‘Method of executing the warrant’ The Investigation for Fair Trail Act 2013

 

Under Arrest

‘Method of executing the warrant’ The Investigation for Fair Trail Act 2013

By

SJ TUBRAZY

Section. 17. Method of executing the warrant.- (1) where the warrant is issued, the applicant in case of the warrant of interception, shall approach the designated agency or body, for serving the same on service provider in the manner provider for in Schdule III and the designated agency or body shall duly serve the said warrant on the service provider or give effect to it within seven dyas.

(2) The service provider shall not extend technical facilityies of interception to any person or orginaization other than the Designated Agency or body.

(3) Where nature of surveillance or interception is such it is not necessary to serve the warrant to anyone, then the same shall not be served and his issuance also shall be sufficient basis to collect evidence.

(4) While executing the warrant each applicant shall act within the mandate provided for it under law.

Execution

Order to Service Provider Under 2518(4) On November 18, 2003, the Ninth Circuit held (2-1 panel split) that Section 2518(4) assistance orders issued to “The Company” (ATX, a competitor of On Star) in aid of Title III oral communications intercept orders “should not have issued” because they violated the “a minimum of interference” requirement of 2518(4). We hold that whatever the precise limits Congress intended with its “a minimum of interference” limitation, the level of interference with the System worked by the FBI’s surveillance is not “a minimum of interference with the services” that the Company “accords the person whose communications are to be intercepted.” § 2518(4). Because, given the setup of the System, the surveillance could not be completed with “a minimum of interference,” the district court erred in ordering the Company’s assistance.” Company v. U.S., 349 F.3d 1132 (9th Cir. 2003).

Time Computation

18 U.S.C. 2518(5) provides that no order may authorize a period of surveillance longer than thirty days. “Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered.” The Office of Enforcement Operations has suggested that in light of the fact that the text of 18 U.S.C. 2518(5) (“day on which”; “ten days after the order is entered”) does not precisely describe the exact point (clock time or calendar day) from which the interception period is computed, computation of the authorized period of interception should take into account the date and time of the judge’s signature and the date and time of the installation and activation of the monitoring equipment. However, note should be made of recent judicial holdings regarding Title III time computation.

On August 17, 2000, in U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000), regarding the computation of the Title III statutory time period, a Seventh Circuit panel held: According to the statute, the 30-day period for the extension began to run on September 15, 1994– the day of the first interception. We think it most sensible to look to Fed. R. Crim. P. 45(a) for guidance on the way the statutory time period should be computed. See, e.g., United States v. Sklaroff, 323 F. Supp. 296, 317 (S.D. Fla. 1971). Under that approach, the first day of the 30-day period is not included but the last is, and the order in this case expired on October 15. Although one district court has chosen not to apply Fed. R. Crim. P. 45(a) to the calculation of the 30-day period, see United States v. Gangi, 33 F. Supp. 2d 303, 309 (S.D. N.Y. 1999) (not applying Fed. R. Crim. P. 45(a) and including both first and last day in calculation of 30-day period), the Third Circuit interpreted the system in the same way we have done. See United States v. Carson, 969 F.2d 1480, 1485 (3d Cir. 1992). We see no reason to create a circuit conflict over this kind of mechanical determination, especially when the general methodology of the Rule is familiar (though we note that we are not applying Rule 45 directly, and thus that we are not necessarily incorporating all of its details such as the way to count weekends and holidays). [On January 17, 2001, in U.S. v. Wilson, 237 F.3d 827 (7th Cir. 2001), the Seventh Circuit reiterated its holding in U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000)] “In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included.” Fed. R. Crim. P. 45. Applied to wiretap applications in U.S. v. Villegas, 1993 WL 535013 (S.D.N.Y.); See also U.S. v. Sklaroff, 323 F. Supp. 296 (S.D. Fla. 1971).

FRCP Rule 45 applies to time periods prescribed by statute. U.S. v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986). In computing the thirty day period, the day of authorization is not included. In calculating the length of a sealing delay, the date on which the authorization ends is not included. U.S. v. Gerena, 695 F. Supp. 649, 658 (D. Conn. 1988). For purposes of Title III, a “day” refers to a calendar day and not an increment of 24 hours, at least where the order does not provide otherwise. The  interceptions made on the 31st day under two orders are therefore suppressed. U.S. v. Gangi, 33 F. Supp.2d 303 (S.D.N.Y. 1999); government’s motion for reconsideration denied, U.S. v. Gangi, 1999 U.S. Dist. LEXIS 1250

The fact that the Office of Enforcement Operations interprets a “day” to mean a “24-hour period” is hardly dispositive, as OEO is a branch of the  Department of Justice”). Note that no reference is made to FRCP Rule 45 in the Gangi cases. In another case, the government argued that, because interception pursuant to a wiretap order commenced on November 8 at approximately 5:36 p.m., the order did not expire until December 8 at 5:36 p.m., and it therefore complied by ceasing interception at 4:31 p.m. on December 8. However, the District Court held that by the terms of the order, the period began to run on the date–not at the time–interception began. Accordingly, the period commenced on, and included,  November 8, and expired at the end of the thirtieth day, i.e., December 7. Because no extension was granted until December 9, any communications intercepted on December 8 were unauthorized and must be suppressed. U.S. v. Pichardo, 1999 WL 649020 (S.D.N.Y. 8/25/99).

Although the government intended to begin the wiretap on April 3, and government records show that between April 3 and April 9, some calls were identified merely as to date and time but the agents made no recordings or summaries as to the actual contents of those calls, “interception” did not begin until April 9, when the resolution of technical difficulties with the service provider allowed recording of conversations to begin.18 U.S.C. 2510(4), 2510(8) and 2518(5). U.S. v. Lazu-Rivera, 363 F. Supp.2d 30 (D. P.R. 2005).

Surreptitious Entry

The Fourth Amendment does not prohibit per se a covert entry to install otherwise legal electronic bugging equipment; Congress meant to authorize courts in certain circumstances to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances; and the Fourth Amendment does not require that a Title III order include a specific authorization to enter covertly the premises described in the order. Dalia v. U.S., 441 U.S. 238 (1979).

DOJ policy requires that application and order include surreptitious entry language.] It does not matter that the Title III issuing judge was not told that listening devices had already been installed (microphones hidden in lamps placed by an informant): We may suppose (without deciding) that when seeking authorization to listen to conversations the agents should have told the judge that the lamps were already in place, but this does not matter. It is not conceivable that the judge would have said anything like: “Because you used an informant to install one microphone and tricked O’Neill into bugging his own home, I will deny you permission to listen even though you have established probable cause to believe that the bugs will reveal evidence of crime.” Cf. Franks v. Delaware, 438 U.S. 154 (1978). Perhaps the judge would not have authorized clandestine entry had he realized that bugs already were in place. Prosecutors say that they sought authority to enter in case the lamps should be unplugged or not transmit signals strong enough to be recorded; the judge might have required prosecutors to show one of these problems before authorizing an entry. But in the event no entry was made. So there is no causal chain from the omission to any evdence used against the defendants, and no basis for suppression.  U.S. v. Warneke, 310 F.3d 542 (7th Cir. 2002).

Microphone Installation by Cooperating Individual

Informant’s installation of hidden microphones in the defendants’ homes (in lamps) and agents’ testing of microphone signal (no communications intercepted) before the government obtained a Title III warrant did not violate the Fourth Amendment or Title III.

The installation of the bugs did not violate the fourth amendment: the Constitution does not protect criminals against the risk that their associates will assist the police. See Hoffa v. United States, 385 U.S. 293, 300-03, 310-12, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966). Placement of these microphones was the result of good police work plus luck. . . Agents drove by O’Neill’s residence to find out if this worked; they learned from detecting a carrier signal that it had. Whether this step created a constitutional problem under the holding of United States v. Karo, 468 U.S. 705, 82 L. Ed. 2d 530, 104 S. Ct. 3296 (1984), is not a question we need decide, because no evidence based on the monitored signal was used against O’Neill at trial. What was used was the ensuing conversations, and their interception was authorized by a warrant issued in response to an affidavit that did not mention the monitored signal (or for that matter the fact that the bug-infested lamp was in place already). Because the agents did not intercept (i.e., did not either record or listen to) any communications until after the warrant had issued,   installation of the device at O’Neill’s home (and determination that it was working) did not violate statutory limits on eavesdropping; until interception begins, a bug is nothing but a “tracking device” under 18 U.S.C. § 3117(b). See also 18 U.S.C. § 2510(12) [preceding language reflects an amendment Ordered and reported at 2003 U.S. App. LEXIS 354]. . .We may suppose (without deciding) that when seeking authorization to listen to conversations the agents should have told the judge that the lamps were already in place, but this does not matter. . . Perhaps the judge would not have authorized clandestine entry had he realized that bugs already were in place. Prosecutors say that they sought authority to enter in case the lamps should be unplugged or not transmit signals strong enough to be recorded; the judge might have required prosecutors to show one of these problems before authorizing an entry. U.S. v. Warneke, 310 F.3d 542 (7th Cir. 2002).

Title III oral communications interception order authorized surreptitious entry at the target premises. An informant with access to the target premises installed and maintained listening devices therein under the technical supervision of the government. “[T]he Court does not believe that installation or maintenance of devices are tasks exclusively relegated to federal agents by Title III. As long as the interception has been authorized pursuant to Title III, and any person entering private property for the purpose of installing surveillance devices is authorized to enter the property, either by warrant or otherwise, the Court does not perceive further constitutional or statutory requirements relating to the actual installation of the devices. U.S. v. Gambino, 734 F. Supp. 1084 (S.D.N.Y. 1990)

Attorney-Client Privilege

The crime fraud exception ensures “that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.” U.S. v. Zolin, 491 U.S. 554, 562 (1989). Defendant (criminal defense attorney charged with conspiracy to provide material support and resources to a designated foreign terrorist organization) moved to compel the government to disclose whether it is engaging in any court-authorized electronic surveillance or monitoring of her communications with her counsel or with her clients, pursuant to either Title III or FISA.

