Even the most casual
observer of drug importation, trafficking, and sale cases becomes aware of
the increasing application of electronic surveillance in the investigation
of these types of offenses. Electronic surveillance--be it tracking, tapping,
bugging or consensual recording, is being applied in more investigations
related to drug offenses than had been customary in previous years. Not
only have the measures utilized become more technologically sophisticated,
but there is also greater integration of a wider variety of electronic surveillance
resources in individual operations.
To effectively
litigate the issues raised by electronic surveillance in this era of all-pervasive
interception capabilities, defense attorneys will have to anticipate the
whole range of potential surveillance techniques which may have been deployed
against the accused.
Rather than use
the law as the framework for this survey of the electronic surveillance
methods available to government agencies engaged in narcotics interdiction
and investigation, the relationship existing between the surveillance and
its objective will establish our hierarchy for analysis. The surveillance
methods examined here are set out in their full range: from the most passive
and remote interception to the most active and immediate kind of contact
with a targeted subject. Within this framework, all surveillance devices
and practices can be organized without being limited by the status of the
law governing their use or misuse.
High Tech
Surveillance:the Militarization of Drug Enforcement
The most significant
factor contributing to the increasing integration of highly sophisticated
surveillance is the U.S. government's more aggressive interpretation of
its drug enforcement mission. The Reagan Administration interprets that
mission as synonymous with national defense and, in so doing, justifies
the utilization of highly advanced technologies heretofore reserved for
national defense and foreign intelligence gathering.
Indicative of this
trend toward the militarization of drug enforcement is President Reagan's
Executive Order of December 4, 1981, permitting the military to assist domestic
law enforcement agencies with information and equipment. N.Y. Times, Jan
30, 1983, at A1, col. 5. Executive Order No. 12,333 effectively permits
the National Security Administration to lend its electronic intelligence
processing and analysis capabilities to local law enforcement, and to the
current combine of federal law enforcement agencies charged with responsibility
for narcotics enforcement.
What does this
policy mean in terms of the kinds of electronic surveillance resources which
have become available at, literally, the highest levels? Military radar
intercept capabilities such as AWACS have become available to fly drug interdiction
missions, and the Coast Guard and Naval airborne and coastal radar systems
can be viewed as part of the drug surveillance network.
It is not outside
the realm of possibility that orbital intelligence gathering resources are
being applied to these efforts, and that the intelligence community is contributing
what it can from the interception of international and, perhaps, domestic
communications using such screening criteria as telephone and cable traffic
sources, destinations, language descriptors, and other indicia which are
targeted as suspicious.
Recently published
reports describing the role of the National Security Administration as a
provider of international electronic surveillance information to drug enforcement
agencies pose some fresh discovery issues that defense counsel should present
for review by the courts. See J. Bamford, The Puzzle Palace
(1982). Broad-based overtures to obtain discovery of these sources may narrow
their use until appropriate legal standards have begun to evolve.
Wiretapping
Moving earthward
from the overhearing high overhead, where transmission of conversation by
microwave may be seized, and the overseeing higher eyes which surveil the
locations of aircraft and vessels at sea, we arrive at the more tangible
seizure of communications traveling by wire or cable.
Wiretapping refers
to the interception of wire communications, most frequently telephone communications.
Title 18 U.S.C. section 2510(1) defines a "wire communication" as "any communication
made in whole or in part through the use of facilities for the transmission
of communications by the aid of wire, cable, or other like connections between
the point of origin and the point of reception; furnished or operated by
any person engaged as a common carrier in providing or operating of such
facilities, for transmission of interstate or foreign communications."
Data
transmission, time-shared computer communications, and other non-aural communications
are very much within the scope of this definition.
The basis for federal
regulation of wiretapping originates in the Commerce Clause of the U.S.
