Suppressing or Excluding Evidence Obtained by Wiretap

At a time of increased government surveillance, prosecutors at both the state and federal levels are making ever greater use of evidence obtained from wiretapping. Wiretaps, electronically intercepted communications, used to be reserved for the most dangerous organized crime groups like the Italian Mafia or international drug cartels or arms traffickers. More recently, evidence from wiretaps appears more and more in white collar prosecutions and run-of-the-mill drug cases.

In order to obtain wiretap evidence, federal prosecutors must comply with both constitutional requirements and Title III of Omnibus Crime Control and Safe Streets of 1968. This law requires the federal investigator to comply with a number of administrative requirements in addition to the normal Fourth Amendment requirements of a search, and, if they fail to comply with these requirements, it could result in the suppression of evidence and the dismissal of charges. Every state also has laws regulating wiretap evidence that can lead to the dismissal of state prosecutions as well.

Before going into the procedures required to obtain a wiretap or the legal bases for suppression of the evidence, it should be noted that wiretap evidence is frequently exculpatory. Defense counsel should request all wiretap evidence in a case under Brady v. Maryland or Giglio v. United States. Oftentimes, there are intercepted conversations in the government’s possession that might clear a defendant (a statement that a particular defendant “didn’t know” some salient facts, for example).

Understanding the Applicability of Wiretap Laws

Wiretapping occurs when any third party (usually the government) secretly monitors the private communications of a party to investigate for possible criminal conduct. The most common wiretaps are intercepted phone conversations (usually cell phone communications), but Title III applies to any wire, oral, or electronic communication that is intercepted.

Title III limits the use of wiretaps to certain specific crimes. These include murder, kidnapping, narcotics trafficking and any other crime “dangerous to life, limb or property” that is punishable by more than one year’s incarceration. 18 U.S.C. 2516 contains a long and wide-ranging list of offenses where wiretaps are authorized; however, if the crime does not meet these criteria, a wiretap is not permissible.

The Government’s Seven Requirements to Obtain a Wiretap

1. An Eligible Applicant. In order for a wiretap to be authorized, only certain people can serve as an “applicant”. These include the Attorney General of the United States, various deputy and assistant attorneys general, the principal prosecuting attorney of a state (the State Attorney General), and the principal prosecuting attorney of a political subdivision if authorized by state law. In Pennsylvania, the state Wiretap Act, 18 Pa. C.S. 5708 authorized the Attorney of the State and the District Attorney of each county to apply for a wiretap, although only a Judge of the Superior Court can issue a Wiretap Order. In Maryland, the Attorney General, the State Prosecutor and any State Attorney can apply pursuant to Maryland Courts and Judicial Proceedings 10-406. However, U.S. Attorneys, Assistant U.S. Attorneys, and Assistant District of State prosecutors may not be “applicants” for a wiretap order.
2. Each application must also include the following information with particularity:
   • The agency and agent applying for the authorization;
   • A statement of facts;
   • A statement that other investigative efforts have been tried and failed or would not be effective with an explanation as to why;
   • The period for the interception (at most 30 days but may be extended upon application);
   • A statement of facts concerning any previous applications; and
   • If the application is for an extension, a statement of the results to date.
3. Necessity. A principal objective of Title III is to protect the privacy of citizens. Therefore, unlike other Fourth Amendment searches, the government is required to convince the court that all other investigative techniques have been exhausted and have failed to provide the government with the evidence it needs. Other investigative techniques available to the government include:
   • Searches of the suspect’s garbage;
   • Physical surveillance;
   • Cell phone surveillance (pen registries, etc.);
   • Confidential informants;
   • Tracking devices;
   • Witness interviews;
   • Photo lineups;
   • Any other reasonable investigative technique available under the circumstances.
4. Minimization. Once an authorization has been granted, law enforcement officials listening to telephone conversations are required to “minimize” the intrusion into the target’s privacy by not listening to conversations not relevant to the criminal investigation. Examples of conversations law enforcement generally cannot listen to are:
   • Calls between husband and wife;
   • Conversations with medical providers;
   • Conversations with attorneys;
   • Conversations with clergy members or counselors;
   • Any other call not relevant to the investigation.

   Generally speaking, “minimization” allows an agent to listen to a call for a short period of time to determine its relevance. If the relevance is not readily apparent, the agent must cease monitoring the call.

5. Interim Reporting. During the course of the interception period authorized by the court, agents are usually required to make “interim reports” with the court demonstrating compliance with objectives and ongoing need.
6. Termination. As noted above, the maximum time period for conducting a wiretap is 30 days. However, if the information sought in the application is obtained before the timeframe authorized in the court order, interception must cease at that time. If agents continue to conduct wiretaps after the objective has been obtained, the evidence obtained may be suppressed and the charges dismissed.
7. Sealing. Finally, within 10 days of the termination of the authorized interception, the recordings must be provided to the judge and shall be “sealed” under the court’s direction. This means the evidence obtained from the wiretap must be kept secret and not further disclosed without permission of the court. A failure by the government to properly seal the evidence may result in its exclusion.

Moving to Suppress Wiretap Evidence

Wiretap evidence can be powerful evidence for the government, but it should never be assumed that this evidence is necessarily admissible in any given case. in addition to normal Fourth Amendment suppression issues based upon a lack of probable cause, there are other bases that can be used to suppress wiretap evidence. These include:

• The particularity requirement of the Application. Applications that are overbroad or which lack the specificity required by Title III can be challenged. If successful, these challenges can result in the dismissal of all charges.
• False information in the Application. Sometimes, an agent either intentionally or accidentally will place incorrect information into an Application. This might involve misstating the statements of a witness or the results of an investigative technique. It can also involve the material omission of evidence which undermines part of the Application. In addition to knowing what is in the Application (and whether it was accurate), Defense Counsel must also be familiar with the evidence available to the government to know what evidence was excluded.
• Because wiretap evidence can be so compelling before a jury, some agents and prosecutors will ignore the requirement that all other investigative avenues be exhausted. It is therefore necessary to examine the Application skeptically to see if there were investigative techniques available to the agents that were not tried or given an opportunity to yield fruit. Criminal defense counsel should be prepared to question agents on investigative techniques not mentioned in the Application.
• Minimization Obligations. At times, government agents may listen to a call for too long a period of time or listen to a call they are permitted to listen to (a call to a wife or to a lawyer concerning a crime that has already occurred). As with other Title III violations, the failure to minimize can result in the suppression of evidence and the dismissal of charges.
• Challenging Co-Conspirator Statements. Oftentimes, the government will attempt to introduce intercepted conversations between two individuals, neither of whom is the defendant. The determination of whether the statements are admissible or not requires a careful analysis; however, the Supreme Court decided long ago in Crawford v. Washington that out-of-court statements may violate a defendant’s right to confront the witnesses under the Sixth Amendment.
• The Fruit of the “Poisonous Tree”. Finally, constitutional criminal procedure requires that evidence obtained illegally by the government must be suppressed. Further, all evidence the government obtains from that illegally obtained evidence is also suppressible. If a violation of Title III leads to the discovery of eyewitnesses, that eyewitness testimony may be suppressed. If it leads to a confession, that confession too may be suppressed.

Consult an Attorney who Understands Title III and the Law Surrounding Wiretaps

The law surrounding the electronic interception of communications is complex, and most attorneys, including most criminal defense attorneys, do not deal with Title III issues often if at all. There are layers of complexity that cannot even be considered in an article of this length. There are also issues of “one-party consent” and “two-party consent” that frequently arise when one party records another. The wrongful electronic interception of a communication may, and frequently is, a criminal violation of the law.