Both statutes provide for notice and the opportunity to challenge surveillance after it occurs and before it is used against a defendant. They do not provide for advance notice, however, which would undermine the efficacy of the statutes. While the defendant argues that the possible existence of surveillance interferes with her Sixth Amendment right to the effective assistance of counsel, she cites no authority for the proposition that a bare fear of surveillance, without more, is sufficient to establish a constitutional requirement that the government disclose whether it is engaging in any court authorized surveillance of a criminal defendant under Title III or FISA.

Under the statutes there are protections to minimize intrusions, and the government has represented in this case that if any privileged communications were intercepted, screening devices would be used to ensure that the interceptions were not used against the defendants and, thus, that their Sixth Amendment rights would not be violated. Motion denied. U.S. v. Sattar, 2002 WL 1836755 (S.D.N.Y.).

The law places burden on person claiming privilege to establish all of its essential elements, which are that client must have sought legal advice, advice was sought from attorney acting in his professional capacity, communication between attorney and client was for purpose of seeking legal advice, and communication was made in confidence. U.S. v. Gotti, 771 F. Supp. 535 (E.D.N.Y. 1991); U.S. v. Aparo, 2002 WL 2022329 (E.D.N.Y.)(citing Gotti).

There is no protection under the attorney-client privilege where attorney engages in criminal or personal business activities with a client. U.S. v. Cleveland, 1997 WL 208937 (E.D. La. 4/28/97). Intercepted communications between defendant and his lawyer were not protected by the attorney-client privilege because the defendant was using his lawyer’s services to cover up crimes related to extortion. U.S. v. Edwards, 303 F.3d 606 (5th Cir. 2002). Three years after the Fifth Circuit affirmed his conviction, defendant sought a new trial, Title III information and an evidentiary hearing on the basis of defendant’s speculative assertions that the government recorded privileged conversations that revealed his trial strategy to the prosecution team. The court denied the motions, finding that there was no attorney-client privilege protecting the intercepted communications between the defendant’s attorneys and third parties. U.S. v. Bankston, 2000 WL 1252582 (E.D. La.).

There is no protection under the attorney-client privilege for an attorney intercepted talking with former client on phone about the attorney’s protecting the former client by falsely telling the former client’s drug trafficking associates that the former client had been arrested. This scheme was intended to, and did, keep the former client’s criminal associates from collecting a drug debt from the former client. U.S. v. Johnston, 146 F.3d 785 (10th Cir. 1998); see also U.S. v. Abbit, 1999 WL 1074015 (D. Or.)

The government’s efforts to properly minimize conversations between defendant and an attorney were reasonable: The reviewing agents were instructed not to intercept privileged attorney-client communications. Moreover, the agents were instructed “[i]f at any time during the investigation it is determined that an attorney is participating in an intercepted conversation, do not summarize this conversation in the same log as the rest of the calls. Instead, you will summarize the conversation on a separate system, and immediately notify the Supervising Agent. As soon as it is determined that an attorney is participating in an intercepted conversation involving legal consultation of any kind or discussing legal strategy, turn off the monitor and stop recording. All calls in which an attorney is participating will be reviewed by an attorney that is not participating in this investigation.” In this case, it appears that these procedures were followed. . [Defendant] has not proven that all of the communications between himself and [the attorney] are privileged. Even if he were to make such a showing, the calls may be subject to the crime-fraud exception. Moreover, even if we were to find that the communications are privileged and not subject to the crime-fraud exception, the remedy would be suppression of only the privileged calls. See United States v. Abbit, 1999 WL 1074015 (D. Ore.). U.S. v. Lawrence, 2003 WL 22089778 (N.D. Ill.).

The privilege is applicable: (1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, [then] (3) the communications relating to the purpose, (4) made in confidence (5) by the client, (6) are at this instance permanently protected (7) from disclosure by himself or by the legal advisor (8) unless the protection be waived. Admiral Ins. v. U.S. Dist. Court for Dist. of Ariz., 881 F.2d 1486 (9th Cir. 1989). Interception of conversations between attorney and client is not presumptively invalid for lack of probable cause to believe exception to attorney-client privilege applies. Title III makes no special provision for privileged communications beyond requiring that the interception beminimized. The absence of such a provision may bespeak a recognition by Congress that “doctors and lawyers have been known to commit crimes.” U.S. v. Hyde, 574 F.2d 856, 870 (5th Cir. 1978); see also U.S. v. Abbit, 1999 WL 1074015 (D. Or. 11/24/99).

The law of attorney-client privilege places the burden of proof on the proponent of the privilege. Hawkins v. Stables, 148 F.3d 379 (4th Cir. 1998) (articulates “classic test” for determining the existence of attorney-client privilege). Agents inadvertently intercepted numerous attorney communications, but the defendants failed to prove that each of these communications were attorney-client privileged and they also failed to prove that the agents acted in bad faith. It was error to impose suppression as punishment for these inadvertent interceptions of attorney communications. Because there was no bad faith attempt to obtain privileged conversations, those conversations should be suppressed on an individual basis at or before trial. U.S. v. Ozar, 50 F.3d 1440 (8th Cir. 1995); see also U.S. v. Abbit, 1999 WL 1074015 (D. Or. 11/24/99).

Suppression of only the attorney/client phone call that was inadvertently, but negligently, intercepted by a police officer monitoring a state wiretap was an appropriate remedy for the officer’s violation of the amended minimization order. U.S. v. Charles, 213 F.3d 10 (1st Cir. 2000). Sixth Amendment right to counsel was not violated by government’s use of defendant’s girlfriend to consensually record her jailhouse conversation with the defendant in connection with the government’s investigation of the girlfriend’s claim that the defendant had threatened the life of the ATF agent who was involved in the pending prosecution. The Sixth Amendment right to counsel is offense-specific. The government is free to investigate new or additional crimes even though the subject of the investigation is represented by counsel on a pending charge. U.S. v. Kavoukian, 180 F. Supp.2d 402 (N.D.N.Y. 2002)(contains good discussion of Sixth Amendment right to counsel jurisprudence). See also U.S. v. Aparo, 2002 WL 2022329 (E.D.N.Y.)(citing U.S. v. Mapp, 170 F.3d 328 (2d Cir. 1999); U.S. v. Shea, 211 F.3d 658 (1st Cir. 2000); McNeil v. Wisconsin, 501 U.S. 171 (1991) (right to counsel cannot be invoked prospectively).

Priest-Penitent Privilege

The government’s jailhouse nonconsensual taping of a prisoner’s “confession” to a priest was a violation of the Religious Freedom Restoration Act (RFRA) (held unconstitutional by Supreme Court on 6/25/97) and the Fourth Amendment. Since the taping was done in the ordinary course of duty of the law enforcement officer (jailor) (18 U.S.C. 2510(5)(a)), the mens rea required for a violation of 2511 was not present and therefore the prosecutor’s retention of the intercepted confession was not a violation of 2511. This case was remanded for appropriate injunctive relief barring any future interception of confidential communications between a prisoner and a member of the clergy in the member’s professional capacity. Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).

 

Marital Communications

The “crime-fraud exception” applies to intercepted wire communications between defendant and his wife involving wife’s knowing participation in attempts to “cover up” crimes committed by husband. U.S. v. Cooper, 2000 WL 135248 (D.D.C.) Because the marital communications privilege protects only communications made in confidence, the privilege does not apply with regard to communications between husband and wife when one of the spouses is incarcerated. U.S. v. Madoch, 149 F.3d 596 (7th Cir. 1998)  (telephone calls on prison phone); See also U.S. v. Harrelson, 754 F.2d 1153 (5th Cir. 1985)

Wife visiting husband in prison

During “no-contact” visits at a private pretrial detention facility (CCA), inmates and visitors sit in different rooms, separated from each other by clear glass. Each visiting station is separated from the adjacent ones by cement block partitions. Visitors communicate with prisoners through an internal communication device that physically resembles a telephone handset. The device, however, is an entirely internal system connecting only the two visiting rooms. It is not connected to any facility capable of transmitting interstate or foreign communications. 18 U.S.C. 2510(1). Accordingly, the visitation conversations are not “wire communications” protected by the federal wiretap law. Although the inmate and his visitor at a private pretrial detention facility claim to have believed that their conversations were private and could not be overheard, any expectation of privacy was objectively unreasonable under the circumstances. Prison inmates necessarily have reduced privacy rights because of the nature of incarceration and the myriad of institutional needs and objectives of prison facilities. Hudson v. Palmer, 468 U.S. 517, 524, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). We agree with the district court’s conclusion that CCA had legitimate security reasons for monitoring the conversations and that the recordings were not made in an attempt to gather evidence about the robberies or the murder. Because CCA’s practice of monitoring and recording prisoner-visitor conversations was a reasonable means of achieving the legitimate institutional goal of maintaining prison security and because those conversing in a prison setting are deemed to be aware of the necessity for and the existence of such security measures, we agree with the district court that the defendants’ rights were not violated by the introduction of the recordings. . . The practice of monitoring conversations reflects CCA’s efforts to ensure a high level of security in its facility, and there is no reason to believe that a visitor who converses with an incarcerated  person has any more reasonable basis for his expectation that the conversation will remain private than has the inmate. U.S. v. Peoples, 250 F.3d 630 (8th Cir. 2001).

Deputization

An interception “may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception. 18 U.S.C. 2518(5). State and local officials may assist in Title III monitoring if under supervision of the federal agency ordered to conduct the interception. U.S. v. Lyons, 695 F.2d 802 (4th Cir. 1982). Federal agents may lawfully monitor state wiretaps. 18 U.S.C. 2517(1) authorizes investigative or law enforcement officers to disclose to other investigative or law enforcement  officers the contents of intercepted communications. It makes no difference whether the disclosure occurs after the interception or contemporaneously with the interception. U.S. v. Manfredi, 488 F.2d 588 (2d Cir. 1973). Deputations not in accordance with DEA’s internal procedures do not provide a basis for suppression of otherwise valid wiretaps. U.S. v. Williamston, 1993 WL 527977 (4th Cir. December 21, 1993)(unpublished) (DEA deputations). A court need not exclude evidence obtained in violation of an agency’s regulations or rules where neither the Constitution nor statute require adoption of any particular procedures. U.S. v. Caceres, 440 U.S. 741 (1979). Notwithstanding their obvious status as “Government personnel,” it is DOJ policy that state and local law enforcement officials be deputized. Because Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure parenthetically includes the personnel of a state or subdivision of a state, within the term “government personnel,” there is some disagreement over whether the term “government personnel” as used in 18 U.S.C. 2518(5) without such parenthetical qualification, includes state and local law enforcement officials. DOD personnel would appear to qualify as “Government personnel” and could therefore, without deputization, assist in the Title III monitoring process (e.g., as translators) if such assistance does not violate “Posse Comitatus” laws and regulations. (O.L.C. Opinion) On April 5, 1994, the AAG, Office of Legal Counsel, in a memorandum to the AAG, Criminal Division, concluded that such assistance by military personnel would not violate the Posse Comitatus Act.