Constitution. Title III of the Omnibus Crime Control and Safe Streets Act
of 1968 is the primary federal legislation governing electronic surveillance
and eavesdropping. One of the goals of Title III was to "define on a uniform
basis the circumstances and conditions under which the interception of wire
and oral communications may be authorized." States were authorized to enact
similar legislation which could be more restrictive but not more permissive
than Title III. At present, some twenty-eight states and the District of Columbia
have enacted such legislation.
Because eavesdropping
involves such an extensive invasion of privacy, Congress included in Title
III a number of procedural and substantive provisions to assure that the
power to eavesdrop is not abused. An eavesdropping application must comply
with a number of restrictions which do not apply to the ordinary search
warrant affidavit. The present dilemma for the defense advocate is that
the procedural requirements of the statute have been so permissively construed
by the courts; that the threshold of technical performance necessary for
compliance has become more of an invitation to the use of the extreme investigative
measures of wiretapping, than an impediment.
The courts have
only required "substantial compliance" in the identification of the person
or persons whose conversations are to be intercepted. In U.S. v. Kahn,
415 U.S. 143 (1972), the Supreme Court reversed the Seventh Circuit.
Kahn
involved a wiretap order which authorized the interception of bookmaking-related
conversations "of Irving Kahn and others as yet unknown," over Kahns home
telephones. The Seventh Circuit interpreted the order as restricting the
government to intercept only conversations to which Kahn was a party, thereby
precluding the use of Minnie Kahn's phone calls. The Supreme Court, in reversing
the Seventh Circuit, stated that the application and warrant need not "identify"
someone for whom the authorities did not have probable cause. Id.
at 155.
In U.S. v. Donovan,
429 U.S. 413 (1977), the Supreme Court dealt with the issue of whether the
application must identify every person for whom the authorities do have
probable cause. In an opinion by Justice Powell, the Court stated that Title
III requires the government to name all individuals it has probable cause
to believe are involved in the crime under investigation. The Court indicated,
however, that failure to "identify" such individuals would not require suppression
of the intercepted conversations.
Additional cases
have reaffirmed that "substantial compliance" is all that is necessary to
comply with this specific provision of Title III. See U.S. v. Kilgore,
518 F.2d 496 (5th Cir. 1975); U.S. v. Doolitttle,
507 F.2d 1368 (5th Cir.), aff'd en banc, 517 F.2d 500
(1975) (per curiam), cert. denied, 430 U.S. 905 (1977).
The Supreme Court
in U.S. v. Chavez, 416 U.S. 562 (1974), stated the rule regarding
identification of the officer authorizing the application. Only the U.S.
Attorney General or an Assistant Attorney General may authorize a federal
agent to apply to a judge for a wiretap order to comply with 18 U.S.C. section
2516(1). As a result, misidentification of the authorizing official as an
Assistant Attorney General did not render the interceptions in Chavez
unlawful.
A wiretap application
must show probable cause in three different contexts: (1) that an individual
has or is about to commit one of several enumerated offenses; (2) that particular
communications relating to the charged offense will be obtained through
the interception; and (3) that the premises where interception will be made
are being used in connection with the charged offense. 18 U.S.C sections
2510-20. Examples of poorly drafted warrants can be found in People v.
Koutnik, 353 N.Y.S.2d 197 (1st Dept 1974), aff'd,
378 N.Y.S. 2d 360, 340 N.E. 2d 727 (1975); and People v. Brown, 364
N.Y.S. 2d 364 (Sup.Ct., N.Y./county 1975).
Also required by
statute is a showing that "normal investigative procedures have been tried
and reasonably appear unlikely to succeed, if continued." 18 U.S.C. section
2518 (3). This language suggests that something less intrusive must at least
be attempted, and not merely evaluated as "unlikely to succeed," and bypassed
in favor of a wiretap. As was said in U.S. v. Giordano, 416 U.S. 505 (1974):
Congress legislated
in considerable detail in providing for applications and orders authorizing
wiretapping and evinced
the clear intent to make doubly sure that the statutory authority be used
with restraint and only where the circumstances warrant the surreptitious
interception of wire and oral communications. These procedures were not
to be routinely employed as the initial step in criminal
investigation.
