THE JUDICIAL SEALING REQUIREMENT IN ELECTRONIC SURVEILLANCE
-A MATTER OF IMMEDIACY
BY ROBERT A. FIATAL, J.D.
Special Agent
Legal Counsel Division
FBI Academy
Quantico, VA
November 1989
Law enforcement officers of other than Federal jurisdiction whoare interested in any legal issue discussed in this articleshould consult their legal adviser. Some police procedures ruledpermissible under Federal constitutional law are of questionablelegality under State law or are not permitted at all.
Nonconsensual electronic surveillance involving the interceptionof telephone conversations, oral conversations, and electronicmessages is a necessary and effective law enforcement techniquefor investigating certain types of serious criminal activity andconspiracies.(1) Legal requirements for nonconsensual electronicsurveillance are set forth in Title III of the Omnibus CrimeControl and Safe Streets Act of 1968 (hereinafter title III),(2)as amended by the Electronic Communications Privacy Act (ECPA) of1986, and various State statutes which must be at least asrestrictive as the Federal statutes.(3) Compliance with theprovisions of these statutes often requires the expenditure ofconsiderable time, money, and manpower.
One such provision mandates the sealing of electronicsurveillance evidence. It requires that "immediately upon theexpiration of the period of the order [of electronicsurveillance], or the extensions thereof, [the original tape]recordings [of the interceptions] shall be made available to thejudge issuing such order and sealed under his directions."(4) Simply stated, the original tapes must be presented at theconclusion of the court⌐ordered period of nonconsensualinterception to the issuing judge who will oversee their sealingand custody. Compliance with this judicial sealing requirementis sometimes delayed or overlooked because investigativepersonnel are preoccupied with seeking indictments, makingarrests, and conducting searches. Unfortunately, failure tocomply with the sealing requirement can lead to the suppressionof intercepted conversations and the loss of extremely valuableevidence.(5)
This article is written to assist law enforcement to understandand to successfully fulfill the sealing mandate. The articlebegins with a discussion of the purpose for this sealingrequirement and its immediacy component. Next, it reviews themanner in which Federal and State courts have applied the sealingrequirement. Finally, it suggests how law enforcement can
prepare and ensure compliance.
THE JUDICIAL SEALING REQUIREMENT
The purpose of judicial sealing is to insure the integrity of theelectronic surveillance recordings, considering their potentialfor modification and the technical difficulty in detecting suchchanges.(6) As one court recognized, judicial sealingaccomplishes this task by "...prevent[ing] tampering, alterationsor editing; ...aid[ing] in establishing the chain of custody;and...protect[ing] the confidentiality of the tapes."(7)
To effectively preserve the integrity of the original tapes,Federal and State law requires officers to present them to ajudicial official immediately at the conclusion of the originalelectronic surveillance order. However, officers may generallywait to fulfill this mandate until the expiration of anycontinuous noninterrupted extensions of that order if theextensions involve "...the same telephone, the same premises, thesame crime, and substantially the same persons.(8) For example,if officers obtain an order authorizing the interception oftelephone calls regarding drug transactions by certainindividuals at a particular phone and obtain a judicial extensionof that order, they may delay their formal sealing efforts untilthe conclusion of the continuous surveillance period. However,if officers complete the objective of their investigation andcease their interceptions before the court⌐authorized time periodhas expired, they should fulfill the sealing requirementimmediately at the time of cessation.(9)
IMMEDIACY DEFINED
When the judicial sealing requirement attaches, officers mustcomply with its demands immediately. The concept of immediacyusually connotes spontaneity or an absence of any delay. Lawenforcement officers can normally satisfy this requirement bypresenting the original tapes to the appropriate judicialofficial for sealing within 1 or at most 2 days of the final dayof the continuous period of interceptions.(10) This allowsofficers reasonable time to arrange the sealing appearance withthe prosecuting attorney who has supervised the electronicsurveillance and to schedule the sealing appointment with theappropriate judge. However, if the formal sealing process isdelayed beyond this limited period, courts must determine whetherthe delay is legally acceptable.
