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The System of Criminal Investigation in the United States

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Anticipative Criminal Investigation

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Abstract

This chapter is dedicated to the legal background of the criminal investigation in the United States providing the required knowledge for an assessment of the adoption of a system of anticipative criminal investigation. An in-depth analysis of the complex entity of regulations demonstrates how the synthesis between the sword and the shield objective was embodied in the regulation of the criminal investigation until changes were adopted due to counterterrorism measures. This analysis concerns a combination of constitutional law, criminal procedural law, national security law, case law and internal policy. For this purpose the sword and shield tasks and the responsibilities of the different relevant actors are described, as well as the scope of investigative powers as follows from constitutional interpretation and further regulation in law and policy. The constitutional principles underpinning the shield function of the criminal investigation are identified and their regulatory influence is analyzed. In that regard, specific attention is paid to the constitutional interpretation and statutory regulation of the power of search and seizure, the relation of national security investigations to criminal justice, the influence of regulatory guidelines and the manner in which control over legitimate and fair criminal investigative activities is realized.

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Notes

  1. 1.

    Defined in Chap. 1, Sect. 1.2.1 as: any form of proactive investigation on behalf of the government aimed at the prevention of serious crimes or threats, typically characterized by its intelligence-led approach, and resulting in the gathering of information, which information may, immediately or subsequently, come to play a role in criminal proceedings.

  2. 2.

    Except for exceptions created for covert sneak-and-peak searches.

  3. 3.

    Kris and Wilson 2007, vii.

  4. 4.

    Ibid.

  5. 5.

    The Supreme Court recently decided on this distinction between self-executing treaties and non-self-executing treaties in Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346 (2008). See on this subject: Nokes 2011, 829-855.

  6. 6.

    Ibid., 853-854.

  7. 7.

    Glashausser 2008.

  8. 8.

    This does not mean that international law could not be useful, for example, for transnational issues involved in national security policy. Using international law principles as the baseline for “good process” in national security activities with a transnational aspect may further such good process (providing good legal policy and good national security policy) as well as efficient cooperation in national security matters. See on this: Baker 2007, 644-658.

  9. 9.

    Allen et al. 2005, 9-21.

  10. 10.

    Nowak and Rotunda 2004, 139.

  11. 11.

    Israel et al. 2006, 1-2 (ftnt. 1). The adoption of health-care legislation by the federal government is a currently debated and litigated example of whether such health-care legislation exceeds Congress’ power to regulate interstate commerce.

  12. 12.

    Nowak and Rotunda 2004, 181. The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995), 558-559, indicated three broad categories of activities where Congress may enact legislation under its federal commerce power: 1) “the use of the channels for interstate commerce”; 2) “to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and, 3) “to regulate those activities having a substantial relation to interstate commerce.”

  13. 13.

    Nowak and Rotunda 2004, 145. The Supreme Court has interpreted the necessary and proper clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

  14. 14.

    With the exception of the state of Louisiana, where the legal system is partly based on the French and Spanish (civil) law.

  15. 15.

    Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. (1968). See also: Allen et al. 2005, 93-100. The incorporation of the Bill of Rights under the Fourteenth Amendment will be dealt with in more detail in Sect. 5.1.4.2.

  16. 16.

    Allen et al. 2005, 6.

  17. 17.

    This refers to the federal criminal justice system. As explained in the previous section, there are in fact many US criminal justice systems, considering the differences between federal and local systems, between all local systems and considering differences in resources and crimes concerning which the different ‘systems’ have jurisdiction. The elements analyzed in this chapter will generally also apply to the other systems.

  18. 18.

    United States v. Havens, 466 U.S. 620, 100 S.Ct. 1912 (1980), 626.

  19. 19.

    Delaware v. Arsdall, 475 U.S. 673, 106 S.Ct. 1431 (1986), 681.

  20. 20.

    United States v. Noble, 422 U.S. 225, 95 S.Ct. 2160 (1975), 230.

  21. 21.

    Israel 1993, 6. Israel states on this fairness objective: “While this amorphous concept of “fairness” may have a somewhat different connotation in different societies, its fundamental elements are fairly uniform in democratic society.” “Fairness imposed both substantive and procedural norms that restrain state power in criminal law enforcement. Substantive norms recognize such interests as human dignity and personal autonomy, while procedural norms reflect values such as community participation, a prescribed procedure, regularity, integrity, and promptness in application, and equality of treatment of like cases. Because the precise content of these independent values is derived in large part from political ideology, tradition, and culture, restraints imposed on the criminal justice process in service of such values will vary from one country to the next. Yet general agreement exists that some “fairness” restraints are needed, even when they reduce the efficient enforcement of substantive criminal law through the criminal justice process.”

