Secret Warrants and Black Bag Jobs--Questions

[Aimee Farr]

Somebody asked:
> >>1) Are the secret warrants always revealed eventually, regardless of
> >>whether a court case happens or the evidence is introduced? Is
> it possible
> >>that there are N never-revealed secret warrants for every warrant
> >>discussed in open testimony?

Greg (I think) wrote:
> >Yes. There is a time limit for when they should be disclosed if
> they don't
> >lead to a prosecution - that time limit can be extended by a
> judge, if the
> >agents think they need more time to develop a case. I don't believe the
> >(federal) law allows for taps to go undisclosed forever, but I
> believe it
> >happens anyway. Since the undisclosed taps aren't likely to be
> the focus of
> >litigation, there's no effective check on that practice.

The general identification and notice requirements of Title I are in Section
2518. 2518 delineates the procedures for applying for a court approved
interception of wire or oral communications, the content of applications,
the order(s) and the notice that must be sent after the fact to those
persons whose conversations were intercepted. Additionally, 2518(10)(a)
gives a right to suppress evidence under specified circumstances.

The inventory and notice requirement of 2518(8)(d) entitles only those
persons who were named in the court order to receive notice and inventory of
the wire tap as a matter of right. Notice to all other persons, even though
their conversations were overheard and they were identifiable is left to
judicial discretion. The prosecutor has the duty to classify all those whose
conversations have been intercepted and transmit this to the judge. If the
judge wants more information, the judge can ask for it so as to fulfill his
discretionary notice role.

In United States v. Kahn, 415 U.S. 143 (1974), 2518(1)(b)(iv) was
interpreted to mean that the only persons that must be named in a Title I
application are those the government has probable cause to believe are
involved in a criminal activity and will be using the target phone. So now
they don't really have to investigate other parties known to be using the
phone to see if they have probable cause for them or not. (This is "the
dragnet effect.")

Say you have a violation of the notice and inventory provision....the case
law tells you that the courts have made distinctions between violations that
are "central and substantive" - and those that are not (for the purpose of a
motion to suppress). In United States v. Donovan, 429 U.S. 413 (1977), the
court stated in dictum that the international failure to name individuals
for the purpose of hiding a lack of probable cause would be substantial. Yet
Donovan's footnotes have led lower courts to require the violation of the
notice and identification provisions be INTENTIONAL AND PREJUDICIAL to the
defendant to render it subject to a motion to suppress. It seems if the
defendant has ANY notice of whatever form - there is no prejudice.

Indeed, no effective check.

~Aimee