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29

Electronic Surveillance—Title III Affidavits

The Affidavit must meet the following requirements:

  1. It must be sworn and attested to by an investigative or law enforcement officer as defined in 18 U.S.C. § 2510(7). Criminal Division policy requires that the affiant be a member of one of the following agencies: FBI, DEA, ICE/HSI, ATF, U.S. Secret Service, U.S. Marshals Service, or U.S. Postal Inspection Service. Criminal Division policy precludes the use of multiple affiants except when it is indicated clearly which affiant swears to which part of the affidavit, or states that each affiant swears to the entire affidavit. If a State or local law enforcement officer is the affiant in a Federal electronic surveillance affidavit, the enforcement officer must be deputized as a Federal officer of the agency responsible for the offenses under investigation. 18 U.S.C. § 2516(1).

  2. It must identify the target subjects, describe the facility or location that is the subject of the proposed electronic surveillance, and list the alleged offenses. 18 U.S.C. § 2518(1). If any of the alleged offenses are not listed predicate offenses under 18 U.S.C. § 2516(1), that fact should be noted.

  3. It must establish probable cause that the named subjects are using the targeted facility or location to commit the stated offenses. Any background information needed to understand fully the instant investigation should be set forth briefly at the beginning of this section. The focus, however, should be on recent and current criminal activity by the subjects, with an emphasis on their use of the target facility or location. This is generally accomplished through information from a confidential informant, cooperating witness, or undercover agent, combined with pen register or telephone toll information for the target phone or physical surveillance of the target premises. Criminal Division policy requires that the affidavit demonstrate criminal use of the target facility or premises within six months from the date of Department approval. For wire communications, where probable cause is demonstrated by consensually recorded calls or calls intercepted over another wiretap, the affidavit should include some direct quotes of the calls, with appropriate characterization. Criminal Division policy dictates that that pen register or telephone toll information for the target telephone, or physical surveillance of the targeted premises, standing alone, is generally insufficient to establish probable cause. Generally, probable cause to establish criminal use of the facilities or premises requires independent evidence of use of the facilities or premises in addition to pen register or surveillance information, often in the form of informant or undercover information. It is preferable that all informants used in the affidavit to establish probable cause be qualified according to the "Aguilar-Spinelli" standards (Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969)), rather than those set forth in the Supreme Court decision of Illinois v. Gates, 463 U.S. 1237 (1983). Under some circumstances, criminal use of the target facility within six months of Department approval may be established in the absence of consensually recorded communications or prior interceptions when use of the phone may be tied to a significant event, such as a narcotics transaction or a seizure, through phone records. In addition to criminal use within six months, the affidavit must also show recent use of the facility or premises within 21 days from the date on which the Department authorizes the filing of the application. For wire and electronic communications, the affidavit must contain records showing contact between the facility and at least one other criminally relevant facility that demonstrates necessity for the wiretap within 21 days of Department approval. The affidavit must clearly and specifically demonstrate how the other facility is criminally relevant and state the date range for the contacts and the date of the most recent contact. The date range for all pen register/phone records data must be updated to within 10 days of submission to OEO. For extension requests, the affidavit should include some direct quotes of wire communications (and/or electronic communications, if applicable), with appropriate characterization, including one from within seven days of Department approval, or an explanation of the failure to obtain such results and the continued need to conduct interceptions. (When the application requests authorization to intercept oral communications within a location, it is often helpful to include a diagram of the target location as an attachment to the affidavit.)

  4. It must explain the need for the proposed electronic surveillance and provide a detailed discussion of the other investigative procedures that have been tried and failed, are reasonably unlikely to succeed if tried, or are too dangerous to employ. 18 U.S.C. § 2518(1)(e). This is to ensure that highly intrusive electronic surveillance techniques are not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143 (1974). It need not be shown that no other investigative avenues are available, only that they have been tried and proven inadequate or have been considered and rejected for reasons described. See, e.g., United States v. Foy, 641 F.3d 455, 464 (10th Cir. 2011); United States v. Cartagena, 593 F.3d 104, 109-111 (1st Cir. 2010); United States v. Concepcion, 579 F.3d 214, 218-220 (2d Cir. 2009). There should also be a discussion as to why electronic surveillance is the technique most likely to succeed. When drafting this section of the affidavit, the discussion of these and other investigative techniques should be augmented with facts particular to the specific investigation and subjects. General declarations and conclusory statements about the exhaustion of alternative techniques will not suffice.

