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Interception of Communications in Exigent Circumstances: the Fourth Amendment, Federal Legislation, and the United States Department of Justice

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Interception of Communications in Exigent Circumstances: the Fourth Amendment, Federal Legislation, and the United States Department of Justice The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1987 Interception of Communications in Exigent Circumstances: The Fourth Amendment, Federal Legislation, and the United States Department of Justice Clifford S. Fishman The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons, and the Fourth Amendment Commons Recommended Citation Clifford S. Fishman, Interception of Communications in Exigent Circumstances: The Fourth Amendment, Federal Legislation, and the United States Department of Justice, 22 GA. L. REV. 1 (1987). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. GEORGIA LAW REVIEW VoLUME 22 FALL 1987 NUMBER 1 ARTICLES INTERCEPTION OF COMMUNICATIONS IN EXIGENT CIRCUMSTANCES: THE FOURTH AMENDMENT, FEDERAL LEGISLATION, AND THE UNITED STATES DEPARTMENT OF JUSTICE Clifford S. Fishman* TABLE OF CONTENTS I. THE FOURTH AMENDMENT AND WARRANTLESS INTERCEPTION OF COMM1UNICATIONS ........................ 10 A. The Warrant Requirement ............................. 10 B. The "Exigent Circumstances" Doctrine ........... 13 1. Life-Threatening Exigencies .................... 13 2. Hot Pursuit .......................................... 13 3. Preserving Evidence from Destruction ....... 14 * Professor of Law, The Catholic University of America School of Law. A.B., University of Rochester, 1966; J.D., Columbia University, 1969. Between 1969 and 1977, Professor Fishman served as an Assistant District Attorney in the New York County District Attorney's Office and as Executive Assistant District Attorney in New York City's Special Narcotics Prosecutor's Office, during which he drafted and supervised the execution of 35 wiretapping and eavesdropping orders. For additional details, see infra note 397. From 1984 to 1986, Professor Fishman served as a consultant on electronic surveillance for the President's Com- mission on Organized Crime. 2 GEORGIA LAW REVIEW [Vol. 22:1 C. Applicability of the "Exigent Circumstances" Doctrine to Electronic Surveillance ................. 19 II. TTL III: PREREQuisrrEs To CouRT-ORDERm SURVEMIANCE ..................................................... 23 A. Application and Order .................................. 25 1. In general ............................................. 25 2. Particularity ......................................... 27 a. "Specific offense" ........................... 29 b. "Specific person"............................ 29 B. Execution of an Intercept Order: the Minimi- zation Provision ........................................... 33 III. THE "EMERGENCY SURVEILLANCE" PROVISION ......... 35 A. Interpretation and Application of the Requirements .............................................. 35 1. Grounds for an order ........................... 36 2. "Emergency situation" ............................ 37 3. Factual settings in which emergency surveillance is permitted ......................... 37 a. The immediate danger clause ............ 38 b. The organized crime clause .............. 39 4. Pre-interception authorization ................. 40 5. Post-interception authorization ................. 40 B. Justice Department Policies and Practices ........ 41 1. The application authorization process ....... 41 2. Emergency surveillance ........................... 46 IV. THE ROVING INTERCEPT PROVISION ......................... 48 A. Application and Order: Additional 49 Requirements ............................................... 1. Authorization for application .................. 50 2. Identity of intended interceptee ............... 50 3. Showing of need .................................. 52 4. Description of Communications ............... 56 B. Implementation of Roving Intercept Orders ...... 58 1. Knowledge of facilities or location ........... 58 2. Anticipatory installation of devices ........... 58 3. Minimization ......................... 63 4. Telephone company cooperation .............. 64 C. Constitutionality of the Roving Intercept Provision ................................................... 65 1. In general ............................................. 65 19871 INTERCEPTION OF COMMUNICATIONS 2. Surreptitious entry ................................. 69 V. OTmm WESTERN DEMoc mAcs: A COMPARISON ....... 70 A. Canada ....................................................... 70 1. The statute in outline ............................. 70 2. The locational "basket clause" ................ 