State and federal investigations have relied on wiretaps and other means of intercepting communications for decades. A large body of law has developed controlling the procedures that law enforcement officers must use before, during, and after tapping phone and other electronic communications. Federal statutes have very detailed requirements that law enforcement must follow and states have passed their own laws adopting or expanding those protections. And of course, the U.S. Constitution’s protection against unreasonable searches and seizures provides an ultimate barrier against unreasonable intrusions by the government.
In Georgia, when state law enforcement officers want to use an electronic device to intercept or record communications, or to surveil or eavesdrop, they are required by law to obtain authorization from a Superior Court judge. Judicial authorization is also required before using pen registers that record information such as phone numbers dialed or phone numbers from calls received. In order to obtain authorization, the prosecutor assigned to the case must complete a written application and submit it to the judge, who decides whether the prosecutor has shown that the warrant is appropriate.
All warrants for wiretapping and surveillance, must comply with federal law, even if only state law enforcement is involved. The U.S. Criminal Code contains many specific requirements for law enforcement to meet in order for a wiretap to be legal and for the evidence obtained to be admissible in court. Georgia law largely mirrors the federal requirements.
Georgia law requires that a signed warrant application must include all the relevant facts that provide probable cause to believe that a crime has been or will be committed. Further, the warrant must describe all the investigative methods that have already been tried and failed. A wiretap cannot be authorized if other, less invasive means of investigation would work. If a judge authorizes a wiretap without ensuring that it is actually necessary, any evidence obtained may be suppressed at trial. This principle—suppression of evidence—recognizes the principle that law enforcement officers and prosecutors should not be rewarded for violating the public’s rights.
Georgia law also provides that a warrant for a wiretap may not last for a period any longer than twenty days from the date it is issued. In cases where officers obtained a warrant but went beyond this period, the courts have held that the evidence obtained after that twenty day period elapsed could not be used by the government.
Importantly, a wiretap does not provide law enforcement with an open invitation to listen in on all conversations. Generally, if a phone call or other communication is intercepted, officers must take steps to minimize the intrusion by ceasing to intercept conversations that do not relate to a legitimate aim of the investigation. For example, if for several minutes a defendant had a completely innocent conversation and police had no reason to suspect the phone call was related to criminal activity, the police would be required to stop recording. If they fail to do that and then, later in the conversation, criminal activity is discussed, that evidence must be suppressed because the officers recorded the conversation without a legitimate basis.
Our criminal defense attorneys have successfully suppressed wiretaps in state and federal criminal cases in courts across Georgia. In our experience, state law enforcement often make errors in maintaining the wiretap recordings, or in the application process. We have convinced judges to exclude wiretap evidence in several cases where law enforcement did not follow the rules governing this type of evidence. It is important to challenge this evidence prior to trial by filing the proper motions and requesting a pretrial evidentiary hearing.