Supervision of Monitors

U.S. v. Lopez, 300 F.3d 46 (1st Cir. 2002): [C]ivilian monitors, who worked sixteen-hour shifts every day for twenty days, were supervised at all times by a shift supervisor. The one apparent exception was a single instance where the supervising agent left the plant for ten to fifteen minutes to conduct routine surveillance. . .[S]uch a de minimis departure from the supervision standard is no basis for excluding the communications. This is especially so where, as here, [defendant] makes no attempt to identify any prejudice arising from the interception of communications that might have occurred during the brief unsupervised period. DEA supervision of police officers monitoring a wiretap was adequate. It is not necessary for a DEA person to be physically present, so long as he is available, and in touch, and can make the discretionary decisions that he is called on to make. U.S. v. Williamston, 1993 WL 527977 (4thCir. 12/21/93)(unpublished) (DEA deputations).

Although there is no case directly on point, U.S. v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) and Hayes v. Hawes, 921 F.2d 100 (7th Cir. 1990) provide interpretive authority for the argument that assistance from Army personnel in the Title III monitoring process would violate neither the Posse Comitatus Act (18 U.S.C. 1385) nor 10 U.S.C. 375 and the regulations thereunder at 32 C.F.R. 213.10. 32 C.F.R. 213.10(a)(3) provides:

Restrictions on direct assistance. Except as otherwise provided in this enclosure, the prohibition on use of military personnel “as a posse comitatus or otherwise to execute the laws” prohibits the following forms of direct assistance:

(i) Interdiction of a vehicle, vessel, aircraft or other similar activity.

(ii) A search or seizure.

(iii) An arrest, stop and frisk, or similar activity.

(iv) Use of military personnel for surveillance or pursuit of individuals, or as  informants, undercover agents, investigators, or interrogators (emphasis added).32 C.F.R. 213.10(a)(7) provides:

Other permissible assistance. The following forms of indirect assistance activities are not restricted by the Posse Comitatus Act:

(i) Transfer of information acquired in the normal course of military operations.

(ii) Such other actions, approved in accordance with procedures established by the head of the DOD component concerned that do not subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.

The assistance of DOD personnel in the Title III monitoring process could fairly be characterized as: 1) “indirect assistance” to civilian authorities that does not “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature”; 2) services that do not amount to direct active involvement in the execution of the laws (they would be acting under the control and supervision of the civilian federal agency responsible for the investigation and authorized by court order to conduct the interception); and 3) assistance that “is not sufficiently pervasive to rise to the level of enforcement of the law” by the Army. Hayes v. Hawes, 921 F.2d 100 (7th Cir. 1990) (Naval Investigative Service agents assisted police with surveillance; one of  its agents made undercover drug purchase and signaled the police when the transaction was completed).

By memorandum of April 5, 1994 (Re: Use of Military Personnel for Monitoring Electronic Surveillance), Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, responded to Jo Ann Harris, Assistant Attorney General, Criminal Division, that the Office of Legal Counsel has concluded that, under a proper reading of the pertinent statutes, military personnel are presently authorized to assist federal law enforcement officers by monitoring electronic surveillance authorized pursuant to the ECPA. By memorandum of November 3, 1989 (Re: Extraterritorial Effect of the Posse Comitatus Act) William P. Barr, Assistant Attorney General, Office of Legal Counsel, concluded that the Posse Comitatus Act does not apply outside the territory of the United States. 13 U.S. Op. Off. Legal Counsel 387 (1989 WL 418333 (O.L.C.)).

Clone Pagers

The minimization requirement cannot reasonably be applied to clone pagers. “Because it is impossible to tell from the clone beeper whether a conversation even took place, much less the content of any conversation that might have taken place, traditional minimization requirements do not apply.” U.S. v. Tutino, 883 F.2d 1125 (2d Cir. 1989); U.S. v. Gambino, 1995 WL 453318 (S.D.N.Y.). Officers authorized to use a “clone pager” were not required to satisfy the recording requirement where recording such communications electronically was not technically possible. U.S. v. Suarez, 906 F.2d 977 (4th Cir. 1990). In connection with the government’s failure to seal any of its handwritten logs and partial recordings generated on pager receivers in connection with the execution of pager interception orders, the Ninth Circuit held that handwritten logs are not recordings “comparable” to “tape or wire” within the meaning of 2518(8)(a) (citing Suarez), and that although pager receivers (computerized monitors of pager messages) were relatively new in 1994, they were employed effectively by the same FBI office in a contemporaneous investigation and the archive file was printed and sealed in accordance with 2518(8)(a). In the instant case the FBI failed to program the pager receiver accurately and there may have been geographically related reception problems. The circuit panel held therefore that the district court erred in concluding that the use of pager receivers was not possible. But the circuit panel also held that the government offered a “satisfactory explanation” for its omissions because it had an objectively reasonable belief that pager receivers were not recorders within the meaning of 2518 in light of the decisional law. Also, the agents running the investigation became aware of the full capacity of the pager receivers only after the surveillance was terminated. U.S. v. Hermanek, 289 F.3d 1076 (9th Cir. 2002). 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).

Background Conversations

“Plain view” (plain hearing) doctrine applies. No  suppression if initial intrusion lawful, discovery inadvertent, and criminal nature of communication immediately apparent. U.S. v. Baranek, 903 F.2d 1068 (6th Cir. 1990).

Plain View

It is true that if government agents execute a valid wiretap order and in the course of executing it discover that it was procured by a mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible in evidence. United States v. London, 66 F.3d 1227, 1234-35 (1st Cir.1995); cf. United States v. Malekzadeh, 855 F.2d 1492, 1496-97 (11th Cir.1988). It is just the “plain view” doctrine (e.g., Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Ewain, 88 F.3d 689, 693 (9th Cir.1996)) translated from the visual to the oral dimension. It is as if government agents executing a conventional search warrant discover that they have the wrong address but before they can withdraw notice other illegal activity. E.g., Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); United States v. Williams, 917 F.2d 1088  (8th Cir.1990). The discovery of the mistake does not make the search unlawful from its inception, United States v. Fitzgerald, 724 F.2d 633 (8th Cir.1983) (en banc); United States v. Soussi, 29 F.3d 565 (10th Cir.1994); United States v. Noel, 938 F.2d 685, 687-88 (6th Cir.1991), because all that is required for a lawful search is probable cause to believe that the search will turn up evidence or fruits of crime, not certainty that it will. But in either case, the visual or the aural, once the mistake is discovered, the government cannot use the authority of the warrant, or of the order, to conduct a search or interception that they know is unsupported by probable cause or is otherwise outside the scope of the statute or the Constitution. Maryland v. Garrison, supra, 480 U.S. at 87; Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir.1995). No longer would they be merely discovering evidence of crime in the course of a lawful search. U.S. v. Ramirez, 112 F.3d 849 (7th Cir. 1997).

Attorney Over hearings

USAM 9-7.420 Recording 2518(8)(a) requires recording “if possible.” Officers authorized to use a “clone pager” were not required to satisfy the recording requirement where recording such communications electronically was not technically possible. U.S. v. Suarez, 906 F.2d 977 (4th Cir. 1990). The Ninth Circuit held that the government’s handwritten logs of its pager interceptions are not recordings “comparable” to “tape or wire” within the meaning of 2518(8)(a) (citing Suarez), and that although pager receivers (computerized monitors of pager messages) were relatively new in 1994, they were employed effectively by the same FBI office in a contemporaneous investigation and the archive file was printed and sealed in accordance with 2518(8)(a). In the instant case the FBI failed to program the pager receiver accurately and there may have been geographically related reception problems. The circuit panel held therefore that the district court erred in concluding that the use of pager receivers was not possible. But the circuit panel also held that the government offered a “satisfactory explanation” for its omissions because it had an objectively reasonable belief that pager receivers were not recorders within the meaning of 2518 in light of the decisional law. Also, the agents running the investigation became aware of the full capacity of the pager receivers only after the surveillance was terminated. U.S. v. Hermanek, 289 F.3d 1076 (9th Cir. 2002).

Duplicate Recordings

“Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations.” 18 U.S.C. 2518(8)(a). The practice of using a cassette recorder to make a copy of portions of a conversation also being recorded on the original and duplicate original reel-to-reel recorders, was necessary and justified. The government ought to have preserved all work cassettes generated and disclosed the practice during the early discovery stages of the case; however, the defendants were not prejudiced by the later disclosure or by the erasure of all but thirty-nine of the work cassettes. The government was not obligated to present, for judicial sealing, work cassettes which they believed, in good faith, were partial copies of the original and duplicate original reel-to-reel recordings. Similarly, the

government was not required to preserve, under 18 U.S.C. 2518(8)(a), the work cassettes, given their good faith belief, that the cassettes were simply partial copies. Thus, that some work cassettes did contain original evidence not found on the reel-to-reel recordings is addressed as inadvertent loss of evidence and not as a knowing  violation of Title III sealing and preservation requirements. U.S. v. Gerena, 695 F. Supp. 1369 (D. Conn. 1988).

 

 

Minimization

Effort must be objectively reasonable in light of the circumstances confronting the interceptor. “The statute does not forbid the interception of all non relevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interception of such conversations.” Scott v. U.S., 436 U.S. 128 (1978). U.S. v. Bennett, 219 F.3d 1117 (9th Cir. 2000).

