Course Hero - We put you ahead of the curve!
You have requested the below document.
- Title: (13) Electronic Surveillance and Other Searches
- Type: Notes
- School: Middlesex CC
- Course: CRJ 152
- Term: Spring
CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches Electronic Surveillance and Other Searches 13-1 Eavesdropping and Electronic Surveillance SC key distinction in eavesdropping and electronic surveillance is not whether electronic surveillance is being used but whether the person making the comments knows a listener is present Misplaced Reliance Doctrine When the suspect knows someone is listening, the burden is on them to make sure he can trust everyone who can hear what is said It applies whether or not tape recorders or radio transmitters are used The person who overhears the conversation may carry tape recorders or radio transmitters w/o prior authorization of a judge Hoffa v US Jimmy Hoffa on trial DOJ had another union official released from prison Partin Partin was instructed to join his entourage and report of Hoffa's out of court activities overheard plans to tamper with the jury (case ended with hung jury) Evidence was used in case where Hoffa was charged with bribing jurors SC said this was a case of misplaced reliance Hoffa knew Partin was present and took the risk he might report the jury tampering US v White federal narcotics agents used concealed radio transmitters to record conversation bt agents and the defendant in public places Informant allowed an agent to hide in a kitchen closet and transmit conversations bt the informant and the defendant Also admissible under Misplaced Reliance should have been more careful in deciding who to trust Electronic Surveillance This has troubled the SC bc of its potential for abuse Victim may be totally unaware the gov't is listening Key decisions on this topic were made in 60s and 70s technology has changed since then Standard for 4th A is reasonable expectation of privacy originally came from a wiretap case Prior to that time electronic surveillance had focused on trespassing anything the police could accomplish w/o physically trespassing was OK Katz v US agents had probable cause to believe the suspect was using a phone booth as part of an interstate gambling operation Listening device was placed on the outside of the public booth no trespass Meridith Spencer Page 1 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches SC said there was a reasonable expectation of privacy bc Katz entered the booth, closed the door and kept his voice down Berger v NY reviewed issuing of warrants permitting electronic surveillance Statutes authorizing these warrants must provide very precise requirements (description of the offense and types of conversations officers expect to seize) Warrant must be limited to a short period of time (not defined) Extension of the warrant muse be based on a showing that PC exists for the continuance of the surveillance warrant must have a return Federal Legislation on Electronic Surveillance Congress enacted Omnibus Crime Control and Safe Streets Act of 1968 Title III was devoted to electronic surveillance (only audio and electronic messages or messages sent by wire) Makes it a federal felony to willfully intercept any wire or oral communication by electronic or mechanical devices unless an electronic surveillance warrant has been obtained Oral communications include any communication uttered by a person with both objective and subjective expectations of privacy Wire communications include any communication made in whole or part by aid of wire, cable or other connect operated by a common carrier Title 18 of US Code enables federal judges to issue search warrants for stored electronic communications such as email Title III does not cover pen registers separate legislation does Requires a warrant to install either a pen register or trap and trace device neither of these record conversations they record numbers dialed SC said there is no expectation of privacy in these #'s bc the phone company has access to them Transponder (bumper beepers) are not covered as long as they do not enter residences Emits a signal that makes it possible to track a vehicle or other item Merely facilitates the surveillance process Title II sets up detailed requirements to obtain electronic surveillance warrants This statute only applies to federal agents but many states may use similar standards Electronic surveillance warrants may only be issued if crimes specified in Title III are involved: Espionage, sabotage, treason, terrorism, assassination of federal officials, offenses involving chemical weapons, bribery and violent crimes directed Meridith Spencer Page 2 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches at jurors, labor racketeering, gambling, loan sharking and other OC crimes, computer fraud, counterfeiting, bankruptcy fraud, drug trafficking, interstate transportation of stolen cars and certain other violent crimes Warrant application must include: Description of type of communication to be interrupted Length of time or surveillance Full statement of investigative procedures used in case Why it reasonably appear non-electronic techniques will not work Detail all prior applications for electronic surveillance warrants in the case In case of warrant to extend must give