Title III Procedures - Attachment C
Title III Wire Affidavit Checklist for Law Enforcement
This condensed checklist will assist federal law enforcement
agents and prosecutors in drafting effective wiretap affidavits.
Questions regarding Title III issues can be addressed to agency
attorneys or the assigned AUSA.|
- Agent Qualifications: brief description of law enforcement
background of affiant
[ ] training
[ ] prior TIII experience
[ ] relevant job experience
[ ] if local, deputization as task force officer, qualified under
18 USC 2510(7)
[ ] federal law enforcement agency affiliation, qualified under
18 USC 2510(7)
- Identification of Target Phone: detailed description of
device that you seek to intercept, including at minimum
[ ] telephone number
[ ] service provider
[ ] subscriber name and address
[ ] electronic serial number (ESN) or international mobile
subscriber identity (IMSI) or International Mobile Equipment
Identity (IMEI) or mobile equipment identity (MElD)
[ ] direct connect identity (UFMI) number, if applicable
[ ] user(s) of target phone
- Target Subjects: list all persons by full name and/or
moniker for whom you have established probable cause to believe are involved
in the conspiracy, even if you do not believe that you will intercept them
over the target phone. Target interceptees can also be listed
separatelythose target subjects who are expected to be intercepted.
- Predicate Offenses: list offenses committed by target subjects.
To conduct wire or oral intercept: must show probable cause to
believe violation of at least one offense under
18 USC 2516(1).
To conduct electronic intercept: must show probable cause to
believe violation of any federal felony. Primary narcotics
21 USC 841,
846. Primary money laundering
18 USC 1956 and
1957. Include non-predicate offenses if applicable.
- Goals of Investigation: describe reasons for tapping
target phone and information expected to be obtained.
- Prior Applications: list all prior electronic surveillance
involving either named target subjects or target phone,
[ ] date of each prior application, whether approved or denied by a
[ ] authorizing court, including state and foreign if known
[ ] which target or interceptee was named or overheard during the
[ ] type of communication intercepted [wire/oral/electronic]
[ ] telephone number of phone tapped, if available
[ ] date range of prior wiretap
[ ] whether electronic surveillance still ongoing or when ended
These may be obtained via an electronic surveillance records
(ELSUR) check conducted by investigating agency of DEA, FBI, and
ICE indices. Include prior state and foreign wiretaps known to
the affiant. Note whether prior interceptions are part of, or
related to, your investigation. The check has to be current
within 45 days of DOJ authorization of the wiretap.
- Probable Cause: evidence establishing that this phone is
being used to further the offenses. Focus on actual use of target
phone to facilitate and commit crimes.
[ ] Backgroundbrief summary of criminal organization,
including structure, timing of investigation, roles of target
subjects, and goals of investigation.
[ ] Confidential Sourcesidentify each CS and state separately
for each CS:
[ ] CS's basis of knowledge
[ ] Use of Target Phone (6 Month Rule)describe use of target
phone for criminal purposes within 6 months prior to date of wiretap
authorization. Typically based on one or more of:
[ ] why CS is believed to be reliable
[ ] how CS has been corroborated
[ ] all favorable and unfavorable facts bearing on credibility,
including CS's motivation for cooperating
[ ] consensually-recorded callsprovide dates of
consensually-recorded calls made to target phone by CS and/or UC
agent. Summarize calls, include excerpts showing criminal
discussions, and de-code language. Show how you verified that
call was made over target phonee.g., in presence of agent, via
telephone records, by caller ID, etc.
[ ] Pen Register Trap & Trace (PRTT)/Toll Analysisyou need to
show that the target phone is being used to contact phones of
suspected co-conspirators. For each, give date range of the
contacts, the total number of calls between the target phone and
the other phone, and the date of the last call made between them.
