the cooperation of private parties, such as communications carriers, landlords, and others. Accordingly, under section 3103, authority is provided for courts to issue orders at the request of the government directed at such private parties to facilitate the actual interception with provisions for the protection of the private parties lending assistance.29 SECTION 3104. INTERCEPTION WITHOUT PRIOR AUTHORIZATION 1. In General This section recognizes two seperate situations in which the usual procedure need not be followed with regard to the interception of private oral communications. 2. Provisions of S. 1, as Reported Subsection (a) of section 3104 provides that, when a law enforcement officer engaged in the authorized interception of a private oral communication intercepts a private oral communication that relates to an offense other than one specified in the order, he may make an application under section 3102 for an order approving the unrelated interception as soon as practicable after the unrelated interception occurs. An unrelated offense that is the subject of an application under this subsection can be any offense and is not limited to the offenses set forth in section 3101. The application for the order is made to permit the disclosure or use of its contents (or any derivative evidence) during testimony in an official proceeding. The court is directed to enter an order in accordance with the application if the court finds that the communication was otherwise intercepted in accordance with the provisions of this subchapter. Under subsection (b) of this section, notwithstanding any other provision of the subchapter, a law enforcement officer is authorized to intercept a private oral communication without court order if he is specially designated to do so by the Attorney General, or by the principal prosecuting attorney of a state or locality acting pursuant to a statute of that State, and he reasonably determines that an emergency situation exists. The statute enumerates the type of emergency situations contemplated. They reach conspiratorial activities threatening the national security or characteristic of an organized crime enterprise which occur in a situation requiring that the interception be made before an order of authorization can, with due diligence, be obtained. In any of these situations, the section requires that grounds for the issuance of an order must exist. Moreover, an application for an order must be made as soon as practicable and, in any event, within forty-eight hours after the interception. Subsection (a), regarding the interception of a private oral communication unrelated to an offense specified in the interception order, follows the provisions of 18 U.S.C. 2517 (5). Disclosure for official purposes other than trial purposes is governed by section 3106 (a). These provisions enable the unrelated interception to be of evidentiary use in official proceedings. A requirement is added here that is not found in 18 U.S.C. 2517(5); application for an order approving the 29 See section 3103 (b) (2). These provisions are derived from 18 U.S.C. 2518 (4) without significant change. Section 3105. unrelated interception must be made, not just subsequently, but "as soon as practicable" after the interception. Due regard should be had, in this connection, for the situation of the law enforcement officers, including their ability to foresee at the time the relevance and evidentiary value of the information in question. The entire subsection embodies a sound principle. If a Federal agent in executing a search warrant discovers contraband not covered by the warrant, the illegal property may be taken and used as evidence; 30 the same rationale is equally persuasive in a stiuation involving the execution of an interception order. The allowance made in subsection (b) for emergency interceptions without court order follows provisions of 18 U.S.C. 2518(7). These are extremely important provisions, applicable only under limited circumstances. It should be noted, however, that law enforcement officers may not invoke the provisions of this section without special governmental designation. SECTION 3105. RECORDS AND NOTICE OF INTERCEPTION 1. In General This section regulates the keeping of records concerning the contents of the private oral communications intercepted under this subchapter. Provision is also made for the serving of a notice of an interception, under certain conditions, upon the parties to the intercepted communication. 2. Provisions of S. 1, as Reported Subsection (a) of this section provides that the contents of a private oral communication intercepted by any means authorized by law are, if practicable, to be recorded on a sound recording device in such manner as will protect the recording from editing or other alteration. As soon as practicable after the expiration of an order, the recording is to be delivered to the custody of the court and sealed under its direction. The recording may not be destroyed for a period of ten years, and then only by order of the court. A duplicate recording may be made for use or disclosure to the extent that such use or disclosure is appropriate to the proper performance of official duties. Old applications and orders made or issued under this subchapter are also to be sealed by the court issuing the order, and to be placed in such custody as the court may direct. They may only be disclosed upon a showing of good cause. The applications and orders also may not be destroyed for a period of ten years, and then only by order of the court. Subsection (b) of this section provides that, within a reasonable time, but not less than 90 