The Affidavit must meet the following requirements:
It must be sworn and attested to by an
investigative or law
enforcement officer as defined in 18 U.S.C. § 2510(7).
Department policy
precludes the use of multiple affiants except when it is indicated
clearly which
affiant swears to which part of the affidavit, or states that each
affiant swears
to the entire affidavit. If a State or local law enforcement
officer is the
affiant in a Federal electronic surveillance affidavit, the
enforcement officer
must be deputized as a Federal officer of the agency
responsible for the
offenses under investigation. 18 U.S.C. § 2516(1).
It must identify those persons who will be the focus of the
surveillance,
describe the facility or location that is the subject of the
proposed electronic
surveillance, and list the alleged offenses. 18 U.S.C. §
2518(1).
It must establish probable cause that the named subjects are
using the
targeted facility or location to commit the stated offenses. (When
the
application requests authorization to intercept oral communications
within a
location, the FBI requires that a diagram of the target location be
submitted as
an attachment to the affidavit.) Any background information needed
to understand
fully the instant investigation should be set forth briefly at the
beginning of
this section. The focus, however, should be on recent and current
criminal
activity by the subjects, with an emphasis on their use of the
target facility
or location. This is generally accomplished through information
from a
confidential informant, cooperating witness, or undercover agent,
combined with
pen register or telephone toll information for the target phone or
physical
surveillance of the target premises. It is Department of Justice
policy that pen
register or telephone toll information for the target telephone, or
physical
surveillance of the targeted premises, standing alone, is generally
insufficient
to establish probable cause. Probable cause to establish criminal
use of the
facilities or premises requires independent evidence of use of the
facilities or
premises in addition to pen register or surveillance information
(e.g., informant
or undercover information.) It is preferable that all informants
used in the
affidavit to establish probable cause be qualified according to the
"Aguilar-Spinelli" standards (Aguilar v. Texas, 378 U.S. 108
(1964) and
Spinelli v. United States, 393 U.S. 410 (1969)), rather than
those set
forth in the Supreme Court decision of Illinois v. Gates,
463 U.S. 1237
(1983). On rare occasions, criminal use of the target facilities
or premises may
be established solely by an extremely high volume of calls to, or
meetings with,
other known or suspected co-conspirators that coincide with
incidents of known
illegal activity. It is also the Department's policy that the
affidavit reflect
use of the target facility or premises within twenty-one days of
the date on
which the Department authorizes the filing of the application.
While the
subjects' use of the target facilities or premises may be updated
to within
twenty-one days through pen register information and/or physical
surveillance,
historical information (viz., information older than six
months from the
date of the application), combined with pen register information or
physical
surveillance alone, is generally insufficient to establish probable
cause under
existing Department policy.
It must explain the need for the proposed electronic
surveillance and
provide a detailed discussion of the other investigative procedures
that have
been tried and failed, are reasonably unlikely to succeed if tried,
or are too
dangerous to employ. 18 U.S.C. § 2518(1)(e). This is to
ensure that highly
intrusive electronic surveillance techniques are not resorted to in
situations
where traditional investigative techniques would suffice to expose
the crime.
United States v. Kahn, 415 U.S. 143 (1974). It need not be
shown that no
other investigative avenues are available, only that they have been
tried and
proven inadequate or have been considered and rejected for reasons
described.
SeeUnited States v. Castillo-Garcia, 920 F. Supp.
1537 (D. Colo.
1996); United States v. Oriakhi, 57 F.3d 1290 (4th Cir.
1995); United
States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied,
498 U.S. 906
(1990); United States v. Clerkley, 556 F.2d 709 (4th Cir.
1977). There
should also be a discussion as to why electronic surveillance is
the technique
most likely to succeed. When drafting this section of the
affidavit, the
discussion of these and other investigative techniques should be
augmented with
facts particular to the specific investigation and subjects.