Id. at 515.
Surreptitious
Entry
The Fourth Amendment
implications of surreptitious forcible entry were examined by the Third
Circuit in U.S. v. Dalia, 575 F.2d 1344 (3d Cir. 1978). The court
stated that when an order has been made upon adequate proof as to the probable
cause for the installation of a device in an particular premise, a separate
order authorizing entry for installation purposes is not required. Id. at
1346. The court followed the reasoning enunciated by the Second, Fourth,
and D.C. Circuits, stating:
Any order approving
electronic surveillance of conversation to be overheard at a particular
private place must, to be effective, carry its own authority to make such
reasonable entry as may be necessary to effect the "seizure" of the
conversation.
Id. at 1346, quoting U.S. v. Scafidi, 564 F.2d 633 (2d Cir. 1977).
The Sixth Circuit
has concluded that Title III does not authorize secret entry. See U.S.
v. Finazzo, 429 F.Supp. 803 (E.D. Mich. 1977), aff'd 583 F.2d
837 (6th Cir. 1978). The Eighth Circuit has divided evenly on
the question whether the statute and the constitution authorize secret entry
onto business premises, with even stronger reservations about whether such
entry onto residential premises would be permitted. See U.S. v Argusa,
541 F.2d 690 (8th Cir. 1976).
Minimization
of Interrupted Conversations
Once the device
has been installed, the interception process begins. Defense counsel must
confront the adequacy of the government's compliance with minimization requirements
of Title III. 18 U.S.C. section 2815. Courts have yet to arrive at a precise
definition of what minimization is or how it is to be achieved; in part
because the statute's definition of "intercept" is so vague. The essential
notion of minimization is that conversations which relate to the investigation
should be intercepted, but that interception of conversations unrelated
to the investigation should be minimized or avoided.
Two general approaches
have been taken to the question of when a conversation is "subject to interception."
Under what is known as the "permissive" approach, the monitors are authorized
to intercept a conversation unless, at the outset of the conversation, it
is apparent that no information helpful to the attainment of the authorized
objective will be obtained. Under the "restrictive" approach, the monitors
are not authorized to intercept a conversation unless, at the outset of
the conversation, it is probable that information necessary to the attainment
of the authorized objective will b e obtained.
In Scott v. U.S.,
436 U.S. 128 (1978), the Supreme Court specifically addressed the issue
of minimization as required by Title III. Justice Rehnquist, writing for
the Court, stated that the proper approach for evaluating compliance with
the minimization requirement is to objectively assess the agent's or officer's
actions in light of the facts and circumstances confronting him at the time,
without regard to his underlying intent or motive. The Court's holding in
Scott has had the effect of leaving minimization under 18 U.S.C. section
2518 (5) to the discretion of the recording agents and, at best, the trial
judge.
It is interesting
to note that the goals and scope of a narcotics investigation have been
cited by the courts as justifying extensive monitoring in cases where substantial
minimization was achieved, nevertheless. U.S. v, Armocida, 515 F.
2d 29 (3d Cir.) cert, denied, 423 U.S.858 (1975). Compare U.S.
v. King, 335 F.Supp. 523 (S.D.Cal. 1971), aff'd in part, rev'd
in part, 478 F.2d 494 (9th Cir.) cert. denied, 414
U.S. 846 (1973) (which involved a narcotics investigation of limited scope).
In this case, total interception of all conversations was condemned as excessive.
In the recent case
of U.S. v. Chagra, F. Supp. (W.D. Tex. 1982), the trial court was faced
with both the "over" and "under" minimization arguments. One of the codefendants
objected during pretrial that the "over" minimization by the government
had the effect of removing his recorded conversations from t heir exculpatory
context. Conversely, another codefendant filed pretrial motions alleging
that the government's actions in "under" minimizing the recorded conversations
had the effect of leaving intact too much unrelated conversation.