ACCEPTABLE DELAY IN SEALING
The standard for determining whether a particular delay incomplying with the judicial sealing requirement is acceptablevaries from jurisdiction to jurisdiction. In the absence of adefinitive Supreme Court decision, courts use one of thefollowing three standards in making this determination:
1) Whether the government, despite the delay, has fulfilled thepurpose of formal sealing by maintaining the integrity of thetapes;
2) Whether law enforcement has provided a satisfactoryexplanation for the delay; or
3) Whether officers have complied with a rigid, court⌐imposedsealing schedule.
Each of these three standards for determining whether sealingdelay is acceptable is discussed below.
Integrity of Tapes Maintained Standard
Realizing that the goal of judicial sealing is to preventalteration or modification of the original tapes, some courtshave indicated that the "absence of any challenge to theintegrity of the tapes, combined with the lack of any indicationthat tampering has occurred, goes a long way toward fulfilling[this] legislative objective."(11) Therefore, even where thereis a significant period of delay, courts using this standard,which include the U.S. Courts of Appeals for the Third, Fifth andSeventh Circuits, will not suppress the tapes if their integrityhas not been violated and the defendant has not been prejudicedby the delay.(12)
Under this standard, officers can help insure the admissibilityof the original tapes by maintaining them in a safe and securemanner. For example, in United States v. Sklaroff,(13) therecordings were not judicially sealed until 14 days after theexpiration of the nonconsensual electronic surveillance. Duringthis delay, the original tapes were vigilantly kept in the FBI'sevidence room with limited and controlled access. Under thesecircumstances, the U. S. Circuit Court of Appeals for the FifthCircuit ruled the delay was excusable because there was noindication the tapes were altered or that the defendant wasprejudiced. However, courts that apply this standard have putlaw enforcement on notice that it is not an open⌐ended invitationto ignore formal sealing requirements and that strict compliancewill "avoid considerable uncertainty and delays"(14) in thejudicial process.
Satisfactory Explanation for Delay Standard
Some courts will not excuse a sealing delay, even if theoriginal recordings have not been altered, unless the governmentis able to provide a satisfactory explanation for the failure toimmediately seal the tapes at the conclusion of the period ofcontinuous surveillance. These courts reason that title IIIrequires a satisfactory explanation for the absence of thejudicial seal(15) and that a similar explanation is necessarywhen the tapes are not immediately sealed.(16) Accordingly, theU.S. Court of Appeals for the First Circuit has recognized that
"when sealing is other than 'immediate'... resultant evidence canbe utilized if-and only if-a 'satisfactory explanation' for thedelay eventuates."(17)
The circumstances that amount to a satisfactory explanation for adelay are determined on a case⌐by⌐case basis, but a "plain andsimple failure to regard sealing the tapes as a priority"(18) isnever sufficient. Instead, the government must set forth aparticularized explanation for the delay. First, the governmentmust show that the tapes have not been compromised, that thedelay provided no tactical advantage, and that proper securitymeasures were employed in storing the original tapes.(19)
Second, the good faith of the officers involved must beestablished. Courts pay particular attention to the diligence oflaw enforcement personnel in attempting to satisfy the sealingprescription and whether the circumstances causing the delay wereunforeseeable.(20) For example, in United States v. Massino,(21)a 15⌐day delay in sealing was satisfactorily explained by theneed to divert all available personnel to determine the cause ofa leak in the investigation which was discovered the day beforethe electronic surveillance order expired. The court found therewas an urgent need to investigate the leak which threatened toexpose and endanger several informants and that the need for thatinvestigation could not have been anticipated.
