‘Duration of warrant of interception’ The Investigation for Fair Trail Act 2013

‘Duration of warrant of interception’ The Investigation for Fair Trail Act 2013

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SJ TUBRAZY

14. Duration of warrant of interception. – Warrant shall be issued for a period  not longer than sixty days.

Provided that it may be reissued after said period by the judge upon the request of the authorized officer of the applicant , if, after examining the gist of intelligence and evidence collected by the applicant thus for, he is satisfied that as a consequence of issuance of warrant, suitable progress is being made and there is sound justification for re-issuance of warrant for another period not exceeding sixty days. Therefore, the same consideration shall apply for every request for reissue of warrant for further period not exceeding sixty days at a time.

Congress has chosen to guard against the possibility of indefinite wiretaps not by setting a specific limit on the duration of electronic surveillance, but by requiring a statement of the period of time for interception . . . and by requiring applications for wiretap extensions to meet the same requirements as initial applications.” U.S. v. Hoang Ai Le, 255 F. Supp.2d 1132 (E.D. Cal. 2003.

15. Sanction in case of arbitrary request for warrant. – where the judge is of the view that any request for the issuance of warrant is based on insufficient or irrelevant considerations or it has resulted in undue and inappropriate interfere in the privacy of any person or that the material and information collected or received within the period mentioned in section 14 demonstrates that the officer concerned did not apply himself fully while making an application for the warrant then he may recommend departmental action against the officer concerned.

Plaintiffs (convicted narcotics dealers) brought a §1983 suit against the LAPD and the office of the Los Angeles District Attorney because those law enforcement officials intentionally concealed from the Plaintiffs (convicted narcotics dealers) the existence of state wiretaps that brought the Plaintiffs to the attention of law enforcement officials. The Plaintiffs were neither identified in the wiretap order nor under investigation at the time of the wiretap. The wiretap was the sole source of the authorities’ awareness of the Plaintiffs’ illicit activities. The Plaintiffs were not informed of the wiretaps until long after their indictments, convictions and confinement. The “hand off” procedure was designed to allow law enforcement officials to make use of the incriminating evidence derived from the wiretap, while at the same time, preventing the defendants from ever learning of the existence of the wiretap. Information from the wiretap is transmitted to a separate police unit, without expressly stating that the information comes from a wiretap. The receiving unit is told to “investigate.” The receiving unit then develops “independent” probable cause upon which an arrest can be made or a search warrant obtained. (“Defendants seem to believe that the ‘hand off’ creates a hermetic seal between the wiretap and the post-“hand off” investigation. The Court disagrees, believing instead that the ‘hand off’ creates an iron chain that inextricably links the two phases together.”) The subject is then prosecuted without ever knowing that he was subjected to the wiretap surveillance. No mention is made of the wiretap in any police reports, discovery disclosures, or by testifying detectives who belong to the receiving unit. “The Court finds that the wiretapping “hand off” procedure, rather deliberately and openly, conflicts with Title III’s notice safeguard [18 U.S.C. 2518(8)(d)]. In light of Title III’s inextricable intertwinement with the Fourth Amendment . . .the wiretapping “hand off” procedure cannot withstand constitutional scrutiny.” The California State wiretap statute inventory notice provision was violated by the government because it failed to disclose information to the court that would have caused the judge to order inventory notice for Plaintiffs. See analogous reasoning in the federal context, U.S. v. Chun, 503 F.2d 533 (9th Cir. 1974)(“the unnamed but overheard are also entitled to Fourth Amendment protection. Specifically, we believe that when the government intends to use the contents of an interception or evidence derived therefrom, to obtain an indictment against an unnamed but overheard individual, such individual must be given notice promptly after the decision to obtain an indictment has been made). The Court grants the Plaintiffs’ motion for summary judgment with respect to their §1983 declaratory judgment claim for the per se unconstitutionality of the wiretapping “hand off” procedure.” The “hand off” procedure violates both the right to be free from unreasonable searches and seizures (concealing the existence of the wiretap eliminates any challenge to the legal validity of the warrant) and the right to due process of law (under the Brady exculpatory evidence doctrine a criminal defendant has a right to discover the existence of an illegal search). The criminal defendant has a constitutional right to know that he has been subjected to a Fourth Amendment search from which the investigation against him originally arose. “[T]he Court believes that (1) the preservation of the substance of the Fourth Amendment, (2) an analysis of the specified safeguards of the Federal Wiretapping Statute, and (3) a proper understanding of the notion of “independence” all promote a common holding, namely, the per se unconstitutionality of the wiretapping ‘hand off ’ procedure.” Because this is an issue of first impression, the law enforcement officials are entitled to qualified immunity on this claim. Whitaker v. Garcetti, 291 F. Supp.2d 1132 (C.D. Cal. 2003).

 

U.S. v. Cleveland, 1997 WL 178644 (E.D. La. 4/7/97) and U.S. v. Cleveland, 964 F. Supp. 1073 (E.D. La. 1997) (suppression denied for unsealing of search warrant affidavits containing Title III interceptions): Fleming v. U.S., 547 F.2d 872 (5th Cir. 1977) precludes suppression of improperly disclosed wiretap interceptions. Other circuits have applied Fleming in other contexts, including that of improper disclosures to the press. See U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) (sole remedy for violations of 18 U.S.C. s 2517 is civil action under 18 U.S.C. 2520); Dickens v. U.S., 671 F.2d 969 (6th Cir. 1982) (finding suppression remedy appropriate only for wiretap evidence that has been illegally seized and not for evidence that has merely been improperly disclosed); U.S. v. Horton, 601 F.2d 319 (7th Cir. 1979) (main thrust of 18 U.S.C. 2515 is to exclude evidence illegally seized, not evidence the disclosure of which was in violation of chapter 119 of the United States Code); U.S. v. Iannelli, 477 F.2d 999 (3d Cir. 1973) (suppression remedy specified in 18 U.S.C. 2518(10) applies to unlawful interceptions, whereas a civil remedy applies to unlawful disclosures); U.S. v. Dorfman, 532 F. Supp. 1118 (N.D. Ill. 1981) (refusing to apply remedy of suppression as a matter of law when defendants alleged that the government disclosed material obtained from wiretaps and other electronic surveillance to the press in violation of 18 U.S.C. 2517).

The Third Circuit held that the district court should have granted a Rule 17(c) motion filed by illegal wiretap victims who intervened to quash a grand jury subpoena duces tecum the enforcement of which would have caused the illegal interceptor to produce the illegal tapes in violation of Sections 2515 and 2511(1)(c) of Title 18. The Third Circuit said it does not believe that Congress intended the grand jury and the courts to use their respective powers to compel violations of Title III. The Court strongly rejected the Sixth Circuit’s “clean hands” holding in Murdock: “Given the unambiguous language of § Section 2515, compliance with the subpoena would be a violation of an express congressional prohibition. Were we to allow a compelled violation of this federal law, the hands of the grand jury, the district court, and ourselves would all become sullied . . . . In short, it is incomprehensible that Congress intended the admissibility of unlawfully intercepted communications to turn solely on whether the government participated in the interceptions . . . . We have no authority to restrike the balance [law enforcement/privacy] that Congress has already struck by placing in the statute a clean hands exception that Congress

did not.” In re Grand Jury, 111 F.3d 1066 (3d Cir. 1997) (footnote cites conflicting conclusions in U.S. v. Murdock, 63 F.3d 1391 (6th Cir. 1995) (clean hands exception) and U.S. v. Vest, 813 F.2d 477 (1st Cir. 1987)

 

 

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