Tcl - Challenging Federal Wiretaps - December 2005 - Criminal Law Newsletter

• Publication year: 2005
• Pages: 73
• Citation: Vol. 34 No. 12 Pg. 73

34 Colo.Law. 73 Colorado Bar Journal 2005.

2005, December, Pg. 73. TCL - Challenging Federal Wiretaps - December 2005 - Criminal Law Newsletter

The Colorado Lawyer
December 2005
Vol. 34, No. 12 [Page 73]

Articles
Criminal Law Newsletter
Challenging Federal Wiretaps
by Jonathan M. Abramson

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by Jonathan M. Abramson, Denver, an associate with Kissinger & Fellman, P.C., where he specializes in criminal defense and general civil litigation - (303) 320-6100, jonathan @kandf.com.

This article focuses on federal wiretap applications, challenges to wiretap interceptions, and changes in the procedure for reviewing orders authorizing wiretaps following the Ramirez-Encarnacion decision.

Wiretaps are an extremely powerful investigative tool for federal prosecutors. A plethora of statutory requirements must be satisfied when applying for an order authorizing the interception of wire communications.1 Despite these statutory prerequisites for wiretap authorization, the official 2004 Federal Wiretap Report indicates that every one of the 1,710 interception applications requested in 2004 was authorized.2 This high approval rate means, as a practical matter, that the only effective check on federal wiretaps is by way of post-hoc challenges to the admissibility of evidence obtained by wiretaps brought by targets or other aggrieved parties.This article discusses federal wiretaps3 issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.4 It also provides an overview of wiretap challenges and recent developments in Tenth Circuit case law relating to the standard of review applied by the federal district court when ruling on motions challenging orders authorizing wiretaps.

The Application Process

Before an assistant U.S. attorney makes application for a wiretap to a "judge of competent jurisdiction,"5 the application must be authorized by the Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General or Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General.6 Once a wiretap application is authorized by the Office of the Attorney General, the application must be submitted for judicial approval. A judge may authorize interceptions within the territorial jurisdiction of the court in which the judge is sitting.7

Strict adherence to the procedural steps set forth by 18 U.S.C. §§ 2510 et seq. is required when seeking judicial authorization to intercept wire or oral communications.8 The applicant9 must state:

1) the phone number to be intercepted;

2) the phone number's subscriber;

3) the names of the interceptees;

4) that there is probable cause to believe that the named interceptees are committing, have committed, or are about to commit an offense listed in 18 U.S.C. § 2516;10 and

5) which qualifying federal law is possibly being violated.11

The applicant also must submit an affidavit in support of the application. The affidavit is typically quite long and detailed and must explain why a wiretap is necessary. These statements of necessity may not be general or boilerplate, and "must specifically relate to the individuals targeted by the wiretap."12

Specifically, the affidavit must describe, among other things, what "normal investigative" techniques have been attempted; the government must fully explain what techniques were used to investigate the target(s) of the wiretap.13 The wiretap application must indicate that the government attempted normal investigative techniques and failed, or that normal investigative techniques reasonably appear unlikely to succeed or too dangerous.14 "Normal investigative" techniques are:

1) standard visual and aural surveillance;

2) questioning and interrogation of witnesses and participants, including the use of grand juries and grants of immunity, if necessary;

3) search warrants; and

4) infiltration of conspiratorial groups by undercover agents or informants.15

Pen registers and trap and trace devices also are considered traditional investigative techniques.16 If any of these investigative techniques has not been tried, the government must explain, with particularity, why each such unattempted technique would be either unsuccessful or too dangerous.17

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