    It is most important that this section be tailored to the facts of the specific case and be more than a recitation of "boiler plate." The affidavit must discuss the particular problems involved in the investigation in order to fulfill the requirement of 18 U.S.C. § 2518(1)(c). The affidavit should explain specifically why other normally utilized investigative techniques, such as physical surveillance or the use of informants and undercover agents, are inadequate in the particular case. For example, if physical surveillance is impossible or unproductive because the suspects live in remote areas or will likely be alerted to law enforcement presence (by counter-surveillance or other means), the affidavit should set forth those facts clearly. If the informants refuse to testify or cannot penetrate the hierarchy of the criminal organization involved, the affidavit should explain why that is so in this particular investigation. If undercover agents cannot be used because the suspects deal only with trusted associates/family, the affidavit must so state and include the particulars. Conclusory generalizations about the difficulties of using a particular investigative technique will not suffice. It is not enough, for example, to state that the use of undercover agents is always difficult in organized crime cases because crime families, in general, deal only with trusted associates. While the affidavit may contain a general statement regarding the impossibility of using undercover agents in organized crime cases, it must also demonstrate that the particular subject or subjects in the instant case deal only with known associates. The key is to tie the inadequacy of a specific investigative technique to the particular facts underlying the investigation. See, e.g., Foy, 641 F.3d at 464 United States v. Blackmon, 273 F.3d 1204, 1210-1212 (9th Cir. 2001); United States v. Uribe, 890 F.2d 554 (1st Cir. 1989).

  5. It must contain a full and complete statement of any known previous applications made to any judge (federal, state, or foreign) for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application. This statement should include the date, jurisdiction, and disposition of previous applications, as well as their relevance, if any, to the instant investigation. All relevant electronic surveillance ("ELSUR") databases must be checked, including that of the agency conducting the investigation. In narcotics investigations, Criminal Division policy provides that the DEA, FBI, and ICE databases be searched. In investigations involving firearms offenses, ATF ELSUR databases should be checked. In joint investigations, all participating agencies' databases should be checked; in all other cases when it is likely that more than one agency may have investigated the subjects, multiple indices checks should likewise be made. It is recommended that all ELSUR searches be updated to within 45 days of submission of an application to OEO. The duty to disclose prior applications under 18 U.S.C. § 2518(1)(e) covers all persons named in the application, and not just those designated as "principal targets." United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993).

  6. It must contain a statement of the period of time for which the interception is to be maintained. The statute provides that an order may be granted for not more than thirty days or until the objectives of the investigation are achieved, whichever occurs first. 18 U.S.C. § 2518(5). If the violations are continuing, facts sufficient to justify interception for the full thirty-day period must be provided, or the court may order monitoring to cease once initial, criminal conversations are intercepted. This may be accomplished by showing, through informant or undercover investigation, pen register analysis, physical surveillance, or other law enforcement investigation, that a pattern of criminal activity exists and is likely to continue. If it is clear that the interceptions will terminate after a limited number of days, then the time requested should also be so limited in accordance with the facts of the case.

    The statute also provides for a ten-day grace period, before the thirty-day period begins to run. 18 U.S.C. § 2518(5). This statutory grace period allows for delays by the service provider in establishing interception capability. The ten-day grace period applies only to the initial installation of equipment or establishment of interceptions, and may not be used in an extension application, or in an original application when the equipment is already installed.

    Some courts have consulted Rule 45 of the Federal Rules of Criminal Procedure for guidance on the method to calculate the thirty-day period under the statute, and have held that the thirty-day period begins to run on the date after the order was signed, even if the interception started on the same day that it was signed. See United States v. Smith, 223 F.3d 554, 575 (7th Cir. 2000); United States v. Villegas, 1993 WL 535013, at *11-12 (S.D.N.Y. Dec. 22, 1993); United States v. Gerena, 695 F. Supp. 649, 658 (D. Conn. 1988); United States v. Sklaroff, 323 F. Supp. 296, 317 (S.D. Fla. 1971); but see United States v. Gangi, 33 F. Supp. 2d 303, 310-11 (S.D.N.Y. 1999); United States v. Pichardo, 1999 WL 649020, at * 3 (S.D.N.Y. Aug. 25, 1999). In an abundance of caution, however, OEO recommends that the thirty-day period be calculated from the date and time that the order is signed. OEO further suggests that an applicant adhere to established practice regarding the calculation of the thirty-day period in the applicant's particular district.

