To challenge a wire tap, the movant must be a party with standing. The “aggieved person” is the person against whom the wiretap was directed or someone who was a party to those communications. The movant may file a motion to suppress evidence on the following grounds:
- the communication was unlawfully intercepted
- the order authorizing or approving the interception was insufficient on its face or
- the interception was not made in conformity with the order authorizing or approving it.
Wire taps are designed to intercept relevant subject matter only and are to be suspended during the discussion of non criminal activities. The agency is required to “minimize” the scope of the wiretap to include discourse related to the subject matter contained in the authorization. When reviewing a minimization challenge the court looks at the reasonablness of the agents efforts to minimize the wiretaps. Challenges to wiretaps through “minimization” motions are rarely granted
More commonly used challenges to wiretaps involve whether the government could have used other investigative techniques to obtain the information. If the Court determines that other, less intrusive techniques could have been used or were not used, the wiretap evidence may be suppressed.
Defendants may bring what is known as a “Franks” challenge alleging that the authorization was granted based on a “false statement knowingly and intentionally with reckless disregard for the truth” made in the government’s affidavit. Franks v. Delaware. Upon a showing that the statement was necessary to establish the required probable cause element. The defendant must show that the statement made was made knowingly and intentionally and with reckless disregard for the truth.
All challenges to wiretaps are difficult to win. Motions must be pled with specificity and may require discovery request directed to the prosecutors.
