Use of the Contents of Illegally Intercepted
Communications Against the Interceptor
Section 2515 of Title 18 prohibits use of the contents of illegally
intercepted communications as evidence in judicial proceedings. No
contained on the face of the statute for the use of the contents, when
as evidence in a prosecution against the interceptor. Nevertheless, the
legislative history of Title III indicates that "in certain limited
disclosure and use of illegally intercepted communications would be
to the proper performance of the officers' duties." See S.Rep. No.
90th Cong., 2d Sess. 99 (1968). The example given is the use and disclosure
illegally intercepted communications "in the investigation and prosecution
illegal wiretapper himself." Id. at 99-100.|
In United States v. Underhill, 813 F.2d 105 (6th Cir.),
denied, 482 U.S. 906 (1987), the court held that tape recordings of
conversations consensually made by operators of an illegal gambling
for the purpose of facilitating their gambling operation would not be
when used against the operators themselves, even though the recordings were
illegal because they were made for a criminal purpose. The court reasoned
Congress could not have intended to deprive prosecutors of the clearest
of wrongdoing available simply because the defendants committed a crime in
creating that evidence. But cf. United States v. Vest, 813
477 (1st Cir. 1987) (Section 2515 requires suppression of a tape recording
bribe transaction involving a corrupt policeman made privately by the briber
without governmental participation).
In addition, it has been held that when the victims of the
interceptions consent, the contents of the communication may be used against
interceptors. See United States v. Bragan, 499 F.2d 1376 (4th
1976). However, when the victims object, at least when the contents of the
illegally intercepted communications are not necessary to prove the charges,
court has held that such contents may not be introduced at trial.
United States v. Liddy, 12 Cr.L.Rep. 2343 (D.C. Cir., Jan. 19, 1973)
(otherwise unreported), rev'g United States v. Liddy, 354 F.
217 (D.D.C. 1973).
[cited in USAM 9-60.200]