NCJ Number
44824
Journal
American Criminal Law Review Volume: 15 Issue: 1 Dated: (SUMMER 1977) Pages: 1-28
Editor(s)
R M MCNAMARA
Date Published
1977
Length
28 pages
Annotation
ISSUES SURROUNDING COVERT ENTRIES BY LAW ENFORCEMENT OFFICIALS IN ORDER TO INSTALL EAVESDROPPING DEVICES PURSUANT TO COURT ORDERS UNDER THE FEDERAL ELECTRONIC SURVEILLANCE STATUTE ARE EXAMINED.
Abstract
BECAUSE OF THE NATURE OF THE ACTIVITIES REQUIRED FOR THE EXECUTION OF AN EAVESDROPPING ORDER, TWO CRUCIAL QUESTIONS ARISE: WHETHER THE ENTRY, WHICH MUST BE COVERT IN ORDER TO INSURE THE SUCCESS OF THE UNDERSTANDING, SHOULD BE SPECIFICALLY AUTHORIZED BY THE COURT; AND WHETHER A SPECIAL SURREPTITIOUS ENTRY PROVISION MUST BE INCLUDED IN THE COURT'S EAVESDROP ORDER. NO SUCH PROVISION IS MANDATED, AND THERE HAS BEEN A DEARTH OF GUIDANCE FROM CONGRESS AND THE COURTS WITH REGARD TO THE PROBLEM. WITH ONE EXCEPTION, THE COURTS HAVE HELD THAT COVERT ENTRY IS A NECESSARY CONDITION PRECEDENT TO EXECUTION OF A VALID EAVESDROP AND IS THEREFORE TACITLY APPROVED UNDER TITLE II OF THE ORGANIZED CRIME CONTROL AND SAFE STREETS ACT OF 1968. IT IS SUGGESTED THAT, ALTHOUGH NOT CONSTITUTIONALLY OR STATUTORILY MANDATED, AN ENTRY PROVISION BE INCLUDED IN ALL EAVESDROP ORDERS TO DEMONSTRATE THAT THE AUTHORIZING JUDGE WAS AWARE OF AND HAD ATTEMPTED TO BALANCE THE NEED FOR COVERT ENTRY WITH THE RIGHT TO PRIVACY, AND TO DEFINE CLEARLY BOTH THE AUTHORITY OF THE ENTERING AGENTS AND THE SCOPE OF THEIR ACTIVITIES. A FORMAT FOR THE PROVISION IS SUGGESTED.