CONSTITUTIONAL LAW - CRIMINAL PROCEDURE - COURTS SPLIT ON THE NECESSITY OF SEPARATE AUTHORIZATION FOR A COVERT ENTRY UNDER TITLE 3 OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968

• NCJ Number: 52649
• Journal: Vanderbilt Law Review Volume: 31 Issue: 4 Dated: (MAY 1978) Pages: 1055-1068
• Author(s): D P SMITH
• Date Published: 1978
• Length: 14 pages
• Corporate Author: Vanderbilt University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

COMMENTS ON JUDICIAL DECISIONS INVOLVING COVERT ENTRIES TO INSTALL ELECTRONIC LISTENING DEVICES UNDER TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 ARE PRESENTED.

Abstract

TITLE III REGULATES THE USE OF ELECTRONIC SURVEILLANCE TO PROTECT THE PRIVACY OF WIRE AND ORAL COMMUNICATION AND TO DELINEATE, ON A UNIFORM BASIS, CIRCUMSTANCES AND CONDITIONS UNDER WHICH THE INTERCEPTION OF WIRE AND ORAL COMMUNICATION IS AUTHORIZED. IN GENERAL, COMMUNICATION CAN BE INTERCEPTED ONLY BY LAW ENFORCEMENT OFFICERS ENGAGED IN THE INVESTIGATION OF CERTAIN TYPES OF CRIME AND WHO HAVE OBTAINED A COURT ORDER BASED ON PROBABLE CAUSE THAT AUTHORIZES THE USE OF ELECTRONIC SURVEILLANCE. THE ACT DOES NOT EXPRESSLY REQUIRE THAT A JUDGE WHO AUTHORIZES THE USE OF ELECTRONIC SURVEILLANCE ALSO APPROVE COVERT ENTRIES THAT MAY BE REQUIRED TO PLACE ELECTRONIC LISTENING DEVICES. THE POTENTIAL FOR POLICE ABUSE DURING COVERT ENTRIES, COUPLED WITH A POLICY OF MINIMIZING PHYSICAL INTRUSIONS, MANDATES THAT REQUESTS FOR AUTHORIZATIONS OF COVERT ENTRIES TO INSTALL ELECTRONIC LISTENING DEVICES BE CONSIDERED CAREFULLY BY THE AUTHORIZING JUDGE. DISCRETION IS DESIRABLE DUE TO THE IMPOSSIBILITY OF ESTABLISHING IMMUTABLE WARRANT REQUIREMENTS TO COVER THE VARIETY OF CIRCUMSTANCES IN WHICH THE INTERCEPTION OF COMMUNICATION MAY BE CONDUCTED. THE FOURTH AMENDMENT TO THE CONSTITUTION REQUIRES THAT AN INTERCEPT ORDER EXPRESSLY AUTHORIZING LAW ENFORCEMENT OFFICIALS TO ENTER PREMISES FOR THE PURPOSE OF INSTALLING ELECTRONIC SURVEILLANCE DEVICES BE PREDICATED ON INDEPENDENT CONSIDERATION OF AN INDIVIDUAL'S JUSTIFIABLE EXPECTATION THAT HIS OR HER HOME/BUSINESS WILL BE FREE FROM UNREASONABLE GOVERNMENTAL INTRUSION. CASE LAW IS REVIEWED WITH EXTENSIVE FOOTNOTES. (DEP)