Police wiretapping is an irregular spectacle, contrary to what movies and T.V. shows would have you think. However, the police are authorized to use wiretaps in some cases. The most common circumstances where police are permitted to wiretap phone calls is when they get a court order.
It is a federal crime to wiretap or use a machine to capture the communications of others without court permission unless one of the parties has given their prior consent. Likewise, it is a federal crime to use or disclose any info obtained by illegal wiretapping or electronic eavesdropping.
The Federal Wiretap Act forbids any individual from purposely intercepting or attempting to intercept a wire, oral or electronic communication.
How Do the Police Use a Wiretap?
The police will utilize the wiretap to listen to your phone discussions with others. There are generally three classifications of calls:
- Class 1 calls are directly related to what the police are investigating.
- Class 2 calls are new crimes that the police did not already know about. These calls usually require the police to return to court and get an amended court order.
- Class 3 calls are junk calls, such as hang-ups.
In addition to listening in on your phone calls, the police can observe your phone calls in other ways. For instance, the police can find out the numbers of everyone who calls you, record your calls, and keep track of all the numbers you call. Whatever the police do, it must be included in the court order.
How Do the Police Get a Court Order for a Wiretap? What Will the Court Order Say?
When it comes to police tapping phones, they must first obtain a court order before eavesdropping on your phone exchanges. This is comparable to a warrant. First, the police will ask a prosecutor to get a court order for a wiretap. The prosecutor and the police will have to go to a judge or magistrate and make the requisite showing before the judge grants the wiretap order. Moreover, only certain local and federal prosecutors are entitled to apply for wiretap orders, and only certain courts can bestow the use of the wiretap.
The police must demonstrate to a judge that they have probable cause to think that tapping your phone lines will help them solve a serious crime, such as drug trafficking, money laundering, or terrorism. Nevertheless, because wiretapping is so invasive, the police are held to a higher standard when seeking wiretap orders than seeking warrants.
One communication typically exempt from the wiretap order requirement is phone conversations from prison. Prisoners have a significantly reduced expectation of privacy and cannot expect their phone conversations to remain private. For this reason, some criminal lawyers choose to meet their clients in person face to face to try and ensure that their communication is confidential.
Court orders authorizing a telephone tapping usually contain privacy-related restrictions, especially time limits, so the police cannot keep listening perpetually. Law enforcement also must restrict wiretapping only to discussions that are likely to produce evidence against the suspect.
The court order will effectively permit and restrict the use of the wiretap. Typically, these orders will:
- Place restrictions on how the information gathered can be used
- Limit how long the police can listen to conversations
- Limit the types of conversations the police are allowed to listen to.
The court order can set many other restrictions, including who can listen to the discussions and what records the police must keep.
Criminal evidence is any physical or verbal evidence offered to ascertain a crime. This evidence can take miscellaneous forms and may also be introduced by the defendant to prove that they are not guilty.
It is illegal to hide any evidence, an action known as spoliation of evidence, from the other side or the authorities. In any criminal trial, the burden is on the prosecution to show that the defendant committed the crime.
In a civil or criminal trial, either side may submit evidence to prove or disprove that a crime happened. Evidence is essential for the prosecution in a criminal proceeding to establish its case beyond a reasonable doubt and in a civil case for the plaintiff to demonstrate that it is entitled to damages.
The outcome of a case hinges on the potency of the evidence submitted, and the evidentiary rules are rather strict about the obligations of both parties to preserve evidence. Any intentional, reckless, or negligent hiding of evidence by either party to the proceeding is restricted.
This is known as spoliation of evidence (also tampering with evidence), resulting in harsh legal consequences. While the destruction of evidence may be applied in a civil case, it is often at issue in criminal cases.
“Hiding” of evidence is rather broad. It can include any activity that hides, withholds, alters, or destroys evidence relevant to the case. Any action by the part that makes the proof unavailable for the legal proceeding may be deemed destruction of evidence.
In some jurisdictions, witness tampering (i.e., threatening a witness, physically stopping them from testifying, or convincing them to alter their testimony) can be deemed destruction of evidence.
Criminal evidence may come in two different formats, verbal or physical. Examples of verbal evidence may include:
- Confessions made by the defendant
- Testimony offered by witnesses and expert witnesses
- Text of documents such as a search warrant or other files
- Spoken evidence obtained through a wiretap or other similar technology
For evidence to be admissible in court, the evidence must be logically relevant, material, and competent. For evidence to be relevant, it must have a reasonable tendency to help establish or disprove a fact. The evidence does not have to make a fact certain but rather make a fact of consequence more or less probable than without the evidence.
Even if the evidence is relevant, the evidence must be legally relevant, meaning that the probative value of the evidence must not be substantially outweighed by the dangers of unfair prejudice, confusion of jury, waste of time, and misleading of the jury.
What Do the Police Need to Show to Get a Court Order for a Wiretap?
To get a court order for a wiretap, the police must show the probable cause required for a search warrant exists. In addition, the police must also demonstrate that they either unsuccessfully exhausted all other less intrusive means of investigation or that those other means are too risky.
What Happens If the Police Do Not Have or Violate a Court Order?
Without a court order, the police cannot listen to your phone conversations unless one of the parties consents to use a wiretap. Any info they gather cannot be used against a party in a criminal trial. The same is true for information collected in violation of the court order. The information can be suppressed as the result of an unlawful search. Moreover, if the police use a wiretap in violation of a court order or without one, this can constitute police misconduct.
Are There Any Exceptions to the Rule That the Police Need a Court Order?
In exceptional circumstances, the police can get an emergency wiretap. They will work with the phone company to set up the wiretap immediately, and the prosecutor will have 48 hours to obtain a court order. This is not technically an “exception” because a court order is still required, even if it comes after the wiretapping starts.
Do I Need a Lawyer?
The rules regarding wiretaps differ from state to state and can be very complex. An experienced attorney can help you sort through the legal regulations and inform you of your rights and defenses. If the police are bringing charges against you, you should consult a criminal lawyer immediately.