Even assuming the government improperly intercepted all 267 calls as the appellants assert, this was only 3.65% of the total number of calls intercepted. Such a percentage alone is not fatal. See Homick, 964 F.2d at 903 (noting that the interception of “even a relatively high percentage of non pertinent calls is an inaccurate indicator of whether or not the government complied with the minimization requirement”). “Where, as here, the wire intercept concerns a drug ring, the need to allow latitude to monitoring agents is paramount. . . . The fact that the FBI overheard a few innocent conversations does not render its minimization efforts unreasonable.” Torres, 908 F.2d at 1424(citations omitted). In cases such as the present one involving “a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed.” Scott, 436 U.S. at 142. Moreover, if phone conversations include guarded or coded language as in this case, a higher rate of nonrelevant intercepted calls should be expected because it takes longer to figure out the meaning of a particular call. See id. at 140. We conclude that the interception of non relevant phone conversations were properly minimized. U.S. v. Lopez, 300 F.3d 46 (1st Cir. 2002): Although “blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide” to determining whether the minimization was proper, Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), the nearly flawless performance of the government in this case carries significant weight. Cf. United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir.) (minimization requirement met where improperly intercepted calls accounted for only 3.65% of 7322 total intercepted calls), cert. denied, 531 U.S. 1056, 121 S.Ct. 666, 148 L.Ed.2d 568 (2000).

Plus, the findings of the district court support the conclusion that the government established and observed thorough precautions to bring about minimization and that there was a significant degree of judicial supervision over the surveillance process. U.S. v. Hurley, 63 F.3d 1 (1st Cir. 1995):

Scott made clear that the statute does not forbid interception of non-pertinent conversations but requires a reasonable effort to minimize such interceptions. Here, the government described the agents’ directives to turn off monitoring equipment for irrelevant conversations; it supplied statistics showing that about three-quarters of the time that the agents turned off the monitoring device, they did so because the conversation was deemed non-pertinent; and it pointed to regular reports made to the district court, and to ongoing contacts between the agents and the prosecutors sometimes involving guidance on monitoring. See U.S. v. Angiulo, 847 F.2d 956, 979 (1st Cir. 1988). The Saccoccia enterprise was a widespread and complicated operation in which the illegal conduct was deliberately disguised by the company’s legitimate activities. The conspirators employed code phrases that mimicked industry terminology and used code names for each other, banks and clients. Many of the participants were related by blood or marriage, and incriminating exchanges were often interspersed with personal conversation. It is hard to see how the agents could have done more than make a good-faith determination to turn off recording devices when a conversation was seemingly unrelated to the laundering operation.“The appropriate duration of initial monitoring or the frequency of spot-checking may vary with the circumstances of the call and need not be specifically stated in the Order or the underlying affidavit.” U.S. v. Santiago, 389 F. Supp.2d 124 (D. Mass. 2005). The minimization requirement is satisfied if, on the whole, the agents have shown a high regard for the right of privacy and have done all they reasonably could to avoid unnecessary intrusion. U.S. v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995).

In view of the complex nature of the investigation (bank fraud conspiracy) and the issuing judge’s continuing supervision, the government’s minimization procedures did not violate 18 U.S.C. 2518(5). The agents submitted their minimizing procedures to the issuing judge and reported minimizing problems to the judge as surveillance progressed. “The agents used the ‘two minutes up/one minute down’ minimization technique recommended in the Department of Justice Manual, a procedure we reviewed favorably . . . .” This technique provided intermittent spot-checking of minimized conversations, a procedure expressly authorized by the issuing judge and previously approved by the Eighth Circuit. The agents inadvertently intercepted numerous attorney communications, but the defendants failed to prove that each of these communications were attorney-client privileged and they also failed to prove that the agents acted in bad faith. The magistrate’s and district court’s decision to impose suppression as punishment for these inadvertent interceptions of attorney communications was error. Because there was no bad faith attempt to obtain privileged conversations, those conversations should be suppressed on an individual basis at or before trial. U.S. v. Ozar, 50 F.3d 1440 (8th Cir. 1995).

The government’s wiretaps of a major drug ring, intercepted more than 3,500 telephone conversations, including all calls under two minutes in length (almost 1,800). A two minutes up/one minute down, “spot monitoring” procedure was used. Although in affirming the convictions it did not reach the merits of the minimization argument, the Seventh Circuit said the following about the “spot monitoring” provision in the wiretap orders and the government’s efforts to comply with the minimization requirement: Express limits on the frequency and duration of spot checks may well be impractical, as neither the government nor the authorizing court can know in advance how easy it will be for the monitoring agent to discern whether any given intercepted conversation concerns a subject within the scope of the investigation or not… Notwithstanding the language of the spot-check provision [broad reference to “criminal matters”], then, the overall terms of the orders made reasonably clear that the  government was permitted to check intercepted  conversations solely for discussions pertinent to the government’s investigation, the nature and scope of which the face of the orders made clear… Although the adequacy of the government’s minimization efforts necessarily depends on the facts of each case, relevant considerations include the kind and scope of criminal enterprise that the government was investigating, the thoroughness of the government’s efforts to ensure that non pertinent calls will be minimized, the extent to which the government could have foreseen that certain types of conversations would be innocuous and thus subject to minimization, use of code, and the extent to which the authorizing judge oversaw the interception efforts…If, after a review of the intercepts, the defendants believed that the government’s eavesdropping was too intrusive and

that a greater degree of minimization was warranted, then it was incumbent upon them to identify at least a sample of intercepted calls that proves their point…Nor do the defendants identify any concrete harms resulting from the admission of conversations which, in their view, should have been suppressed for want of appropriate minimization. U.S. v. Mansoori, 304 F.3d 635 (7th Cir. 2002). “We certainly agree that minimization of short calls is not required.” U.S. v. Dumes, 313 F.3d 372 (7th Cir. 2002). Suppression of only the attorney/client phone call that was inadvertently, but negligently, intercepted by a police officer monitoring a state wiretap was an appropriate remedy for the officer’s violation of the amended minimization order. U.S. v. Charles, 213 F.3d 10 (1st Cir. 2000).

Errors in minimizing one particular interception within the context of a lengthy and complex investigation do not automatically warrant the suppression of all the evidence obtained through electronic surveillance. Total suppression would not follow unless the defendant demonstrates that the entire surveillance was tainted. U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).  The Fifth Circuit uses a three-part test to determine whether the government’s minimization efforts are objectively reasonable in light of the circumstances confronting the interceptor. The test considers: (1) the nature and scope of the criminal enterprise under investigation; (2) the government’s reasonable inferences of the character of a conversation from the parties to it; and (3) the extent of judicial supervision. U.S. v. Brown, 303 F.3d 582 (5th Cir. 2002). See also U.S. v. Green, 2005 WL 1041205 (E.D. La.) (citing Brown). The minimization requirement cannot reasonably be applied to clone pagers. “Because it is impossible to tell from the clone beeper whether a  conversation even took place, much less the content of any conversation that might have taken place, traditional minimization requirements do not apply.” U.S. v. Tutino, 883 F.2d 1125 (2d Cir. 1989); U.S. v. Gambino, 1995 WL 453318 (S.D.N.Y.).

Where drug jargon is used over the phone, the government may engage in more extensive wiretapping and the interception of innocent calls may be a more reasonable activity. U.S. v. Sanchez, 961 F.2d 1169 (5th Cir. 1992); U.S. v. Williams, 109 F.3d 502 (8th Cir. 1997).

The Second Circuit has held that calls lasting less than two minutes need not be minimized. See U.S. v. Capra, 501 F.2d 267 (2d Cir. 1974).” U.S. v. Villegas, 1993 WL 535013 (S.D.N.Y.).Given the large scope of the alleged conspiracy and the large amount of “short calls,” the government’s effort to minimize was reasonable. U.S. v. Ishola, 1996 WL 197461 (N.D. Ill. 4/19/96)

The ECPA and Title III do not require that the government mimic conversational minimization procedures by skipping lines in a fax and then continue reading line by line. Citing Scott v. U.S., 436 U.S. 128 (1978) and the ECPA’s legislative history, the court said: “We interpret Congress’s ‘common sense’ idea of electronic minimization to mean that law enforcement in some circumstances may look at every communication. Congress intended that the pool of investigative material be filtered. Here the district court established a reasonable procedure to eliminate irrelevant information. Under the circumstances, that is all the ECPA and Title III require. U.S. v. McGuire, 307 F.3d 1192 (9th Cir. 2002).

Minimization After-the-Fact

“The key to after-the-fact minimization is that the process utilized must protect the suspect’s privacy interests to approximately the same extent as would contemporaneous minimization, properly conducted. Accord U.S. v. Gambino, 734 F. Supp. 1084, 1106 (S.D.N.Y. 1990).” DEA told the interpreters to stop listening to a tape once they determined that the conversation was beyond the scope of the investigation. “By translating only the portions of the tapes that seemedrelevant, the government’s actions comported with the expectations of Congress, see, e.g., S. Rep. No. 541, 99th Cong., 2d Sess., 1, 30, reprinted in 1986 U.S. Code Cong. & Admin. News 3555, 3584, and were acceptable under Title III.” U.S. v. David, 940 F.2d 722 (1st Cir. 1991). See also U.S. v. Padilla-Pena, 129 F.3d 457 (8th Cir. 1997) (Government reasonably believed intercepted calls would be in English and acted reasonably when it learned after the wiretap was activated that most of conversations were in Spanish. Fast forwarding through non-narcotics related conversations during after-the-fact monitoring was  appropriate. Recorded conversations should not be erased.) After-the-fact minimization conducted as if in “real time” satisfies reasonableness standard for minimization. U.S. v. Luong, CR-96-0094 MHP (N.D. Cal. 9/7/99). Full recording and after-the-fact minimization of Spanish conversations was reasonable in light of pending 18 U.S.C. 2518(5) language providing for such treatment of foreign language intercepts when no expert is reasonably available. U.S. v. London, 66 F.3d 1227 (1st Cir. 1995).

