In the age of increased surveillance and technology, prosecutors use wiretapping to gather evidence to use in court.
Wire taps are commonly used to investigate white collar crimes, homicide and kidnapping. However, the most common use of a title 3 wiretap is in the investigation and prosecution of the illegal drug trade. At the same time, wiretapping laws require investigators to jump through a series of procedural hoops, and if they fail to comply with the strict wiretap warrant requirements, it may lead to dismissal of the case.
If you suspect that you are being investigated via a wiretap, or if a case has been brought against you that includes evidence obtained through wiretapping, you have options. In the interest of protecting privacy, state and federal laws exist to guide exactly how the police and prosecutors can collect evidence through surveillance.
Wiretapping is when a third-party secretly monitors communications in order to investigate an involved party. The image that comes to mind most commonly is intercepted phone calls or recorded, in-person conversations. In reality, wiretapping laws apply to any wire, oral, or electronic communication that’s intercepted.
Wiretaps can be used in the investigation of murder, kidnapping, drug dealing and any other crime “dangerous to life, limb, or property” punishable by more than one year’s imprisonment. However, for wire or oral intercepts, however, they are limited to investigations of a long and wide‐ ranging list of specific crimes. 18 U.S.C. § 2516.
One Party Consent State
Each state has different laws about recording another person without their consent. Some states require that both the recording party and the party being recorded know that their conversation is being recorded – these are known as two party consent states. Arizona, on the other hand, is a one party consent state which means that you are not required to obtain someone’s permission prior to recording them.
The exception of to the one party consent state rule applies when a party surreptitiously records another party in a state of undress or in a location where one would expect to undress (bathroom, locker room for example). The other exception to this rule, applies when the government (police) is attempting to listen and record your conversations. Under these conditions the police must first obtain a warrant and an order from a court for a title 3 wiretap.
Wiretap Warrant Requirements
Prior to obtaining and after obtaining a wiretap, police must follow very strict procedures. In order to intercept a person’s phone calls, text messages or emails, the police must first obtain a special type of wiretap warrant. The wiretap warrant requirements are as follows:
The 7 Steps Required for a Wiretap Application & Order
1. Eligible Applicants. The application for a State wire tap must first be authorized by the Attorney General, Assistant Attorney General or the principal prosecuting attorney of any State. 18 U.S.C. § 2516(1)-(2). Noticeable absent in the federal statute is the use of an Assistant District Attorney or Deputy County Attorney as utilized in Maricopa County. Failure to obtain the required approvals can result in suppression.
2. Application Particularity. Each application must include a specific statutory statement of information which includes the following information with particularity:
- The agency and agent applying for the wiretap;
- A statement of facts;
- Other investigative techniques that have been tried and failed;
- The period of time for the interception (at most 30 days – extensions may be permitted upon reapplication);
- A statement of the facts concerning all previous authorized applications; and
- If the application is for an extension to a previous application, a statement of the results to date.
3. Necessity or Exhaustion. Unlike other investigations, wiretaps have an extra layer and require a specialized warrant. In that warrant application, the agency must convince the court that phone call interceptions are necessary because all other forms of information gathering have failed to provide law enforcement the information they need. The process law enforcement must show the court is commonly known as “exhaustion.” Examples of techniques that law enforcement must first “exhaust” prior to obtaining a wiretap include:
- Trash rips (searching a suspect’s garbage);
- Physical surveillance;
- Cell phone surveillance (pen registry and trap and trace);
- Confidential informants;
- Utilization of tracking devices;
- Interception of mail;
- Photographing suspects;
- Photographing cars to associated registration information;
- Tracking cars which recently crossed the border with cars at a specific target location.
4. Minimization Requirements. Once law enforcement has begun listening to phone calls there are certain instances that require them to stop listening. Examples of intercepted communication that law enforcement generally cannot listen to include:
- Calls between husband and wife; or
- Conversations with medical providers and insurance; or
- Calls to attorneys; or
- Conversations with a minister of clergy members; or
- Conversations irrelevant to the investigation (spot-monitoring may occur).
SIDE NOTE: Privileged calls can be listened to if they are in furtherance of the investigation. For example, if the attorney is assisting in the criminal activity rather than giving legal advice. It’s also worth noting that court’s tend to give law enforcement more leeway on minimization early in the investigation but will likely require more strict adherence to minimization requirements later in the intercept.