days, after the termination of the period for which an interception is authorized by an order, or after the filing of an application that is subsequently denied for an order of approval under section 3104 (b), the court must order that a notice be served on the person named in the order or application, and on any other party to an intercepted private oral communication as the court may determine to be in the interest of justice. The notice is to include the fact and date of the issuance of the order or of the filing and denial of the application, the period of the authorized, approved, or dis 30 F.g., Gurleski v. United States, 405 F.2d 253, 257-260 (5th Cir. 1968), cert. denied, 395 US. 981 (1969); United States v. Honore, 450 F.2d 31, 33 (9th Cir. 1971), cert. denied, 404 U.S. 1048 (1972). Section 3106. approved interception, and the fact that during the period a private oral communication was or was not intercepted. However, upon ex parte showing of good cause to the court, the serving of the notice may be postponed. Subsection (b) provides further that, on motion of a person to whom notice has been served, the court may make available, for inspection by such person or his counsel, such portions of the contents of intercepted communications, evidence derived therefrom, applications, or orders, as the court determines to be in the interest. of justice. The provisions of this section follow closely the provisions of 18 U.S.C. 2518 (8) (a), (b), and (d), with only a few minor language changes. Discretion is vested in the courts to delay the serving of a notice beyond ninety days, upon an ex parte showing, in order to avoid any interference with an ongoing investigation, or for any other purpose deemed sufficient by the court. SECTION 3106. USE OF INFORMATION OBTAINED FROM AN INTERCEPTION 1. In General This section governs the disclosure and the use that may be made of information obtained from an interception of a private oral communication, and the suppression of evidence unlawfully obtained. 2. Provisions of S. 1, as Reported Under subsection (a) of section 3106, a law enforcement officer who, in accordance with the provisions of this subchapter, has obtained knowledge of the contents of a private oral communication, or evidence derived from such contents, is authorized to disclose or use such contents to the extent appropriate to the proper performance of his official duties. Furthermore, the subsection authorizes any person who, in accordance with the provisions of this subchapter, has received information concerning the contents of a private oral communication, or evidence derived from such contents, to disclose or use such contents while giving testimony under oath or affirmation in an official proceeding. Under subsection (b), the presence of the seal provided for by section 3105(a), or a satisfactory explanation for the absence of such seal, is a prerequisite to the use or disclosure of the contents of an intercepted private oral communication, or evidence derived from such contents, in an official proceeding. Subsection (c) makes the giving of pretrial notice regarding an interception to an "aggrieved person" a prerequisite if an evidentiary use of the interception is to be made. Subsection (d) of this section governs the suppression of evidence. It provides that no part of the contents of a private oral communication that has been unlawfully intercepted, and no evidence derived from such contents, may be received in evidence. An aggrieved person who is a party in a proceeding may move to suppress the contents of an intercepted private oral communication, or evidence derived from such contents, on the ground that: (1) the communication was unlawfully intercepted; (2) the order of authorization or approval under which it was intercepted is insufficient on its face; or (3) the interception was not made in conformity with the order of authorization or approval. If the motion alleges that the evidence sought to be sup pressed has been derived from the contents of an unlawfully intercepted private oral communication, and if the aggrieved person has not been served with notice of such an interception as provided by section 3105 (b), the opponent of the allegation is to affirm or deny the occurrence of the alleged unlawful interception, but no such motion is to be considered by the court if the alleged unlawful interception took place more than five years before the event to which the evidence relates. It is required under subsection (d) that motions to suppress must be made prior to the official proceeding unless there was no opportunity to make the motion or unless the aggrieved person was not aware of the grounds for the motion. Upon the filing of a motion by an aggrieved person, a court of competent jurisdiction may make available for inspection by the aggrieved person or his counsel such portions of the contents of an intercepted private oral communication, or evidence derived from such contents, as the court determines to be in the interest of justice. The various provisions of this section are essentially the same as provisions found currently in 18 U.S.C. 2517(1), (2), and (3); in 18 .S.C. 2518 (9) and (10) (a); 31 and in 18 U.S.C. 3504. 