Wiretap Evidence

United States v. Ojeda Rios, 495 U.S. 257 (1990)

The Supreme Court holds that a delay in sealing recorded communications may result in suppression just as a total failure to seal such recordings may necessitate suppression of the evidence. Furthermore, the Supreme Court holds that the government’s explanation for failure to seal the recordings promptly must provide an actual reason for the delay and must also explain why the failure must be deemed excusable. The Court went on to hold that a misunderstanding of the law – a misunderstanding as to when the recordings must be sealed – may provide an adequate explanation justifying a failure to seal.

Gennusa v. Canova, 748 F.3d 1103 (11th Cir. 2014)

A suspect and her attorney went to a police station to be interviewed. Prior to the interview, the attorney and the suspect were placed in an interview room (the suspect was not in custody) and were not warned that their conversation would be taped. The Eleventh Circuit held that monitoring the conversation violated the Fourth Amendment rights of the two individuals and that a § 1983 action could be brought, because the deputies were not entitled to qualified immunity for this obvious violation of the Fourth Amendment and the attorney-client privilege.

United States v. Glover, 736 F.3d 509 (D.C. Cir. 2013)

The D.C. Circuit holds that a judge in one district has no authority to authorize the installation of an electronic listening devide in another district. Additionally, this is a “core concern” of the Wiretap statutes and therefore suppression is the appropriate remedy. Finally, there is no good faith exception to the exclusionary rule for violations of this jurisdictional limitation on a judge’s authority.

United States v. North, 735 F.3d 212 (5th Cir. 2013)

In the initial panel opinion, the court held that if neither the cell phone, nor the listening post is within a particular district, that district court may not authorize a wiretap warrant. Later, the court withdrew that opinion and authored a new decision (10/24/13) suppressing the wiretap evidence on the basis that there was insufficient minimization.

Unitd States v. Lomeli, 676 F.3d 734 (8th Cir. 2012)

The failure in a wiretap application to identify the DOJ official who approved the application, as well as the officer who was making the application rendered the wiretap application defective. Moreover, the good faith exception to the exclusionary rule for wiretap application defects does not apply in this case (even though the proper official at DOJ had, in fact, authorized the wiretap). The Eighth Circuit does recognize a good faith exception in some cases, though other Circuits have held that there is no good faith exception to th exclusionary rule.

United States v. Simels, 654 F.3d 161 (2d Cir. 2011)

Wiretap evidence that has been ruled inadmissible may be used by the government to impeach the defendant during cross-examination.

United States v. Amanuel, 615 F.3d 117 (2d Cir. 2010)

The state law enforcement agents failed to comply with the order that authorized wiretap intercepts of a pager. The state judge ordered that the intercepts be recorded digitally, but instead, the police simply maintained a written log of the intercepted images on the pager. The police also failed to properly seal the recorded information. Only a limited exclusionary rule applies pursuant to 18 U.S.C. § 2518(8)(a), though. Just the intercepts are suppressed, not the fruits of those intercepts, including investigative leads and warrants that were based on information learned from the intercepts.

United States v. Larios, 593 F.3d 82 (1st Cir. 2010)

Agents learned that the defendant and others were intending to conduct a drug deal in a hotel room. Without a warrant, the agents installed concealed an audio/video recording device in the room. At one point, the defendant and another conspirator were in the room without any undercover agent and their conversation was recorded. The First Circuit held that the defendant did not have an expectation of privacy in the statements he made while in the hotel room and therefore Title III did not apply. 18 U.S.C. § 2510(2) defines an “oral communication” as “any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” This definition parallels the Fourth Amendment jurisprudence of expectation of privacy. Because the defendant did not have an expectation of privacy in the hotel room, which he occupied for a brief period of time for the sole purpose of dealing in drugs, he did not have an objectively reasonable expectation of privacy in the conversations he had in the room during the drug deal. The court does cite several cases from other jurisdictions that held that a defendant did have an objectively reasonable expectation of privacy in this situation, but distinguished those cases. See, e.g., United States v. Nerber, 222 F.3d 597 (9th Cir. 2000); United States v. Padilla, 520 F.2d 526 (1st Cir. 1975).

