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Fighting the Use of Federal Wiretaps in Your Criminal Case: Legal Strategies

By Spodek Law Group | October 19, 2023
(Last Updated On: October 20, 2023)

Last Updated on: 20th October 2023, 09:10 am


Fighting the Use of Federal Wiretaps in Your Criminal Case: Legal Strategies

If you’ve been charged with a crime, and the prosecution wants to use evidence from wiretaps against you, you may be wondering what you can do to fight it. Wiretaps can be a powerful tool for law enforcement, but they also have the potential to violate your constitutional rights. This article will walk through some of the legal strategies that a defense attorney can use to challenge federal wiretaps in a criminal case.

What Are Federal Wiretaps?

A federal wiretap is when law enforcement intercepts and records phone calls, texts, or other electronic communications as part of an investigation. For the police to get a wiretap warrant, they have to show that there’s probable cause to believe the wiretap will capture evidence of a serious crime.

Wiretaps are considered “searches” under the Fourth Amendment, so they must comply with constitutional requirements. The government has to minimize the interception of non-relevant communications, and they can only use wiretaps for a limited time. There’s also a higher burden of proof for wiretaps than regular search warrants.

File a Motion to Suppress

If evidence from a wiretap is being used against you, one legal strategy is to file a motion to suppress. This asks the judge to exclude the wiretap evidence because it was obtained illegally. Some common arguments for suppression include:

  • The wiretap violated your Fourth Amendment rights
  • There was no probable cause for the wiretap
  • The wiretap exceeded the scope of the warrant
  • Evidence derived from the wiretap is “fruit of the poisonous tree”

To win on a motion to suppress, your attorney will need to identify specific issues with how the wiretap was conducted or authorized. For example, maybe the police kept recording after it was clear the calls weren’t about crime, or they intercepted privileged attorney-client communications.

Challenge the Minimization Efforts

Another legal strategy is to argue the police didn’t properly “minimize” the wiretap – meaning they kept listening when they should have stopped. The law requires officers to minimize interception of non-relevant communications.

For example, maybe they kept recording personal calls between you and a spouse when those calls had nothing to do with crime. Your lawyer can scrutinize the minimization efforts and look for ways they fell short. If the judge agrees, the wiretap evidence could potentially be suppressed.

Claim Violation of the Wiretap Statute

Your attorney can also scrutinize whether the wiretap fully complied with federal law, like the Wiretap Act. Some potential violations include:

  • Failing to promptly present wiretap applications to the judge
  • Missing deadlines for inventory notice
  • Not properly sealing recordings
  • Using the wiretap outside the authorized period

If the police didn’t follow proper procedures, your lawyer can argue the wiretap evidence should be excluded as “fruit of the poisonous tree.”

Allege “Outrageous Government Conduct”

In extreme cases, you may be able to argue the wiretap amounted to “outrageous government conduct” that violated due process. But this is an incredibly high standard – the police basically have to completely abuse the wiretap process.

An example would be if the police got a wiretap warrant for a minor crime, then used it to deliberately record privileged and highly personal communications. Your lawyer would have to show the police actions were “most intolerable” and “shocked the universal sense of justice.”

File a Civil Lawsuit

If your motion to suppress fails, another option is to file a civil lawsuit against the police department for violating your rights. You can sue for things like:

  • Illegal wiretapping
  • Improper use or disclosure of wiretap recordings
  • Failing to follow wiretap statutes

If you win, you could potentially recover monetary damages. However, a civil suit happens separately from your criminal case and won’t necessarily get the evidence thrown out.

Consider an Interlocutory Appeal

If your suppression motion is denied, you may be able to file an interlocutory appeal. This asks a higher court to review the lower court’s ruling before the criminal trial happens. However, not all courts allow this, and you may need the trial judge’s permission.

Object at Trial

If your pre-trial challenges fail, your attorney can still object when the wiretap evidence is introduced at trial. They can renew the same arguments about constitutional violations, improper procedures, etc. The judge may hold additional hearings mid-trial if new suppression issues are raised.

As a last resort, bringing up the wiretap issues during trial preserves them for appeal later on. But it’s always best to litigate suppression pre-trial if possible.

Don’t Forget About Discovery

An important part of challenging wiretaps is the discovery process. Your lawyer can request documents like:

  • The wiretap application and affidavits
  • Progress reports made during the wiretap
  • Records of when interception started/stopped
  • Minimization instructions given to agents
  • Sealing orders, notice records, etc.

These records will help identify any issues or defects with the wiretap. Your lawyer can also ask to examine the equipment used to intercept the communications.

Consider an Expert Witness

In some cases, your attorney may benefit from hiring an expert witness to analyze the wiretap process and recordings. An expert could help authenticate the recordings, identify minimization issues, or detect tampering/editing. Their testimony could strengthen your suppression motion.

Don’t Lose Hope!

I know it can feel scary and overwhelming to learn the prosecution has recordings of your private conversations. Wiretap evidence can seem intimidating. But there are always legal strategies to challenge the government’s use of wiretaps – you just need an experienced criminal defense lawyer on your side. So don’t lose hope. With persistence and good lawyering, those tapes could get tossed out!




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