Similarly, in United States v. Rodriguez,(22) a 14-day delay wasfound acceptable because the supervising prosecuting attorneywas engaged in an unrelated multidefendant trial at the end ofthe surveillance period. Courts do not, however, excuse sealingdelays merely because of the busy schedule of the supervisingattorney or officer. For example, one State court rejected anexplanation that a short delay was attributable to difficulty inretrieving the tapes from the supervising prosecutor and theunavailability of the judge who had issued the wiretap order. The court determined that other justices were available toaccomplish sealing and that "inadequate police procedures...donot constitute a valid excuse."(23)
A third factor considered by those jurisdictions that apply thesatisfactory explanation standard is the time necessary toprepare the original tapes for sealing.(24) For example, onecourt sustained several sealing delays ranging from 3 to 8 daysbecause there was no evidence of tampering or prejudice to thedefendant, and the tapes had to be transported a long distancefor duplication and judicial sealing.(25) However, courtsrecognize that law enforcement officers can make simultaneousduplicate recordings of their interceptions on a second recorder,or make copies of the original tapes on fast duplicators. Inthat regard, one Federal district court rejected an explanationfor a 12⌐day delay in the absence of a proffer of why duplicatetapes used for transcription were not made promptly by the use ofavailable sophisticated technical equipment.(26)
Finally, the length of the delay is a crucial factor indetermining the justification for any sealing tardiness. InUnited States v. Ardito,(27) the U.S. Court of Appeals for theSecond Circuit found a 5-day delay acceptable because two ofthose days were holidays, the issuing judge was unavailable for athird day, the officers responsible for delivering therecordings for sealing were busy seeking another wiretap order,and there was no prejudice to the accused. Conversely, alengthier delay is more difficult to satisfactorily explain. Forexample, in United States v. Rios,(28) FBI Special Agentsconducted several court⌐ordered intercepts of wire and oralconversations. At trial, the government attempted to explainsealing delays of 82 and 118 days. Despite proof that the tapeswere not modified and that the supervising attorney mistakenlyand in good faith misunderstood when the sealing obligationattached, the court found the explanation inadequate for delaysof such magnitude. The court held the government "...to areasonably high standard of at least acquaintance with the[sealing] requirements of law"(29) and ruled inadmissible over400 reel⌐to⌐reel tapes of intercepted conversations.
Court⌐Mandated Procedures for Sealing
As the above discussion indicates, it is difficult to predictwhether a particular explanation for a delay in judicial sealingis acceptable, and courts often hold extensive and costlypretrial hearings to resolve that issue. In an effort toovercome these problems and provide timely judicial oversight ofthe sealing process, one court has crafted specific timelimitations and procedures.
In United States v. Massino,(30) the U.S. Court of Appeals forthe Second Circuit held that if the original tapes are notpresented for sealing within 2 days of the expiration of anycontinuous period of court⌐ordered electronic surveillance, thegovernment must then comply with the following definitiveguidelines:
1) If the delay is from 2 to 5 days, the government must at thetime of judicial sealing submit affidavits documenting reasonsfor its tardiness;
2) If the delay is to be over 5 days, the government must seekan extension of time in which to submit the tapes for sealingfrom the judge who issued the surveillance order; and
3) If the issuing judicial officer is unavailable, theextension order must still be obtained from another judge withappropriate jurisdiction.
The court concluded that these court⌐mandated procedures"...will create an incentive for the government to give priorityto sealing, and judicial oversight at an early stage will limitjustifiable delays in the shortest time necessary. A failure of
the government to follow this procedure will of course undermineany claim of satisfactory explanation."(31) In the future, othercourts may specifically delineate sealing standards in theirorders authorizing nonconsensual electronic interceptions whichlaw enforcement officers should carefully review and follow.
RECOMMENDED PROCEDURES
Concerted efforts to comply with judicial sealing requirementsimmediately at the conclusion of the continuous electronicsurveillance period will avoid unnecessary litigation and assurethe admissibility of valuable evidence. To avoid thedevastating loss of incriminating evidence because of a sealingviolation, law enforcement officers should adhere to thefollowing procedures. First, they should attempt to submit theoriginal recordings of all nonconsensual interceptions to theissuing judicial authority for formal sealing within 1 or at themost 2 days of continuous the expiration of the surveillanceperiod. Second, they should maintain close contact with thesupervising prosecuting attorney and insure the scheduling of anappointment with the appropriate judge for the express purpose offulfilling the sealing function. Third, if a sealing delay isanticipated, officers should document the causes for the delay,immediately inform the supervising attorney, and consider seekingan extension of time from the appropriate judicial official.