5. Interim Reporting. While calls are being intercepted pursuant to the wiretap, law enforcement is often required to provide the court with ongoing reports as to the authorized objective and the need for continued interception. The interval of these reports is determined by the judge but are normally required at between 10 and 15 days after each each application and order. A.R.S § 13-3010(K); 18 U.S. Code § 2518(6)
6. Termination. Interception of calls via a wiretap can last no longer than 30 days. Furthermore, once the investigating body has obtained the information sought in the application the wire must be terminated. If instead, during the interception period, evidence is obtained that leads to further investigation, law enforcement can apply for an extension. Police may apply for an unlimited number of extensions provided new evidence is being produced.
7. Sealing. Within ten days after the termination of the authorized interception, the recordings shall be made available to the judge who issued the order and shall be sealed under the judge’s directions. Failure to seal evidence requires a “satisfactory explanation” in order for the evidence to be used. While extensions may be granted, each order’s evidence should be sealed in order to comply with state and federal statutes. A.R.S § 13-3010(H).
Cell Phone Surveillance vs Wiretap Evidence
Cell phone surveillance differs from a wiretap or wiretapping in that cell phone surveillance consists of cell detail records. Both require probable cause and a warrant but cell phone surveillance includes preservation of your call history and text history and can also provide evidence of your general location on a specific date and time. However, a title 3 wiretap is used to intercept and record actual live calls, texts or emails.
Information from Cell Towers
In the midst of a criminal investigation, law enforcement commonly obtains warrants from a cell phone service provider for a specific phone number in an effort to locate a suspect’s location and call and text history. The location of a person is obtained by reviewing the data your cell phone sends and receives from the cell phone tower that services the area in the location of the phone on a specific date and time.
This information is commonly obtained after a crime has been committed. For instance, at a murder scene, police may have a suspect and obtain a warrant in attempt to place the suspect’s phone near the scene of the crime. Police can also obtain warrants after a crime has been committed to determine the location of all phones near a particular cell tower. Using this dragnet approach, police can obtain a warrant to detail all phones that were near a specific cell tower on a specific date and time to develop a suspect list.
In the midst of an ongoing investigation, police can also obtain a live view of a specific phone number’s call and text history as well as application information (social media use). Known as a pen registry and trap and trace, this information allows police to track a specific phone and view in real time the call and text history. This information is often used for probable cause prior to obtaining an official wiretap.
The cell detail records obtained from cell phone providers will not include the content of a call or text message but will only give the date, time, location of the device and the phone numbers communicating with one another. In order intercept a specific message or call, police must obtain a wiretap.
Information from a Physical Phone
Cell phone surveillance can also be obtained through an examination of a physical cell phone. During questioning or after an arrest, police will often ask that you consent to a search of your phone. If your phone has no password police sometimes open your phone and browse the data \ including locational information, calls and text messages.
If you phone has a fingerprint lock or facial recognition to unlock the device, police may hold the phone to your face of place your finger on the phone in order to unlock the device. This practice is normally found to be constitutional as you have no right privacy concerning your fingerprints or facial identity. If instead, you have a numeric password, you have a fifth amendment right to refrain from speaking and providing police your password.
If you decline to allow police to search your cell phone they may obtain a warrant and use a software to extract the data from your phone. The software most commonly used is called cellebrite software. This software allows forensic technicians to extract the data from your phone. Information which can be extracted using cellebrite software includes:
- Phone calls (numbers only);
- Text messages (numbers and content);
- Location information;
- Pictures with geolocation data;
- Social Media information (including messaging).
Defenses in Wiretap Cases
As is the case with all criminal proceeding, wiretap cases have common defenses that a trained wiretap lawyer should utilize. These defenses commonly include:
- Unreliable Investigation and Evidence. This involves attacking the quality of the police’s investigation and the reliability of the evidence used against you. Your attorney will help you decide whether an independent defense expert should be hired to evaluate and fight the prosecution’s evidence.
- Mistaken Identity. Mistaken identity can take many forms. However, if the prosecution names you as the defendant based on eyewitness identification, then you will want to look into attacking the eyewitness’s testimony. Eyewitness testimony has been shown to be one of the most unreliable types of evidence. Other times a suggestive photo lineup can be used to identify you which leads to mistaken identity issues.
- Mere Presence. If you were just present when a crime was being committed, even if you knew that a crime was being committed, then you should raise a mere presence defense. If you were merely present at the crime scene, then you did not have any criminal intent and did not take part in the crime.
- Alibi. An alibi defense is when you have evidence that you were somewhere else when the crime took place.
