Warrantless Interception of Communications: When, Where, and Why It Can Be Done. (Legal Digest)
Schott, Richard G., The FBI Law Enforcement Bulletin
Law enforcement officers often desire to intercept and 4 record conversations of the subjects of their investigations. Defendants' recorded words can be the strongest evidence obtained against them. Law enforcement officials are permitted to intercept, record, and use these conversations as evidence, provided the interception is accomplished lawfully. For this reason, it is important for criminal investigators to understand when, where, and, most important, why conversations may be legally intercepted and recorded. This article addresses situations in which federal agents are permitted to record conversations without the authority of warrants or court orders. (1) Two points are important to remember. First, when practicable, officers always should seek warrants or court orders authorizing their interceptions of conversations. Second, state and local officers must be aware that constitutional and statutory requirements for interception may be different (and more restrictive) in their states.
The warrantless recording of a subject's conversation falls into one of two categories: those made with the consent of at least one of the parties involved in the conversation and those recorded without the consent of any of the parties involved in the conversation. In both cases, Fourth Amendment (2) and statutory ramifications must be considered.
INTERCEPTION UNDERTAKEN WITH THE CONSENT OF ONE PARTY
The use of confidential informants, cooperating witnesses, and undercover agents is one of the most effective and controversial tools available to law enforcement. Investigators frequently obtain otherwise unobtainable evidence by using these individuals. Often, the evidence obtained by informants, cooperating witnesses, and undercover agents comes in the form of verbal statements made by criminal subjects. Investigators generally are able to employ this method of evidence-gathering without violating either the subjects' Fourth Amendment rights to be free from unreasonable searches and seizures, (3) or their statutorily created rights, regardless of where the intercepted communications are uttered.
Fourth Amendment Considerations
It has long been recognized that the Fourth Amendment protects people, rather than places. (4) However, the Fourth Amendment does not apply to the situation in which subjects speak about criminal activity to, or in the presence of, individuals cooperating with law enforcement. The Supreme Court made clear in Hoffa v. United States (5) that the use of informants to capture the contents of conversations with the subjects of investigations does not violate those subjects' Fourth Amendment rights.
In 1962, James Hoffa was on trial in Nashville, Tennessee, accused of violating a provision of the Taft-Hartley Act. When Eddie Partin, an acquaintance of Hoffa, told federal agents that Hoffa was attempting to bribe members of the jury in his case, they asked him to report any evidence of the bribery. Partin reported information to the agents that he was told, or overheard, while in Hoffa's hotel suite during the course of the trial. When Hoffa subsequently was prosecuted for bribing members of the prior trial jury, he sought to suppress Partin' s testimony as a violation of, among other constitutional provisions, his Fourth Amendment rights. Hoffa argued that "Partin's failure to disclose his role as a government informer vitiated the consent that [Hoffa] gave to Partin's repeated entries into the suite and that by listening to [Hoffa's] statements Partin conducted an illegal 'search' for verbal evidence." (6)
At the outset of its analysis, the Supreme Court recognized that a "hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office." (7) Furthermore, "the protections of the Fourth Amendment are surely not limited to tangibles but can extend as well to oral statements." (8) However, in his majority opinion, Justice Potter Stewart pointed out that Hoffa was not relying on the security of his hotel room to keep information from the government; rather, "he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing. …