This situation presents a rather broad reading of "immediate," but I think pre-interception order surveillance nevertheless should be permitted: without immediate surveillance, the danger of death or serious physical injury to the intended victim or victims increases substantially. The situation is analagous to one where police have probable cause to believe that evidence of crime currently exists but that the evidence is likely to be moved or destroyed before a search warrant can be obtained. Most courts have agreed that an immediate search and seizure would be justified under such exigent circumstances. Concededly, to read the provision this broadly increases the possibility for abuse. Nevertheless, the likelihood of unjustified surveillance is slight. The Attorney General's personal approval is required before such surveillance is authorized. 18 U.S.C. 2518 (7). If a judge subsequently concludes that surveillance was unjustified, the fruits of the surveillance will be suppressed and all those who participated in the surveillance will be susceptible to a civil suit for damages pursuant to 18 U.S.C. § 2520. These existing provisions in Title III should substantially safeguard against unnecessary surveillance. On the other hand, permitting surveillance under the circumstances presented in the third hypothetical situation could save lives. Since the risk of abuse is small and the potential good that could be accomplished is great, pre-interception order surveillance should be permitted under such circumstances. D. Hostages have been taken or a victim has been kidnapped. Here, no further showing of "immediacy" should be required, since the situation is inherently dangerous to the life and health of the victims. Note to question 10. 1. See, e.g. United States v. McKinney, 477 F.2d 1184 (D.C. Cir. 1973); Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963) (Burger, J.). Although the Supreme Court has not expressly so held, dictum in several cases appears to recognize the exigent circumstances exception. Schmerbef v. California, 384 U.S. 757 (1966); Chambers v. Maroney, 399 U.S. 42 (1970); Vale v. Louisiana, 399 U.S. 30 (1970); Williams v. United States, 401 U.S. 646 (1971); Mincey v. Arizona, 437 U.S. 385 (1978). See generally 2 LaFave, Search and Seizure 432 - 466 (West, 1978). Question 11. Other than hostage situations, can you give any other examples of where this exception might be necessary? Emergency surveillance could prove helpful in a variety of situations: to thwart a murder or kidnap plot, a bombing, an incitement to riot, an airplane hijacking; in fact, any situation in which violence is threatened and there is an immediate need for the surveillance. Question 12. Are you aware of any instances in which the current exceptions to the provisions of Title III regarding organized crime and national security have been invoked? The National Wiretap Commission Report (1976) at 111 113 discusses three instances, one federal and two state, in which emergency surveillance was conducted. Reported court decisions are rare. See State v. Nabozny, 375 N.E.2d 784 (1978) (Ohio) and Shingleton v. State, 39 Md. App. 527, 387 A.2d 1134, 1139 (1978), neither of which is particularly illuminating. United States Department of Justice ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISION 31 MAR 1980 Honorable Patrick J. Leahy Dear Senator Leahy: Attached are our responses to the questions you posed concerning the provisions of S. 1717 in your letter of March 6, 1980. I want to thank you for the opportunity to testify before the Subcommittee on this bill which would serve the distinct but equally important interests of privacy and the preservation of human life. If I can provide any other materials that would be of assistance to the Subcommittee in its consideration of this bill, please contact me. COVERT ENTRIES 1. What are some of the advantages of a microphone eavesdrop over a wiretap? As Mr. Colwell noted in his testimony, from a technical standpoint, microphone eavesdrops are more problematic than wiretaps. The advantage of a microphone eavesdrop is simply that it permits the interception of face-to-face conversations. Thus the use of microphones can be a valuable investigative tool, for example, when it is known that a meeting is to take place where the planning or execution of an illegal transaction is to occur. A wiretap, on the other hand, is used to intercept telephone conversations. Although under certain circumstances, the use of a microphone eavesdrop is clearly advantageous, as a general rule, these eavesdrops are used with less frequency than wiretaps. First, installation of a microphone ordinarily requires a covert entry, yet accomplishing this entry is not always possible. Second, because a microphone generally represents a more serious intrusion than a wiretap, the sufficiency of an application for the interception of oral communications is scrutinized with extreme care. Finally, as a general matter, it is more difficult to obtain "probable cause" for a microphone eavesdrop. 2. Would you briefly describe the operational considerations A. What types of preparation are done prior to such entries? B. How much information about the premises can be obtained prior to your determination regarding the time and method of entry? Two primary considerations in using covert entry are the protection of the agents who make the entry and the need to assure that the entry and its purpose are not discovered prior to the termination of the interception. In preparation for a covert entry, physical surveillance and other fundamental investigative approaches are used to determine the best time and method for an attempted entry. Sometimes extensive information about the premises is available through informants who have access to the location, or through a pretense overt entry. However, in many cases very little specific information about the premises can be obtained prior to the attempted entry. 3. Is it possible to determine in advance of the entry the exact time and method of that entry? If not, why not? The only situation wherein we might determine, in advance, the exact time and method of entry is where a cooperating individual arranges to give us access to that location. This cooperating individual would be someone who has control over |