However, in addition to the defenses raised above, wiretap cases have other possible areas of attack. Because wiretapping cases require strict compliance with the wiretap warrant requirements, if law enforcement commits even the smallest mistake, the entire wire can be jeopardized. Examples of defenses specific to wiretap cases include:
- Challenging Wiretap Applications. Unconstitutionally overbroad applications or applications which are lacking in particularity may be challenged. Successful challenges concerning strict statutory compliance with the wiretap application or Constitutional violations can result in dismissal of the case.
- Attacking Exhausting Requirements. If it is discovered that law enforcement failed to exhaust all other avenues of investigation prior to submitting a wiretap application, then the entire wire can be found to be invalid. Invalid wire tap applications will result in suppression of the recorded evidence obtained.
- Reviewing Minimization Mandates. Law enforcement must stop listening, or minimize certain calls. If the evidence against a person resulted from a call that should have been minimized then the evidence can be suppressed and cannot be used against them.
- Examining Judicial Sealing Obligations. A requirement to the wiretap statute is that evidence obtained must be sealed at the end of the order’s timeframe. The sealing of evidence ensures that law enforcement cannot go back and tamper with previously obtained evidence. Failing to have the recordings sealed in timely manner (10 days) can result in suppression of the recordings and dismissal of the case.
- Challenges to Co-conspirator Statements. Known James hearings because they derive from a Supreme Court case called U.S. v James, theses are special hearings that take place prior to a jury trial. Used effectively, the defense may limit the number of recorded statements that can be used against a client if there is a finding that the statements where not made in furtherance of the crime.
Our Success in Wiretap Cases
At Feldman & Royle, we’ve successfully defended many clients who had cases brought against them as a result of wiretapping evidence. Below are just a couple of examples of previous clients that we have successful defended.
State v. J.P.
Attorneys with Feldman & Royle represented one of the targets of a 30-person incitement after an extensive drug trafficking investigation. Evidence obtained through a wiretap alleged our client was the head of a distribution ring with evidence of the sale of more than 400 lbs. of methamphetamine over a 90-day period. To make matter worse, our client had prior felony convictions for previous drug sales.
Despite being exposed to substantial prison time, we were successful in challenging the validity of the sealing documents used during the wiretap. As a result of our defense investigation and substantive motions filed, our client was granted probation despite early plea agreements that called for a long prison sentence.
State v. B.E.
Our client was indicted along with the target, who was her husband, and 17 other co-defendants. The bulk of the evidence against our client was obtained using a wiretap. Our client was facing a mandatory prison sentence, if convicted. Adding to her risks, our client was a permanent legal resident and a criminal conviction for a drug crime would inevitably lead to her deportation.
However, in reviewing the evidence against our client, attorneys with Feldman & Royle discovered that the phone calls which made up the bulk of the evidence against her were in violation of mandatory minimization requirements. In order to avoid jeopardizing the validity of the entire wiretap, the prosecution allowed our client to plead guilty to a low-level misdemeanor with a stipulation to probation. Our client successfully completed probation and obtained citizenship in the United States.
At Feldman Royle, we’ve helped many clients reduce, and even dismiss, their sentences by challenging wiretap evidence obtained through noncompliant wiretapping procedures. If the government illegally violated your privacy in order to collect evidence and build a case against you, that evidence shouldn’t be used to determine your fate or the fate of a loved one. To discuss your case, contact us today for a confidential consultation.
Frequently Asked Questions (FAQs)
What is the wiretap approval process?
- While state and federal laws prescribe the method of obtaining judicial approval of a wiretap application, the truth is that the process in some cases is little more than a rubber stamp approval of an application by law enforcement. As a result, wiretaps are often obtained in situations where less intrusive methods of gathering information are available. Wiretap orders are also regularly issued where the scope of the wiretap is overly broad, thereby infringing on the rights of a host of people who are not even suspects or the object of a criminal investigation.
Are wiretap applications ever denied by judges?
- Unfortunately, the answer to this question is that as a general matter, wiretap applications are approved in 99% or more of the cases in which they are sought. No wonder law enforcement officials consider wiretaps to be their ace in the hole.
How long does a wiretap last?
- This is an issue that depends upon the circumstances of each case. Most wiretaps, however, remain in effect for longer than you would expect. Indeed, the average length of a wiretap is more than five weeks. In addition, a single wiretap order could result in thousands of intercepted communications.
Which devices are targeted in a wiretap?
- A wiretap can involve any electronic or wire communication, but more than 95% of the applications seek to target cell phones and other portable communication devices.