General
declarations and conclusory statements about the exhaustion of
alternative
techniques will not suffice.
It is most important that this section be tailored to the
facts of the
specific case and be more than a recitation of "boiler plate." The
affidavit must
discuss the particular problems involved in the investigation in
order to fulfill
the requirement of 18 U.S.C. § 2518(1)(c). The affidavit
should explain
specifically why other normally utilized investigative techniques,
such as
physical surveillance or the use of informants and undercover
agents, are
inadequate in the particular case. For example, if physical
surveillance is
impossible or unproductive because the suspects live in remote
areas or will
likely be alerted to law enforcement presence (by
counter-surveillance or other
means), the affidavit should set forth those facts clearly. If the
informants
refuse to testify or cannot penetrate the hierarchy of the criminal
organization
involved, the affidavit should explain why that is so in this
particular
investigation. If undercover agents cannot be used because the
suspects deal
only with trusted associates/family, the affidavit must so state
and include the
particulars. Conclusory generalizations about the difficulties of
using a
particular investigative technique will not suffice. It is not
enough, for
example, to state that the use of undercover agents is always
difficult in
organized crime cases because crime families, in general, deal only
with trusted
associates. While the affidavit may contain a general statement
regarding the
impossibility of using undercover agents in organized crime cases,
it must also
demonstrate that the particular subject or subjects in the instant
case deal only
with known associates. The key is to tie the inadequacy of a
specific
investigative technique to the particular facts underlying the
investigation.
See, e.g., United States v. Uribe, 890 F.2d 554 (1st
Cir. 1989);
United States v. Ashley, 876 F.2d 1069 (1st Cir. 1989);
United States
v. Zambrana, 841 F.2d 1320 (7th Cir. 1988); and United
States v.
Kalustian, 529 F.2d 585 (9th Cir. 1976).
It must contain a full and complete statement of any prior
electronic
surveillance involving the persons, facilities, or locations
specified in the
application. This statement should also include the date,
jurisdiction, and
disposition of previous applications, as well as their relevance,
if any, to the
instant investigation. The duty to disclose prior applications
under 18 U.S.C.
§ 2518(1)(e) covers all persons named in the application, and
not just those
designated as "principal targets." United States v. Bianco,
998 F.2d 1112
(2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994). In
addition to any
known prior applications, the agency conducting the investigation
should run a
check of its electronic surveillance indices. In narcotics
investigations, it
is the Criminal Division's policy that both the DEA and the FBI
conduct an
indices check. In joint investigations, all participating agencies
should be
checked; in all other cases when it is likely that more than one
agency may have
investigated the subjects, multiple indices checks should likewise
be made.
It must contain a statement of the period of time for which
the
interception is to be maintained. The statute provides that an
order may be
granted for not more than thirty days or until the objectives of
the
investigation are achieved, whichever occurs first. 18 U.S.C.
§ 2518(5).
If the violations are continuing, facts sufficient to justify
interception for
the full thirty-day period must be provided, or the court may order
monitoring
to cease once initial, criminal conversations are intercepted.
This may be
accomplished by showing, through informant or undercover
investigation, pen
register analysis, physical surveillance or other law enforcement
investigation,
that a pattern of criminal activity exists and is likely to
continue. If it is
clear that the interceptions will terminate after a limited number
of days, then
the time requested should also be so limited in accordance with the
facts of the
case.
The statute also provides for a ten-day grace period, intended
primarily
for the installation of oral monitoring equipment, before the
thirty-day period
begins to be calculated. This provision may also be used when
delays arise in
installing monitoring devices used in wire or electronic
interceptions.
18 U.S.C. § 2518(5). In either case, the provision is not
intended to
provide for a regular additional ten-day start-up period; any
delays that are
encountered should be real and defensible if challenged. The
ten-day grace
period applies only to the initial installation of
equipment, and should
not be used in an extension application, in an original application
when the
equipment is already installed, or in wire interception cases when
a pen register
permitting almost immediate access is already in place on the
target phone. 18
U.S.C. § 2518(5).