Aggressive
Eavesdropping: Bugging
When it is not
the "vessel" of transmission, such as a telephone wire, but a vantage point
that is being seized in order to transmit an intercepted conversation, we
have made the jump from a wiretapping to a bugging. Bugging is a more aggressive
form of electronic narcotics cases.
The term "bug"
refers here to a miniature electronic device which overhears, broadcasts,
or records a speaker's conversation. Most bugs must be located relatively
close to the conversations sought to be overheard, since microphones which
can overhear from a distance are bulky, difficult to conceal, and require
considerable operational skill to achieve successful results, at least at
present.
When placed in
a private area such as an office or home to capture non-telephonic conversations,
a bug can be considerably more intrusive than a wiretap. A wiretap is only
effective if a particular telephone is used, while the bug hears all conversations
within its range. It is necessary to realize that the procedural requirements
for any device for listening to oral communication, such as the authorization
of the warrant, identification of the person or persons to be intercepted,
etc., are identical to the requirements for a wiretapping application.
Both
forms of electronic surveillance are governed by Title III.
Tracking
Devices: Beepers and Transponders
The major distinction
between a beeper, which is a tracking device that signals the location of
the boat, plane, person or car to which it is attached, and a bug,
which sends electronic signals of an oral communication, is that the electronic
tracking device is not within the scope of Title III.
Beepers are most
commonly attached to automobiles, but a number of cases have dealt with
transponders which are attached to airplanes. Transponders are similar to
beepers, except they emit a radar signal on screen as a "blip" signature
which is distinctly different from other radar "blips." Since transponders
are, for the purpose of Fourth Amendment analysis, indistinguishable from
ordinary beepers, no distinction between them and ordinary beepers is found
in the case law.
In a decision announced
on March 2, 1983, the Supreme Court ruled that the monitoring of a beeper
attached to a chloroform container was not a search under the Fourth Amendment.
U.S. v. Knotts, U.S.(No. 81-1802, decided 3/2/83). In a unanimous
decision written by Justice Rehnquist, the Court found that there was no
reasonable expectation of privacy in this case, because the respondent was
traveling in an automobile on a public thoroughfare--an area with diminished
expectation of privacy. Thus there was no search, merely "the following
of an automobile on public streets and highways."
The Supreme Court
specifically did not rule on the warrantless installation of the beeper
in the chloroform container. The respondent's attorney did not believe he
had standing to raise the issue because the seller of the chloroform had
consented to its installation. On the Supreme Court level, therefore, the
constitutionality of warrantless beeper installation remains undetermined.
Justices Brennan
and Marshall, in a concurring opinion, emphasized that "[c]ases such as Silverman
v. U.S., 365 U.S. 505.509-12 (1961), however, hold that, when the government
does engage in a physical intrusion of a constitutionally protected
area in order to obtain information, that intrusion may constitute a violation
of the Fourth Amendment, even if the same information could have been obtained
by other means" (emphasis in original).
The case of U.S.
v. Holmes, 521 F.2d 859 (5th Cir. 1976), held that the use
of a beeper should be categorized as a search raising Fourth Amendment issues.
Without actual physical entry, a beeper was magnetically attached to the
underside of Holmes' van. Monitoring the beeper led to the discovery of
a large amount of marijuana and the arrest of nine persons, including Holmes.
The trial court
held that the "use of the beeper to monitor the movements of the van was
a search subject to the Fourth Amendment, and that the search was illegal
because of the failure to obtain a warrant for its installation." Id. at
863. The trial judge also found that an application for a warrant would
have been rejected because no probable cause existed to justify its installation.
A three-judge panel
of the Fifth Circuit Court of Appeals affirmed each of the rulings of the
district court, citing Katz v. U.S., 389 U.S. 347 (1976), and its
reasonable expectation of privacy interpretation. 521 F. 2d at 866.
