Police wiretapping is actually a relatively rare phenomenon, contrary to what movies and TV shows would have us believe. Nonetheless, the police are allowed to use wiretaps in certain circumstances and it is a useful tool for law enforcement
When people think of wiretapping, most of them think of intercepted phone calls or recorded, in-person conversations. Wiretapping laws, however, apply to any and all wire, oral, and electronic communications that are intercepted by law enforcement.
Federal law regulates wiretapping by law enforcement. The federal Wiretap Act (“Act”) bans both the interception and the disclosure of wire, oral and electronic communications. The Act also prohibits the manufacture, distribution and possession of interception devices.
It also authorizes federal and state government agencies to intercept, disclose and use records of these communications in legal proceedings, if they are made in certain criminal investigations. The communications that can be intercepted, disclosed and used include e‐mails, faxes and pager numbers, as well as telephone calls.
So prosecutors are able to use communications obtained from wiretapping as evidence in court under certain strictly regulated conditions.
Law enforcement often uses wiretaps to investigate white collar crimes, homicide and kidnapping. However, it is most often used to investigate and prosecute illegal dealing in controlled substances. But the Act defines the kinds of criminal investigations in which wiretaps can be used. Under the Act state officials may apply to investigate a wide variety of crimes such as murder, kidnapping, and drug dealing. They can also use wiretaps to investigate every other crime that is “dangerous to life, limb, or property” punishable by more than one year of imprisonment.
Federal law enforcement may use wiretaps for investigations of any felony. For wire or oral intercepts, however, they are limited to investigations that are specifically listed in a statute that is part of the Act.
Law enforcement investigators must go through a series of procedural steps to obtain warrants for wiretapping. If they do not follow the rules for obtaining a wiretap warrant, a criminal case might be dismissed, because the prosecution would not be able to use the wiretap evidence gathered in a trial.
How Do the Police Get a Court Order for a Wiretap?
First, law enforcement asks a prosecutor to get a warrant for a wiretap. The prosecutor and a representative of law enforcement appear in court before a judge and present the evidence that is required to obtain a wiretap warrant. Only certain local and federal prosecutors are allowed to apply for wiretap orders. Moreover, only certain courts have the authority to issue a warrant allowing the use of a wiretap.
The requirements for obtaining a wiretap warrant are as follows:
- Eligible Applicants: Only certain officials are sanctioned by the Act to authorize an application for a state wiretap order. The sanctioned officials are the state attorney general, assistant state attorney general or the principal prosecuting attorney of a state.
- The Act does not confer the ability to authorize a wiretap application on an assistant district attorney or a deputy county attorney. If the necessary approvals for an application are not obtained, then the evidence obtained from use of the wiretap can be suppressed, i.e. blocked from use at trial. In other words, it becomes useless to the prosecution;
- Detailed Application: The Act requires that each application for a wiretap warrant include a specific statement of information which includes the following:
- The identity of the law enforcement agency and the agent applying for the warrant;
- A statement of the background facts of the case, e.g. the nature of the criminal activity being investigated;
- Other investigative techniques that were tried and failed to produce the desired evidence;
- The period of time during which the interception is planned to take place. This can be 30 days at most, but extensions are possible upon reapplication;
- A statement regarding all previous authorized applications in the case, if there were any;
- If the application is for an extension of a prior application, a statement of the results to date of the wiretap.
- Exhaustion of Other Means: In a wiretap warrant application, law enforcement must persuade the court that phone call interceptions are necessary, because all other less intrusive means of gathering information have failed to provide the evidence law enforcement needs. This is known in the trade as “exhaustion.” Some examples of investigative techniques that law enforcement must first “exhaust” prior to applying for a wiretap warrant include:
- Searching the suspect’s garbage;
- Physical surveillance of the suspect;
- Use of confidential informants;
- Use of tracking devices;
- Photographing suspects;
- Connecting cars used by suspects to associated registration information;
- Minimization Requirements: Once law enforcement has a wiretap warrant and has begun listening to a suspect’s phone conversations, they must stop listening in the following situations:
- Calls to which a privilege would apply, e.g. between a suspect and their attorney, can be listened to only if it would further the goals of the investigation. For example, if the attorney is a participant in the criminal activity rather than serving as an attorney, the privilege does not apply.