  7. It must contain a statement affirming that monitoring agents will minimize all non-pertinent interceptions in accordance with Chapter 119 of Title 18, United States Code, as well as additional standard minimization language and other language addressing any specific minimization problems (e.g., steps to be taken to avoid the interception of privileged communications, such as attorney-client communications) in the instant case. (18 U.S.C. § 2518(5) permits non-officer government personnel or individuals acting under contract with the government to monitor conversations pursuant to the interception order. These individuals must be acting under the supervision of an investigative or law enforcement officer when monitoring communications, and the affidavit should note the fact that these individuals will be used as monitors pursuant to 18 U.S.C. § 2518(5).)

    When communications are intercepted that relate to any offense not enumerated in the authorization order, the monitoring agent should report it immediately to the Assistant United States Attorney, who should notify the court at the earliest opportunity. Approval by the issuing judge should be sought for the continued interception of such conversations. While 18 U.S.C. § 2517(1) and (2) permit use or disclosure of this information without first obtaining a court order, 18 U.S.C. § 2517(5) requires a disclosure order before the information may be used in any proceeding (e.g., before a grand jury).

    All wire and oral communications must be minimized in real time. The statute permits after-the-fact minimization for wire and oral communications only when the intercepted communications are in code, or in a foreign language when a foreign language expert is not reasonably available. 18 U.S.C. § 2518(5). In either event, the minimization must be accomplished as soon as practicable after the interception. Such after-the-fact minimization can be accomplished by an interpreter who listens to and minimizes the communications after they have been recorded, giving only the pertinent communications to the supervising agent. The process utilized must protect the suspect's privacy interests to approximately the same extent as would contemporaneous minimization, properly applied. United States v. David, 940 F.2d 722 (1st Cir. 1991); United States v. Simels, 2009 WL 1924746, at *6-*9 (E.D.N.Y. Jul. 2, 2009). After-the-fact minimization provisions should be applied in light of the "reasonableness" standard established by the Supreme Court in United States v. Scott, 436 U.S. 128 (1978).

    After-the-fact minimization is a necessity for the interception of electronic communications, such as those in the form of text messages, email, or faxes. In such cases, all communications should be recorded and then examined by a monitoring agent to determine their relevance to the investigation. Further dissemination is then limited to those communications by the subjects or their confederates that are criminal in nature. Further guidance regarding the minimization of text messages may be found on ESU's DOJNet site.

  8. A judge may only enter an order approving interceptions "within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)." 18 U.S.C. § 2518(3). Interceptions occur at the site of the target facility or location and at the site where the communications are first heard/reviewed and minimized (e.g. the wire room). United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992); see also United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996).

    For most requests, the affidavit should indicate that either the target facility/location or the place of first review and minimization is within the territorial jurisdiction of the court. Thus, when seeking to wiretap a cellular phone not located within the territorial jurisdiction of the court at the time of application, the place of first hearing and minimization must be within the territorial jurisdiction of the court (i.e. a regional wire room located elsewhere should not be used). When seeking to wiretap a cellular phone that is located within the territorial jurisdiction of the court at the time of application, a regional wire room may be used, but the order should authorize continued interceptions should the phone be taken outside that jurisdiction.

    When the request is to intercept communications with a mobile interception device, such as a bug in an automobile, the affidavit should contain a statement that, pursuant to 18 U.S.C. § 2518(3), interception will occur not only within the territorial jurisdiction of the court in which the application is made, but also outside that jurisdiction (but within the United States), if there is any indication that the interception device will be taken outside the jurisdiction of the court issuing the electronic surveillance order. The order should likewise authorize such extra-jurisdictional interception.

    [updated October 2012] [cited in Criminal Resource Manual 90]