Posted On: September 19, 2008 by Steven D. Silverman

Wiretaps: Minimization of Wire Communications Required

Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

The minimization concept is tested on a case by case basis under a standard of reasonableness. United States v. Clearklev, supra, Id.; United States v. Webster, 473 F.Supp 586, 597, (D.Md. 1979), aff’d in part, 639 F.2d 174 (4th Cir. 1981), cert. denied, sub-named 454 U.S. 857 (1982). The Order directs that electronic surveillance "shall be conducted in such a way as to minimize,, non-pertinent calls.

Title 18, U.S.C. Section 2515 expressly prohibits disclosure of information obtained from intercepted communications if disclosure would be in violation of Title III. This exclusionary measure is triggered where a communication was unlawfully intercepted, where the order authorizing the interception is facially insufficient, or where the interception was not made in conformity with the order. 18 U.S.C. Section 2518(10)(a). The Supreme Court has held that suppression is mandated wherever an interception fails "to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept-procedures to those situations clearly calling for the employment of this extraordinary device." United States v. Giordana, 416 U.S. 505, 527 (1974) (quoted in United States v. Donovan, 429 U.S. 413, 433-34 (1977). See also United States v. Chaves, 416 U.S. 562, 575 (1974). This Court, writing for the U.S. Court of Appeals for the Fourth Circuit, has observed that Donovan, Chaves and Giordana require suppression of those instances where law enforcement agents violate Title III in bad faith. United States v. Couser, 732 F.2d 1207, 1209 (4th Cir. 1984).

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