details of what has been obtained so far or give a reasonable explanation of why nothing has been obtained Warrants are screened by atty general or assistant atty general specifically designated for this purpose may only be submitted to a judge after it has been approved Must correctly specify the ID of the person(s), where interception is to be done, types of communication to intercept, agency authorized to intercept, period of time during which interceptions can be made (max length is 30 days shorter periods are preferred) Emergency exception to normal procedure: Reason to suspect that a conspiracy threatening national security or organized crime activities requires surveillance before a warrant can be obtained Must be sufficient grounds to obtain a warrant Application must be made within 48 hours If none is made (or it is denied) interception must stop immediately and anything obtained is inadmissible in court Communications obtained under the warrant must be tape recorded or otherwise retained in a manner that prevents later editing or alteration Recordings must be made available to the judge when surveillance is completed They must be kept for 10 yrs and may not be destroyed except by order of a judge Ppl whose conversations were intercepted must be served with a limited inventory w/in 90 days of end of surveillance Order was sought Date order was issued Period interceptions were permitted Whether or not interceptions were made Judge has discretion to permit ppl whose communications were seized to see the application and hear the tapes Meridith Spencer Page 3 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches If the tapes are to be used in court, all parties must have access to the application and warrant at least 10 days before testimony is introduced Title III has its own (stricter) exclusionary rule Illegally obtained conversations may not be used in any hearing, trial or other proceeding before any court, grand jury, gov't agency, regulatory body, or legislative committee Anyone whose telephone or premises was monitored and anyone whose conversations were seized has standing SC and Title III Cases: Dalia v US right to enter was a fundamental part of the right to use electronic devices Re-entry to service or retrieve equipment was also included no separate search warrant is required Minimization requirement protect privacy by limiting the monitoring of conversations (ex suspects must be named in the warrant listing prime targets is not enough) US v Donovan applied this to all persons the gov't has probable cause to believe are involved in the crime and whose conversations are likely to be seized US v Kahn - Does not make conversations inadmissible if police knew a person such as the wife of the suspect was likely to be using the phone but had no reason to suspect she was involved in criminal activity each case has to be decided based on an objective review of the facts Narrowly interpreted the emergency provision does not give president, atty general or anyone else the right to authorize wiretaps on "domestic dissidents" Foreign Intelligence Surveillance Act of 1978 (FISA) Provides separate procedures for obtaining surveillance warrants for activities of foreign powers and agents of foreign powers (includes international terrorist groups) Applies to US persons and groups composed of US persons only if they are knowingly engaged in clandestine intelligence activities on behalf of a foreign gov't Amended by PATRIOT ACT and Homeland Security Act (2002) Permits president to authorize the AG to conduct electronic surveillance for up to one year w/o a warrant Right to conduct wiretaps, intercept email, use pen registers, trap and trace Monitoring must be limited to channels used exclusively bt or among foreign powers Non verbal technical communications can also be seizes Also provides search warrants to seize tangible items Meridith Spencer Page 4 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches For electronic surveillance of agents not utilizing the exclusive channels listed above, president must provide written authorization for the AG to seek permission for the use of such techniques from a special federal court surveillance order is normally good for no more than 120 days with extensions up to a year 13-2 Searches by Bureau of Citizenships and Immigration Services Agents and Customs and Border Protection Agents Compelling interest in protecting our borders SC has established criteria for border patrol and customs agents Searches at Border Ppl and physical items entering US may routinely be subjected to thorough searches w/o cause Must be done by border patrol or customs agents at POINT of entry Can be done randomly or on suspicion that an undocumented alien is attempting to enter or something is being smuggled into the country (Can be WEAK suspicion) US v Montoya de Hernandez Sc stopped short of allowing total discretion to search when it is suspected that a person is carrying drugs in their alimentary tract To detain for rectal exam, X-ray or allow the substance to pass requires reasonable suspicion Fixed Border Checkpoints Permanent border patrol stations Well lit, signs, may be as far as 100 air miles from the international border The higher level of supervision at these points is reason to permit car stops on less cause