33 The provision in subsection (a) allowing disclosure and use 32 of the contents of communications intercepted under this subchapter "to the extent appropriate to the proper performance" of official duties should be given a reasonably broad construction. Proper performance of law enforcement duties includes the exchange of intelligence between Federal agents and between a Federal agent and State or local police officials. As pointed out in United States v. Cox, it would be irrational to hold that law enforcement agents engaged in authorized interceptions in aid of a narcotics trafficking investigation could not, upon hearing incidentally of plans for a bank robbery, act to thwart the bank robbery. Whether the contents are of an unrelated interception, of an emergency interception, or of a regular interception pursuant to the provisions of this subchapter.34 the uses made of the contents in the exercise of professional judgment should generally be accepted as appropriate in the performance of official duty. The last sentence in subsection (d) (2), unlike the other provisions. of the section which have their origin in the Omnibus Crime Control and Safe Street Act of 1968, is based upon Title VII of the Organized Crime Control Act of 1970.35 Title VII was meant to govern suppres sion hearings in respect to alleged electronic and mechanical surveillances that occurred prior to June 19, 1968, the date after which the Omnibus Crime Control and Safe Street Act of 1968 controlled. Title VII of the 1970 Act was meant in part to codify the government's policy of responding to the merits of a motion to suppress by searching its records and disclosing the occurrence of an overhearing upon the issue being raised by a defendant,36 a provision carried for 31 A provision presently in 18 U.S.C. 2518 (10) (b), enabling the government to appeal from the granting of a motion to suppress, is continued in this title in section 3724 (b). 32 "Disclosure and use" is intended to have a broad meaning. 38 449 F.2d 679 (10th Cir. 1971), cert. denied, 406 U.S. 934 (1972). 34 Note, however, the limitations on the use and disclosure of interceptions made under Presidential authority pursuant to the provisions of section 3108. 3518 U.S.C. 3504 (a). 36 The general policy was announced by the Solicitor General in November 1966 in a supplemental brief filed in the Supreme Court in Schipani v. United States, No. 504, October Term 1966 (cert. denied, 385 U.S. 934 (1966)). The requirement of the statute is predicated, however, on there being at least some factual possibility that the alleged unlawful overbearing could have tainted the government's evidence in the case. See In Re Dellinger, 357 F. Supp. 949, 958-960 (N.D. Ill. 1973). Section 3107. ward by part of the last sentence of subsection (d) (2). In its most important aspect, however, Title VII was designed to save the criminal justice system the wasteful procedures attending motions to suppress evidence of a crime as having been derived from an unlawful overhearing alleged to have taken place not only before the crime was even committed, but more than five years before the crime.37 This provision, now appearing in section 3504 (a) (3) of present title 18, is also continued in the last sentence of subsection (d) (2).38 1. In General SECTION 3107. REPORT OF INTERCEPTION This section requires certain reports to be made with respect to interceptions, not for the benefit of any individual, but entirely for governmental purposes. 2. Provisions of S. 1, as Reported Subsection (a) of section 3107 concerns judicial reports. Within thirty days after the expiration of the period of interception authorized in an order or after the denial of an application for an order approving an interception, the court is required to report to the Administrative Office of the United States Courts such information as to the fact that an order or extension was applied for; the identity of the law enforcement officer and the government agency making the application and the person authorizing the application; the offense specified in the application for the order or extension; and the period of interception authorized by the order. The Administrative Office of the United States Courts is authorized through the issuance of regulations to require that the report include any other related information. Subsection (b) concerns prosecutive reports. During January of each year, the Attorney General, and the principal prosecuting attorney of a State or locality, is required to report to the Administrative Office of the United States Courts such information as that required by subsection (a) with respect to each application for an order, or extension of an order, made during the preceding calendar year; a general description of the interceptions made under such orders; the approximate number of persons whose communications were intercepted; and the approximate nature, amount, and cost of the manpower and other resources used in making the interceptions. In addition, the report is to include such items as the number of arrests resulting from the interceptions, the number of trials resulting from the interceptions, the number of motions to suppress made with respect to the interceptions, and the number of convictions resulting from the interceptions. Any related information that the Administrative Office of the United States Courts may by regulation require is also to be reported. Subsection (c) concerns Administrative Office reports. In April of each year, the Director of the Administrative Office of the United 37 See S. Rept. No. 91-617, 91st Cong., 1st Sess., pp. 33, 62-70, 135-140 (1969); H. Rept. No. 91-1549, 91st Cong., 2d Sess., pp. 34, 50-52, 80-83 (1970). 38 The remaining provision of Title VII, governing the disclosure to the movant of the contents of the communication alleged to have been intercepted unlawfully before June 19, 1968, is subsumed by the codification in section 3106 (d) (4) of the similar provision, heretofore limited to post-June 19, 1968, proceedings, that appears in section 2518 (10)(a) of the present title 18. |