Supreme Court Cases Wiretapping

In United States v. Giordano (1974) 416 U.S. 505, the court held a wiretap unlawful where the application had not been approved by the Attorney General or a designated assistant attorney general as required under title III of the Omnibus Crime Control and Safe Streets Act of 1968. In Giordano the court concluded Congress intended to condition the use of wiretap procedures on the judgment of senior officials in the Department of Justice. The court upheld suppression for failure to comply with the approval provision because "we are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored." United States v. Chavez (1974) 416 U.S. 562, concerned the statutory requirement that the application for an intercept order specify the identity of the official authorizing the application. The problem in Chavez was one of misidentification. Although the application had in fact been authorized by the Attorney General, the application erroneously identified an assistant attorney general as the official authorizing the application. The court concluded the mere misidentification of the official authorizing the application did not make the application unlawful within the meaning of 18 United States Code section 2518(10)(a) because the identification requirement did not play a "substantive role" in the regulatory system. United States v. Donovan (1977) 429 U.S. 413 involved 18 United States Code section 2518(1)(b)(iv) which implements the Fourth Amendment's particularity requirement by requiring the wiretap application specify "the identity of the person, if known, committing the offense and whose communications are to be intercepted." The court had previously held this requirement applies to individuals whom the government has probable cause to believe are engaged in the criminal activity under investigation and whose conversations will be intercepted over the target telephone. The issue in Donovan was "whether the Government is required to name all such individuals." The court concluded the answer was yes: "A wiretap application must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual's conversations over the target telephone." The Donovan court also concluded, however, the government's failure to name all such individuals in the application did not require suppression of the wiretap evidence under 18 United States Code section 2518(10)(a)(i). The court acknowledged the lower court's conclusion the identification requirement played "a 'central role' " in the statutory framework, and the legislative history of Title III indicated Congress intended the requirement "to ' "reflect ... the constitutional command of particularization." ' " Even so, the court held the government's failure to comply fully with the identification requirement did not require suppression of evidence obtained through "an intercept order that in all other respects satisfies the statutory requirements." The court reasoned by identifying in the application at least some of the individuals whom the government had probable cause to believe were engaged in particular criminal activity and who would be conversing on the targeted telephone the authorizing judge had sufficient information to decide whether to issue the wiretap order. "The government's failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization." Thus the court found the government violated the letter of the law by not identifying all the individuals whose conversations it had probable cause to intercept yet concluded the purpose of the identification requirement was met "because the application provided sufficient information to enable the issuing judge to determine that the statutory preconditions were satisfied."