On rehearing,
the Fifth Circuit, en banc, agreed with the panel opinion. 537 F.2 227 (5th
Cir. 1976). What appears to be missing from the Supreme Court decision and
both Holmes decisions is any clear distinction between the installation
of the beeper, and subsequent monitoring of the device.
In U.S. v. Moore,
562 F.2d 106 (1st Cir. 1977), the First Circuit did distinguish
between the installation and subsequent monitoring of the beeper device.
Circuit Judge Campbell stated that the important issue in the case was not
the common law trespass necessary to place the beeper on the automobile,
but rather whether the use of beepers so implanted violated the defendants'
reasonable expectation of privacy.
In holding that
such monitoring did violate defendant's privacy rights, the court reasoned:
"while a driver has no claim to be free from observation while driving in
public, he properly can expect no to be carrying around an uninvited device
that continuously signals his presence."
U.S. v. Hufford,
539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002
(1976), is
the leading circuit court case to hold that beeper monitoring does not violate
the Forth Amendment. Federal drug agents planted one beeper in a drum of
caffeine and attached another, pursuant to a court order, to the suspects'
truck battery. These beepers helped the agents locate a house where illegal
drugs were seized.
The Ninth Circuit,
ruling on the admissibility of the evidence, stated: "we see no distinction
between visual surveillance and the uses of an electronic beeper to aid
the agents in following the movements of an automobile along public roads,
provided no Fourth Amendment violation occurred when the beeper was attached."
Id. at 34. The beeper was analogized to other tracking devices that
heighten human senses, such as binoculars, tracking dogs, or search lights.
The court also referred to the cases involving informers who are "wired
for sound."
The court reasoned
that no infringement of any Fourth Amendment right occurred in the placement
of the first beeper since the defendant had no constitutionally protected
expectation that the chemical company would not consent to the installation
of a beeper. In discussing the installation of the second beeper with a
court order, the court emphasized the fact that prior judicial approval
was obtained. This discussion implied that a warrant supported by probable
cause would be required any time entry was necessary in order to place a
beeper, unless circumstances excused the obtaining of a warrant.
In a recent case
handed down by the U.S. District Court for the Western District of Texas,
Senior Judge Suttle stated that if surveillance is improperly continued
after the authorization for a wiretap has terminated, such surveillance
is unlawful and subject to suppression. As the court reasoned:
[S]urveillance
of a moving aircraft by a beeper is, in some respects, less intrusive than
the monitoring of a phone conversation. But the fact remains that, when
such beepers are installed inside an airplane under court order, there must
be some guideline to dictate by what time they must be removed. U.S.
v. Butts, F.Supp.(W.D. Tex.
1982).
The owner of a
premise has no right to electronically eavesdrop on those who are lawfully
on his premises. Thus, an employee or subordinate enjoys a constitutionally
recognized expectation of privacy in his office. Therefore, if the employer
or supervisor bugs that office, the employer or supervisor may be prosecuted
for violating 18 U.S.C. section 2511(1). In the case of U.S. v. McIntyre,
582 F.2d 1221 (9th Cir. 1978), the court upheld a conviction
of a police chief and his lieutenant for bugging the assistant chief's office.
In situations where
law enforcement officers are the individuals who install the bugging devices
in the office of someone, cases such as U.S. v. Santora, 583 F. 2d
453 (9th Cir. 1979), have revealed a reluctance to interpret
Title III to authorize break-ins to plant such bugging devices. Judge Hufstedler
writes that numerous passages of the legislative history of Title III strongly
support the conclusion that Congress did not intend to permit court-ordered
break-ins to install bugging devices. Id. at 462. See also U.S.
v. Finazzo, 583 F. 2d 837 (6th Cir. 1978); U.S. v. Scafidi,
564 F. 2d 633 (2d Cir. 1978); Application of the United States,
563 F.2d 637 (4th Cir. 1977); U.S. v.Argusa, 541 F.2d
690 (8th Cir. 1976); U.S. v Ford, 553 F.2d 146 (D.C. Cir.
