Criminal Attorneys watching for Alabama wiretaps

Alabama Attorney General Luther Strange has introduced legislation in the 2014 Alabama Legislative Session proposing law enforcement within the State be given authority to intercept telephone or other forms of communication for investigative purposes against criminal targets.

Since 1968, Federal Authorities have operated under the Federal Wiretap Act to obtain what are called Title III wiretaps on criminal suspects.  Other states have followed suit over the years, however Alabama investigators still lack this power.

The Alabama criminal attorneys at Parkman White, LLP have a lot of experience handling Federal cases involving wiretaps, and have actually used what the authorities called “incriminating wiretaps” to exonerate our clients on multiple occasions.   This is why we are not automatically opposed to wiretap expansion within the State of Alabama.

However, after seeing what we consider abuse of the Federal Wiretap Act by federal authorities and Courts, we feel any expansion in Alabama should be explicitly limited to the original provisions contained within the Federal Wiretap Act.

First, no wiretap should be allowed unless it is authorized by a judicially approved warrant.  The judge should not approve this warrant unless it is both supported by probable cause and the officer requesting the warrant shows that normal investigative procedures have been exhausted and have failed.

The Federal Wiretap Act has a requirement that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”  While this may sound like a reasonable standard, we have seen this standard erode to be meaningless.  Federal Courts have consistently held that this does not require ALL other techniques be exhausted, only that SOME other investigation has been fruitless.

Similarly, the federal law requires law enforcement to “screen” calls and only listen to calls that are “pertinent” to their investigation.  This means that are to “minimize” (or not listen to) calls that are “non-pertinent”.  This requirement is universally abused by law enforcement.  Federal criminal attorneys regularly see intercepted telephone calls with children, spouses, and even privileged calls with attorneys.

In our experience, federal courts almost never enforce the exclusionary rule under the Fourth Amendment to the United States Constitution to toss out wiretaps that have clearly violated the necessity or minimization requirements.  National statistics show that less than one thousandth of one percent of wiretaps are either denied or suppressed by Federal Courts for failure to follow the correct procedures, despite clear failure in many cases.

Therefore, to protect the rights of the citizens of Alabama, while also giving Alabama law enforcement the same crime fighting tools enjoyed by their federal counterparts, our Alabama criminal attorneys support expanding wiretap legislation into Alabama under two strict requirements: 1. Absolute necessity (law enforcement showing the judge that ALL other methods have been completely EXHAUSTED); and 2. Strict enforcement of the minimization standards requiring law enforcement to refrain from wiretapping “non-pertinent” or privileged communications.   If both of these requirements are not strictly followed, then the Alabama Courts should be required by statute to suppress all wiretaps obtained in the investigation and should not be given the leeway to expand the power as has been done in the federal system.