Deciding The Legality Of Police Wiretaps

One of the greatest tools law enforcement officers use in the war on drugs is their ability to tap/record conversations on individuals' cellphones. Pursuant to Section 5709 of the Wiretapping and Electronic Surveillance Control Act, the police are permitted to obtain wiretaps on specific phone numbers if they are able to demonstrate to a judge that there is probable cause for belief that all the following conditions exist:

  1. The person whose communications are to be intercepted is committing, has or had committed or is about to commit certain offenses.
  2. Particular communications concerning such offenses may be obtained through such interception.
  3. Normal investigative procedures with respect to such offenses have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.
  4. The phone is leased to, listed in the name of or commonly used by the person under investigation.

However, information obtained by the government as a result of a wiretap can be challenged in court. A defendant may challenge a police wiretap if it can be shown that the information submitted by the government to the judge did not comply with the above requirements. Specifically, the defendant can challenge whether the government had probable cause to believe that the cellphone is commonly used by the defendant.

A defendant may allege that the police knowingly and intentionally or with a reckless disregard for the truth made false statements in securing the wiretaps. A defendant can argue that the government cannot and could not show that normal investigative procedures had been tried and failed or were likely to fail or were too dangerous to employ.

Finally a defendant may argue that the commonwealth continued its surveillance of the wires issued for a period longer than was necessary to achieve the objective of the authorization.