United States v. Crabtree, 565 F.3d 887 (4th Cir. 2009)

If a private person unlawfully wiretaps a phone, this evidence may not be used by the government at trial. The government’s argument that it had “clean hands” does not alter the effect of the exclusionary rule, 18 U.S.C. § 2515.

United States v. Rice, 478 F.3d 704 (6th Cir. 2007)

The Leon good faith exception to the exclusionary rule does not apply to Title III wiretap cases. Because suppression is a statutory remedy, the court-made exception to the court-created exclusionary rule in other search cases, does not apply. In this case, the warrant application contained misrepresentations and recklessly-made false statements which, when corrected, negated the necessity requirement for a wiretap. The court also upheld the trial court’s finding that various boilerplate representations about alternative methods were not useful in a wiretap application.

United States v. Staffeldt¸ 451 F.3d 578 (9th Cir. 2006)

The wiretap statute requires that a warrant be authorized by the Attorney General or his designee and this authorization must be shown to the judge who is asked to issue the warrant. In this case, the government mistakenly presented to the court a memorandum or authorization thathad no relationship to the case for which the warrant was being sought (apparently two memoranda of authorization were sent to the wrong AUSA’s in different parts of the country). Because of the facial insufficiency of the application, the evidence should have been suppressed. The court noted that the judge who issued the warrant obviously did not review the contents of the application.

United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005)

The First Circuit devotes several pages to a discussion of the necessity requirement of the wiretap statute, including the standard of review that the court should utilize in reviewing the issuance of the wiretap order. The court ultimately adopts a simple “unitary” standard: “Whether the facts set forth in the application were minimally adequate to support the determination that was made.”

United States v. Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005)

The information in the wiretap affidavit did not satisfy the necessity requirement of the wiretap statute. In addition, the application suffered from a Franks violation. With regard to the Franks violation, the defendants offered sufficient information relating to the false statements and the materiality of the false statements in their pleadings to prompt the trial court to grant a hearing (which the district court did conduct). Regarding the necessity issue, the normal investigative techniques available to the government had not been exhausted; moreover, if traditional investigative procedures were used, there would have been no need for a wiretap. Finally, the court also held that the owners of business property have standing to contest a wiretap employed at the business, even if the owners themselves were not intercepted by the wiretap.

United States v. Coney, 407 F.3d 871 (7th Cir. 2005)

A delay of ten days prior to sealing the wiretap tapes was too long. Though the delay was not justified, it was, nevertheless, harmless and excusable so the evidence would not be suppressed.

United States v. Mora, 821 F.2d 860 (1st Cir. 1987)

The Court of Appeals for the First Circuit provides a comprehensive analysis of the “sealing” requirement of the federal wiretap statute. The Court concludes that the failure to seal the tapes is grounds for suppression unless a satisfactory explanation for the government’s failure is provided. Even if a satisfactory explanation is offered, there must be clear and convincing evidence that there has been no tampering with the tapes. Finally, the government must also prove that the satisfactory explanation illustrates a good faith failure.

In re United States, 10 F.3d 931 (2d Cir. 1993)

A Title III wiretap application may not be reviewed and considered by a Magistrate. Only a District Judge has the authority to grant such orders.

United States v. Gerena, 869 F.2d 82 (2d Cir. 1989)

Prior to utilizing wiretap evidence in a publicly filed brief, the government must give notice to the defendants. If the trial court determines that the defendants will be deprived of a fairtrial or that their right to privacy will be unjustifiably infringed, the trial court may order that certain portions of the wiretapped evidence be redacted or sealed.