73 3. The emergency surveillance provision ........ 74 B. Israel .......................................................... 75 C. West Germany ............................................. 78 D. Comparison ................................................ 80 VI. EVALUATION AND CoNcLusioN ............................... 80 A. Evaluation .................................................. 81 1. The emergency surveillance provision ........ 81 2. Decentralization of the application and authorization process ............................. 83 3. The roving intercept provision ................ 85 B. Conclusion ................................................. 86 In The Day of the Jackal, Frederick Forsyth's 1971 novel,' French authorities learned that a professional assassin of unknown identity had been hired by disgruntled former army officers to assassinate President Charles DeGaulle. The Minister of the Interior called the heads of all French law enforcement agencies to an emergency meet- ing. These officials quickly realized that until they could discover who the killer was, there was little they could do to frustrate his plan. The President had already refused to alter his schedule or behavior; to do so in the face of a death-threat, he insisted, would be beneath his dignity and an affront to the nation's. A detective, praised by his agency head as the best in France, was summoned and instructed to identify and apprehend the assassin. He was given extraordinary authority to accomplish this task, and he was told to report daily to the assembled agency heads. The detective quickly learned of the assassin's false identities. On several occasions the Jackal's capture seemed certain, yet each time the quarry man- aged to slip out of the trap. Eventually, the detective suggested that someone might be leaking information about the investigation. This possibility was spurned by I F. FoisYTm, ThE DAY OF THE JACKAL (1971). GEORGIA LAW REVIEW [Vol. 22:1 the agency heads as a puerile attempt to excuse failure. A day or two later, the detective confronted them, insisting that someone who had been attending these secret daily briefings was the source of the leak. When challenged to substantiate this accusation, the detective played a tape recording. The officials heard a woman place a phone call and repeat information about the assassin's location that the detective had reported only one day earlier. When the tape ended, the Deputy Chief of the Presidential Security Corps rose, ashen-faced, admitted that the woman was a "friend" who was "staying with me at the present time," and stumbled from the room. It is easy to imagine the admiration and gratitude with which the remaining chiefs then regarded the detective. (It helped that the Dep- uty Chief had not been particularly popular with his colleagues.) Then the Minister asked the detective how he knew to tap the Deputy Chief's home telephone. The detective responded, "I didn't, so last night I tapped all your telephones." '2 The sudden change in mood presumably precipitated by this an- nouncement mirrors, in many ways, the prevailing American attitudes about electronic surveillance. We expect the police to act promptly and effectively to combat crime, but we insist that in doing so they respect and protect the right to privacy that is guaranteed by the Fourth Amendment3 and enshrined in our values as an essential com- ponent of individual freedom and dignity. Wiretapping and eaves- dropping are among the most effective investigative techniques available to combat crime. To many observers, however, surreptitious monitoring of private conversations conjures images of Nazi Ger- many, the Soviet Union, and fictional equivalents. 4 To strike the 2 Id. at 347. "Fourth Amendment" is capitalized throughout this Article, despite the dictates of A Uniform System of Citation, Rule 8 (14th ed. 1986), at Professor Fishman's request. , The Watergate scandal of the early 1970s should suffice to destroy any illusions that the United States is somehow inherently immune from the misuse of these techniques. The scandal began in 1971 when individuals working for the re-election of President Nixon bugged the Democratic Party's offices in Washing- ton, D.C. The President and his closest advisors conspired to cover-up the in- volvement of their political associates. At the same time, Nixon had been secretly recording many of his private conversations-including conversations proving his own participation in the conspiracy to obstruct the investigation into the Watergate 19871 INTERCEPTION OF COMMUNICATIONS proper balance, to permit the police to tap and bug under appro- priate circumstances, while protecting the right to privacy against
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