Under Rule 45 of the Federal Rules of Criminal Procedure, the
thirty-day
time period would begin to run on the date after the order was
signed, even if
the interception started on the same day it was signed. See
alsoUnited States v. Villegas, 1993 WL 535013 (S.D.N.Y. December
22,
1993)(unreported); United States v. Gerena, 695 F. Supp. 649
(D. Conn.
1988). In an abundance of caution, however, the Department
recommends that the
thirty-day period be calculated from the date and time that the
order is signed.
This is particularly so when no delays are encountered which would
permit the
government to invoke the ten-day grace period allowed by the
statute.
It must contain a statement affirming that monitoring agents
will minimize
all non-pertinent interceptions in accordance with Chapter 119 of
Title 18,
United States Code, as well as additional standard minimization
language and
other language addressing any specific minimization problems (e.g.,
steps to be
taken to avoid the interception of privileged communications, such
as
attorney-client communications) in the instant case. (18 U.S.C.
§ 2518(5)
permits non-officer government personnel or individuals acting
under contract
with the government to monitor conversations pursuant to the
interception order.
These individuals must be acting under the supervision of an
investigative or law
enforcement officer when monitoring communications, and the
affidavit should note
the fact that these individuals will be used as monitors pursuant
to 18 U.S.C.
§ 2518(5).)
When communications are intercepted that relate to any offense
not
enumerated in the authorization order, the monitoring agent should
report it
immediately to the Assistant United States Attorney, who should
notify the court
at the earliest opportunity. Approval by the issuing judge should
be sought for
the continued interception of such conversations. While 18 U.S.C.
§§
2517(1) and (2) permit use or disclosure of this information
without first
obtaining a court order, 18 U.S.C. § 2517(5) requires a
disclosure order
before the information may be used in any proceeding (e.g., before
a grand jury).
The statute permits after-the-fact minimization for wire and
oral
communications when the intercepted communications are in code, or
in a foreign
language when a foreign language expert is not reasonably
available. 18
U.S.C. § 2518(5). In either event, the minimization must be
accomplished as
soon as practicable after the interception. Such after-the-fact
minimization can
be accomplished by an interpreter who listens to and minimizes the
communications
after they have been recorded, giving only the pertinent
communications to the
supervising agent. The process utilized must protect the suspect's
privacy
interests to approximately the same extent as would contemporaneous
minimization,
properly applied. United States v. David, 940 F.2d 722 (1st
Cir.),
cert. denied, 502 U.S. 989 (1991); United States v.
Gambino, 734
F. Supp. 1084 (S.D.N.Y. 1990). After-the-fact minimization
provisions should be
applied in light of the "reasonableness" standard established by
the Supreme
Court in United States v. Scott, 436 U.S. 128 (1978).
After-the-fact minimization is a necessity for the
interception of
electronic communications over a digital-display pager or a fax
machine. In such
cases, all communications are recorded and then examined by a
monitoring agent
and/or a supervising attorney to determine their relevance to the
investigation.
Disclosure is then limited to those communications by the subjects
or their
confederates that are criminal in nature. SeeUnited
States v.
Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493
U.S. 1081
(1990).
When the request is to tap a cellular telephone or other
portable
telephone, or a portable paging device, or to install a bug in an
automobile, the
affidavit should contain a statement that, pursuant to 18 U.S.C.
§ 2518(3),
interception will occur not only within the territorial
jurisdiction of the court
in which the application is made, but also outside that
jurisdiction (but within
the United States), if there is any indication that the target
telephone, paging
device or vehicle will be taken outside the jurisdiction of the
court issuing the
electronic surveillance order. The order should authorize such
extra-jurisdictional interception, and such order should be sought
in the
jurisdiction having the strongest investigative nexus to the object
in which the
monitoring device is installed.