Explain how you know that users of the other phones (1) are the
users and (2) are involved in the predicate crimes
(arrest/conviction history alone is insufficient; sheer volume of
contacts is insufficient). Show that some calls have been made
between target phone and the other phones within the past 21
days, measured from the date the case is sent to the authorizing
official for approval (anticipate adequate time for OEO review). (All
known users of incriminating contact phones are by definition subjects to be
listed as such and run through the ELSUR check.)
[ ] consensually-monitored callsif not recorded, note if call
was monitored by agent and method of verifying that call made
over the target phone.
[ ] court-authorized interceptionsother federal, state or
foreign wiretaps that include criminal calls made to the target
phone and that were issued and implemented in accordance with
federal, state or foreign law.
[ ] transactional probable causephone records tying use of the
target phone to significant investigative event [CS meeting,
seizure, arrest]. When it is impossible to make a
consensually-recorded call, linking phone usage to the criminal
event demonstrates that target phone is used to facilitate the
- Necessity: for each target phone, explain why the following
techniques will not work, have been tried and failed, or are too
dangerous. Use specific rather than generic examples.
[ ] Physical surveillance
[ ] Use of grand jury
[ ] Confidential sourcesexplain limitations of each CS
[ ] Undercover agents
[ ] Search warrants/seizures
[ ] Interviews
[ ] Pen register/toll records
[ ] Trash searches
[ ] Arrests
[ ] Financial investigations
[ ] Other electronic surveillanceany previous or ongoing
[ ] Other applicable techniques, e.g., mobile trackers, pole
- Minimization plan: state how wiretap will be minimized,
tailoring to any specific facts of investigation (e.g., potential
interception of privileged conversations, e.g. attorney-client,
husband-wife, doctor-patient, priest-penitent). Ask for after-the-fact
minimization of coded or foreign language communications. Tailor the
minimization plan for the type of intercept, i.e., wire, electronic.
- Jurisdiction: Demonstrate the connection to the district
where the order is to be issued.
[ ] location of phone or
[ ] location of signal diversion or
[ ] location of first overhearing (place of minimization)
- Differences/Issues for Extensions/Renewals:
[ ] leave in previous target subjects, add all new ones identified
during wiretap so far
[ ] incorporate prior affidavit(s) by reference, greatly condense
[ ] for OEO purposes, probable cause can consist of
three or four recent incriminating calls
[ ] the most recent incriminating call should be within 7 days prior to
approval by the AAG[FN2]
[ ] pen/toll analysis section is not needed, unless wiretap has
been down for more than 21 days
[ ] update necessity, with examples of recent surveillance,
interviews, arrests, etc.
- Differences/Issues for Text Messageswire versus
[ ] must have separate probable cause to believe subject has used
and will use text messaging feature to facilitate the predicate
[ ] must have separate pen/toll analysis section for text messages,
or explanation for lack of records with which to make an
[ ] must have separate statement of how text messages will be
[ ] if actual incriminating text message is not possible to obtain,
can use subject's reference to use of text messaging accompanied
by toll/pen data showing text message(s) to/from other phones
used by co-conspirators.
FN 1. For example, CS meets with
low-level distributor Target A and
discusses purchase of two kilos of cocaine. Target A tells CS
that he needs to call "his man" [supplier] to see if cocaine is
available. CS does not know who supplies cocaine to Target A.
Target A tells CS that he will meet with CS later to inform him
if cocaine is available. Minutes later, phone records verify that
Target A's phone is used to call a phone [the target phone] used
by cocaine supplier [Target B]. An hour later, Target A meets
with CS and tells him that the two kilos will be ready the next
morning. Assuming that other elements are satisfied, CS's meeting
with Target A, coupled with the immediate use of Target A's phone
to call target phone, establishes PC to believe that target phone
is being used to facilitate drug offenses.
FN 2. If a call within 7 days prior
to AAG approval is not possible, the affidavit should explain why (i.e., the
target was out of the country but expected to return, the target
sporadically but reliably used the phone).
[updated December 2008]
Criminal Resource Manual 89]