Termination, Duration and Prosecutive Intent

If the objective of the intercept is to determine a conspiracy’s scope, manner and participants, it does not have to terminate merely because one of the subjects has been arrested. U.S. v. Earls, 42 F.3d 1321 (10th Cir. 1994); U.S. v. Wong, 40 F.3d 1347 (2d Cir. 1994). A wiretap may be lawfully extended where the investigating officers have not yet learned of the extent of the conspiracy and the identity of the coconspirators. U.S. v. Nguyen, 46 F.3d 781 (8th Cir. 1995). Good faith prosecutorial/investigative decisions to seek extended Title III surveillance authority, and the good faith exercise of prosecutive discretion as to when or whether Title III interceptions will be put to prosecutive use, should have no bearing on the legality of Title III interceptions conducted in accordance with statutory requirements that embody constitutional protections articulated by the Supreme Court. U.S. v. Castellano, 610 F. Supp. 1359 (S.D.N.Y. 1985) (prosecutors are under no duty to file charges before becoming satisfied that they will be able to prove guilt at trial. Lovasco, 431 U.S. at 791, 97 S.Ct. at 2049. Even after a prosecutor has obtained enough evidence to ensure a conviction, no constitutional requirement to commence prosecution exists); U.S. v. Tortorello, 480 F.2d 764 (2d Cir. 1973) (Title III provides for the particularity, judicial supervision and other protective procedures called for in Berger v. New York, 388 U.S. 41 (1967) and Katz v. U.S., 389 U.S. 347 (1967)); U.S. v. Cafero, 473 F.2d 489 (3d Cir. 1973). United States v. Feola, 651 F. Supp. 1068 (S.D.N.Y. 1987) (eleven orders); U.S. v. Orozco, 630 F. Supp. 1418, 1525 (S.D. Cal. 1986).

Federal law “places no limit on the number of orders or extension orders that may be issued to authorize continuation of a given interception.” U. S. v. Vazquez, 605 F.2d 1269 (2d Cir. 1979); U.S. v. Ruggiero, 824 F. Supp. 379 (S.D.N.Y. 1993). If the objective of the intercept is to determine a conspiracy’s scope, manner and participants, it does not have to terminate merely because one of the subjects has been arrested. U.S. v. Earls, 42 F.3d 1321 (10th Cir. 1994); U.S. v. Wong, 40 F.3d 1347 (2d Cir. 1994). “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.).

A wiretap may be lawfully extended where the investigating officers have not yet learned of the extent of the conspiracy and the identity of the coconspirators. U.S. v. Nguyen, 46 F.3d 781 (8thCir. 1995). Twenty-three months of electronic surveillance of lawyer’s office did not violate the Fourth Amendment. In U.S. v. Cafero, 473 F.2d 489 (3d Cir. 1973), the Third Circuit held that 18 U.S.C. 2510, et seq. satisfies the Fourth Amendment. Here the government complied with the wiretap statute by repeatedly obtaining authorization from the district court for the continuation of the electronic surveillance. U.S. v. Sparacio, Nos. 95-2053 and 96-1616 (3d Cir. 7/28/98)

“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).

Post-Interception

2518(8)(a) requires that the Government explain why a delay occurred and also why it is excusable.  U.S. v. Ojeda-Rios, 495 U.S. 257 (1990). “Three circuits have held that recordings are sealed ‘[i]mmediately upon the expiration of the period of the order’ if they are sealed within one or two days of the expiration.  United States v. McGuire, 307 F.3d 1192, 1204 (9th Cir.2002);  United States v. Wilkinson, 53 F.3d 757, 759 (6th Cir.1995); United States v. Wong, 40 F.3d 1347, 1375 (2d Cir.1994).  We agree with this interpretation.” U.S. v. Matthews, 411 F.3d 1210 (11th Cir. 2005).

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).

The Ninth Circuit appointed an out-of-district judge to supervise the wiretapping in the Montana Freemen case because otherwise available federal judges in the District of Montana were recused as a result of prior bad experiences with the Freemen. The agency took special precautions to safeguard the recordings pending judicial sealing. The supervising judge by written order postponed the sealing of the recordings until he could supervise. Three times, the judge ordered the FBI to “maintain all tapes and appropriate material relating to the intercepts” until he returned to Montana to supervise sealing. When the government acts pursuant to a court’s order postponing sealing, this factor is entitled to great weight in assessing whether the government has demonstrated a “satisfactory explanation” for any delay that might result. “In light of all of the above reasons, we have no doubt that any delay [in sealing] that occurred in this case [3, 12, 124, and 127 days] was justified by the exigent circumstances and that the government gave a satisfactory explanation. We hold that the FBI in this case thus did not violate Title III’s prompt sealing requirement and that the sealing requirement poses no barrier to the admissibility of the challenged wiretap evidence.” U.S. v. McGuire, 307 F.3d 1192 (9th Cir. 2002).

The Ninth Circuit rejected the government’s attempt to apply a broader view of the term “extension” in the context of cellular telephone Title III orders issued in 1994.  The circuit panel held that a 39 day delay in sealing cellular Title III recordings violated the “immediate sealing” requirements of 2518(8)(a).  The circuit panel agreed with the Second and Third Circuits (U.S. v. Ojeda Rios, 875 F.2d 17 (2d Cir. 1989) and U.S. v. Vastola, 915 F.2d 865 (3d. Cir. 1990)) that an order is an extension of an earlier order only if it authorizes continued interception of the same location or the same communications facility specified by the prior order.  However, the circuit panel also held that in the instant case the actual reason for the delay in sealing was the government’s mistaken belief that it could delay the sealing because later orders targeting a different cellular telephone number were extensions (the government referred to them as “extensions” in periodic progress reports to the district court and the lower court agreed with the government’s view that the later orders were extensions) and the government’s explanation was objectively reasonable because prior to the instant opinion, the meaning of the term “extensions” was an open question in the Ninth Circuit.  Only the Second and Third Circuits had previously addressed the question.  The Principie opinion (531 F.2d 1132 (2d Cir. 1976))(see above in chapter on “extensions”), although distinguishable, supported the government’s theory that extensions have a broader meaning, and it has not been expressly overruled by the Second Circuit.  U.S. v. Hermanek, 289 F.3d 1076 (9th Cir. 2002).

In federal trial, federal law determines whether or not the taped evidence was sealed in a timely manner.  U.S. v. Vazquez, 605 F.2d 1269 (2d Cir. 1979). By its terms, the sealing requirement only applies to subsection (3) of 2517 and not to subsection (2) or (1).  U.S. v. Carson, 52 F.3d 1173 (2d Cir. 1995). Prohibition in 2518(8)(a) on derivative use at trial of improperly sealed tapes is not to be applied strictly to prohibit use of all evidence that can be connected through a chain of causation to a wiretap tainted by improper sealing of the tape.  U.S. v. Donlan, 825 F.2d 653 (2d Cir. 1987). Use permitted by 2517(2) is not subject to the strictures of 2518(8)(a).  Accomplice witness could properly refresh his recollection of various telephone conversations by listening to tapes of conversations which had been suppressed (no testimonial use under 2517(3)) because of undue delay in sealing. U.S. v. Ricco, 566 F.2d 433 (2d Cir. 1977).

The sealing requirement of §2518(8)(a) does not apply to tapes of consensual interceptions. It applies only to tapes of conversations intercepted pursuant to judicial authorization under §§ 2516 and 2518.  U.S. v. Vancier, 466 F. Supp. 910 (S.D.N.Y. 1979); U.S. v. Benjamin, 72 F. Supp.2d 161 (W.D.N.Y. 1999).

The sealing requirement of section 2518(8)(a) places no restrictions on the form of the disclosure of the contents of recordings in court proceedings.  As long as the government complies with Title III (sealing of original tapes), it may, at trial, disclose the contents of the recordings in whatever fashion it chooses, including the use of duplicate and compilation tapes. If Congress barred the use of duplicate tapes, the result would be unwieldy and cumbersome.  Moreover, the use of duplicates allows the originals to remain sealed, thereby preserving the authenticity of the original tapes.  U.S. v. Rivera, 153 F.3d 809 (7th Cir. 1998).

Numerous courts in the Second Circuit have held a two-day delay in sealing tapes does not violate the “immediate” sealing requirement of 2518(8)(a).  U.S. v. Ardito, 782 F.2d 358 (2d Cir. 1986) (five day delay excused where intervening two-day holiday); U.S. v. Burford, 755 F. Supp. 607 (S.D.N.Y. 1991) (wiretap expired on Friday; tapes sealed on Monday); U.S. v. Santoro, 647 F. Supp. 153 (E.D.N.Y. 1986) (Friday expiration; Monday sealing); U.S. v. Ruggiero, 824 F. Supp. 379 (S.D.N.Y. 1993); U.S. v. Casso, 843 F. Supp. 829 (E.D.N.Y. 1994); U.S. v. Orena, 883 F. Supp. 849 (E.D.N.Y. 1995);  U.S. v. Gangi, 33 F. Supp.2d 303 (S.D.N.Y. 1999) (Friday expiration, Monday sealing). In U.S. v. Pitera, 5 F.3d 624, (2d Cir. 1993), where the order expired on Thursday and the tapes were sealed the following Tuesday, the court held: Where the delay is between two and five days, we have indicated that the Government should submitwith the tapes an in camera explanation of the delay.  See U.S. v. Massino, 784 F.2d 153, 158 (2d Cir. 1986).

Whether or not weekends are counted, the delay in this case is within the two-to five-day range. Though the Government did not attempt to explain the delay until Pitera made a motion to suppress, we agree with the District Court that the explanation is satisfactory.  The Government explained that it had miscalculated the expiration date and had not thought it necessary to contact a judge at home in order to seal the tapes over the weekend.  We have found satisfactory similar explanations that are based on mistake, see, e.g., U.S. v. Rodriguez, 786 F.2d 472, 477-78 (2d Cir. 1986), and difficulty in sealing tapes over a weekend, see, e.g., U.S. v. Gallo, 863 F.2d 185, 193 (2d Cir. 1988), cert. denied, 489 U.S. 1083 (1989); U.S. v. McGrath, 622 F.2d 36, 43 (2d Cir. 1980).  Because the delay here was relatively short and there was no suggestion of bad faith, deliberate disregard of the statute, or tampering, the tapes need not have been suppressed.  See U.S. v. Maldonado-Rivera, 922 F.2d 934, 950 (2d Cir. 1990), cert. denied, 111 S. Ct. 2811 (1991).See also U.S. v. Wong, 40 F.3d 1347 (2d Cir. 1994).

