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Oberheiden, P.C. Blog

Electronic Surveillance in Criminal Cases

Surveillance Equipment

“Is it safe to use my phone?” Among the most frequently expressed concerns of clients going through a criminal investigation is the issue of electronic surveillance. After all, all clients want to ensure that their communication with their attorneys, friends, family members, and partners are private and free from interception and monitoring.

So, how common are electronic interceptions by the government? And how “easy” is it for a prosecutor to get court approval to place a suspect or defendant under surveillance? The starting point of this analysis is the U.S. Constitution. The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures. Further, the government cannot issue any search warrants without probable cause. This amendment is intended to protect citizens from arbitrary intrusions by the government, and it directly applies to wire-tapping and other electronic surveillance techniques used by state and federal law enforcement.

No Warrant Needed. The Fourth Amendment to the U.S. Constitution, as well as applicable statutes such as the Electronic Communications Privacy Act of 1986, the USA PATRIOT Act, the Omnibus Crime Control and Safe Streets Act of 1968, and the Pen Register and Trap and Trace Statute at 18 U.S.C. Sect 3121, allow law enforcement to intercept telephone, oral, and electronic communications without a warrant as long as one party to the communication consents. The U.S. Supreme Court held in United States v. White, 401 U.S. 745 (1971), that evidence that was obtained by a government informant through a radio transmitter was lawfully obtained and admissible. 18 U.S.C. Sect 2510(2) makes warrantless interceptions of oral conversations legal if a reasonable expectation of privacy is lacking.

Warrant Needed. Because the law generally assumes and protects a reasonable expectation of privacy of all people, including targets and defendants, a warrant is generally required when neither party has consented, see 18 U.S.C. Sect 2511. Whether a reasonable expectation of privacy exists, is often controversial. An expectation of privacy exists in someone’s home, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679 (1961) and office, Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967). Even the home of a friend to which a suspect has been invited may qualify to have a reasonable expectation of privacy, Jones v. United States, 362 U.S. 257 (1960). These cases teach that an expectation of privacy can exist irrespective of the place of the individual. “[T]he Fourth Amendment,” as one famous case pointed out, “protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967).

Establishing Probable Cause. Video surveillance that affects an individual’s expectation of privacy can only be requested by high level prosecutors and must satisfy the strict requirements laid out in Rule 41(b) of the Federal Rules of Criminal Procedure and the All Writs Act at 28 U.S.C. Sect 1651. Put simply, a court will not approve video surveillance that intrudes a person’s reasonable expectation of privacy unless the reviewing and approving judge is convinced that the surveillance will probably capture the commission of a federal crime.

Emergency Interception. Slightly different rules apply in emergency situations. Under 18 U.S.C. Sect 2518(7), high-level senior attorneys at the Department of Justice are authorized to determine whether a certain situation requires the immediate need for surveillance and emergency interception of wire, oral, and/or electronic communication prior to and without first obtaining an approving court order. The senior prosecutor in charge of the case and the investigative officer must conclude that an immediate danger of death or serious bodily injury to a person, an activity threatening the security interests of the United States, or a conspiracy to commit organized crime exists. If it turns out that such an assessment was erroneous, the court will suppress the evidence. Once the government operates under its emergency powers, the Attorney General has 48 hours to inform the court and to get after-the-fact approval from the court.

Admissibility of Intercepted Information. Since all electronic surveillance activities occur without the knowledge of the target and because all court orders discussing or approving such measures are under seal and thus not available to the public, two important questions arise. First, when and how is the defendant entitled to the evidence gathered through electronic surveillance? Second, can information that was filed under seal be used for purposes of obtaining search warrants or indictment?

In response to the first question, normally the government will not reveal evidence obtained through electronic surveillance techniques until a defendant has been arrested and indicted. The reason for this lies with the confidentiality and secrecy associated with obtaining and maintaining the search warrants. Under limited circumstances the government may approach a defendant and use electronic surveillance evidence with the goal of convincing the defendant that he should plead guilty and cooperate with law enforcement.

In response to the second question, the answer is generally yes. As long as the evidence obtained by the government was lawful, the information can be used to: (1) further an investigation through search warrants; and (2) make allegations against a defendant in an indictment. Normally, information and evidence that is applied for under seal will have to be unsealed in order to be used in an indictment. However, the government may keep search warrant records sealed up through the point of indictment. This fact means that a search warrant may be served on a person’s home/business and, because the affidavit will remain sealed, the person under investigation will not definitively know whether his communications are being monitored – although there may be ample reason to be suspicious.

Wire Taps in Fraud Cases. The Department of Justice has recently increased its use of wiretaps in white-collar fraud cases. This is a departure from law enforcement’s traditional focus of utilizing electronic surveillance mostly in large narcotics and public corruption cases. Law enforcement has come to recognize the true value and importance of statements and communications made by fraud targets because one of the hardest things to prove in a fraud case is an individual’s intent.


Contact us today with your questions regarding proper procedure and surveillance issues.

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