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zation of an application by the Attorney General or by a specially designated Assistant Attorney General, and the granting by a Federal judge of an order authorizing or approving the interception. The procedural requirements were thus carefully designed to meet constitutional standards 5 and, in fact, to go beyond stuch standards. The major purpose of protecting Fourth Amendment rights was served and strict administrative controls were applied.

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Title III of the Omnibus Crime Control and Safe Streets Act featured the following basic elements: (1) a grant of authority to the Attorney General, or a specially designated Assistant Attorney General, to authorize an application for an order to a Federal judge where interception of a private communication might provide evidence of certain major Federal crimes; and a grant of authority to State and local prosecutors to apply for an intercept order in States having legislation to govern interceptions of private communications; (2) a detailed list of the terms required to be set forth in an application for a court order to achieve narrowness of application, specificity, and a showing of probable cause; and likewise, a detailed description of what the judge must find and include in his order granting permission for the government to intercept a communication; (3) provisions for dealing with emergency situations; (4) time limits on the interceptions; (5) a procedure to be followed to ensure the integrity of the contents; 10 (6) authority for disclosure and use of contents of properly intercepted communications; 11 (7) reporting requirements concerning intercepted communications to insure that Congress will have the necessary information to determine whether abuses are occuring; 12 (8) remedies, including a civil remedy where improper interceptions have occurred; 13 (9) provisions for motions to suppress illegally obtained evidence; 14 and (10) certain prohibitions against the use of intercepted communications.15

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The title does not generally apply to the monitoring of private conversations with the consent of one or more of the participants to the conversation.16 No constitutional prohibition is involved in such monitoring since no right of privacy is infringed. 17 By the same token, none of the provisions of this subchapter is meant to inhibit or otherwise be applicable to consensual monitoring.

The discussion below of the individual sections of this subchapter will not be prefaced by any statement of the existing law, since, in general, the sections continue existing law under a modified format. Changes, none of which are considered to be of major significance, will be noted and explained.

4 See 18 U.S.C. 2516-2518.

5 See Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967).

18 U.S.C. 2516.

718 U.S.C. 2518.

8 Ibid.

9 Ibid. 10 Ibid.

11 18 U.S.C. 2517.

12 18 U.S.C. 2519.

13 18 U.S.C. 2520.

14 18 U.S.C. 2518 (10).

15 18 U.S.C. 2515; 2517.

16 18 U.S.C. 2511 (c) and (d).

17 United States v. White, 401 U.S. 745 (1971).

SECTION 3101. AUTHORIZATION FOR INTERCEPTION

1. In General

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was predicated upon findings that, among other things, demonstrated the impracticality of recognizing interstate and intrastate distinctions in governing the interceptions and the proper evidentiary uses that may be made of the contents of interceptions.15 Title III legislated for all levels of government. It prescribed the circumstances and conditions under which interceptions of wire or oral communications may be carried out lawfully by officials of the Federal government, as well as the separate circumstances and conditions under which such interceptions may be carried out lawfully by officials of State governments. This section continues that comprehensive approach.

2. Provisions of S. 1, as Reported

A. Federal Government Interception

Under subsection (a) of section 3101, a court of competent jurisdiction 19 in aid of a Federal investigation may, by order issued pursuant to the provisions of section 3103, authorize or approve the interception of a private oral communication 20 under the specified conditions set out in the section. These conditions provide that, first, the filing of an application for an order must be authorized by the Attorney General, or an Assistant Attorney General specially designated by the Attorney General. Second, an application meeting the requirements of section 3102 must be filed by a law enforcement officer of a government agency having responsibility for the investigation of the offense concerning which the application is made.

Third, there must be probable cause to believe that the interception will provide evidence of the commission of an offense described in one of the offenses specified in section 3101 (a) (3). This list tracks as closely as the Committee has found possible the corresponding offenses for which an order to intercept a private oral communication can be authorized under Title III of the 1968 Act.21 The Committee has not expanded or contracted the list of crimes set forth in the 1968 Act. Nevertheless, the redefinition and consolidation of existing related offenses in the Code inevitably result in some changes. This expansion or contraction of authority to issue an order for an intercept for particular conduct is an incidental effect of the structure of the new Code. As under present law, the filing of an application to a court for authorization to intercept requires the initial approval of the Attorney

18 See People v. Kaiser, 21 N.Y.2d 85, 233 N.E.2d 818 (1967), aff'd, 394 U.S. 280 (1969). 19 As defined in section 3109 (d).