Order expired on September 12, tapes were sealed on September 15. Although surveillance stopped on September 2, 2518(8)(a) does not require sealing until “the expiration of the period of the order.”  U.S. v. Gangi, 33 F. Supp.2d 303 (S.D.N.Y. 1999). In companion unpublished opinions, the Seventh Circuit opined on the relationship between the sealing requirement and the authorization period: That authority ends on the date specified in the intercept order or when surveillance has achieved its objectives, whichever is sooner. See 18 U.S.C. § 2518(5). The wiretap’s objectives in this case, as described in the authorizing order, included revealing “fully” the identities of Jackson’s “confederates.” Although an important confederate- Jackson’s heroin source-was still unknown, the government’s last intercept occurred on April 19, 1999, eighteen days before the stated May 7 expiration date. The government sealed the tapes on April 28, 1999. At a suppression hearing the agent in charge of the Jackson investigation explained that he ceased monitoring the phone because use by targets had declined, though he did not immediately seal the tapes after April 19 because the objectives of the investigation had not been achieved and he still contemplated periodically checking the phone to determine if the conspirators had resumed using it. Counsel concludes that these facts show that the government indeed sealed the tapes before it even needed to, and we agree that arguing otherwise would be frivolous. See United States v. Wong, 40 F.3d 1347, 1375-76 (2d Cir. 1994) (tapes need not be sealed immediately after last intercept if surveillance objectives of the wiretap have not been accomplished and government contemplates further monitoring to complete the investigation); United States v. Badalementi, 794 F.2d 821, 824-25 (2d Cir. 1986) (same). U.S. v. Brown, 2002 WL 1357221 (7th Cir.)(unpublished); U.S. v. Jackson, 2002 WL 1357209 (7th Cir.)(unpublished).

Pursuant to the issuing judge’s instructions in state wiretap orders, agents sealed the original tapes on a daily basis, maintained custody of the sealed tapes, and presented the tapes to the issuing judge upon the completion of the wiretap.  Although this early sealing, even under the judge’s  directions, technically violated the requirements of 18 U.S.C. 2518(8)(a), it satisfied rudimentary demands of fair procedure and did not result in a complete miscarriage of justice and therefore a federal court may not allow the state court prisoner’s habeas petition alleging violation of federal laws.  Rankins v. Murphy, 198 F. Supp.2d 3 (D. Mass. 2002).

The failure to seal immediately because of resource or personnel shortages has been deemed a “satisfactory explanation.”  U.S. v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (agent in charge of case took time to interview two potential witnesses who became available at the time when the tapes were being prepared for sealing); U.S. v. Massino, 784 F.2d 153 (2d Cir. 1986) (fifteen- day delay because government diverted personnel to investigate leak threatening investigation); U.S. v. Rodriguez, 786 F.2d 472 (2d Cir. 1986) (fourteen-day delay because supervising attorney occupied with another  trial); U.S. v. Scafidi, 564 F.2d 633 (2d Cir. 1977) (seven-day delay because prosecutor preoccupied with upcoming trial).

The unavailability of the issuing or supervising judge may constitute a satisfactory explanation for a sealing delay. U.S. v. Cline, 349 F.3d 1276 (10th Cir. 2003)(tapes were immediately “made available” to the issuing judge but actual sealing was delayed seven days due to the judge’s scheduling); U.S. v. Williams, 124 F.3d 411 (3d Cir. 1997) (substitute judge  directed that tapes be sealed on Monday following Friday termination of surveillance); U.S. v. Pedroni, 958 F.2d 262 (9th Cir. 1992) (issuing judge was out of town for several days after the tapes were ready for sealing); U.S. v. Fury, 554 F.2d 522 (2d Cir. 1977) (six-day delay because issuing judge was on vacation and unavailable); U.S. v. Rodriguez, 786 F.2d 472 (2d Cir. 1986)(absence of issuing judge is no longer an acceptable explanation for delay because circuit precedent has established that the tapes can be sealed by a judge other than the issuing judge);  U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994) (judge scheduled the sealing for seven days after termination); U.S. v. Poeta,455 F.2d 117 (2d Cir. 1972) (thirteen-day delay because agents assumed issuing judge must seal tapes); U.S. v. Blanco, 1994 WL 695396 (N.D. Cal.) (tapes were ready for sealing within three days of termination, but due to continuing unavailability of the issuing judge and other district judges, a magistrate granted the government’s request for a sealing order sixteen days after termination of the interception, and upon return to the district, the issuing judge granted the government’s application for an order ratifying the magistrate’s sealing order); U.S. v. Lopez, 2000 U.S. Dist. LEXIS 8060 (D. Me.) (six-day delay because issuing judge unavailable; citing Poeta for suggestion that it is not improper to have tapes sealed by another judge when issuing judge is unavailable; “immediate” sealing requirement outweighs secondary concern that issuing judge should be the sealing judge); U.S. v. Wright, 156 F. Supp.2d 1218 (D. Kan. 2001)(sevenday delay due to issuing judge’s schedule is a satisfactory explanation in the Tenth Circuit). Any delay in sealing beyond two days requires a satisfactory explanation by the government.  U.S. v. Vazquez, 605 F.2d 1269, 1274 (2d Cir. 1979).

Because the time gaps included intervening weekends, the sealings were “immediate” within the meaning of the statute where an order expired on Wednesday and the tapes were sealed on the following Monday and where an order expired on Thursday and the tapes were sealed on the following Wednesday.  U.S. v. Carson, 969 F.2d 1480 (3d Cir. 1992). Sealing took place on the second business day after the expiration of the order and was therefore “immediate” within the meaning of the statute. Interception ceased on Saturday. Optical Disks were sealed on following Tuesday. U.S. v. Rice, 2005 WL 2180019 (W.D. Ky.).

U.S. v. Carson, 969 F.2d 1480 (3d Cir. 1992) stands for the proposition:  When a government attorney’s legal conclusion is found to be unreasonable, the explanation for the delay would still be an objectively reasonable “mistake of law” if the government can show that its attorney has adequately researched the law or has otherwise acted reasonably.  U.S. v. Vastola, 989 F.2d 1318 (3d Cir. 1993) (Vastola III); U.S. v. Vastola, 25 F.3d 164 (3d Cir. 1994) (affirmed district court’s finding on remand that AUSA’s combined reading of the law and her reliance on the opinions of more experienced colleagues on the sealing issue was minimally sufficient to meet the standards of a reasonably prudent attorney.  The circuit court had previously held that the mistake of law was objectively unreasonable.)

Government’s “good faith misunderstanding of the law” regarding the language of the order (that interception must terminate upon the attainment of the authorized objectives) was a satisfactory explanation of the delay in sealing under U.S. v. Ojeda-Rios, 495 U.S. 257 (1990).  There was no  indication of prejudice to the defendant, or tampering and or deliberate flouting of the statutory requirement, or effort to gain tactical advantage.  U.S. v. Wilkinson, 53 F.3d 757 (6th Cir. 1995). When caused by administration difficulties, a brief hiatus between the expiration of an order and an extension will not prevent the extension from being deemed an “extension” within the meaning of section 2518(8)(a).  Thus, the obligation to seal would not arise until the termination of the final extension.  U.S. v. Carson, 969 F.2d 1480 (3d Cir. 1992); U.S. v. Neresesian, 824 F.2d 1294 (2d Cir. 1987) (three day gap); U.S. v. Merton, 274 F. Supp.2d 1156 (D. Col. 2003)(four day gap legally insignificant; citing Carson and Neresesian). Delays in obtaining extensions, like delays in sealing, should be judged by practicality.  Considering the practicalities involved in obtaining authority for an extension and securing the order granting it, a gap of ten days will normally satisfy the statute’s immediacy requirement insofar as extensions are concerned, but a delay of that magnitude in ultimately sealing the tapes will not often satisfy the statute’s immediacy requirements for sealing.  U.S. v. Carson, 969 F.2d 1480 (3d Cir. 1992).

The government reasonably explained the delay between the end of the original surveillance period and the issuance of the first extension order as necessary to draft the extension affidavit and to get the request processed by the federal bureaucracy.  The government sealed the tapes two weeks after the original period in a good-faith effort to comply with 2518(8)(a) “in the face of an innocent delay in processing the request for a second surveillance period.”  U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).

The government intended to obtain an extension order but when it became clear that there would be an indefinite delay in designing a new hidden microphone to replace the one discovered by the target, the government sealed its tapes 32 days after the expiration of the order.  Although the prosecutor and the technicians should have communicated with each other more effectively, this  failure of communication was not so wanton a blunder as “not to constitute a (barely) satisfactory  explanation within the meaning of the statute.”  U.S. v. Jackson, 207 F.3d 910 (7th Cir. 2000);U.S. v. Wilson, 237 F.3d 827 (7th Cir. 2001) (reiterating holding in Jackson); U.S. v. Hoover, 246 F.3d 1054 (7th Cir. 2001)(reiterating holding in Jackson; concurring opinion is critical of Jackson panel’s decision to accept as a satisfactory explanation for a 32 day sealing delay the government’s unverified assertions made only in a brief). Where intercept is of the same premises and involves substantially the same persons, an extension requires sealing only at the conclusion of the whole surveillance. U.S. v. Scafidi, 564 F.2d 633 (2d Cir. 1977). The fact that an extension is granted after the term of the initial authorization order has technically expired does not mean that the continuation is not an “extension” within the meaning of the statute. U.S. v. Pichardo, 1999 WL 649020 (S.D.N.Y. 8/25/99). “While we agree that it might be better practice for the issuing judge to sign a formal order directing the sealing and custody of the tapes, and to maintain a record of that proceeding, such procedures are not required by § 2518(8)(a).”  U.S. v. Gigante, 538 F.2d 502 (2d Cir. 1976).  See also U.S. v. Diana, 605 F.2d 1307 (4th Cir. 1979).

