Wiretaps and Admissibility in Drug Cases

An increasingly relied upon tool in police surveillance and prosecution of drug cases is the wiretap. Wiretapping is usually seen as a method of intercepting telephone conversations, but it can also monitor text messages, Internet-related conversations and e-mail. To use a wiretap, authorities must provide evidence to the court of potential illegality and a judge's approval is required.

Over the past several years, requests for the use of electronic surveillance have increased at both the state and federal level. Wiretapping is not a new phenomenon, however, and has been used for years in many high-profile criminal cases.

One of the more famous wiretapping criminal cases involved organized crime boss John Gotti, whose sentence on racketeering charges was based primarily on wiretapped conversations. Perhaps the most famous case involves former President Richard Nixon, who illegally wiretapped 17 reporters and officials in an attempt to identify the source of a leak. Nixon's eventual disgrace highlighted the dangers of illegally using wiretaps.

Wiretaps are increasingly used in drug cases because authorities believe taped recordings of conversations detailing potentially illegal acts provide indisputable evidence. A wiretap can be a useful tool for law enforcement, but it is also prone to questions about the legality of its use.

There are specific requirements for obtaining and using wiretaps, but at times these rules are disregarded in an attempt to make a case. If a wiretap is improperly obtained or used, any person accused of a crime can question its admissibility in court.

For example, using wiretaps requires 24-hour monitoring of a suspect, but only applies to conversations involving crimes. If agents determine that a conversation does not include discussion of a crime, they must cease listening after two minutes. Also, a wiretap can be used only on individuals directly named in the court order approving use of the wiretap. If it is determined that any of these or other restrictions were not followed, resulting evidence and related criminal charges may not hold up in court.

Currently, attorneys representing members of an alleged crime family in a high-profile case in New Jersey are attempting to void evidence obtained through a wiretap because it appears that some of the restrictions for wiretap use were not followed. Regardless of the outcome of their challenge, we can expect law enforcement to continue to use wiretaps as an instrument for criminal prosecution.