The following additional suggestions are offered to assistofficers in complying with the sealing requirement in a timelyand orderly fashion:
1) While intercepting the communications, officers should makeat least one duplicate recording simultaneous with the originaltape by using multiple recording devices;(32) the devices shouldbe configured to avoid electronic erasure or physical alterationof the tapes. This procedure reduces the possibility of eitheraccidently erasing or recording over the original tapes, andprovides duplicate tapes which are available for review,translation, and transcription.
2) Officers supervising the electronic surveillance should tasksufficient personnel to immediately review the duplicate tapes inorder to obtain lead information and to insure reproductionquality. If the duplicates are unclear or garbled, the originalrecording should be copied before formal sealing. If a flawedduplicate tape is discovered after the original is sealed,officers should seek express judicial permission to reaccess theoriginal for copying purposes.(33) Once copying is completed,the original tape should be resealed under judicial supervision.
3) Prior to formal sealing, officers should maintain theoriginal tapes in a manner that assures their security andintegrity and allows for their later identification. Personsmonitoring the interceptions should contemporaneously mark thetape leader with the case number or name, the location and date
of monitoring, and their initials. Once removed from therecorder, these marked tapes should immediately be placed in sometype of enclosure, such as an over⌐sized envelope, which alsoreflects the case name, the location and date of theinterceptions, and the monitoring officers' identities. A chain-of-
custody log for these original tapes should be maintained andthey should be stored in a secure area where access is monitoredby logging all persons who enter and the reasons for their entry.
4) Officers should institute a tickler system to remind them ofthe specific date the sealing requirement attaches and theirresponsibility to arrange through the supervising prosecutor asealing appointment with the appropriate judicial official.
5) If the sealing judge orders the sealed tapes maintained bylaw enforce¼ment personnel rather than the clerk of court, theyshould be stored in a locked cabinet which is clearly marked ascontaining judicially sealed material and located in a room withrestricted and monitored access. Officers should obtain aninventory of the sealed tapes from the sealing judge (34) andaccess them only pursuant to explicit judicial permission.
CONCLUSION
Federal and State electronic surveillance statutes require thatthe original tapes of any court⌐ordered nonconsensualinterception be immediately returned to the authorizing judicialofficial for sealing. Since violations of this sealingrequirement can lead to the exclusion of the interceptedcommunications, it is imperative that law enforcement officersexecute electronic surveillance orders in a manner that ensurescompliance.
Footnotes
1. In 1988, Federal and State courts combined to authorize over700 nonconsensual electronic surveillance orders. Over one⌐halfof these listed drugs as the most serious offense beinginvestigated. A total of 2,486 individuals were arrested as aresult of this surveillance activity. Report on Applications forOrders Authorizing or Approving the Interception of Wire, Oral orElectronic Communications (Wiretap Report) For the Period January1, 1988, to December 31, 1988, Administrative Office of the U.S.Courts.
2. 18 U.S.C. 2510-20.
3. 47 U.S.C. 605; see People v. Sher, 345 N.E.2d 314 (N.Y. Ct.App. 1976).
4. 18 U.S.C. 2518(8) (a).
5. United States v. Mora, 821 F.2d 860 (1st Cir. 1987); UnitedStates v. Vasquez, 605 F.2d 1269 (2d Cir. 1979); United States v.
Diana, 605 F.2d 1307 (4th Cir. 1979); United States v. Angelini,565 F.2d 469 (7th Cir. 1975).
