AJ 104 Chapter 13

Electronic Surveillance and Other Searches

Eavesdropping and Electronic Surveillance

Eavesdropping is the intercepting and reading of messages and conversations by unintended recipients.

The origin of the term is literal, from people who would literally hide out in the of houses to listen in on other people's private conversations.

Electronic Surveillance emerged as technology developed.

Eavesdropping and Electronic Surveillance

Both involve the seizure of private conversations

The key distinction by SCOTUS is whether the person making the comments knows a listener is present, not whether electronic equipment is used.

Misplaced Reliance Doctrine No warrant is required to obtain

conversations that can be overheard the police based on the misplaced reliance of the suspect.

Each person (according to SCOTUS) bears the burden of restricting his/her conversation to people who will not reveal them to the authorities.

Examples, page 283.

Electronic Surveillance Has been troubling for SCOTUS

Why? Potential for abuse in wiretapping and

bugging Which Amendment is likely to be

violated as a result of E.S.? 4th, reasonable expectation of privacy Anything that (e.s.) could accomplish

without trespassing was permitted.

Electronic Surveillance

Do you have a reasonable expectation of privacy while using a phone booth?

Yes, Katz v. United States Just because you may be a gambler, if you close the door, you should have a

reasonable expectation of privacy.

Electronic Surveillance Warrant Requirement for Electronic

Surveillance A warrant is required to install listening

devices that invade a person’s reasonable expectation of privacy.

The warrant must contain a detailed statement of probable cause including a showing of why other investigative techniques will not work.

Warrants are for short durations. Examples, page 284

Some Devices

Federal Legislation on Electronic Surveillance

Omnibus Crime Control and Safe Streets Acts of 1968 Title III of the act makes it a federal

felony to willfully intercept any wire or oral communication by electronic or mechanical device unless an electronic surveillance warrant has been obtained.

Omnibus Crime Control and Safe Streets Acts of 1968

Oral communications include any communication uttered by a person that has an expectation of privacy.

Wire communication include any communication made with the aid of a wire, cable, or other connection.

Can telephone operators authorized to disclose the conversations they intercept?

Omnibus Crime Control and Safe Streets Acts of 1968

Title III only covers the monitoring of audio and electronic messages sent by wire.

What not covered? Pen registers

A pen register is an electronic device that records all numbers dialed from a particular telephone line. aka “trap and trace”

Transponders Aka “bumper beepers”

Electronic Surveillance Warrant Under Title III, warrants may be issued for

specific crimes such as: Espionage Sabotage Treason Terrorism Assassination of Federal Officials Bribery Chemical Weapons Loan Sharking Labor Racketeering Other Organized Crime, et al

Warrant Requirement for Electronic Surveillance In order to obtain a search warrant, the

application for an electronic surveillance warrant must include the following:

1. A particular description of the type of communication to be intercepted.

2. The length of the surveillance will be conducted.3. A full statement of other investigatory

procedures tried in the case.4. Why it appears non-electronic techniques will

not work.5. A complete statement detailing all prior

applications for electronic surveillance warrants in the case.

Warrant Requirement for Electronic Surveillance

If an application is requested, there must be necessary documentation to justify the extension.

Some warrants are screened by the A.G.

The warrant must correctly identify whose communications will be intercepted, where, types of communication, period of time.

The maximum length is 30 days.

Warrant Requirement for Electronic Surveillance

The information obtained must be tape recorded or otherwise retained.

The recording must be made available to the magistrate when the surveillance is completed.

They must be kept for 10 years and may not be destroyed except by order of the judge.

Warrant Requirement for Electronic Surveillance

Must the person under surveillance be informed that his/her conversations were intercepted? Yes The person must be served with a

limited inventory within 90 days of the end of the surveillance

What must they be told?

Warrant Requirement for Electronic Surveillance

They must be told the following:1. An order was sought2. Date the order was issued3. The period interceptions were permitted4. Whether or not interceptions were made

Does the exclusionary rule applies? Yes, Title II has it’s own exclusionary rule Illegally obtained conversations may not

be used in any hearing, trial, or other proceeding .

Warrant Requirement for Electronic Surveillance

Title III has an emergency provision that can be used in cases involving national security.

Can POTUS or the A.G. authorize wiretaps on domestic dissidents?

Foreign Intelligence Surveillance Act of 1978 (FISA)

This act provides separate procedures for obtaining surveillance warrants for activities of foreign powers

The act applies to “United States persons” and groups composed of U.S. persons if they are engaged in clandestine activities on behalf of a foreign government.

Amended by the Patriot Act (2001) & Homeland Security Act (2002).

Examples, page 289

Searches by Bureau of Citizenship and INS/Customs/Border Protection Personnel

Searches at the Border People and physical items entering the U.S.

may be routinely subjected to thorough searches without cause.

It must be done at the point of entry by customs or border patrol agents

Border searches may be done randomly or on suspicion

Reasonable suspicion is required for a body cavity search.

Border Searches

Right to stop and search at U.S. Border of Point of Entry See Table 13-1 Examples of U.S. Border Searches page 290

Fixed Border Checkpoints Fixed checkpoints are permanent Border Patrol

Stations Various level of searches may occur at this

checkpoint. See Table 13-2 & Figure 13-1 Examples page 292

Roving Border Checkpoints

Roving checkpoints are also set up near the border

How do they differ from “fixed” checkpoints? They are temporary in nature. Two or more carloads of officers select

a location and set up a checkpoint. Examples, page 293

Mail Searches

U.S. v. Ramsey used the same reasons that are given for allowing searches of people entering the U.S. as justification for searching incoming mail.

True or False? Custom officers may open and search all

mail entering the country without P.C.? Examples of mail searches, page 294.

Boarding Vessels in Navigable Waters

Custom officers have the right to board vessels anyplace in the U.S. to check customs violations and examine manifest and other documents.

Inbound vessels (12 miles off coast) may be boarded.

Examples, page 294

Workplace Inspections

SCOTUS has upheld the right of INS agents to enter factories and other workplaces to check for undocumented aliens.

There is no 4th Amendment violation because of the sweeps involve blocking exits.

Examples, page 295

Closed Containers Officers may seize closed containers based on

probable cause but a search warrant is required to open them.

Does this rule apply to booking searches or most vehicles searches?

No Closed containers in the possession police that

have been legally opened, may be reopened. If it has been returned to the owner, it must

have been under constant police surveillance.

Police Seizure of Closed Containers

Two cases were explored by the supreme court regarding closed containers. Both involved luggage the suspect was

carrying prior to being arrested. The court took a two-step approach:

Based on probable cause police can seize the luggage (marijuana)

P.C. was not enough to search. What is needed?

Police Seizure of Closed Containers

Two exceptions to the Closed Container Rule

1. Arrests - Closed containers found in vehicles may be opened without if they are found incident to an arrest, or during an inventory.

2. Booking – Any container in the possession of the person being booked may be searched.

Examples, page 296

Legally Opening Containers Can Customs agents legally open a

package at the border? May police open a package during

the search of a car based on P.C? May airlines legally open packages

and turn them over to police? Once a package is legally opened,

the expectation of privacy vanishes.

Legally Opening Containers Controlled Delivery – to deliver a

package while under the surveillance of the police. Why would police return a package?

To gain additional evidence Is a search warrant needed?

No, unless you plan to enter a residence to monitor activities.

Examples, page 296

Drug Testing The supreme court has decided that

there is no 4th Amendment violation to require mandatory blood or urine testing of employees.

In schools, the court found no 4th Amendment violation in cases of random drug testing of students participating in athletics or extra-curricular activities.

Examples of drug testing, page 298.