Necessity – The Key to a Successful Wiretap
Wiretap investigations are a powerful tool in both federal and state criminal cases, but their success hinges on a critical legal standard: Necessity.
At Wiretap Consulting Services, we have prepared and defended hundreds of wiretaps in Federal court. We have also provided comprehensive wiretap reviews for defendants in State and Federal court.
As a prosecutor or defense attorney, the key to any wiretap is Necessity. In many cases, engaging a wiretap expert witness can be crucial to evaluating whether the Necessity standard was appropriately applied.
What is Necessity by Definition?
Necessity is a requirement where the government must convince the court that a wiretap is necessary. According to the Federal Statute, 18 USC 2518 (3) (c), the Necessity requirement is defined as: normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. According to the Department of Justice (DOJ) Criminal Resource Manual 92, Title III Procedures, which provides a condensed checklist for federal law enforcement agents and prosecutors, Necessity is described as follows: For each target telephone, explain why the following techniques will not work, have been tried and failed, or are too dangerous. Use specific rather than generic examples.
Physical surveillance
Use of Grand Jury
Confidential sources
Undercover agents
Search warrants/seizures
Interviews
Pen register/toll records
Trash searches
Arrests
Financial investigations
Other electronic surveillance
Other applicable techniques – mobile trackers, pole cameras
What is Necessity in Real Life Investigations?
A review of the Federal Statute and DOJ Guidelines indicates that when pursuing a wiretap, investigators should utilize the above investigative techniques and/or explain why they will not work or are too dangerous to employ. Although these guidelines appear to be straightforward, they are not always followed as intended. This is where the insight of a wiretap expert witness can be invaluable in scrutinizing whether proper procedures were adhered to.
Examples of Questionable Necessity in Wiretap Investigations
The examples below are summaries of real investigations where Necessity or the use of investigative techniques is questionable at best.
Case 1- Illegal Pain Pill Conspiracy
This investigation involved a doctor and his wife who were alleged to have been running a pain pill operation where almost anyone could visit the doctor’s office, pay money, and receive pain pills without question. Law enforcement conducted limited surveillance and interviewed several confidential sources before applying for a wiretap. During our review, we learned the following: (1) there was only one surveillance conducted on the user of Target Telephone One, which occurred only three days before the Order was signed; (2) the information provided by the Confidential Sources was undated; (3) pen register and toll analysis records had no date range, and the individuals listed had no listed ties to drug dealing; and (4) details concerning the arrest of a person noted in the pen register, with no additional information regarding any cooperation. It was also noted that AFTER the wiretap began, law enforcement utilized investigative techniques and obtained GPS trackers for two targets and initiated car stops. Wiretap Consulting Services believed that before the initiation of the wiretap, law enforcement failed to utilize the investigative techniques noted above, including failing to conduct adequate physical surveillance, failing to use undercover agents to meet with the doctor, failing to use confidential sources to meet with the doctor, failing to utilize GPS trackers or other search warrants, and failing to conduct an adequate financial investigation.
Case 2- Street Gang Drug Conspiracy
This investigation involved a street gang allegedly distributing heroin, whose leader was in state prison. The initial wiretap target was on the street taking direction from the incarcerated leader. During the yearlong pre-wiretap investigation, law enforcement utilized the following investigative techniques towards the gang member who was not incarcerated: (1) four physical surveillances; (2) six controlled purchases from the user of Target Telephone One; (3) one pole camera with no known usage; (4) three cooperating witnesses; and (5) one GPS tracking warrant. As wiretap expert witnesses, we argued that four physical surveillances within a year's time was not sufficient to satisfy the Necessity requirement. We also argued there was no utilization of undercover officers, a financial investigation, interviews, mail covers, or trash searches.
Conclusion
All wiretap investigations are unique, and their use of investigative techniques varies. Wiretap Consulting Services can draw upon its extensive experience from prosecuting and defending wiretap cases to ensure that adequate Necessity or the use of investigative techniques was performed in your wiretap case. As wiretap expert witnesses, some factors that we focus on include the following:
What investigative techniques were used prior to the initial wiretap.
Were these techniques used to meet the goals of the investigation, or were they simply “check the box” techniques created only to submit a wiretap affidavit.
What investigative techniques were NOT utilized, and were the reasons “boiler plate” reasons that would apply to any investigation.
The length of time of the investigation prior to the initial wiretap.
By focusing on these aspects, our role as wiretap expert witnesses is to ensure that wiretap applications adhere to the required legal standards, providing a solid basis for defense or prosecution.
If you're facing a wiretap case and need expert guidance, don't leave your defense to chance. Contact Wiretap Consulting Services today for a thorough evaluation of your case. Let our experience be the key to your successful outcome.