  22. 22.

    Packer 1966, 238-239.

  23. 23.

    Griffiths 1970.

  24. 24.

    Damaška 1973, 576.

  25. 25.

    Israel 1993, 6.

  26. 26.

    Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394 (1895).

  27. 27.

    LaFave et al. 2004, 10.

  28. 28.

    U.S. Constitution, Amendment V.

  29. 29.

    This part of the Fifth Amendment (the grand jury indictment) has not been incorporated to the states through the Fourteenth Amendment. See on the incorporation clause of the Fourteenth Amendment, Sect. 5.1.4.2.

  30. 30.

    LaFave et al. 2004, 12.

  31. 31.

    Before the jury start with their deliberations, the judge will give them the final instruction about the law which is applicable to the case.

  32. 32.

    LaFave et al. 2004, 82.

  33. 33.

    Amar 1997, 154-155.

  34. 34.

    U.S. Constitution, Amendment IV.

  35. 35.

    Harr and Hess 2002, 174.

  36. 36.

    Amar 1997, 2 and 31. This will be affirmed through the findings of the subsequent Chaps. 6 and 7.

  37. 37.

    Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963), 475 and LaFave et al. 2004, 141.

  38. 38.

    United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056 (1990) and see: Israel and LaFave 2006, 50-51 and Nowak and Rotunda 2005, 213.

  39. 39.

    Katz v. Unites States, 389 U.S. 347, 88 S.Ct. 507 (1967).

  40. 40.

    Ibid., 351.

  41. 41.

    Ibid.

  42. 42.

    California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625 (1988).

  43. 43.

    California v. Ciraolo, 467 U.S. 207, 106 S.Ct. 1809 (1968) and Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693 (1989).

  44. 44.

    California v. Ciraolo, 467 U.S. 207, 106 S.Ct. 1809 (1968), 212-214.

  45. 45.

    Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984), 525-526.

  46. 46.

    Samson v. California, 547 U.S. 843, 126 S.Ct. 2193 (2006), 848-857.

  47. 47.

    Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577 (1979), 742-746.

  48. 48.

    United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081 (1983), 278 United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296 (1984), 712-713. In the latter case, the Court declined to extend the use of tracking devices as a tool that does not violate one’s reasonable expectation of privacy to one’s home.

  49. 49.

    United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976), 443. Compare also Katz v. United States (1967) at 351: “[w]hat a person knowingly exposes to the public (…) is not a subject of Fourth Amendment protection.”

  50. 50.

    Israel et al. 2006, 188.

  51. 51.

    Compare: Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967).

  52. 52.

    The Supreme Court has interpreted the Fourteenth Amendment Privileges and Immunities clause (Section 1) as only protecting citizens as citizens of the federal government. Hence, this privileges and immunities clause typically guarantees equal claims to federal rights, such as the right to petition in Congress, the right to vote in federal elections, the right to interstate travel or commerce, or the right of habeas corpus.

  53. 53.

    Nowak and Rotunda 2005, 210.

  54. 54.

    Israel et al. 2006, 33.

  55. 55.

    Ibid., 43.

  56. 56.

    Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968), 149 and 150.

  57. 57.

    See: Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964), 10.

  58. 58.

    U.S. Constitution, Amendment XIV, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  59. 59.

    U.S. Constitution, Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

  60. 60.

    Mugler v. State of Kansas, 123 U.S. 623, 8 S.Ct. 273 (1887).

  61. 61.

    Nowak and Rotunda 2004, 439 and 442.

  62. 62.

    Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965).

  63. 63.

    E.g. recently applied in Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125 (2009), 1132.

  64. 64.

    Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708 (1998), 846.

  65. 65.

    Nowak and Rotunda 2004, 593 and see US Constitution Amendments V and XIV.

  66. 66.

    Nowak and Rotunda 2004, 403.

  67. 67.

    Ibid., 571.

  68. 68.

    Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970), 267-270. The Supreme Court applied the requirements of procedural due process to a case concerning the termination of welfare benefits. See also: Orth 2003, 88.

