Drug trafficking patterns and enforcement approaches

Drug Task Force

During the investigative process for a suspected drug-related criminal organization, a judge has issued a wiretap order for a suspect's phone. I have been assigned the responsibility of monitoring the suspect's phone conversations. During the course of such monitoring, I have heard the suspect and other individuals, who may or may not be involved in the drug ring, discussing other types of criminal activity. I have to decide whether the wiretap warrant allows me to take action against the suspect(s) based on what I have heard in those phone conversations. In order to do so, I must investigate the constitutional issues involved in the issuing of a wiretap warrant, as well as the scope of the material covered by that warrant. I need to understand that if I arrest the other individuals not associated with the reasons for the wiretap, what may happen to any future evidence obtained from the wiretap. Finally, I need to consider any potential risks that may arise from failing to arrest those individuals.

The basic constitutional issue relating to the use of wiretap warrants if the Fourth Amendment right to privacy. U.S. Const. amend. IV provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (U.S. Const. amend. IV). What is interesting is that, prior to the 1960s, warrantless wiretaps were not considered to be a Fourth Amendment violation. However, in 1967 two key Supreme Court decisions helped establish that eavesdropping on conversations, including through means of a wiretap, was a search under the Fourth Amendment and required a warrant (Electronic Frontier Foundation, 2013). Now, state and federal laws determine whether police can obtain a wiretap order and how the information obtained during a wiretap can be used. However, the Federal Intelligence Surveillance Act greatly broadened the federal government's ability to gather information, and, while not obliterating the warrant requirement, did create a process by which that requirement lost its protective status. However, the information obtained under that law has not led to documented cases of Fourth Amendment abuses, wherein subjects of wiretapping under that statute have been prosecuted for the violation of unrelated laws.

Once the police obtain a wiretap, "the court order will limit the use of the wiretap. It can place restrictions on how the information gathered can be used, how long the police can listen to conversations, and what types of conversations the police are allowed to listen to. The court order can place many other restrictions, including who can listen to the conversations and what records the police must keep" (LaMance, 2013). However, unless specified in the order or in the applicable state or federal law under which the wiretap was obtained, the police are not prohibited from using information obtained from a wiretap to prosecute crimes outside of the scope of the search of the original wiretap. Generally, there are three classes of calls that the police hear when instituting a wiretap: class 1 calls that relate to the purpose of the original investigation; class 2 calls are new crimes that the police did not suspect when seeking the order; and class 3 calls are non-criminal class (LaMance, 2013). When police encounter a class 2 call, they are not prohibited from investigating that call; instead, the remedy is to seek an amendment to the original wiretap order, which broadens the scope of the original wiretap. As long as the police seek the appropriate amendment to the wiretap order, there are no negative evidentiary implications connected to arresting individuals for crimes that are not associated with the reasons for the wiretap. As a result, rules that would exclude the use of evidence obtained from the wiretap or the direct result information that would not have been obtained but for the original information obtained in the wiretap is not subject to exclusion under the fruit-of-the-poisonous tree doctrine. However, because wiretapping is generally limited to investigating serious felonies, it is important to realize that the wiretap warrant will not be broadened to investigate petty offenses. In addition, the police may use information obtained from a wiretap, even if it is outside of the scope of the wiretap, to identify suspects. They can then use other investigative techniques to develop probable cause to get the necessary evidence to conduct a search of that individual that complies with Fourth Amendment requirements.