20 "Intercept" is defined in section 3109 (f) and means to acquire the contents of a communication through the use of an eavesdropping device, and includes the acquisition of such contents by simultaneous transmission by or recording. "Private oral communication" is defined in section 3109 (g) to have the meaning set forth in 1525. The distinction currently made between "wire" and "oral" communications is not observed in this subchapter. 21 18 U.S.C. 2516(1).

Section 3102.

General or an Assistant Attorney General specially designated by him.22 Section 3101 makes no changes in this requirement.

B. State Governmental Interception

Subsection (b) of section 3101 provides that, to the extent permitted by a State statute, the interception of a private oral communication may be authorized or approved by order of a court of competent jurisdiction under specified conditions. First, an application for such an order must be filed, pursuant to the provisions of applicable State law and in substantial compliance with the provisions of section 3102, by the principal prosecuting attorney of the State or locality acting on behalf of a government agency having responsibility for the investigation of the offense concerning which the application is made. Second, it must be shown that the interception might provide or has provided evidence of the commission of an offense involving: (1) bribery, murder, kidnapping, robbery, extortion, trafficking in a drug that is a controlled substance as defined in section 102 of the Controlled Substances Act, or gambling; (2) a crime of violence which is designated in an applicable State statute as an offense for which interception may be ordered; or (3) conspiracy or solicitation if an object of the conspiracy or solicitation is any of the foregoing offenses.

The subsection follows closely the provisions of current law.23 Only minor changes have been made. One purpose for which interception may be authorized under current law is in aid of an investigation of a crime "dangerous to life, limb, or property," punishable as a felony and designated in the State's authorizing statute. This subsection uses the term "crime of violence" 24 in the broad sense as comprehending the present language. A State is thus authorized to use interceptions with regard to such crimes. State interest with regard to murder, kidnapping, and the other named offenses in the subsection is so obvious that interception may be authorized as permitted under State law without any designation in the applicable statute.25

SECTION 3102. APPLICATION FOR AN ORDER FOR INTERCEPTION

1. In General

This section concerns the content required in an application to a court for an order to authorize or approve the interception of a private oral communication. The section utilizes the wording of current 18 U.S.C. 2518.(1) and (2), with minor alterations.

2. Provisions of S. 1, as Reported

Under section 3102 it is required that an application for an order (or for an extension of an order) authorizing or approving the inter

22 The intention was to condition the use of intercept procedures upon the judgment of a senior official of the Department of Justice that the situation warranted such use. This authority to give or withhold pre-application approval was meant to be personal to the Attorney General or a specially designated Assistant and not delegable to any other official. United States v. Giordano, 416 U.S. 505 (1974). This same intention underlies the provisions of this section, and the Committee specifically endorses the Court's decision in Giordano.

23 18 U.S.C. 2516 (2).

24 "Crime of violence" is defined in section 111 of the Code.

25 State wiretapping legislation enacted prior to the enactment of Title III of the Omni bus Crime Control and Safe Streets Act is not necessarily affected by Title III or by this legislation. A substantial compliance with the provisions of sections 3102 and 3103 is all that is required. It would, of course. be most helpful, particularly for prosecutors and judges, for States to review pertinent legislation and bring it into conformity with the Federal law. States in authorizing interceptions of private communications may make the requirements more restrictive than Federal law, but not less demanding. State v. Siegel, 13 Md. App. 444, 285 A.2d 671 (1971).

ception of a private oral communication be made in writing, under oath, to a court of competent jurisdiction. The application would include, among other things, the following information: (1) the identity of the law enforcement officer making the application and of the officer authorizing it; (2) the applicant's authority to make the application; (3) a complete statement of the facts relied upon to justify belief that an order should be issued, including details as to the offense, the identity of the persons involved, if known, and a description of the facilities involved at which the communication is to be intercepted; (4) a complete statement of other investigative procedures that have been tried and that have failed, or that appear unlikely to succeed; (5) a statement of the period of time for which the interception is required to be maintained; (6) a complete statement concerning all previous applications known to the applicant that have been made involving any of the same persons, facilities, or places specified in the application; and (7) if the extension of an order is being requested, a statement of the results thus far achieved from the interception, or a reasonable explanation of the failure to obtain such results. The section specifically provides that the court may require still further testimony or additional documentary evidence in support of the application.