  69. 69.

    Nowak and Rotunda 2004, 593.

  70. 70.

    Another procedural due process requirement for fundamental fairness is that guilt must be established by proof ‘beyond a reasonable doubt.’

  71. 71.

    Dowling v. United States, 493 U.S. 343, 110 S.Ct. 668 (1990), 352.

  72. 72.

    Medina v. California, 505 U.S. 437, 112 S.Ct. 2572 (1992), 443.

  73. 73.

    Nowak and Rotunda 2005, 318.

  74. 74.

    Barron and Dienes 2003, 245-246.

  75. 75.

    Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).

  76. 76.

    Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976), 321. This SC case did not concern a criminal procedure, but a termination of disability benefit. Due process covers all aspects of governmental actions and procedures, not only criminal. Therefore, this test may generally reflect the manner in which the courts balance the interests when they assess a claim of due process violation, also in the criminal law context.

  77. 77.

    Compare Rochin v. California, 342 U.S. 165, 72 S.Ct. 205 (1954) (this case concerned the forced pumping of the suspect’s stomach to retrieve the evidence) and Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708 (1998) (A “high-speed automobile chase aimed at apprehending a suspected offender” that resulted in the death of the suspect did not violate substantive due process as “in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” Ibid., 836).

  78. 78.

    LaFave et al. 2004, 71 and Rochin v. California, 342 U.S. 165, 72 S.Ct. 205 (1954), 209 and Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708 (1998), 846-847.

  79. 79.

    The regulatory effect of procedural due process on the investigative phase will be dealt with in more detail in the Sects. 5.3.1.1 and 5.3.1.2 and in Sects. 5.3.1.2 and 5.3.1.3 as to the trial phase.

  80. 80.

    U.S. Constitution, Amendment X.

  81. 81.

    Baker 2007A, 261.

  82. 82.

    White 2004, 17.

  83. 83.

    Israel et al. 2006, 16-18.

  84. 84.

    According to the website of the FBI: http://www.fbi.gov/libref/historic/history/text.htm. Accessed 25 August 2009.

  85. 85.

    Israel et al. 2006, 19.

  86. 86.

    Amsterdam 1974, 386.

  87. 87.

    Justice Earl Warren was the Chief Justice of the Supreme Court between 1953 and 1969.

  88. 88.

    Stuntz 2002, 2138, 2140-2141 and (Anonymous) Note 2009, 1717-1718.

  89. 89.

    Israel et al. 2006, 18. On the police see additionally: Manning 1977. In the American Bar Association Standards on Urban Police Function (1979), the following “Major current responsibilities of police” are listed: “a) indentify criminal offenders and criminal activity and, where appropriate, to apprehend offenders and participate in subsequent proceedings; b) reduce the opportunities for the commission of some crimes through preventive patrol and other measures; c) aid individuals who are in danger of physical harm; d) protect constitutional guarantees; e) facilitate the movement of people and vehicles; f) assist those who cannot care for themselves; g) resolve conflict; h) identify problems that are potentially serious law enforcement or governmental problems; i) create and maintain a feeling of security in the community; j) promote and preserve civil order; and k) provide other services on an emergency basis.” Standards available at: http://www.abanet.org/crimjust/standards/urbanpolice.html (accessed 4 October 2010).

  90. 90.

    28 U.S.C. § 547 (2010).

  91. 91.

    Others, such as citizens, are consequently not authorized to institute federal prosecutions. See Martinez v. Ensor, 958 F. Supp. 515, (D.Colo. 1997), 518 and People of State of New York v. Muka, 440 F. Supp. 33 (N.D.N.Y. 1977), 36.

  92. 92.

    People of State of New York v. Muka, 440 F. Supp. 33 (N.D.N.Y. 1977), 36.

  93. 93.

    Contrary to state prosecutors, who are elected by the local community and operate rather autonomously. Walther 2000, 285.

  94. 94.

    28 U.S.C. § 503 (2010).

  95. 95.

    Walther 2000, 286.

  96. 96.

    United States v. Cox, 342 F.2d 167 (5th Cir. 1965), 171.

  97. 97.

    See on this in more detail Sect. 5.3.1.2.

  98. 98.

    Walther 2000, 287.

  99. 99.

    United States v. Cox, 342 F.2d 167 (5th Cir. 1965), 171.

  100. 100.

