By Declan McCullagh
Police Blotter is a weekly News.com report on the intersection of technology and the law. What: Alleged drug dealers seek to have mobile phone wiretap suppressed so the evidence can't be used in court against them.
When: 6th Circuit Court of Appeals rules on March 2.
Outcome: Appeals court upholds a ruling that the FBI's mobile phone wiretap was "illegal" because it was based on a "misleading" affidavit.
What happened, according to court documents:
Wiretaps are a uniquely invasive form of surveillance, in part because the targets may never know the eavesdropping occurred.
That's why a 1968 law created what sometimes is called a "super-warrant ," meaning that electronic surveillance must be used as a last resort only after alternative investigative techniques have been tried.
Police are required to include in their wiretap requests a "full and complete statement as to whether or not other investigative procedures have been tried and failed." The U.S. Supreme Court has said that wiretaps should not be "routinely employed as the initial step in criminal investigation."
That's the theory. In reality, FBI agents have become addicted to the ease of snooping on people through wiretaps--as opposed to more traditional and difficult police procedures such as cultivating informants, following a suspect around, and conducting physical searches of homes or offices.
Sometimes the FBI's institutional addiction comes to light. It happened most recently in a case involving a man named Reginald Rice and other alleged drug dealers in Louisville, Ky., who are charged with a variety of federal crimes including conspiracy to distribute a controlled substance and conspiracy to possess cocaine.
In mid-2004, based on information from a confidential informant, FBI agent Scott Wenther submitted a 42-page sworn affidavit asking a federal magistrate judge for a wiretap of Rice's mobile phone. Wenther's request was approved.
There was just one problem with some of the information in Wenther's affidavit: it was not true.