5.7 ELECTRONIC SURVEILLANCE AND RELATED ACTIVITIES

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

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." As noted, the Supreme Court maintained that evidence-gathering techniques by law enforcement that did not involve a physical "trespass" and a seizure of material objects fell outside the protections of the Fourth Amendment. ¹²⁰⁴ Obviously, this narrow interpretation of the Fourth Amendment was eventually rejected, and today the amendment clearly protects against the seizure of intangible items, oral statements, and the like. Moreover, the presence, or lack thereof, of trespassory conduct by government agents is not controlling. ¹²⁰⁵ In Katz v. United States, ¹²⁰⁶ the Court noted that "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." Holding that activities such as electronic eavesdropping are within the purview of the Fourth Amendment, the Court in Katz required law enforcement to comply with the mandates of the amendment, including, most importantly, the search warrant and probable cause standards.

5.702 Electronic Surveillance and Searches.

A. In General.

Subsequent to Katz, Congress passed, as part of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act), a regulatory scheme pertaining to wiretapping and eavesdropping via electronic devices. ¹²⁰⁷ The Act contemplates, among other things, several prohibitions concerning the interception, disclosure, and use of wire, oral, or electronic communications. The Act authorizes, under specific circumstances, the interception of wire, oral, or electronic communications as well as certain broad exceptions permitting wiretapping and eavesdropping.

B. The Regulatory Scheme.

¹²⁰⁸ Pursuant to the federal scheme, any interception of a wire, oral, or electronic communication ¹²⁰⁹ through the use of any electronic, mechanical, or other device ¹²¹⁰ is prohibited unless otherwise permitted by the Act. Notably, the Act's prohibitions do not cover pen registers. ¹²¹¹ The Act regulates the activities of federal officials and also limits the circumstances under which government agents may engage in electronic eavesdropping. ¹²¹² Generally, state law enforcement officers may participate in otherwise proscribed electronic surveillance activities only when authorized by their own state-specific statutes that conform to the federal regulatory scheme.

5.703 The Virginia Electronic Surveillance Statute.

A. Protected Communications.

The particulars of the aforementioned federal statutory scheme are beyond the scope of this chapter; however, the Virginia electronic surveillance statute ¹²¹³ is worthy of consideration here. Although the Commonwealth's regulatory scheme is similar in most respects to the federal statute, it is more restrictive than its federal counterpart. ¹²¹⁴ The Commonwealth's scheme generally prohibits the interception of wire, oral, or electronic communications by means of any electronic, mechanical, or other device except under particular circumstances. An "oral communication" is any oral communication uttered by a person who reasonably expects it not to be subject to interception. ¹²¹⁵ "Wire communication" is defined as a voice communication made with the aid of equipment furnished or operated by a common carrier. ¹²¹⁶ 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. ¹²¹⁷

B. Prohibited Interceptions.

The Virginia scheme prohibits an "interception" by "electronic, mechanical or other devices." The statute, as interpreted by the Supreme Court of Virginia, excludes a "recording" by one of the devices, citing the statutory definition of "intercept" as meaning the "aural acquisition" of the contents of any protected communication. ¹²¹⁸ That is, a tape recording, under the statute, does not constitute an intercepting mechanism during the course of an otherwise lawful telephone conversation. ¹²¹⁹ Further, the statute excludes from the definition of "electronic, mechanical or other devices" a telephone furnished to a subscriber in the ordinary course of business. ¹²²⁰ Thus, the Supreme Court of Virginia has construed the statute as also inapplicable to an "aural acquisition" of a protected communication by the use of a telephone installed in the ordinary course of business. ¹²²¹

C. Who May Complain.

Any person, including a corporation, who was a party to any interception of a wire, oral, or electronic communication or against whom such an interception was directed may move to suppress the contents of the interception. ¹²²² A judge, upon motion, must make the intercepted communications available for inspection by any party to the interception. ¹²²³

D. Authorized Interceptions.

Interceptions may be permitted when reasonably expected to provide evidence of the actual or expected commission of felonious extortion, threatening conduct, bribery, kidnapping, murder, acts of terrorism, mob violence, criminal street gang activities, robbery, carjacking, criminal sexual assault, felony violations of controlled substances regulations, or any conspiracy associated with these offenses. ¹²²⁴ Interceptions can be made only when all normal investigative means have failed, are likely to fail, or are dangerous. ¹²²⁵ The statute restricts authorizations to intercept, and extensions thereof, to a maximum period of 30 days, unless a shorter period is sufficient. ¹²²⁶

An application for an order authorizing the interception of a wire, oral, or electronic communication must be in writing and under oath to the appropriate judge having jurisdiction over the place to be surveyed. Further, the application must be authorized and verified by the Attorney General. The application must include:

1. The identity of the person requesting the order;

2. A complete statement of the facts and circumstances surrounding the request for the order, including details of the particular offense that has been or is about to be committed, the location of the place where the communication is to be intercepted, a description of the type of communications sought to be intercepted, and the identity of the person whose communications are to be intercepted;

3. A 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;

4. A statement of the period of time for which the interception is to be maintained;

5. A complete statement of the facts relating to all previous applications to intercept communications involving the same persons or facilities, including the judge's action on each application;

6. When the application is for extension of an intercept order, a statement setting forth present results or explaining the failure to obtain results; and

7. When authorization is requested for monitoring or observation by a local law enforcement agency or by law enforcement officers of the United States, a statement identifying the agency and its reasons for conducting the monitoring or observation. ¹²²⁷

Notably, the appropriate judge may require additional evidence to support the application.

Upon application, the judge may enter an ex parte order authorizing the interception of wire, oral, or electronic communications if it is determined that probable cause exists to believe that an individual has committed or is about to commit one of the specified crimes for which those orders are permitted and that the interception is likely to yield communications regarding the offense at issue. ¹²²⁸

Each authorizing order must specify the identity of the person whose communications are to be intercepted, the location of the interception, a "particular description" of the type of communication sought to be intercepted, the offense to which the interception relates, the period of time during which the interception is authorized, that the interception is to be conducted only by the Department of State Police, and whether observation and monitoring by local officials is permitted. ¹²²⁹

E. Disclosure.

Upon motion by a person named in an authorized order or application, the judge must make the applications, orders, and intercepted communications available for inspection. ¹²³⁰

The statute prohibits the use and disclosure of the contents of an intercepted oral, electronic, or wire communication with any electronic, mechanical, or other device without authorization. ¹²³¹ When an oral or wire communication is intercepted, no part of its contents is admissible in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, commission, regulatory body, legislative committee, or other agency if disclosure would violate the statute. ¹²³²

If, during the interception of a wire, oral, or electronic communication relating to an offense specified in an authorized order, information pertaining to other offenses is intercepted, that information may not be disclosed or used except in limited circumstances and as it pertains to a felony. ¹²³³ Further, a judge who considers the interception application may not preside at any trial related to the interception, despite whether or not evidence obtained from the interception will be introduced at trial. ¹²³⁴

5.704 Related Activities.

When conversations are overheard, but not via the use of electronic or other mechanical devices, and presupposing that there has been no invasion of privacy or prohibited intrusion, the federal and...