Statutory sealing requirements were met where government attorney advised district judge that the tapes were available for inspection at the time he presented motions for orders sealing them, and it was not necessary that the recordings be sealed in the judge’s presence. (Minimum requirements  set for sealing and custody).  U.S. v. Abraham, 541 F.2d 624 (6th Cir. 1976); U.S. v. Kincaide,145 F.3d 771 (6th Cir. 1998).

State wiretap tapes were not sealed in accordance with 2518(8)(a).  Their use as evidence in federal trial where the defendant did not seek their suppression or object to their admission into evidence was held not to be plain error.  The failure to seal the state wiretap recordings was not obvious to the federal trial judge, and the defendant did not demonstrate that the trial’s fairness, integrity or public reputation was affected by the government’s failure to properly seal the tapes.  U.S. v. Gomez, 67 F.3d 1515 (10th Cir. 1995) (dissenting judge believes that admission of unsealed tapes was plain error, citing U.S. v. Ojeda-Rios, 495 U.S. 257 (1990), for the proposition that the 2518(8)(a) sealing requirement presumes prejudice if the sealing requirements are not met, and Congress has thereby preempted the requirement that the defendant prove prejudice.)

Resealing

Once the trial level proceedings to which the unsealing order pertained have concluded, the tapes should be resealed in order to preserve their integrity should their admission be sought in another trial.”  Even after surveillance tapes have been used in another judicial proceeding, they may not be admitted into evidence without a judicial seal “or a satisfactory explanation for the absence thereof,” 18 U.S.C. s 2518(8)(a).  U.S. v. Scopo, 861 F.2d 339 (2d Cir. 1988); U.S. v. Long, 917 F.2d 691 (2d Cir. 1990); U.S. v. Boyd, 208 F.3d 638 (7th Cir. 2000) (citing Long and Scopo); U.S. v. Gigante, 979 F. Supp. 959 (S.D.N.Y. 1997).

Custody

“2518(8)(a) provides that ‘custody of the recordings shall be wherever the judge orders.’  The unsealing order in this case authorized the Government to unseal the tapes ‘to the limited extent necessary for the Government to duplicate, disclose and otherwise make use of’ them for this case.”  A private audio expert’s “custody of the tapes for purposes of enhancement and duplication would have been consistent with this order.”  Even if the custody provision of 2518(8)(a) had been violated, the defendant could still not obtain relief on a section 2255 petition.  See Fiumara v. U.S., 727 F.2d 209 (2d Cir. 1984) (“miscarriage of justice” standard not satisfied by “mere technical violations” of Title III);  Alfano v. U.S., 555 F.2d 1128 (2d Cir. 1977) (such “technical violations” include violations of statute’s sealing requirements).  U.S. v. Persico, 1993 WL 385799 (S.D.N.Y.).

Notice of Inventory

Absent a showing of bad faith or actual prejudice, the failure to serve a formal inventory notice under 2518(8)(d) does not justify suppression.  U.S. v. Donovan, 429 U.S. 413 (1977); U.S. v. DeJesus, 887 F.2d 114 (6th Cir. 1989); U.S. v. Davis, 882 F.2d 1334 (8th Cir. 1989); U.S. v. Savaiano, 843 F.2d 1280 (10th Cir. 1988); U.S. v. Crumpton, 54 F. Supp.2d 986 (D. Colo. 1999); U.S. v. Wright, 156 F. Supp.2d 1218 (D. Kan. 2001); U.S. v. Davis, 2004 U.S. Dist. LEXIS 4336 (E.D. Pa.).  Suppression should be required when the statutory violation arose from a conscious decision by the federal authorities to violate the law and to prevent an individual or group of individuals from receiving the post-interception notice.  U.S. v. Harrigan, 557 F.2d 879 (1st Cir. 1977). 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).  After service of inventory notice pursuant to 18 U.S.C. 2518(8)(d), the judge, upon filing of a motion, may in his discretion make available for inspection such portions of the interceptedcommunications, applications and orders as the judge determines to be in the interest of justice.  The notice of inventory does not compel immediate disclosure of the fruits of the surveillance. The government’s decision not to postpone the service of the inventory is not a waiver of the right to oppose disclosure of matters not within the scope of the inventory. “Reconciling § 2520 and §2518(8)(d) ‘is principally a question of timing,’” Application of the United States of America in the Matter of an Order Authorizing the Interception of Wire Communications, 413 F. Supp. 1321 (E.D. Pa. 1976)(emphasis in original). “In camera inspection is the only practical way simultaneously to preserve the interests of the individual under surveillance and the interest of the Government in preserving the secrecy of ongoing criminal investigations.” Stoddard v. U.S., 710 F.2d 21 (2d Cir. 1983). See also In re Warrant Authorizing Interception of Oral Communications,708 F.2d 27 (1st Cir. 1983).

18. Indemnity for service provider. – The service provider shall have immunity in accidence with this law shall not be called in question under any law by any person who may have been prejudice by such access.

Prosecutors are entitled only to qualified immunity for acts related to investigations or the giving of legal advice.  Burns v. Reed, 500 U.S. 478 (1991). Qualified immunity does not apply broadly to Title III claims because complete defense is provided in 2520(d).  Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998). “The court concludes as a matter of law that a defendant is entitled to assert the defense of qualified immunity for an alleged violation of the Wiretap Act.”  Peavy v. Dallas Independent School District, 57 F. Supp.2d 382 (N.D. Tex. 1999).

Congress did not intend to deprive public officials of their defense of qualified immunity when it enacted Title III.”  Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999); Tapley v. Collins,  211 F.3d 1210 (11th Cir. 2000)(citing Blake); Conner v. Tate, 130 F. Supp.2d 1370 (N.D. Ga. 2001). Although defendant police officer’s interception of the cordless telephone communications of plaintiff during a drug investigation in 2000 violated federal law (cordless telephone exemption removed from Title III in 1994), the good faith defense in 18 U.S.C. 2520(d) excuses the defendant from liability because he relied in good faith on a Tennessee court order issued in accordance with state law, and he received verification of its propriety from a local assistant district attorney. Because the law regarding Fourth Amendment applicability to cordless telephone communications is not “clearly established” (neither the Supreme Court nor the Sixth Circuit has specifically addressed the issue), and because he was acting pursuant to a court order under state law, and with the endorsement of an assistant district attorney, the defendant has qualified immunity from liability if there was a Fourth Amendment violation.  Frierson v. Goetz, 2004 U.S.App. LEXIS 10037 (6th Cir.) No qualified immunity for chief of police who secretly taped a police line used for personal calls and which had been announced by the chief to be free from taping.  Abbott v. The Village of  Winthrop Harbor, 1998 U.S. Dist. LEXIS 11897 (N.D. Ill. 7/29/98).

19. Immunity to service provider. – The service provider shall have immunity in any civil or criminal legal proceedings that any person may commence against his corporate entity or against his office bearers or employee, for having compiled with the warrant issued under this Act.

The prosecutor is absolutely immune for acts taken in preparing for the initiation of judicial proceedings or for trial, including the professional evaluation of evidence assembled by the police.  Buckley v.  Fitzsimmons, 509 U.S. 259 (1993).

Prosecutors have absolute immunity in their review of evidence in anticipation of prosecution. Whether the prosecutors are right or wrong in their evaluation of their right to use illegally recorded tape as evidence is of no moment.  Davis v. Zirkelbach, 149 F.3d 614 (7th Cir. 1998). Prosecutors have absolute immunity in turning over tape recordings in discovery pursuant to Rule 16 because such action is clearly related to a prosecutorial function.  Lanier v. Bryant, 332 F.3d 999 (6th Cir. 2003)

20. Service provider to cooperate. – In the  event the service provider declines, fails or interfere in any manner in the execution of warrant then he shall be liable to have committed an offence under this Act for obstructing investigation and justice and shall be punished with fine upto ten million.

Interception by Service Provider

Telephone company’s warrantless recording, disclosure and use of the wire communications of a person suspected of using a “blue box” to evade toll charges was a reasonable exercise of the telephone  company’s authority under 2511(2)(a)(i) to protect its rights and property.  U.S. v. Harvey, 540 F.2d 1345 (8th Cir. 1976) (citing U.S. v. Clegg, 509 F.2d 605 (5th Cir. 1975) for delineation of minimum privilege accorded telephone company under 2511(2)(a)(i)). Under 2511(2)(a)(i), there must be some substantial nexus between the use of the telephone instrument to be monitored and the specific fraudulent activity being investigated so that the service provider can show that such monitoring is “necessary . . . to the protection of the rights or property of the provider.”  AT&T had right to monitor employee’s communications on company-issued cellphone in furtherance of the employee’s fraudulent cellphone cloning scheme where AT&T did not have the capability of intercepting the cloned instruments themselves.  U.S.v. McLaren, 957 F. Supp. 215 (M.D. Fla. 1997).

Cellular One employees were not acting as government agents when, after being informed by the Secret Service that its customers were being defrauded by a clone phone operation, without the knowledge of the government exercised its right under 18 U.S.C. 2511(2)(a)(i) to conduct warrantless interceptions to detect fraudulent use of its services and located the residence from which the clone phone radio signal was being transmitted.  Cellular One then provided that information to the Secret Service which then used that information to obtain a search warrant for the residence being used by the clone cell phone users.  U.S. v. Pervaz, 118 F.3d 1 (1st Cir.1997).

A jury could reasonably find that Cellular One was acting as an instrument or agent of the government when police officers conducting a kidnaping investigation, having been informed that Cellular One could conduct, under 18 U.S.C. 2511(2)(a)(i), a warrantless wiretap of a clone cellphone being used by the kidnaping suspect, asked Cellular One to relay to the police the contents of calls monitored by Cellular One.  Cellular One appeared to be motivated by its desire to help the officers rather to protect its own property pursuant to the provisions of 18 U.S.C. 2511(2)(a)(i).(The intercepted message relayed to the police, that the caller wouldn’t be at work that day, is irrelevant to a cloned phone investigation but very useful to a kidnapping investigation.) Officers are not entitled to qualified immunity because the wiretap statute clearly establishes the rights of someone using a telephone as against the police, and accordingly “it has been crystal clear in this circuit, at least since 1976, that in no situation may the Government direct the telephone company to intercept wire communications in order to circumvent the warrant requirements of a reasonable search.” U.S. v. Auler, 539 F.2d 642 (7th Cir. 1976).  “This is why the courts in Pervaz and McLaren . . . go to such lengths to determine whether the phone companies . . . were acting at the request or direction of police officers.”  McClelland v. McGrath, 31 F. Supp.2d 616 (N.D. Ill. 1998).

