Criminal Procedure: Constitutional Issues, Wiretaps, and Arrests

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I gave you lots of ideas here. Court Cases, The Patriot Act and criminal law all need to be referenced.

You are a police officer assigned to a county-wide task force that is investigating major drug trafficking operations in your county. As part of the investigative process, a judge has issued a wiretap order for a suspect's phone. You are assigned the responsibility of monitoring phone conversations, and you overhear the suspect as well as other individuals who may or may not be involved in the drug ring. Before obtaining enough evidence to arrest and prosecute the suspect, you hear evidence related to other types of criminal activity.

What constitutional issues are involved in the scenario that dictates what you can and cannot do related to the evidence of other criminal activity outside the scope of the original wiretap order? Explain.

In the earlier part of the 20th century, there was a clear judicial bias where fourth amendment violations could only occur when there was actual physical trespass on someone's property. This was overthrown in 1967 in the landmark Katz v United States. The upshot of this decision was that the 4th amendment had been interpreted to narrowly. Its purpose is to protect a person from unreasonable search and seizure, not a specific location. Previous to this, the famed (1928) Olmstead case had legislated the opinion that, so long as one's physical space had not been invaded, the fourth Amendment does not apply (Morley, 1993).

There are two types of surveillance: content vs. transactional. The former is the typical wiretapping operation where law enforcement is looking for some admission of guilt or information that could lead police to evidence. Transactional surveillance simply seeks to discover the phone number or address of those making the communications and is not concerned with what they say. This would be the case when police are trying to trace a phone call. For this latter, judicial oversight does not really exist. It has been in the interest of the courts to concern themselves with the actual content of a conversation as a violation (ACLU, 2010).

Once the Foreign Intelligence Surveillance Act was passed in 1978, a new standard had appeared. If a law enforcement official, in listening into a call, finds out that both parties are in the US and are American citizens, the officer must immediately hang up. Under this act, the 4th amendment did not apply to foreign nationals, especially in the process of intelligence gathering. The concept was that if it was not for a court case, the Amendment can be interpreted more liberally. However, anything, prior to that realization, can be used in court. Therefore, given this reasoning, the inadvertent discovery of an additional crime not in the original wiretapping warrant is "inadvertent" and hence, can be prosecuted. The crime that is "inadvertently" uncovered need ...