On April 8, 2016, the D.C. Court of Appeals in United States v. Scurry issued a significant clarification of wiretaps obtained by federal law enforcement agencies under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”).


In 2009, the FBI believed that Eric Scurry was a crack cocaine dealer in a section of Washington, D.C. known as the “Second Court.”


Title III Wiretaps


In April 2010, the agency sought, and secured, an application for a wiretap of Scurry’s cell phone. Information obtained through this wiretap prompted agents to seek, and secure, wiretaps of two cell phones belonging to an associate of Scurry who was also believed to be involved in the Second Court crack cocaine distribution conspiracy. These wiretaps led to more evidence that prompted to FBI to spread its wiretaps surveillance to another associate in the drug conspiracy.


Scurry was subsequently indicted in connection with the drug trafficking conspiracy. His attorney filed a motion to suppress evidence obtained from the wiretaps because their applications did not contain information expressly required by Title III.  The trial court denied the motion.


Did Government Transgress “Core Concerns” of Title III


Under D.C. Circuit precedent, a trial court addressing such a motion must determine whether an “unlawfully intercepted” communication warrants suppression through a “broad inquiry into the government’s procedures to determine whether the government’s actions transgressed the ‘core concerns’ of Title III,” as spelled out in 18 U.S.C. § 2515.


The appeals court has held that when a wiretap authorization order is “insufficient on its face,” suppression is mandatory. The court found the authorization orders in Scurry’s case was insufficient, warranting reversal of his conviction, because they did not identify the U.S. Justice Department official who approved the application for the wiretaps.


Detailed Procedures for Intercepts


Title III sets forth a “detailed procedure” for the interception of wire, oral, or electronic communications—failure to adhere to the procedure is a felony under § 2511 and is also subject to civil penalties under § 2520.


This detailed procedure is set out in § 2518(1) (4) of Title III. This authorization process entails four steps before a wiretap order can be issued:


  1. The wiretap application must be pre-approved by one of the statutorily identified high-level Justice Department officials. These officials include: Attorney General, Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, or any Acting Assistant Attorney General, or any Deputy Assistant Attorney General designated by the Attorney General.
  2. The government must submit the application, under oath and affirmation, to a judge of competent jurisdiction and state the applicant’s authority to make such an application. Specifically, the application must identify the “high-level Justice Department official” who approved the application.
  3. Before issuing an ex parte wiretap order, as requested or modified, the judge must make certain determinations based on the information supplied by the applicant; namely, whether there is probable cause to believe that the phone to be tapped is or will soon be used “in connection with particular enumerated criminal offenses.”
  4. The judge must issue an order approving the wiretap which limits its use for an interception period that is “necessary to achieve” the wiretap’s objective with an initial maximum 30-day period that can only be renewed with new information to justified any extension.


Use of Communications Intercepted in Violation of Title III Prohibited


This authorization process complies with the overall exclusionary mandate of Title III which is set forth in § 2515:


“Whether any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, State, or a political subdivision thereof if the disclosure of that information would be in violation of [Title III].


These rules are both demanding and specific. We applaud the D.C. Circuit Court of Appeals for its determination to force law enforcement agencies and Justice Department officials to comply with the mandate of Title III before the fruits of any wiretap can be introduced into evidence at a criminal trial.