    US Attorney’s Manual, para 3-2.140. Available at: http://www.justice.gov/usao/eousa/foia_reading_room/usam/index.html (accessed 4 September 2011).

  101. 101.

    Ibid.

  102. 102.

    Israel et al. 2006, 21.

  103. 103.

    Subin et al. 1993, 162.

  104. 104.

    Although the police will in most situations carry out these investigative methods, access to the court is generally reserved for the prosecutor only.

  105. 105.

    LaFave et al. 2004, 0-11.

  106. 106.

    Israel and LaFave 2006, 446.

  107. 107.

    Allen et al. 2005, 988.

  108. 108.

    Perrine 2005 (providing for a description of the grand jury subpoena power to compel the production of records and things).

  109. 109.

    Although subpoenas requesting the production of documents from third parties (knowingly provided to the third party by the person to whom the records pertain) are not subjected to protection by the Fourth Amendment. See United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976), 443 and Sect. 5.1.4.1.

  110. 110.

    United States v. R. Enterprises Inc., 498 U.S. 292, 111 S.Ct. 722 (1991), 297.

  111. 111.

    See Rule 6(d) and (e) of the Federal Rules of Criminal Procedure (2009).

  112. 112.

    United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974), 343-344.

  113. 113.

    United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974), 344 and 346.

  114. 114.

    Allen et al. 2005, 998.

  115. 115.

    United States v. R. Enterprises Inc., 498 U.S. 292, 111 S.Ct. 722 (1991), 298.

  116. 116.

    Allen et al. 2005, 988 and Israel and LaFave 2006, 446.

  117. 117.

    LaFave et al. 2004, 420-421.

  118. 118.

    Baker 2007A, 16. For example, in Executive Order 12333 the goals of the US intelligence community are described as follows: “The United States Intelligence effort shall provide the President, the National Security Council, and the Homeland Security Council with the necessary information on which to base decisions concerning the development and conduct of foreign, defense, and economic policies, and the protection of United States national interests from foreign security threats.” Executive Order 12333: United States Intelligence Activities, as amended by Executive Order Nos. 13284 (2003), 13355 (2004), and 13470 (2008), 73 Fed. Reg. 45325 (July 30, 2008), section 1.1.

  119. 119.

    Baker 2007A, 19.

  120. 120.

    AIDS and climate change are national security threats referred to in the National Security Strategies of President Clinton and President Bush (Baker 2007A, 19), as well as in the National Security Strategy of President Obama (2010), available at: http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (accessed 15 March 2011). On ‘transnational organized crime’ as a national security threat (including trafficking networks and cybercrime and possibly extending to terrorist activities) see particularly: the “Strategy to Combat Transnational Organized Crimes. Addressing Converging Threats to National Security,” issued by Obama in July 2011, available at http://www.whitehouse.gov/sites/default/files/Strategy_to_Combat_Transnational_Organized_Crime_July_2011.pdf (accessed 4 September 2011).

  121. 121.

    The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, issued by John Ashcroft, October 31, 2003 (declassified by Attorney General Gonzales on August 2, 2007), part VIII(Q), 36. These Guidelines have now been replaced by the Mukasey Guidelines on FBI Operations (2008), which have also abolished the distinction between FBI national security investigations and criminal investigations. See on this Chap. 6, Sect. 6.4.2.3.

  122. 122.

    AG Ashcroft Guidelines on NSI (2003), part II, 11.

  123. 123.

    Baker 2007A, 35 and 72. Congress follows this interpretation by its texts in different statutes, such as the National Security Act of 1947, by stating that the President has authority next to the Director of National Intelligence to perform functions and duties related to intelligence and sharing the responsibility to keep the intelligence committees informed. Besides, different presidents have actually used their national security power by establishing national security agencies for different purposes. This corresponds with the view of the Supreme Court in Totten, Administrator v. United States, 92 U.S. 105, 1875 WL 17758 (1876). and more recently in Tenet et al. v. Doe et Ux, 544 U.S. 1, 125 S.Ct. 1230 (2005). Baker 2007A, 72-73.

  124. 124.

    US Constitution, Article I, section 8(1) and (18).

  125. 125.

    See in more detail Baker 2007A, 46-50.

  126. 126.

    National Security Act of 1947, Act of July 26, 1947 (2007) (50 U.S.C. 401 and further). Source: Kris and Wilson 2007, Appendix A.

  127. 127.