In re Grand Jury, 111 F.3d 1066 (3rd Cir. 1997)

Individuals who had been illegally wiretapped (by another private party) had standing to challenge the government’s effort to obtain the wiretaps to present to the grand jury. 18 U.S.C. §2515 expressly provides that no illegally obtained wiretap may be used in any proceeding – and this includes the grand jury.

United States v. Quintero, 38 F.3d 1317 (3rd Cir. 1994)

The hectic schedule of an AUSA is not a satisfactory explanation for failing to comply with the sealing requirement of 18 U.S.C. §2518(8)(a). In this case, the delay was eighteen days from the expiration of the surveillance until the sealing of the tapes.

Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995)

The police used a pager clone, a device which monitored the pages received by the suspect on his pager. This device was not analogous to a pen register; rather it was more akin to a wiretap and the failure to obtain a proper wiretap authorization required that the evidence be suppressed. The information received on the pager was more than simple telephone numbers. People who paged the suspect often left numeric messages, codes which provided information about the caller or his actions (such as the fact that the caller was “en route”).

United States v. Underhill, 813 F.2d 105 (6th Cir. 1987)

The defendants recorded their own phone calls which were made in connection with their gambling operation. Bets which were placed on the phone were recorded in order to head off any arguments with the bookies and bet-placers. The result was the creation of a “gambling record” which itself is forbidden by state law. The wiretap statute forbids the use of any recordings which are made in violation of the law, whether consensual or not. The Sixth Circuit holds that even though the creation of these tapes did constitute a crime, the tapes would not be suppressed at trial.

United States v. Feiste, 961 F.2d 1349 (8th Cir. 1992)

The trial court suppressed the wiretap evidence because of the failure of the police to immediately seal the tapes, pursuant to 18 U.S.C. §2518(8)(a). The government’s excuse for the failure to immediately seal the tapes was more a matter of convenience and the trial court did not err in ordering the tapes suppressed.

United States v. Carneiro, 861 F.2d 1171 (9th Cir. 1988)

The drug agents failed to employ traditional forms of surveillance in this investigation of several suspected participants in a drug trafficking ring. The affidavit in support of a search warrant failed to satisfy the “necessity” requirement of the federal wiretapping statute. In this case, the government had infiltrated the drug ring, had made undercover purchases of drugs, and had identified a number of the participants in the drug conspiracy. Although wiretaps are not to be used only as a last resort, they can not be the initial step in a criminal investigation.

United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987)

The affidavit which was used to obtain a wiretap failed to reveal to the judge that an informant had gained the friendship of the defendant and was able to provide substantial information to the government about the defendant’s co-conspirators. The affidavit’s failure toreveal this information withheld from the judge critical evidence about the necessity of a wiretap and constituted a Franks violation.

United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997)

Generalities or statements in the conclusory language of the statute are not sufficient to satisfy the necessity requirement of the wiretap statute. In this case, though the initial wiretap was shown to be necessary, subsequent wiretap applications did not sufficiently establish the necessity for the wiretap. A subsequent Ninth Circuit decision held that this decision applied the wrong standard of review (de novo) for assessing compliance with the necessity requirement and that an abuse of discretion is the proper standard. United States v. Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir 2002).

United States v. Mondragon, 52 F.3d 291 (10th Cir. 1995)

Though the initial wiretap application contained a statement that the wiretap met the necessity requirement (and the judge found this to be the case in the order), a supplemental request omitted to include this requirement, and no finding was made by the judge. This omission rendered the supplemental wiretap defective. The appellate court would not assume that the issuing judge considered the information in the initial application and made appropriate findings.

United States v. Brown, 872 F.2d 385 (11th Cir. 1989)

A state court judge granted a wiretap order pursuant to an application by state authorities. The state law requires that the state applicant set forth a full and complete statement of the action taken by the judge on prior applications for an intercept order. Because of the state agent’s failure to comply with the state law, the federal prosecutor could not use the evidence in a federal prosecution.