investigative alternatives are available. This viewpoint was incorporated into the statute by the requirement that each surveillance application include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." While Congress intended this requirement to be applied in a common sense manner so that law enforcement authorities should not feel constrained to expend time and resources on obviously futile investigative efforts, the statute plainly calls for a "full and complete statement" from which the reviewing magistrate can realistically assess the need for surveillance. Oftentimes, however, this requirement has been deemed satisfied by boilerplate assertions that investigative alternatives have been exhausted. Relatively few opinions have carefully analyzed whether the exhaustion statement is full and complete, much less whether it is based on substance. A probable consequence is that electronic surveillance occasionally has been approved when less drastic means may have sufficed. The present situation can be ameliorated by an amendment requiring that the exhaustion statement contain, in effect, an investigative checklist (as set forth in the revised statute) of every alternative reasonably available and an explanation of its inutility. This amendment should likewise be interpreted in a common sense fashion, as its purpose is not to encourage futility (nor should suppression necessarily follow because a particular technique was not used.) Rather, it would serve to ensure that the judiciary has been provided with an adequate factual basis to evaluate the need for an intrusive electronic search. Furthermore, given the need to supply such a statement, it is likely that law enforcement will file fewer unnecessary applications. Finally, the requirement of a statement of objectives (see section 1) should be regarded as a corollary to this improved exhaustion Indeed, absent a statement of objectives, neither investigative statement. need nor the proper duration for eavesdropping authorization can be realistically appraised. For this reason, specificity of objectives is already an implicitly required component of the exhaustion statement. Nevertheless, since many eavesdropping applications have not been sufficiently specific in this regard, an explicit requirement to this should be adopted. effect 3. Controlling the Duration and Scope of Interception A. Surveillance of unknown parties A major point of controversy in the Congressional debate over electronic surveillance concerned the number of persons potentially subject to eavesdropping. Title III seemingly limited surveillance to identified persons for whom there was probable cause to believe participation in specified discussions of criminality. While the statute clearly contemplated such persons inevitably being overheard in conversations with unknown individuals, it apparently did not countenance long term interception of discussions exclusively involving unidentified parties. Thus, just as traditional search warrants operate to protect the rights of unknown third persons by requiring the object of the search to be identified, Title III was designed to protect this category of individuals by limiting surveillance to conversations involving at least one identified person. In an effort to limit the scope of interception, This protective mantel of Title III was undercut by Supreme Court dicta in United States v. Kahn and United States v. Donovan suggesting that eavesdropping warrants may authorize surveillance of specified persons "and others as yet unknown." The dicta was grounded in the notion that "[t]he Fourth Amendment requires a warrant to describe only 'the place to be searched, and the persons or things to be seized, ' not the persons from whom things will be seized," a narrow constitutional construction fundamentally at odds with the well established principle that "the Fourth Amendment protects people, not places." Apparently, the Court had failed to consider that specifity of party in an eavesdropping order is necessary to provide unknown third persons with constitutional protection equivalent to that which they are entitled under a traditional search warrant. Moreover, even though Title III's legislative history indicates that Congress appreciated the need to protect unknown third parties, and, accordingly, limited the scope of interception to conversations involving at least one known individual, the Kahn Court proceeded to suggest that surveillance against exclusively unknown persons was statutorily permissible as well. To restore the proper protective scope to Title III, an amendment should be adopted restricting eavesdropping to conversations involving at least one identified party. Conversations between unknown persons should not be subject to interception unless probable cause exists that virtually everyone using the designated facility or telephone is doing so for the illicit purpose set forth in the warrant. An exception should also be allowed for the early surveillance period when monitoring agents are in the process of becoming familiar with the voices of their targets; moreover, provision should be made for anyone intercepted "in plain view" during this period to be expeditiously added to the eavesdropping warrant. For example, such amendments should be permitted without additional Attorney General approval or the need to exhaust investigative alternatives (Cf. section 3.C below). In this way, the present scope of interception can be substantially narrowed without unduly impeding effective law enforcement. B. Minimization of nonpertinent conversations In a further effort to limit the scope of interception, Title III requires that "the authorization to intercept...shall be conducted in such a way as to minimize the interception of [nonpertinent] communications ..." (emphasis added). Accordingly, monitoring agents are not permitted to intercept conversations not relevant to the target, crime, and conversation specified in the eavesdropping warrant. While perfection obviously cannot be expected--some interception being inevitable as the monitor listens to determine pertinency -minimization was perceived as a reasonable way to discourage eavesdropping not relevant to the court order. Indeed, when the Supreme Court commented in Kahn on the permissibility of intercepting "others as yet unknown," the minimization requirement was cited as providing an adequate safeguard against sweeping general searches. Unfortunately, however, the minimization principle has often been given minimal effect. In part, this may be attributed to the courts' willingness to apply judicial minimization guidelines too uncritically; consequently, minimization violations are rarely found (this tendency mav be reversible by a Congressional directive calling for strict enforcement; see section 6 below). But, more fundamentally, by virtue of the Supreme Court's decision in Scott v. United States, - monitoring agents are, in effect, encouraged to seize any conversation whose interception can be justified under existing guidelines regardless of whether the conversation is actually nonpertinent. Scott held that, notwithstanding the monitoring agents' purposeful failure to initiate minimization efforts, no violation has occurred if the resulting seizure is still viewed as objectively reasonable under prevailing minimization guidelines. Thus, subjective bad faith is not considered in determining whether the minimization requirement has been violated. From a statutory perspective, Scott was wrongly decided, and, therefore, should be legislatively reversed. The decision disregards the Congressional directive that eavesdropping orders be "conducted in such a way as to minimize interception of [nonpertinent] communications" (emphasis added). Moreover, if subjective good faith is not required when executing an eavesdropping warrant, the statute's broad deterrent purpose is effectively undermined. Indeed, Scott seems to have tolerated conduct which was actually felonious under Title III's criminal sanctions. Therefore, to reinvigorate the minimization requirement, an amendment should be adopted providing that alleged violations be considered from both an objective and subjective standpoint. A related problem in the minimization context is the extent of suppression that should be mandated when illegality has occurred. Most courts have limited suppression to the improperly minimized conversations themselves. This solution, however, does not sufficiently penalize violators, since law enforcement loses only that to which it was never entitled; moreover, such conversations are often innocent discussions Nevertheless, at the that are not relevant to a criminal prosecution. |