Last Updated on: 20th October 2023, 09:36 am

How to Access Federal Wiretap Evidence Used Against You

If you find out that the government used wiretaps or other electronic surveillance to gather evidence against you in a federal criminal case, you have a right to access that evidence. This article explains the laws around federal wiretapping, how you can request the wiretap information, and what you can do if you think the surveillance violated your rights.

What is a Federal Wiretap?

A federal wiretap is when law enforcement taps a phone line or intercepts electronic communications like emails or texts as part of a criminal investigation. This kind of surveillance is highly regulated under federal law. The main law is the Wiretap Act which is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

For the government to get a wiretap warrant, they have to show probable cause that the wiretap will capture evidence of a serious federal crime like drug trafficking, racketeering, or terrorism. A federal judge reviews the wiretap application and can approve or deny it.

Wiretaps are considered very intrusive so the law sets limits – like they can only be used for 30 days at a time. There are also special rules about minimizing intercepted communications that aren’t relevant to the investigation.

How to Find Out if You Were Subject to a Wiretap

If you are charged with a federal crime, the prosecution is required to turn over all evidence from wiretaps or electronic surveillance to your defense attorney. This happens through the discovery process. Your lawyer will review the wiretap evidence and can discuss it with you.

But sometimes prosecutors don’t disclose all the surveillance they conducted. If you have reason to believe a wiretap was used but not revealed, you can take action to uncover it. Here are signs you may have been subject to undisclosed wiretapping:

• You, your lawyer, or a witness is asked about conversations you don’t remember having.
• The prosecution has very detailed information about your activities, conversations, or associations.
• You find weird voicemails, text messages, or other communications that don’t make sense.
• You notice unfamiliar cars near your home or odd sounds on your phone.

If you see these red flags, ask your lawyer to file a motion for disclosure of electronic surveillance evidence. The judge can order the prosecution to reveal any wiretaps or bugs used in your case.

Getting Access to Wiretap Evidence

Once you know a wiretap exists, you have a right under federal law to access the recordings and documents. Follow these steps:

1. Have your lawyer file a discovery motion seeking the wiretap evidence.
2. Review the wiretap application, affidavits, court orders, and monitoring logs turned over by the prosecution.
3. Listen to any audio recordings of intercepted conversations provided by the government.
4. Read transcripts of the recordings prepared by law enforcement.
5. Look for any evidence that the wiretap violated your Fourth Amendment rights.

In addition to wiretap recordings, you can request cell phone tracking data, stored text messages, social media records, and other electronic evidence. The process is the same – file a discovery motion and review what’s provided.

Using Wiretap Evidence in Your Defense

Once you access the wiretap evidence, your defense lawyer can use it to build your case in several ways:

• Suppress Evidence – Argue that evidence from an illegal wiretap should be excluded.
• Impeach Witnesses – Catch witnesses in lies by comparing their testimony to wiretapped calls.
• Support Defenses – Use recorded conversations to bolster defenses like entrapment.
• Cross-Examine Agents – Question the agents who conducted the wiretap about errors or abuses.

In addition to using the wiretap evidence at trial, your lawyer may be able to get charges dismissed or reduced if there are major problems with the wiretaps. This depends on issues like:

• No probable cause for the wiretap
• Taps continued past authorized period
• Conversations unrelated to the investigation were intercepted
• Evidence was shared improperly

Challenging Unlawful Wiretaps

If you believe the government’s wiretapping violated your Fourth Amendment rights, you can challenge the surveillance and seek to suppress any evidence it produced. Here are some common arguments:

• The wiretap application misled or lied to the judge about probable cause.
• The wiretap intercepted communications not covered by the court order.
• Agents deliberately invaded your attorney-client privilege.
• The wiretap was improperly extended beyond the authorized period.
• Your irrelevant conversations were not minimized as required by law.

Your lawyer will gather evidence about wiretap abuses through discovery, then file a motion to suppress citing the specific violations. You may also consider filing a civil rights lawsuit against the agents involved in illegal wiretapping.

Working with Your Lawyer

Dealing with complex wiretap evidence requires an experienced federal criminal defense lawyer. Be sure to:

• Fully disclose any suspicions about wiretaps to your lawyer.
• Review the wiretap discovery together and discuss options.
• Alert your lawyer to any questionable wiretap techniques used.
• Talk to your lawyer before taking action related to wiretaps.

By spotting unlawful surveillance and moving to suppress it, an attorney can often get charges reduced or dismissed. Evidence from an illegal wiretap can fatally taint an entire case.

Conclusion

If you are facing federal criminal charges, be aware that wiretaps and electronic surveillance are commonly used by prosecutors. Pay attention for any signs you were subject to monitoring without your knowledge. Thorough discovery and good investigative work by your lawyer can uncover undisclosed wiretaps. Vigorously challenging illegal surveillance is one of the best ways to fight federal charges.

References

Electronic Communications Privacy Act, 18 U.S.C. § 2510-2523 – https://www.law.cornell.edu/uscode/text/18/part-I/chapter-119

Federal Rules of Criminal Procedure, Rule 16 – https://www.law.cornell.edu/rules/frcrmp/rule_16

Fourth Amendment, U.S. Constitution – https://www.law.cornell.edu/constitution/fourth_amendment