The overriding purpose of this section is, of course, to meet the constitutional standards set down by the Supreme Court primarily in Berger v. New York 26 and Katz v. United States.27 However, the detailed enunciation of the various requirements for drafting an application for an interception order also serves an administrative purpose; the section is a checklist. The applicant is forced to thoroughly consider what he is doing, where his authority comes from, and what he expects to achieve. Once the applicant has thought the matter through thoroughly and stated it in his application, the court should not ordinarily have need of any further testimony or documentation. Close observance of the requirements of the section is necessary to meet legal criterial for interception and will also facilitate decisions by the courts.

It is also specifically provided in section 3101 (b) (1) that an application made by a State official need only comply with the requirements of this section in a substantial way. The focus of attention is directed to substantial compliance with constitutional standards.

The Committee notes that the authority to intercept communications under this subchapter is not limited to conversations between a person named in the application for the order and other persons. An application can properly be made under subdivision (a) (3) of this section whether all or none of the persons involved in the offense are named. If one or more of the persons involved is identifiable, but not all are, an application may also properly be made upon that basis. The applicant is under no requirement to discover as many as possible of the persons involved before making the application; he need only name a person in the application if he has probable cause to believe that the person named is involved in the commission of the offense in relation to which the interception is contemplated. Legally intercepted conversations of persons not named in the application stand on the same footing as the legally intercepted conversations of persons named in the application.28

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SECTION 3103. ISSUANCE OF AN ORDER FOR INTERCEPTION

1. In General

This subsection reenacts the provisions of 18 U.S.C. 2518 (3), (4), (5), and (6). The section is concerned with: (1) the judicial findings that must be made to support issuance of an order for interception; (2) the content required to be present in the order; (3) the period of time during which interception is authorized.

2. Provisions of S. 1, as Reported

Under subsection (a) of this section, in acting upon an application made under section 3102, a court may, as requested in the application or as found to be warranted by the court, issue an ex parte order authorizing or approving the interception of a private oral communication within the geographic jurisdiction of the court, if it determines on the basis of the facts submitted by the applicant that: (1) there is probable cause to believe that a person is committing, has committed, or is about to commit a particular offense set forth in section 3101; (2) there is probable cause to believe that a particular communication concerning the offense will be obtained through such interception; (3) other investigative procedures were tried and failed, or appeared unlikely to succeed or to be too dangerous; and (4) there is probable cause to believe that the facilities from which, or the place at which, the communication is to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are in the name of, or commonly used by a person who is committing, has committed, or is about to commit the offense.

Subsection (b) requires that an order issued under this section specify, inter alia: (1) the identity, if known, of the person whose communication is to be intercepted; (2) the character and location of the facilities from which, or the place at which, authority to intercept is granted; (3) a particular description of the kind of communication sought to be intercepted and a statement of the particular offense to which it relates; (4) the identity of the government agency authorized to intercept the communication and of the person authorizing the application; and (5) the period of time during which the interception is authorized, and whether the interception must automatically terminate when the described communication has been first obtained.

Under subsection (c) of section 3103, the order may properly authorize or approve the interception of a private oral communication either for the period necessary to achieve the purposes of the authorization, or for thirty days, whichever is less. Extensions of time may be granted, upon application made under section 3101(a), if findings are made in accordance with the provisions of subsection (a) of this section. The extension may be for the period necessary to achieve the purposes for which it was granted or for thirty days, whichever is less.

Subsection (d) of this section authorizes the court to require that periodic reports be furnished the court as to the progress made toward achievement of the authorized objective and the need for continued interception.

The court authorization required under this section is constitutionally mandated, and the provisions of section 3103 fulfill that mandate. Carrying out a lawful interception order, however, will often require

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