MINIMIZATION REQUIREMENT IN ELECTRONIC SURVEILLANCE TITLE 3, THE FOURTH AMENDMENT, AND THE DRED SCOTT DECISION

• NCJ Number: 61680
• Journal: American University Law Review Volume: 28 Issue: 3 Dated: (SPRING 1979) Pages: 315-361
• Author(s): C S FISHMAN
• Date Published: 1979
• Length: 47 pages
• Corporate Author: American University
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: PORTIONS OF THIS ARTICLE ARE ADAPTED FROM C FISHMAN, WIRETAPPING AND EAVESDROPPING (1978), LAWYERS COOPERATIVE PUBLISHING CO, ROCHESTER, N Y

Annotation

PROBLEMS RAISED BY THE MINIMIZATION REQUIREMENT OF THE OMNIBUS CRIME CONTROL ACT TITLE III, ARE ADDRESSED WITH EMPHASIS ON THE U.S. SUPREME COURT SCOTT V. UNITED STATES DECISION (1978).

Abstract

TITLE III OF THE 1968 ACT PERMITS ISSUANCE OF EAVESDROPPING WARRANTS SOLELY ON PROBABLE CAUSE AND ONLY IF THE APPLICATION AND WARRANT CONTAIN A SPECIFIC DESCRIPTION OF THE EVIDENCE SOUGHT. THE STATUTE RESTRICTS USE OF EAVESDROPPING AND DERIVATIVE EVIDENCE AND SPECIFICALLY REQUIRES INVESTIGATORS TO INTERCEPT COMMUNICATIONS IN A WAY THAT MINIMIZES THE CHANCE OF EAVESDROPPING ON COMMUNICATIONS NOT SUBJECT TO THE STATUTE. YET, THIS MINIMIZATION PROVISION DOES NOT SPECIFY HOW PRIVACY PROTECTION CAN BE ACCOMPLISHED. THE FUNDAMENTAL PROBLEM, THEREFORE, IS DEFINING THE MINIMIZATION REQUIREMENTS AND THE PROCEDURES FOR COMPLIANCE. TO MAKE MATTERS WORSE, TITLE III REFERS TO 'INTERCEPTIONS' RATHER THAN SEARCHES FOR OR SEIZURES OF COMMUNICATIONS. THE U.S. SUPREME COURT HAS NOT ADDRESSED THIS AMBIGUITY PER SE, BUT IN SCOTT V. UNITED STATES (1978) IT PRACTICALLY EVISCERATED THE MINIMIZATION PROVISION ALTOGETHER. THE COURT RULED THAT MONITORING OFFICERS CAN KNOWINGLY IGNORE THE MINIMIZATION PROVISION DURING REASONABLE INVESTIGATIONS OF SERIOUS CRIMES. ALTHOUGH TITLE III MAKES AN EFFORT TO BALANCE THE REQUIREMENTS OF LAW ENFORCEMENT WITH THE CIVIL LIBERTIES OF CITIZENS, THE U.S. SUPREME COURT DEPARTED FROM PRIOR CONSTITUTIONAL LAW AND GAVE UNNECESSARY DEFERENCE TO THE POLICE. THE IMPLICATIONS OF THIS DECISION ARE EXAMINED, ALONG WITH SUPPRESSION REMEDY AND THE COURTS' SUPERVISION OF WIRETAP WARRANTS. MAJOR MINIMIZATION CASES FROM FEDERAL AND STATE COURTS ARE APPENDED. FOOTNOTES AND TABULAR DATA ARE PROVIDED. (TWK)