5.7 Electronic Surveillance and Related Activities
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5.7 ELECTRONIC SURVEILLANCE AND RELATED ACTIVITIES
5.701 History and Background. The Fourth Amendment provides protection for one's "person, houses, papers and effects." For many years, the Supreme Court took the position that government evidence-gathering techniques that involved no physical "trespass" and that involved no seizure of material objects fell outside the purview of the Fourth Amend-ment. 381 This narrow view of the Fourth Amendment has since been rejected, and today the amendment clearly governs the seizure of intangible items, such as oral statements, and the presence or absence of a technical trespass in the process of seizing the items is not controlling. 382 As the Court stated in Katz v. United States, 383 "once it is recognized that the Fourth Amendment protects people—and not simply 'areas'—against unreasonable searches and seizures, it becomes clear that the reach of that amendment cannot turn upon the presence or absence of any physical intrusion into any given enclosure." Having concluded that activities such as electronic eavesdropping are constrained by the Fourth Amendment, the Court in Katz went on to require
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law enforcement officials to comply with the mandates of the amendment, including, most importantly, the warrant and probable cause standards.
5.702 The Federal Electronic Surveillance Statute.
A. In General. In response to Katz, Congress passed, as part of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act), a regulatory scheme governing wiretapping and eavesdropping by the use of electronic devices. 384 The Act contains a variety of prohibitions concerning the interception, disclosure, and use of wire, oral, or electronic communications, as well as the manufacture, distribution, possession, and advertising of devices intended to be used for the interception of those communications. More importantly, the Act authorizes, under certain conditions, the interception of wire, oral, or electronic communications and contains very broad exceptions that allow wiretapping and eavesdropping in certain circumstances.
Finally, the Act not only regulates the activities of federal officials but also limits the circumstances under which state law enforcement officials may engage in electronic eavesdropping. 385 Generally speaking, state law enforcement officials may engage in otherwise prohibited electronic surveillance activities only when authorized specifically by statutes of their own state that conform to the regulatory scheme set forth in the statute for federal officials.
B. The Regulatory Scheme. 386 Under the federal statute, any interception of a wire, oral, or electronic communication 387 through the use of any electronic, mechanical, or other device 388 is prohibited unless otherwise authorized by the Act. The Supreme Court has interpreted this prohibition as not covering pen registers. 389 Electronic surveillance by federal law enforcement officials may, however, be undertaken when approved by a federal
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judge upon application authorized by the Attorney General. 390 Generally, the request for authorization must be made in form and substance similar to the traditional affidavit supporting search warrants. 391 The application must also contain an assessment that normal investigative activities are either dangerous or unlikely to succeed or have failed 392 and must be limited to investigation of specifically enumerated crimes. 393 The application must include the names of all persons the government has probable cause to believe are engaged in criminal activity and whose conversations it intends to intercept. 394 The warrant must comply with detailed requirements, including a requirement that the interception be executed in such a way as to minimize the interception of communications not otherwise subject to interception. 395 The contents and "fruits" of any interception contrary to the Act are inadmissible in all government proceedings, 396 and a civil cause of action for damages is provided. 397
Several exceptions in the Act purport to authorize electronic surveillance without compliance with the scheme previously described. First, "emergency" intercepts are permitted in limited situations. 398 Second, the Act does not limit the authority of the President to authorize electronic surveillance in cases involving national security, 399 but the Supreme Court has held that this exception does not extend to the domestic aspects of national security investigations. 400 Finally, and most importantly, the Act does not purport to limit electronic surveillance activities where, acting under color of law, one of the parties to the conversation makes the interception, or one of the parties to the conversation has given prior consent to the interception. 401
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Some electronic surveillance activities require a surreptitious entry in order to install the monitoring device, but the Act does not specifically address this aspect of electronic surveillance. The Supreme Court, however, has held that neither the Act nor the Fourth Amendment prohibits covert entry for the purpose of installing an otherwise legal electronic bugging de-vice. 402
In United States v. Jones, 403 the United States Supreme Court held that placing a GPS tracking device, without a warrant, on the undercarriage of the defendant's wife's vehicle while it was parked in a public parking lot and tracking the vehicle's movements for 28 days constituted a "search" for purposes of the Fourth Amendment, which violated the defendant's rights against unreasonable searches. Under the common law trespassory test, the government physically occupied private property for the purpose of obtaining information. Presumably in an effort to provide some guidance in this area, the General Assembly passed section 19.2-56.2 of the Virginia Code detailing the mechanics of applying for and issuing a warrant for a tracking device and the guidelines for using such a device. 404
There is no Fourth Amendment search when the government obtains information voluntarily surrendered through a third party (a cell phone provider) tracking a defendant's cell site location. 405
5.703 The Virginia Electronic Surveillance Statute.
A. Protected Communications. The Virginia electronic surveillance statute, 406 although similar in most respects to the federal statute, is more restrictive. 407 It generally prohibits the interception of wire, oral, or electronic communications by means of any electronic, mechanical, or other device except in certain circumstances. "Oral communication" is defined as any oral communication uttered by a person who reasonably expects it not to
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be subject to interception. 408 "Wire communication" is defined as a voice communication made with the aid of equipment furnished or operated by a common carrier. 409 Communications intercepted by operators of a switchboard or employees of a communication common carrier in the normal course of their employment are not protected. Also not protected are communications intercepted by a party to the conversation or with the prior consent of one of the parties to the conversation. 410
B. Prohibited Interceptions. The statute prohibits an "interception" by certain "electronic, mechanical or other devices." The Supreme Court of Virginia has construed the statute to exclude a "recording" by one of the devices, citing the statutory...
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