‘Application for Warrant’ The Investigation for Fair Trail Act 2013

Chap. 2

Application for Warrant

4. Notification of authorized officer. The applicant shall before making an application, first notify an appropriate officer not below the BPS-20 or equivalent, duly authorized by him to represent the said applicant for making an application under this Act.

5. Record of suspicious conduct. – In case where any official of an applicant has reasons to believe that any person is likely to be associated with or is beginning to get associated with any act leading to a schedule offences, or is in the process of beginning to plan such an act, or is including in such a conduct or activity that arises suspicion that he is likely to plan or attempt to commit any schedule offences and, therefore, it may be necessary to obtain warrant of surveillance or interception, he shall prepare a report thereof with supporting material, wherever possible.

Disclosing investigative Information:

Police department’s cloning and monitoring of alphanumeric pager issued to police officer (pager was provided to city by telephone company) for 10-14 days to confirm or disprove suspicions that officer was disclosing confidential investigative information to drug traffickers is not covered by the “ordinary course of business” and “law enforcement” exemptions provided by 18 U.S.C. 2510(5)(a). The court did not analyze the “business use” and “law enforcement” exemptions separately. “Although we do not find that the statute requires actual consent for the exception to apply, we do hold that monitoring in the ordinary course of business requires notice

to the person or persons being monitored. Because it is undisputed here that plaintiff was not given any notice that his pager was being monitored, the exceptions cannot apply.” The court also stated that the business use and law enforcement exceptions both require that the equipment used be provided by a communications carrier as part of the communications network. (A careful reading of 18 U.S.C. 2510 would not yield such a requirement for the law enforcement exception under 2510(5)(a)(ii)). The dissenting opinion noted this fact and also criticized the majority’s holding that notice is a requirement of the ordinary course of business exception.) Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001). See also U.S. v. Friedman, 300 F.3d 111 (2d Cir. 2002)(agreeing with Adams that notice sufficient to support a finding of implied consent under 2511(2)(c) is not required for a recording to fall within the “ordinary course” exception, and assuming arguendo that some notice is required, holding that the defendant’s jailhouse notice was sufficient for the application of the “ordinary course” exception and to dispose of Fourth Amendment claims related to his taped calls).  College’s warrantless use of CCTV to monitor locker area of storage room for thefts and weapons was constitutional. There was no reasonable expectation of privacy in an unenclosed locker area located on a storage room wall within view of numerous persons who had unfettered access to the unlocked storage room. Even if there was a reasonable expectation of privacy, the warrantless video surveillance was reasonable under the Fourth Amendment because employer was investigating work-related misconduct. Citing O’Connor v. Ortega, 480 U.S. 709 (1987) (balancing test for reasonableness of searches conducted to investigate work-related misconduct; whether an employee has a reasonable expectation of privacy must be addressed on a case-bycase basis) and U.S. v. Taketa, 923 F.2d 665 (9th Cir. 1991) (warrant required to conduct criminal investigation through video surveillance of office reserved for employee’s exclusive use). Thompson v. Johnson County Community College, 930 F. Supp. 501 (D. Kan. 1996). See also Gross v. Taylor, 1997 WL 535872 (E.D. Pa. 8/5/97) (police officers on duty in patrol car do not have reasonable expectation of privacy or non-interception). See also U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000) (warrantless search of CIA computer network for Internet use in violation of office policy) (quoting O’Connor: “Ordinarily, a search of an employee’s office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct”); see also U.S. v. Slanina, 283 F.3d 670 (5th Cir. 2002)(applying O’Connor to uphold warrantless search of government employee’s computer equipment for work-related misconduct even though the search might also yield evidence of criminal acts and the supervisor conducting the search is a law enforcement officer; Simons and Taketa distinguished); see also Haynes v. Office of the Attorney General, 298 F. Supp. 2d 1154 (D. Kan. 2003)(preliminary injunction issued to protect former assistant attorney general’s private information on office computer).

Where the wiretap order concurrently authorized investigation of two other offenses specifically listed in § 2516. However, this case presents no opportunity to determine whether a wiretap order including only 18 U.S.C. § 371, without additional explicitly enumerated offenses, would survive appellate review.” Mere references to non-enumerated offenses will not invalidate wiretap application documents or orders. “[T]he incorrect description of suspected nonenumerated offenses as enumerated in application materials and findings in a wiretap order does not invalidate that order where the authorization to wiretap itself was limited to only enumerated offenses. The question of whether an order authorizing wiretapping in investigation of both enumerated and non-enumerated offenses would survive review is saved for another day.” U.S. v. Smart, 278 F.3d 1168 (10th Cir. 2002).

Most of the assertions would be true in any drug investigation..The only reason given that was specific to this particular investigation was that the suspects kept the trash container for the residence on the front porch, making it impossible for agents to search the garbage. Although Some of these assertions might appear boilerplate, the fact that drug investigations suffer from common investigatory problems does not make these problems less vexing.” The affidavit set forth sufficient detail why traditional techniques would not prove successful in the circumstances of the instant case. U.S. v. Milton, 153 F.3d 891 (8th Cir. 1998); U.S. v. Thompson, 210 F.3d 855 (8th Cir. 2000).

The government has the power and discretion to make these judgments about which crimes to investigate and how long to pursue the investigation . . . The law does not require the government to end its investigation once it finds sufficient evidence to convict one or two members of a suspected conspiracy.” U.S. v. Greer, 2004 U.S. Dist. LEXIS 20253 (S.D. Ind.).

The Seventh Circuit (Judge Posner writing for the panel), holds that the explanation offered for a ten day sealing delay by two AUSA’s (no clear recollection three years after the fact, but each said she had thought the other would take care of the matter) was satisfactory under 2518(8)(a).“Ten days is too long to be thought ‘immediate’. There was neglect, but it was harmless and therefore, while it was not justifiable, it was excusable. . . [A]n explanation is satisfactory if, in the circumstances, it dispels any reasonable suspicion of tampering. The believability of the explanation is critical, and depends in part simply on its plausibility: the more plausible, the more believable. The length of the delay is relevant as well, and also the nature of the crime, including its notoriety or the notoriety of the defendant, and thus the pressure on the government to obtain a conviction; and also the importance of the tapes to the government’s case.” Posner suggests that it would have been helpful had the assistant U.S. attorneys memorialized the circumstances giving rise to the delay. The Court treats the satisfactoriness determination as fact-specific and therefore appropriately treated for purposes of appellate review as a factual rather legal determination. U.S. v. Coney, 407 F.3d 871 (7th Cir. 2005).

Police Department’s use of “clone pagers” to intercept numeric transmissions to suspect’s digital display pagers pursuant to state court “pen register” order cannot be considered the use of a “pen register” within the meaning of the ECPA, but was an unauthorized interception of electronic communications under 18 U.S.C. 2511. Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995).

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