Earlier this month, a state appellate court issued an opinion in a New York drug case, affirming the defendant’s conviction. The court’s opinion, although brief, discusses what has come to be known as an eavesdropping warrant.
The Fourth Amendment to the United States Constitution protects all individuals against unreasonable searches and seizures. Over the years, courts have generally held that, to be “reasonable,” a search must be supported by probable cause. Most often, this requires law enforcement to obtain a warrant to conduct a search. Of course, there are certain situations when a warrant is not needed, such as if the officer observes illegal conduct, or the search is conducted incident to a lawful arrest.
Absent an exception to the warrant requirement, law enforcement must obtain a warrant to search a person, their home, their car, or any other private area. Often, law enforcement officers want to search a physical place; however, if they want to search a suspect’s electronic communications, different rules apply.
An eavesdropping warrant is a type of warrant that permits law enforcement to wiretap a suspect’s electronic communications, usually their phone. Like other warrants, an eavesdropping warrant must be supported by probable cause. Specifically, law enforcement must prove the following facts before obtaining an eavesdropping warrant:
- There is probable cause to believe that the subject of the warrant is committing, has committed, or will commit a crime;
- There is probable cause to believe that the warrant will capture communications related to the crime;
- Law enforcement has tried the normal investigative procedures and has failed to uncover the necessary evidence, or engaging in the typical procedures would be likely to fail or be too dangerous;
- There is probable cause to believe that the communications device subject to the warrant is being used to further the commission of the crime, or that the subject of the warrant frequently uses the device.
If law enforcement fails to obtain an eavesdropping warrant before tapping a subject’s phone, anything they uncover as a result of their search may be kept out of evidence on the defendant’s motion. Similarly, if a warrant is improperly issued by a judge without the necessary showing, the warrant may be invalid, requiring the suppression of any evidence discovered as a result of the search.
Wiretapping and searches of electronic devices implicate complex and developing legal doctrines. Those arrested after this type of search should reach out to a dedicated New York criminal defense attorney for immediate assistance.
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