1977).
Perhaps the most
commonplace method of electronic surveillance encountered in narcotics cases
is a consensual recording. Consensual interceptions are exceptions to the
provisions of Title III. Title 18 U.S.C. section 2511 (2)(c) provides:
"it
shall not be unlawful under this chapter for a person acting under color
of law to intercept a wire or oral communication, where such person is a
party to the communication or one of the parties to the communication has
given prior consent to such interception."
Therefore, if a
person who is a party to the conversation consents whether that person
is an undercover agent can record or overhear a conversation, and the recording
can be produced (as well as testimony as to what the consenting party
heard)
without obtaining a warrant.
Conversations can
be consensually intercepted in three basic ways. First, the consenting party
may wear or carry a tape recorder with which he can record his face-to-face
conversations. Second, the consenting party may wear a transmitter which
broadcasts his conversations to agents who are equipped with a receiver.
And finally, telephone conversations may be consensually intercepted by
recording the conversation, or by permitting a third party to listen and
record over an extension phone.
Consensual interceptions
have been discussed by the Supreme Court in three cases: On Lee v.
U.S., 343 U.S. 747 (1952); Lopez v. U.S., 373 U.S. 427 (1963);
and U.S. v. White, 401 U.S. 745 (1971).
In each of these
three cases, the Court held that a consensual interception was not a "search
and seizure" under the Fourth Amendment, and that no search warrant was
needed to authorize such interceptions or to use the fruits of the interception
at a trial.
At present, all
circuits have accepted White as constitutional authority for the
principle that search warrants are not required to authorize consensual
interceptions. Further, no federal court since White has distinguished
between the transmitter and concealed recorder situations. See U.S. v.
Bishton, 463 F.2d 887 (D.C. Cir. 1973); U.S. v. Lemonakis, 485
F.2d 989 (D.C. Cir. 1973) (both are cases in which transmitters were approved).
The constitutionality
of consensually intercepting telephone conversations without a warrant has
never reached the Supreme Court. However, the federal circuits have cited
White as authority that no warrant is needed to overhear or record
a telephone conversation with the consent of a participant.
Frequently, in
narcotics cases involving consensual recordings, the consenting party is
an informant who is cooperating with law enforcement authorities in hope
of receiving lenient treatment for his or her own crimes. In such situations,
defendants often claim that the informant's consent was "involuntary" because
it was coerced.
Virtually every
federal circuit that has considered this issue has held that consent under
these circumstances is not necessarily involuntary. See, e.g., U.S. v.
Bastone, 526 F.2d 971 (7th Cir.) cert. denied, 425
U.S. 973 (1976). As the Second Circuit reasoned in U.S. v. Bonnano,
487 F.2d 654 (2d Cir. 1973): "an informer's consent to the monitoring or
recording of a telephone conversation is an incident to a course of cooperation
with law enforcement officials on which he has ordinarily decided some time
previously." Presently, three circuits have adopted the reasoning in Bonnano:
U.S. v. Glickman, 604 F.2d 625 (6th Cir. 1979); U.S. v.
Horton, 601 F. 2d 319 (7th Cir, 1979); and U.S. v. Axselle,
604 F.2d 1330 (10th Cir. 1979).
In those rare instances
where the courts have indeed found "coerced consent," the following circumstances
have been mentioned: the opportunity to consult with an attorney, Good
v. U.S., 378 F.2d 934 (9th Cir. 1967); whether the consenting
party was provided with Miranda warnings, U.S. v. Rangel,
488 F.2d 871 (5th Cir. 1974); signed waiver forms, U.S. v.
Bastone, supra; or was shown the equipment used by the officers, U.S.
v. Rangel, supra; the number of officers present, People v.
Bates, 330 P. 2d 102 (Cal. 1978); the duration of the prior conversation,
U.S. v. Campbell, 337 F.2d 396 (7th Cir. 1958); and the fact
that the call, once agreed to, was made, U.S. v. Bonnano, supra.
