Title III Wiretaps in Drug Cases: How They Get Authorized.

Under Title III, applications for Title III wiretaps ordinarily require prior judicial authorization. Under 18 U.S.C. § 2516, Section 2516(1) lists senior Justice Department officials who are authorized to sign off on requests to judges to conduct wiretaps in federal cases. Each application must be made in writing upon oath or affirmation to a judge of competent jurisdiction and must state the applicant’s authority to make the application.

The Application’s statutory authorization provisions require that the presiding judge (generally a federal district judge) independently find each required element of statutory authorization. These required elements include:

• (i) the existence of probable cause that a qualifying Title III offense is being or is about to be committed;
• (ii) the existence of probable cause that a qualifying Title III offense is being or is about to be committed and that the proposed wiretap would uncover communications concerning that offense;
• (iii) that ordinary methods of investigation have been tried (or they would be insufficient) to uncover the communications or information sought by the federal wiretap; and,
• (iv) that a wiretap is necessary in the circumstances to effectively investigate the qualifying offense.

Under Title III, the specific offenses qualifying for a wiretap under 18 U.S.C. § 2516(1)(B) include those involving, among others, (i) drug trafficking or distribution by organized crime networks, (ii) racketeering, (iii) kidnapping, (iv) arson, (v) computer crimes, and, (vi) domestic and international terrorism. While there are other circumstances that may justify a federal wiretap under Title III, these are the most commonly used to execute Title III wiretaps in federal cases.

What Must a Drug-Case Wiretap Application Establish About the Crime, Targets, and Necessity?

Under Section 2518(1)(b), an application for a Title III wiretap must establish that there is probable cause to believe that “an individual is committing, has committed, or is about to commit” a “specific offense” under state or federal law. Additionally, the judge must find probable cause that particular communications concerning that offense will be obtained through the interception.

The application must also identify “the nature and location of the facilities from which or the place where the communication is to be intercepted.” While the phrase “facility, device, or other means” originally contemplated stationary telephones, cell phones and cellular services are now commonly (and lawfully) subjected to Title III intercepts.

Along with these other requirements, Section 2518(1)(b) requires the application to also provide “a particular description of the type of communications sought to be intercepted.” This requirement is meant to prevent the use of a Title III intercept as an all-purpose surveillance tool.

4. Necessity Statement

Section 2518(1)(c) requires the application to also contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;” This is known as the wiretap’s “necessity statement.” Its purpose is to force the government to explain why ordinary techniques are insufficient and why intrusive electronic surveillance is warranted.

While necessity statements vary, federal agents and prosecutors typically cite unsuccessful (or too dangerous) attempts at the following (non-Title III) alternatives in order to satisfy the requirements of Section 2518(1)(c). These alternatives include, among others:

• Surveillance
• Informants
• Controlled Purchases and Controlled Deliveries
• Subpoenas
• Search Warrants (For, Among Others, Computer Data and Cellular Data)

When May Agents Intercept, Minimize, Extend, and Approve Emergency Drug Calls?

Title III interception orders may initially last for a maximum of thirty days. If the warrant expires before the government has collected all of the information it needs, the government may seek an extension. But, just like the initial warrant application, the application for an extension must be approved by the Justice Department and a judge must find that there is continued probable cause and necessity. In addition, the application for an extension must report the results that the government obtained during its earlier interception.

Along with these other requirements, Title III authorization orders also require that agents minimize “the interception of communications not otherwise subject to interception under this chapter.” While this requirement is enforced at trial, this requirement is frequently ignored in drug-case investigations. Minimization is one of the safeguards that, if violated, can lead to the exclusion of the intercepted communications from evidence at trial.

When investigating a Title III drug wiretap, Scott evaluates the adequacy of the agents’ minimization efforts by whether the agents’ efforts were “the existence vel non of such a violation turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time.”

If the government conducted a federal drug-case wiretap without a warrant, the warrantless interception will be inadmissible in court, unless the government can show that the intercepted communication fell into one of the narrow emergency exceptions to Title III’s requirements.

While there are three statutory emergency situations (including “immediate danger of death or serious physical injury”) under which warrantless emergency interceptions may be authorized, this retroactively authorized intercept must be approved by the judge in a manner similar to the authorization process for warrantless wiretaps under Title I of the Foreign Intelligence Surveillance Act (FISA). To be admissible at trial, the government must make an application for an order approving the emergency interception within forty-eight hours after the interception occurred or began.

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What Happens to Recordings After the Interception Ends, and When May They Be Disclosed?

After a Title III drug-case interception concludes, federal agents must present all resulting recordings to the issuing judge. Under Section 2518(8)(a), the judge then must seal all recordings “immediately upon the expiration of the period of the order, or extensions thereof.” However, if the recording or other recordings are not sealed immediately, the government may still be able to use the recordings in its criminal case. A sealing delay does not automatically necessitate the suppression of the recording, although the government may need to show that it has a satisfactory explanation for the delay. If the recordings lack the required seal and there is no satisfactory explanation for its absence, the recordings may not be used or disclosed as evidence under the statutory sealing requirement.

7. Use and Disclosure of Intercepted Communications

When can the government use and disclose recordings obtained through a Title III drug-case wiretap? When evaluating the validity of the government’s use of intercepted communications, this is one of the central issues. Under 18 U.S.C. § 2517, the statute addresses the disclosure and use of intercepted communications in eight subsections:

• (i) when the government intends to use the recordings in a criminal prosecution;
• (ii) when the government is seeking to use the recordings in a criminal proceeding; and,
• (iii) when the government has collected recordings that may lead to subsequent criminal proceedings.

In these scenarios, the government must be able to prove it has complied with all of the statutory requirements of Title III. While there are other circumstances that may entitle the government to use intercepted communications, in drug cases, these are the primary scenarios that trigger the statutory requirements for use and disclosure.

How Are Consensual Recordings and Coded Drug Calls Treated When Wiretap Evidence Reaches Trial?

Wiretap evidence may be admitted into evidence if the government is able to satisfy the requirements of Title III. An important issue in drug cases is the interpretation of intercepted communications. Often, recorded messages appear to be harmless, but federal agents and prosecutors will argue that the speakers are using a code. While the agent’s interpretation of a code word may be given great deference, it should be challenged with attention to the available surveillance, financial records, the agents’ level of expertise, and any other pertinent information about the intercepted communication.

13. Disclosure of the Wiretap Application and Other Relevant Records

Before intercepted communications or derivative evidence may be received or disclosed in a federal trial, hearing, or other proceeding, each party must generally be furnished with the authorizing court order and accompanying application at least ten days beforehand. When evaluating the government’s attempt to admit recordings, we scrutinize the application, any sworn affidavits in support, the agent’s certification, the judge’s order, the sealing certifications, and any other pertinent documents, as well as the intercepted communications themselves.

14. Consensual Recordings

Under 18 U.S.C. § 2511(2)(c) and (d), consent is one of the exceptions to the statutory prohibition on recording calls and other forms of communications.

Specifically, Section 2511(2)(c) allows recordings when one of the communicating parties consents, while Section 2511(2)(d) allows a person not acting under color of law to intercept a communication when that person is a party to the communication or one party has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act in violation of federal or state law.

As a result, federal prosecutors will not seek a Title III warrant when they are targeting the communications of a defendant for whom they have arranged for voluntary consent, such as, in drug cases, consent from an undercover drug agent or a confidential informant who is acting at the behest of the government. While defendants have limited grounds to challenge the legality of a recording’s method of collection in these circumstances, they should continue to challenge the recording’s admissibility for other reasons.

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