Police wiretapping is actuallly a rare phenomenon, contrary to what movies and T.V. shows would have you believe. Nonetheless, the police are allowed to use wiretaps in some circumstances. The most common situation where police are allowed to wiretap phone calls is when they obtain a court order.
How Do the Police Get a Court Order for a Wiretap?
First, the police will ask a prosecutor to get a court order for a wiretap. With the prosecutor and the police will then have to go to a judge or magistrate and make the requisite showing before the judge will grant the wiretap order. Moreover, only certain local and federal prosecutors are allowed to apply for wiretap orders, and only certain courts can grant the use of the wiretap.
What Do the Police Need to Show in Order to Get a Court Order for a Wiretap?
In order to obtain a court order for a wiretap, the police must show the probable cause required for a search warrant exists. In addition, the police must also show that they either unsuccessfully exhausted all other less intrusive means of investigation, or that those other means are too dangerous.
What Will the Court Order Say?
The court order will essentially permit, yet also limit, the use of the wiretap. Typically, these orders will:
- Place restrictions on how the information gathered can be used
- Restrict how long the police can listen to conversations
- Limit the types of conversations the police are allowed to listen to.
The court order can place many other restrictions, including who can listen to the conversations and what records the police must keep.
What Happens If the Police Do Not Have or Violate a Court Order?
Without a court order, the police cannot listen to your phone conversations, unless one of the parties consents to their use of a wiretap. Any information they gather cannot be used against a party in criminal trial. The same is true for information gathered in violation of the court order. The information can be suppressed as the result of an illegal search. Moreover, if the police use a wiretap in violation of a court order or without one, this can constitute police misconduct.
Are There Any Exceptions to the Rule That the Police Need a Court Order?
In special circumstances, the police can get an emergency wiretap, where they will work with the phone company to setup the wiretap immediately and the prosecutor will have 48 hours to obtain a court order. This is not technically an "exception" because a court order is still needed, even if it comes after the wiretapping begins.
How Do Police Use a Wiretap?
The police will use the wiretap to listen to your phone conversations with others. There are typically three classifications of calls:
- Class 1 calls are directly related to what the police are investigating
- Class 2 calls are new crimes that the police did not already know about - these calls usually require the police to go back to court and get an amended court order
- Class 3 calls are junk calls, such as hang ups
In addition to listening in on your phone calls, the police can monitor your phone calls in other ways. For example, the police can find out the numbers of everyone who calls you, they can record your calls, and they can keep track of all the numbers you call. Whatever the police do, it must be contained in the court order.
Do I Need a Lawyer?
The laws regarding wiretaps vary from state to state and can be very complicated. An experienced lawyer can help you sort through the legal rules and inform you of your rights and defenses. If the police are bringing charges against you, you should consult a criminal defense lawyer immediately.