Another interesting
aspect to consensual recordings is the issue whether the right to intercept
such conversations is limited by either the means used to record the conversation,
or the location where the conversation is intercepted. The Texas Court of
Criminal Appeals addressed this issue recently in the case of Rovinsky
v. State, 605 S.W. 2d 578 (Tex. Crim. App. 1980). In Rovinsky,
appellant contended that the trial court admitted the tape recordings of
his conversations with an informer in violation of 18 U.S.C. section 2511
(2)(c). In ruling against the appellant's claim, Judge Douglas followed the
holding of the Fifth Circuit's case of U.S. v. Juarez, 573 F.2d 267
(5th Cir. 1978), writing that the only issue was the voluntariness
of the informer's consent. Location and the means used to record the conversation
outcome of the case. U.S. v. White, 401 U.S. 745 (1967).
A dissent authored
by Judge Clinton indicates that a distinction must be made between wiring
an informant for sound and wiring a hotel room to eavesdrop. He reasons
that, if it has been accepted that an expectation of privacy is present
in a public telephone booth, Katz v.U.S., 389 U.S. 345 (1967), or
a commercial establishment, O'Brien v. U.S., 386 U.S. 345 (1967),
a similar expectation of privacy should be accorded private negotiations
that occur within the confines of a hotel room. See also American
Civil Liberties Union, Lessons of Abscam, a report on the Abscam
operation recommending remedial legislation.
Attorney-Client
Recordings
Another aspect
of an individual's expectation of privacy arises in the context of the attorney-client
privilege. The issue of intercepting the conversation between an attorney
and an informer, whom the attorney was representing, was raised in the case
of U.S. v. Juarez, 573 F. 2d 267 (5th Cir. 1978). In allowing
the introduction into evidence of such tape recordings, the court reasoned
that the tape did not violate the attorney-client privilege because the
client-informer waived the privilege by not raising it at trial. The court
found no authority for the attorney's position in attempting to claim the
privilege based on Fisher v. U.S., 425 U.S. 391 (1976).
The court concludes
that if the client wishes to waive the privilege, the attorney may not assert
it either for the client's or for his own benefit. It is important also
to note that the intrusion into attorney-client communications could, under
some circumstances, result in the dismissal of the charges against the defendant.
Hoffa v. U.S., 385 U.S. 293 (1966); Weatherford v. Bursey,
429 U.S. 545(1977).
At the trial
of a case involving consensual recordings, two main defenses are usually
raised. The first, and
far less successful, defense is one of entrapment. In Sorrells v. U.S.
435 (1932), the Supreme Court defined
entrapment as "occurring only when the criminal conduct is the product
of the creative activity of
the creative activity of law enforcement officials." Entrapment has
been discussed by the Supreme Court
on numerous occasions, and not once has it been used to exclude the
consensual recordings. See U.S.
v Russell, 411 U.S. 423 (1973); Hampton v. U.S., 425 U.S.
484 (1976).
Another defense to
be asserted in a narcotics case involving consensual recordings is "outrageous
government." In U.S. v. Wylie, 625 F. 2d 1371 (9th Cir. 1980), the court
stated that the outrageous government involvement defense focuses on the outrageousness
of governmental agents and their involvement in criminal activity. Any consideration
exercised by government agents is secondary to any consideration of
the outrageousness of their involvement.
The distinction
of the defense of "outrageous government conduct" from the entrapment defense
is discussed in U.S. v. Batres-Santolino, 521 F.Supp. 744 (N.D. Cal
1981). The court emphasizes that the "outrageous government conduct" defense
raises a question of law for the court; i.e., a due process issue,
and is available to a defendant who was "predisposed" to commit the crime
and thus could not claim entrapment. The court in Batres goes on
to point out, however, that the level of government misconduct that must
be shown is perhaps higher than for entrapment.
