By sj tubrazy
Issuance of Warrant
9. Judge to issue warrant in Chambers.- (1) the warrant of surveillance or interception shall be issued b the judge in chambers.
(2) The authorized officer shall personally present the application in chambers of the concerned judge who after considering the same shall pass appropriate orders under section 11. The file on which the orders shall be passed, shall be returned to the authorized officer for safe – custody who shall be duty bound to bring the same on any subsequent related hearings. The judge shall cause to maintained a registered as provided for in section 3(j).
On 2/14/92, Judge Edward Korman (E.D.N.Y.) issued a memorandum and order referring Title III applications to a United States magistrate judge pursuant to authority contained in the Federal Magistrates Act of 1968 (28 U.S.C. §§ 631-639). In re U.S. Attorney, 784 F. Supp. 1019 (E.D.N.Y. 1992). The government’s mandamus petition was denied by the Second Circuit on 3/23/93 because no Title III application had been referred to a magistrate. On 6/10/93, Judge Korman referred a Title III application to a magistrate judge. On 11/23/93, in a 2-1 decision, the Second Circuit granted mandamus and ordered Judge Korman not to delegate review of Title IIIapplications to federal magistrate judges and to review personally an application then pending. In re U.S.A., 10 F.3d 931 (2d Cir. 1993). Notwithstanding the “substantial arguments” of Judge Korman, two judges on the panel were “unwilling, in the absence of explicit statutory direction,
to expansively interpret Title III’s definition of a ‘judge of competent jurisdiction,’ 18 U.S.C. § 2510(9), to include magistrate judges.
Judge’s Preliminary Review of Application/Affidavit
“As long as no action has been taken on the application while the affidavit is in an unsigned condition, the Court cannot find that the judicial economy served by a preliminary review of the materials is improper.” U.S. v. Borrayo-Gutierrez, 119 F. Supp.2d 1168 (D. Colo. 2000). See
also U.S. v. Small, 229 F. Supp.2d 1166 (D. Col. 2002)(citing Borrayo)(Judge’s preliminary review of “courtesy copies” of TIII applications and affidavits does not affect the legality of her
decision to grant the Government’s request for a Title III order where before signing the order, the judge determined that the final application submitted to her was authorized by an appropriately designated official and the judge determined from the AUSA and agent what, if any, changes had been made to the “courtesy copy”).
Location of Authorizing Judge
The authorizing judge does not have to be physically present in his district when he signs the order. U.S. v. Van Horn, 789 F.2d 1492 (11th Cir. 1986); U.S. v. Strother, 578 F.2d 397 (D.C. Cir. 1978); U.S. v. Gomez, 495 F. Supp. 992 (S.D.N.Y. 1979).
Evidence from emergency wiretaps suppressed because Government did not demonstrate immediate danger of death or serious injury, such that there was not time, with due diligence, to obtain a court order. U.S. v. Crouch, 666 F. Supp. 1414 (N.D. Cal. 1987). Kidnap and extortion in progress warranted emergency intercept. Nabozny v. Marshall, 781 F.2d 83 (6th Cir. 1986). “Congress had in mind by the use of the term ’emergency’ an important event, limited in duration, which was likely to occur before a warrant could be obtained.” U.S. v. Capra, 501 F.2d 267 (2d Cir. 1974).
In the first reported opinion concerning Title III surveillance to locate a fugitive, § 2516(1)(l), the United States District Court in Maryland, in U.S. v. McKinney, 785 F. Supp. 1214 (D. Md. 1992) held: 18 U.S.C. 2516(1)(l) does not refer to a separate crime, but merely authorizes electronic surveillance where the government seeks to locate one who has obtained the status of a “fugitive from justice,” by fleeing prosecution for an enumerated offense.