6. See United States v. Gigante, 538 F.2d 502 (2d Cir. 1976);United States v. Ricco, 421 F.Supp. 401 (S.D.N.Y. 1976).
7. People v. Nicoletti, 313 N.E.2d 336 at 338 (N.Y. Ct. App.1974).
8. United States v. Vasquez, supra note 5 at 1278 (2d Cir.1979); see also United States v. Scafidi, 564 F.2d 633 (2d Cir.1977); United States v. Fury, 554 F. 2d 522 (2d Cir. 1977);United States v. Santoro, 647 F. Supp. 153 (E.D.N.Y. 1986),contra People v. Washington, 385 N.E. 2d 593 (N.Y. Ct. App.1978) (tapes must be presented for sealing upon the expiration ofthe specific order or extension, not at the end of any continuousperiod of interception).
9. United States v. Gerena, 695 F.Supp. 649 (D. Conn. 1988);United States v. Ricco, supra note 6.
10. United States v. Massino, 784 F.2d 153 (2d Cir. 1986);United States v. Gerena, supra note 9; People v. Gallina, 485N.E.2d 189 (N.Y. Ct. App. 1985); People v. Edelstein, 429 N.E.2d803 (N.Y. Ct. App. 1981).
11. People v. Nieves, 442 N.E.2d 228 at 233 (Ill. Sup. Ct.1982).
12. United States v. Falcone, 505 F.2d 478 (3d Cir. 1974);United States v. Caggiano, 667 F.2d 1176 (5th Cir. 1982); UnitedStates v. Diadone, 558 F.2d 775 (5th Cir. 1977); United States v.Sklaroff, 506 F.2d 837 (5th Cir. 1975); United States v.Angelini, supra note 5; United States v. Lawson, 545 F.2d 557(7th Cir. 1975); United States v. Vastola, 670 F.Supp. 1244(D.N.J. 1987); United States v. Harvey, 560 F.Supp. 1040 (S.D.Fla. 1982); State v. Olea, 678 P.2d 465 (Ariz. Ct. App. 1983);Gilstrap v. State, 292 S.E.2d 495 (Georgia Ct. App. 1982).
13. United States v. Sklaroff, id note 5.
14. United States v. Falcone, supra note 12 at 484.
15. 18 U.S.C. 2518(8) (a).
16. See United States v. Gigante, supra note 6.
17. United States v. Mora, supra note 5 at 866.
18. United States v. Ramirez, 602 F.Supp. 783 at 792 (S.D.N.Y.1985).
19. United States v. Mora, supra note 5.
20. Id.
21. Supra note 10; see also United States v. Squitieri, 688F.Supp. 163 (D.N.J. 1988).
22. 786 F.2d 472 (2d Cir. 1986).
23. People v. Gallina, 485 N.E.2d 189 at 220 (N.Y. Ct. App.1985); see also State v. Cerbo, 397 A.2d 671 (N.J. Sup. Ct.1979).
24. United States v. Rodriguez, supra note 22.
25. United States v. McGrath, 622 F.2d 36 (2d Cir. 1980).
26. United States v. Ricco, supra note 6.
27. 782 F.2d 358 (2d Cir. 1986).
28. 875 F.2d 17 (2d Cir. 1989).
29. Id. at 23.
30. United States v. Massino, supra note 10.
31. Id. at 159.
32. See United States v. Scope, 861 F.2d 339 (1st Cir. 1988);United States v. Angiulo, 847 F.2d 956 (1st. Cir. 1988); UnitedStates v. Gerena, supra note 9; United States v. Ricco, supranote 6; State v. Campbell, 528 A.2d 321 (R.I. Sup. Ct. 1987);People v. Washington, supra note 8; People v. Nicoletti,supranote 7.
33. See United States v. Diana, supra note 5; United States v.Long, 697 F.Supp. 651 (S.D.N.Y. 1988); People v. Washington,supra note 8; People v. Sher, 345 N.E.2d 314 (N.Y. Ct. App.1976).
34. See United States v. Abraham, 541 F.2d 624 (6th Cir. 1976).