than for other LE activities Least intrusive stand in roadway and stop cars US v Martinez-Fuente no suspicion is needed Cars may be sent to a secondary area for further questioning requires some suspicion US v Ortiz allows officers to consider a variety of factors including the fact that occupants looked like foreign nationals Can conduct Terry pat down must be reasonable suspicion that the person is armed Thorough search requires probable cause Roving Border Checkpoints Set up near border temporary in nature Typically two or more carloads of officers select a spot on the highway near the border - No warning signs Few officers, along in the dark SC has limited their power Meridith Spencer Page 5 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches US v Brignoni-Ponce reasonable suspicion to stop a car and question the occupants about their citizenship probable cause is needed to search the vehicle No more power to make car stops or search than any other LEO Mail Searches US v Ramsey same reasons given for searching ppl entering US as justification for searching mail entering US Customs can open and search all mail entering the country w/o probable cause Reasonable suspicion justifies the search Court never addressed whether a lower level of suspicion could justify a search Boarding Vessels in Navigable Waters Customs can board vessels any place in US to check for customs violations and examine the manifest and other documents Can be done in waters providing ready access to the open seas Inbound vessels within 4 leagues (12 miles) off coast may be boarded These stops may be done w/o any suspicion that the vessel is violating the law Inspection statutes were designed to protect gov't interests only boarding vessels randomly can detect violations Workplace Inspections INS can enter factories and workplaces to check for undocumented aliens even those these sweeps may involve blocking exits it does not violate 4th A It would violate 4th A if specific individuals were detained 13-3 Closed Containers 1977 SC said there is a greater expectation of privacy in closed containers Can seize closed containers based on PC search warrant is required to open them (does not apply to booking or vehicle searches) Distinction bt containers opened by police and those opened by other ppl and given to the police Once legally opened can be reopened Police Seizure of Closed Containers First cases involved luggage suspect was carrying immediately prior to being arrested SC took a two step approach to the problem Based on PC that the footlocker contained MJ, police could seize it w/o a warrant Necessary to prevent it from being removed and evidence destroyed PC is not sufficient to search it officers could retain it long enough to obtain a search warrant Two clear exceptions to this rule: Meridith Spencer Page 6 of 7 CJ 1123 criminal evidence and Procedure Chapter 13: Electronic Surveillance and Other Searches Cars closed containers in a car can be opened w/o a warrant if they are found incident to an arrest, during a PC search or as part of an inventory Booking closed container in possession of person being booked may be searched Legally Opening Containers Containers that have already been legally opened privacy vanishes Situations in which police may legally open a package: Customs officials may open it at the border During a car search absed on PC Pursuant to a warrant Common carriers often legally open a package and then turn it over to the police In all of these situations, police can reopen the container and search it Sometimes police intentionally reseal it surveillance is maintained while is it delivered to the addressee (Controlled delivery) Reasons for Constant surveillance: 1. so contents can not be changed 2. SC found that a new privacy interest may develop if the contents are altered 13-4 Drug Testing Two leading cases involved employees with jobs sensitive to public safety Railroad employees subjected to testing immediately following an accident Customs when applying for a promotion or transfer to a position involving drug interdiction or requiring the carrying of a firearm Mandatory blood or urine tests in these cases do not violate the 4 th A No individualized suspicion is needed Drug testing in schools random testing for students participating in district sponsored extracurricular activities does not violate the 4 th A Students had lower expectation of privacy cause they knew they were subject to testing if they signed up Search was relatively unobtrusive Severity of need to control drug problems in schools involved Meridith Spencer Page 7 of 7
Find millions of documents here - Study Guides, Homework Solutions, Papers, Exam Answer Keys and more.
Course Hero has millions of course related materials that will enable you to learn better, faster and get an A in all your courses.
Below is a small sample set of documents:
(14) Self-Incrimination
Path: Middlesex CC >> CRJ >> 152 Spring, 2005
Path: Northeastern >> CRJU >> 360 Summer, 2008
Path: Bridgewater State >> SOCI >> 313 Summer, 2005
Path: Northeastern >> CRJU >> 360 Summer, 2008
Path: Cornell >> CS >> 1112 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 4808 Fall, 2006
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: Colorado >> ECON >> 6808 Spring, 2008
Path: UCSD >> MATH >> 240 Spring, 2008