THE TERMINATION OF THE WIRETAP. AN 'AGGRIEVED PERSON' MAY MAKE A MOTION TO SUPPRESS EVIDENCE OBTAINED BY WIRETAP IF THE EVIDENCE WAS UNLAWFULLY INTERCEPTED, OR IF THE AUTHORIZATION WAS INSUFFICIENT ON ITS FACE, OR IF THE INTERCEPTION WAS NOT CONDUCTED IN CONFORMITY TO AN OTHERWISE VALID ORDER. HOWEVER, THE SUPREME COURT, IN CONSIDERING SUPPRESSION MOTIONS, HAS APPLIED THE TEST OF WHETHER: (1) THERE WAS IN FACT A VIOLATION OF PROCEDURAL REQUIREMENTS; AND (2) THE PROVISION VIOLATED WAS CENTRAL TO CONGRESSIONAL INTENT TO LIMIT THE USE OF WIRETAPS. THUS, WHERE THE REQUIREMENT IS NOT SO CENTRAL, GOVERNMENT NEGLIGENCE IS ALLOWED, THOUGH NOT ENCOURAGED. THE DECISIONS RENDERED IN SEVERAL SPECIFIC CASES ARE DISCUSSED TO ILLUSTRATE THIS INTERPRETATION. (VDA)