‘Execution of Warrants’ The Investigation for Fair Trail Act 2013

 

‘Execution of Warrants’ The Investigation for Fair Trail Act 2013

 

By SJ TUBRAZY

 

Section. 16. Authorization under the warrant. – (1) The warrant of surveillance or interception to be issued by the judge may authorized and allow the lawful doing of any or all of the following acts, namely;

(a) Interception and recording of telephonic communication of the suspect with any person;

(b) video recording of any person, persons, premises,  event, situation etc;

(c)  interception or recording or obtaining of any electronic transaction including but not limited to emails, SMS etc.

(d) interception and taking over of any equipment used in the communication in respect of which the warrant is issued, including but not limited to telephone, cell phone, mobile sims, electronic database belonging to the person in respect of whom the warrant has been issued:

Provided that the judge shall authorized take-over of equipment only where the material or statement of the authorized officer discloses a substantial threat or possibility of an attempt to commit a schedule offences.

(e) collection of evidence through any modern devices in addition to the ones mentioned above;

(f) use f human intelligence;

(g) cover surveillance and property interference; and

(h) access to any information or data in any form related to a transaction, communication or its content.

(2) Any other form of surveillance or interception that the Federal Government may notify in this behalf.

 We assume without deciding that an additional warrant in compliance with section 2703 would have been required for the law enforcement officials in the instant case to gain access to the contents of the seized e-mail.” Section 2703 does not appear to address whether concomitant and incidental seizure of e-mail and software stored in computer hardware seized under warrant as

instrumentality of crime of distribution of obscenity, standing alone, is a violation of the ECPA. Nevertheless, the officers qualified for the statutory good faith defense of section 2707(e) for reliance on the search warrant authorizing the seizure of the computer hardware. Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997).

An interception violates the statute if the authorization to make it was obtained by material false statements, and “we cannot think of any reason why the damages remedy (under 2520) would be unavailable.” Apampa v. Layng, 157 F.3d 1103 (7th Cir. 1998).

During the government’s investigation of a kidnapping for ransom, a telecommunications service provider provided records to the government without a court order. The government’s application for a nunc pro tunc 2703(d) order retroactively authorizing the disclosure of the records to the government was denied because there is no provision for the issuance of such an order, and furthermore, such an order would not provide the immunity set forth in 18 U.S.C. 2703(e) because the disclosure when made was not authorized by a court order. However, a kidnapping for ransom is the type of emergency situation which involves “immediate danger of

death or serious physical injury to a person. . .” Thus, a provider who discloses records or other information pursuant to the statutory authorization in 18 U.S.C. 2702(c)(4) (added by the Patriot Act of 2001) in emergency circumstances has the same protection from lawsuits as a provider who discloses the records pursuant to a court order. The Homeland Security Act of 2002 added an authorization (18 U.S.C. 2702(b)(8)) to disclose the contents of telecommunications in the same circumstances. In the Matter of the Application of the United States for a Nunc Pro Tunc Order for Disclosure of Telecommunications Records, 352 F. Supp.2d 45 (D. Mass. 2005). The state law cannot preempt the federal unless the federal act itself sanctions the application of state standards. Warrantless interceptions where one party consents are specifically permitted under 18 U.S.C. 2511(2)(c) and (d). Where one party consented and no state court order or warrant was obtained, the requirement of 18 U.S.C. 2516(2) that the applicable state law must be complied with, does not come into play. It is only wiretapping by state officers under § 2516(2) which requires further authorization by state statute. State law is simply irrelevant in a federalprosecution if the investigating officers, even state officers acting alone, are not acting under the authorization of a state court. The legislative intent that federal law is to prevail in case of conflict is further indicated by 18 U.S.C. 2520, which provides that a good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under Chapter 119 “or under any other law.” U.S. v. Glasco, 917 F.2d 797 (4th Cir. 1990); U.S. v. Masko, 2000 U.S. App. LEXIS 19057 (4th Cir.)(unpublished)(following Glasco); U.S. v. D’Antoni, 874 F.2d 1214 (7th Cir. 1989); U.S. v. McNulty, 729 F.2d 1243 (10th Cir. 1984) (en banc); U.S. v. Nelligan, 573 F.2d 251 (5th Cir. 1978); U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996); U.S. v. Mathis, 96 F.3d 1577 (11th Cir. 1996)

A sneak and peek warrant to examine defendant’s incoming and outgoing mail at the MCC was granted pursuant to Villegas and related cases, and the delay notice was limited to the maximum period of seven days specified in Villegas. The government mistakenly failed to request an extension of the original order when it applied eight times (before eight different magistrate

judges) to obtain additional seven day delays of notice. The lack of authorization to continue the search cannot have operated to the defendant’s prejudice because each application for delay of notice contained enough evidence to have justified continued authorization. This case is a good candidate for not applying the exclusionary rule because the government appears to have believed that it was complying with the requirements of the Fourth Amendment, and did comply with the important requirement of presenting evidence of probable cause to a neutral magistrate. “Mistakes were made, as the morally anemic like to say; but that is all they were — mistakes. The evidence should not be suppressed merely because, in Judge Cardozo’s craftily quaint phrase, ‘the constable has blundered.’” To remedy excessive copying of the defendant’s mail, the court required the government to forward to the court for sealing all correspondence copied other than those letters proffered to the magistrate judges, and to keep no additional copies of any such correspondence. U.S. v. Heatley, 41 F. Supp.2d 284 (S.D.N.Y. 1999).

 

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