- Interim Reporting. While calls are being intercepted with the authorization of the wiretap warrant, law enforcement is often required to provide the court with ongoing reports as to the objective and the need to continue the wiretapping. The judge decides what the timing of these reports should be;.
- Termination: Interception of calls via a wiretap can last for no more than 30 days. If the investigating agency has obtained the information it claimed to seek in the warrant application, the wiretapping must cease. If evidence is gathered that suggests the need for additional investigation, law enforcement can apply for an extension of the warrant. Law enforcement may apply for as many extensions as can be justified because the investigation is producing new evidence;
- Sealing: Within ten days after the termination of the wiretap, the recordings must be made available to the judge who issued the warrant and they must be sealed under the judge’s directions. The evidence can not be sealed if there is a “satisfactory explanation.”
What Must the Police Show in Order to Get a Wiretap Warrant?
In order to obtain a court order for a wiretap, the police must show that the probable cause required for a search warrant exists. Again, probable cause is reason to believe that a crime is being committed and that the targeted suspect has committed it. And, again, also, law enforcement must show that they have exhausted all other less intrusive means of investigation, or that those other means are too dangerous to undertake.
What Will the Wiretap Warrant Say?
The court order will essentially allow and yet limit the use of the wiretap. Typically, these orders do the following:
- Put restrictions on how the information gathered can be used;
- Specify a limited period of time in which law enforcement can listen to conversations; and
- Limit the types of conversations the police are allowed to listen to.
The court can add any number of other restrictions to a wiretap warrant, including who can listen to the conversations and what kind of records the police must keep.
What Happens If the Police Do Not Have a Warrant or Violate a Warrant?
Without a warrant, the police cannot listen to a person’s phone conversations, unless one of the parties to a phone conversation consents to the use of a wiretap. Any information they gather without a warrant and without consent cannot be used against a defendant in a criminal trial.
The same is true for information gathered in violation of the terms of a warrant. The information can be suppressed as it is the result of an illegal search. Moreover, if the police use a wiretap in violation of a court-issued warrant or completely without one, this can constitute police misconduct.
Are There Any Exceptions to the Warrant Requirement for Wiretapping?
In special circumstances, the police can get an emergency wiretap, where they will work with the phone company to set up the wiretap immediately. The prosecution then has 48 hours to obtain a warrant.
This is not technically an “exception” to the requirement for a warrant, because it is still required. It is just obtained after the wiretapping begins. Of course, if the court refuses to issue the warrant, the wiretapping would have to cease.
How Do Police Use a Wiretap?
The police will use the wiretap to listen to a person’s phone conversations with other people. There are three types of calls as follows:
- Class 1 calls are directly related to the subject of the law enforcement investigation;
- Class 2 calls are new crimes that the police did not already know about before the wiretap investigation began. These calls usually require law enforcement to go back to court and get an amended warrant;
- Class 3 calls are calls that are not useful to the investigation, e.g. unanswered calls.
In addition to listening to a person’s phone calls, the police can monitor the phone numbers of incoming and outgoing phone calls. For example, the police can find out the numbers of everyone who calls a person and then keep track also of all the phone numbers the person calls. But whatever the police do, it must be authorized in a warrant issued by a court of law.
Do I Need a Lawyer?
There are both federal and state laws regarding wiretaps. Every state has its own version of wiretap laws. And, as can be seen, the law applicable to wiretapping can get complicated. If you believe that your phone has been tapped by law enforcement, you should consult a criminal defense lawyer. An experienced lawyer can help you determine if you can challenge the action of law enforcement. Your lawyer can also inform you of your rights and defenses.