American Airlines, through their computerized reservation system, is a provider of wire or electronic communication service and American’s Senior Security Representative was acting within the scope of her employment to protect the rights and property of her employer by monitoring defendant travel agents’ apparent misuse of American’s electronic communication service.  See 18 U.S.C. 2511(2)(a)(i).  Moreover, one of the parties to the communication (viz., American, as the security representative’s employer) had consented to the monitoring.  See 18 U.S.C. 2511(2)(d).  U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).

There is no constitutional or statutory basis for suppression where, in the course of an investigation into a large fraud scheme being perpetrated against AT&T, security personnel of AT&T Wireless, without government involvement, and as authorized under 18 U.S.C. 2511(2)(a)(i), conducted warrantless interceptions and then disclosed to law enforcement officials the defendant’s incriminating communications intercepted during such warrantless monitoring.  U.S. v. Villanueva, 32 F. Supp.2d 635 (S.D.N.Y. 1998).

21. Servie provider to ensure confidentiality. – The service provider shall also be responsible for ensuring the confidentiality of the exectution of warrant from his staff member except those necessary to execute the warrant and in case of unauthorized disclosure or misuse of data by any of his staff shall be punished with imprisonment which may extend to one year or with fine which may  be extend to ten million rupees.

Notwithstanding the prohibition of 18 U.S.C. 2511(1)(c), the First Amendment protects the knowing disclosure of illegally intercepted communications if the person making the disclosure played no part in the illegal interception, lawfully obtained access to the communications, and the communications deal with a matter of public concern.  Bartnicki v. Vopper, 121 S. Ct. 1753 (2001). Defendants’ use, in the preparation and filing of a lawsuit, of illegally intercepted cordless telephone communications concerning purely private matters was not protected First Amendment activity under the theory applied in Bartnicki. Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003).

Congressman McDermott knowingly disclosed the contents of illegally intercepted communications in violation of 2511(1)(c).  When McDermott received the illegally intercepted communications directly from the illegal interceptors, he had present knowledge of the illegality of such disclosure by the interceptors, and thus “unlawfully” obtained the information. Therefore, the Supreme Court’s holding in Bartnicki does not provide a First Amendment shield for Congressman McDermott’s violation of 18 U.S.C. 2511. Although not necessary to a determination of the instant case, Judge Hogan chose to discuss the “duty of confidentiality” and its consequent limitation on First Amendment protection that might have been otherwise enjoyed by the federal judge in U.S. v. Aguilar, 515 U.S. 593  (1995) (judge disclosed wiretap information to the subject of the surveillance). Boehner v. McDermott, 332 F. Supp.2d 149 (D. D.C. 2004).

Section 2520 does not permit recovery for procurement of another to intercept covered communications. Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000); Gunderson v. Gunderson, 2003 WL 1873912 (W.D. Mo.); Hurst v. Phillips, 2005 WL 2436712 (W.D. Tenn.). Section 2520(a) does not create a private right of action against  a person who possesses a device in violation of section 2512(1)(b). Directv, Inc. v. Treworgy, 373 F.3d 1124 (11th Cir. 2004); Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985) (no private cause of action lies under 18 U.S.C. 2520 for violations of 18 U.S.C. 2512); See Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000) (holding, in context of action for procurement under § 2511(1)(a), that “that violation” in § 2520 clearly refers only to illegal interception, disclosure, or use); Walker v. Darby, 911 F.2d 1573 (11th Cir. 1990) (“In order to recover under § 2520, plaintiff must show that defendants violated § 2511 . . . .”); Directv, Inc. v. Smith, 2004 U.S. Dist. LEXIS 5199 (S.D. Ohio)(excellent review of cases on either side of the issue).

A civil action under 18 U.S.C. 2511 and 2520 may be brought against one who intercepts encrypted satellite transmissions.  Directv, Inc. v. Nicholas, 403 F.3d 223 (4th Cir. 2005). A civil action may be brought under 2520 whether or not defendant has been prosecuted and convicted for acts complained of.  Peavy v. Harman, 37 F. Supp.2d 495 (N.D. Tex. 1999) (citing legislative history).

A civil action may be brought under 18 U.S.C. 2520 for an alleged violation of 18 U.S.C. 2512. Directv, Inc. v. Kitzmiller, 2004 U.S. Dist. LEXIS 5263 (E.D. Pa.); Directv, Inc. v. Dougherty, 2003 U.S. Dist. LEXIS 23654 (D. N.J.). Section 2520(a) does not provide a cause of action against aiders and abettors. In re Toys R US, Inc., Privacy Litigation, 2001 U.S. Dist. LEXIS 16947 (N.D. Cal.). The ECPA does not recognize a cause of action for aiding and abetting a primary violator, and the Act does not create any secondary liability on the part of the service provider. Motise v. America Online, Inc., 2005 WL 1667658 (E.D. Va..).Section 2520 of the Wiretap Act expressly precludes relief against the United States.  The exclusive remedy against the United States for violation of the Wiretap Act is contained in 18 U.S.C. 2712. Ellis v. Bazetta Police Department, 2005 WL 1126731 (N.D. Ohio); Marshall v.Johnson, 2005 U.S. LEXIS 9620 (W.D. Ky.).

Under 47 U.S.C. 230(c), ISPs are indifferent to the content of information they host or transmit: whether they do or do not take precautions, there is no liability under either state or federal law.  Nor is an ISP liable under 18 U.S.C. 2511 and 2520 merely because a customer violates 18 U.S.C. 2511 through use of the ISP’s internet hosting services.  Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).

Claims under 18 U.S.C. 2520 were barred by two year statute of limitations set forth in 2520(e).  Lanier v. Bryant, 332 F.3d 999 (6th Cir. 2003); Sparshott v. Feld Entertainment, Inc., 311 F.3d 425 (D.C. Cir.  002)(no requirement that person actually be aware of the violation, only that the person had a “reasonable opportunity” to discover the wiretapping); Bristow v. Clevenger, 80 F Supp.2d 421 (M.D. Pa. 2000); Perkins v. Napieralski, 2001 U.S. Dist. LEXIS 12570 (D. Or.); Menard v. Board of Trustees of Loyola University of New Orleans, 2004 WL 856641 (E.D. La.). Disclosure of tape recordings by United States Attorney during discovery in plaintiff’s criminal prosecution is not a prohibited disclosure under the Wiretap Act.  Rule 16 requires the Government upon request by the defendant to disclose certain items for inspection by the defendant, and since the recordings were of the defendant, and the defendant presumably requested their disclosure during discovery, the defendant and his attorney cannot be considered third parties.  In any event, the prosecutors are entitled to absolute immunity because turning over tape recordings in discovery pursuant Rule 16 is an action clearly related to a prosecutorial function.  Lanier v. Bryant, 332 F.3d 999 (6th Cir. 2003). Connecticut’s fraudulent concealment doctrine was applicable in determining whether claims foralleged wiretapping of plaintiff’s workplace telephone were time-barred.  Schmidt v. Devino, 106 F. Supp.2d 345 (D. Conn. 2000).

Title III does not preempt a 42 U.S.C. 1983 action based on a claimed Constitutional violation. PBA Local No. 38 v. The Woodbridge Police Department, 832 F. Supp. 808 (D. N.J. 1993); Amati v. The City of Woodstock, 829 F. Supp. 998 (N.D. Ill. 1993). Under 18 U.S.C. 2520(a), government entities can be held liable for violations of Title III. Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001); Dorris v. Absher, 959 F. Supp. 813 (M.D. Tenn. 1997); PBA Local No. 38 v. The Woodbridge Police Department, 832 F. Supp. 808 (D. N.J. 1993); Conner v. Tate, 130 F. Supp.2d 1370 (N.D. Ga. 2001).

Title III does not allow for suits against municipalities. 18 U.S.C. 2510(6).”  Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999); Abbott v. Village of Winthrop Harbor, 205 F.3d 976 (7th Cir. 2000); Anderson v. City of Columbus, Georgia, 374 F. Supp.2d 1240 (M.D. Ga 2005) (citing Abbott).

Municipalities are exempt from punitive damages under 18 U.S.C. 2520.  Lewis v. Village of Minerva, 934 F. Supp. 268 (N.D. Ohio 1996). District court enjoined defendant’s pursuit of a claim against plaintiff based on the defendant’s apparent nonconsensual tape recording of plaintiff’s participation in a union meeting.  18 U.S.C. 2520(b)(1).  Earley v. Smoot, 846 F. Supp. 451 (D. Md. 1994).  The $10,000 liquidated damages amount under § 2520(c)(2)(B) is designed to compensate a claimant for all of a transgressor’s misdeeds under the Act, unless that transgressor has violated the Act on more than one hundred separate days, in which case compensation is $100 for each such day.  Smoot v. United Transportation Union, 246 F.3d 633 (6th Cir. 2001).  The court has discretion under 2520(c)(2) to award no damages. Directv, Inc. v. Brown, 371 F.3d 814 (11th Cir. 2004); Reynolds v. Spears, 93 F.3d 428 (8th Cir. 1996); Morford v. City of Omaha, 98 F.3d 398 (8th Cir. 1996); Nalley v. Nalley, 53 F.3d 649 (4th Cir. 1995); Culbertson v. Culbertson, 143 F.3d 825 (4th Cir. 1998); Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999); Directv, Inc. v. Griffin, 290 F. Supp.2d 1340 (M.D. Fla. 2003); Leach v. Byram, 1999 U.S. Dist. LEXIS7832 (D. Minn.); Romano v. Terdik, 939 F. Supp. 144 (D. Conn. 1996); Goodspeed v. Harman, 39 F. Supp.2d 787 (N. D. Tex. 1999). Despite the use of the term “may,” the court has no discretion under 2520(c)(2) to decline to impose damages.  Rodgers v. Wood, 910 F.2d 444 (7th Cir. 1990).

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