    Executive Order 12333: United States Intelligence Activities, as amended by Executive Order Nos. 13284 (2003), 13355 (2004), and 13470 (2008), 73 Fed. Reg. 45325 (July 30, 2008).

  128. 128.

    National Security Act of 1947, Section 3(4) and Executive Order 12333 (as amended) sections 1.7-1.13 and 3.5(h).

  129. 129.

    Kris and Wilson 2007, 1-30. The mission of the FBI Counterterrorism Division is described as follows: “(…) to help our nation prevent acts of terrorism against the U.S. and U.S. targets. The priorities of the Division are to: Detect, disrupt, and dismantle terrorist sleeper cells in the United States before they act; [i]dentify and prevent acts of terrorism by individuals with a terrorist agenda acting alone; [d]etect, disrupt, and dismantle terrorist support networks, including financial support networks; [e]nhance our capability to quickly ascertain the reliability, implications and details of terrorist threats and to improve our capacity to disseminate threat-related information to local, state, and federal agencies, and to the private sector as needed; [e]nhance our overall contribution to the U.S. intelligence community and to senior policy makers in the government by providing timely and accurate in-depth analysis of the terrorist threat and other information of value on an ongoing basis.”

  130. 130.

    Kris and Wilson 2007, 1-29.

  131. 131.

    Kris and Wilson 2007, 1-5.

  132. 132.

    Ibid., 1-13.

  133. 133.

    Ibid., 1-11.

  134. 134.

    Report of the National Commission on Terrorist Attacks upon the United States 2004.

  135. 135.

    National Security Act of 1947, 50 U.S.C., Chapter 15 National Security, § 401-442a (2007), Executive Order 12333: United States Intelligence Activities (as amended by Executive Orders 13284 and 13355), December 4, 1981 and Kris and Wilson 2007, 1-3 to 1-30.

  136. 136.

    Van Kempen 2008, 56.

  137. 137.

    Rule 41 of the Federal Rules of Criminal Procedure has codified the federal practice regarding search and seizure. The rule has obtained statutory authority through 18 U.S.C. § 3103.

  138. 138.

    Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967).

  139. 139.

    Katz v. Unites States, 389 U.S. 347, 88 S.Ct. 507 (1967), 351. See in detail Sect. 5.1.4.1.

  140. 140.

    Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679 (1961).

  141. 141.

    Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564 (1928).

  142. 142.

    Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186 (1964).

  143. 143.

    LaFave et al. 2004, 262-264.

  144. 144.

    Israel et al. 2006, 86.

  145. 145.

    California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625 (1988).

  146. 146.

    California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809 (1989) and Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693 (1989).

  147. 147.

    United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296 (1984).

  148. 148.

    LaFave et al. 2004, 195-198.

  149. 149.

    Search with a delayed notice of the search.

  150. 150.

    See in more detail on the notification requirements, the exceptions to notification and the reasoning of the appellate courts dealing with sneak-and-peak searches, Sect. 5.3.2.1.3. The possibilities for conducting sneak-and-peek searches have been broadened by the USA PATRIOT Act. See for this subject Chap. 6. Furthermore, in the national security context physical searches with delayed notice or even no notice at all have been permitted under the Foreign Intelligence Surveillance Act. This subject will be dealt with in 5.2.2.3.1.

  151. 151.

    LaFave et al. 2004, 250 and Israel et al. 2006, 260.

  152. 152.

    Rule 41 (b), Federal Rules of Criminal Procedure (2009).

  153. 153.

    Rule 41 (c), Federal Rules of Criminal Procedure (2009).

  154. 154.

    LaFave et al. 2004, 264.

  155. 155.

    Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), 357-359. Before this, the so-called Olmstead trespass doctrine applied until 1967, prescribing that Fourth Amendment limitations are only effective when there is a governmental exercise of power concerning a physical invasion, particularly with respect to private homes. Baker 2007A, 246.

  156. 156.

    Title 18 Crimes and Criminal Procedure, 18 U.S.C. § 2510(4).

  157. 157.

    Baker 2007A, 75.

  158. 158.

    18 U.S.C. § 2518(5).

  159. 159.

    Title III, as a part of the ‘Omnibus Crime Control and Safe Streets Act of 1968’, adopted in 18 U.S.C. Part I, Chapter 119, §§ 2510-2522 and, added in 1986, §§ 2701-2710.

  160. 160.

    Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967).

  161. 161.

    18 U.S.C. § 2511-§ 2515.

  162. 162.

    According to the ‘Crime Commission’ appointed by President Johnson (Report by the President’s Commission on Law Enforcement and Administration of Justice, the Challenge of Crime in a Free Society 201 (1967)). Cited in: United Sates v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 92 S.Ct. 2125 (1972), 311 (ftnt. 9).

  163. 163.

    18 U.S.C. § 2516(1).

  164. 164.

    See e.g. United States v. Tomero, 462 F.Supp.2d 565 (S.D.N.Y. 2006), where the roving bug was installed on an attorney’s phone during an organized crime investigation where the suspects chose to communicate via their attorney so as to avoid interception through government surveillance. The Court held that the roving bug did not violate the Fourth Amendment’s particularity requirement and that a roving bug could be authorized through electronic surveillance warrants for roving surveillance.

  165. 165.

    18 U.S.C. § 2511(2)(c) and § 2511(2)(d).

  166. 166.

    Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408 (1966).

  167. 167.

    United States v. White, 401 U.S. 745, 91 S.Ct. 1122 (1971), 749 and 752.

  168. 168.

    LaFave et al. 2004, 272.

  169. 169.

    Mauriello 2007, 18.08.

  170. 170.

    Israel et al. 2006, 276-277.

  171. 171.

    Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302 (1949), 175-176.

  172. 172.

    For the acceptability of the broader application of physical search and electronic surveillance, also proactively, especially to confront organized crime, see: Marcus 1998.

  173. 173.

    LaFave 2003, 465.

  174. 174.

    Ibid., 466.

  175. 175.

    Ibid., 475.

  176. 176.

    Luban et al. 2010, 863.

  177. 177.

    LaFave 2003, 481.

  178. 178.

    18 U.S.C. § 2518(7). See in more detail Sect. 5.3.2.1.2.

  179. 179.

    18 U.S.C. § 2511(2)(f).

  180. 180.

    When Title III was enacted in 1968 § 2511(3) provided that nothing in Title III “shall limit the constitutional power of the President to take such measure as he deems necessary to protect the Nation against actual or potential attacks or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the US, or to protect national security information against foreign intelligence activities. Nor shall anything contained be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure and existence of the Government.” Moreover, it was explicitly provided that any contents intercepted by means of the executive’s just mentioned powers “may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable (..).”

  181. 181.

    United Sates v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 92 S.Ct. 2125 (1972). This decision is usually referred to as the ‘Keith’ decision, after the U.S. District Court Judge Damon J. Keith who had ruled against warrantless domestic electronic surveillance, a decision later upheld by the Supreme Court.

  182. 182.

    Ibid., 321-322.

  183. 183.

    Ibid., 309.

  184. 184.

    Ibid., 316-317.

  185. 185.

    Ibid., 317, 320.

  186. 186.

    United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125 (1972), 322.

  187. 187.

    Snider 2003, 1-4. Snider concludes 25 years after the establishment of the oversight committees that their work has been successful because it has been intensive and intrusive, whereas it does not obstruct security activities. The Committees have provided for a check on otherwise unchecked activities that affect civil liberties. Ibid., 33. See also: Kris and Wilson 2007, 2-3 to 2-13.

  188. 188.

    Howell 2006, 119.

  189. 189.

    Kris and Wilson 2007, 2-14/15.

  190. 190.

    Executive Order 12333 (as amended), preamble.

  191. 191.

    Executive Order 12333 (as amended) § 2.4(a), (b) and (c).

  192. 192.

    Executive Order 12333 (as amended) § 2.3.

  193. 193.

    50 U.S.C. § 1803(a)(1).

  194. 194.

    Musch 2003, 72.

  195. 195.

    Compare: United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125 (1972), 322.

  196. 196.

    Etzioni 2004, 28.

  197. 197.

    United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), 1075.

  198. 198.

    50 U.S.C. § 1801(e) (2011).

  199. 199.

    See 50 U.S.C. § 1801(a) and (b) (2011) for the definitions of a foreign power and an agent of a foreign power: “(a) "Foreign power" means—(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments. (b) "Agent of a foreign power" means—(1) any person other than a United States person, who—(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; (C) engages in international terrorism or activities in preparation therefore [sic] [the definition under C was added by the Intelligence Reform and Terrorism Prevention Act, Pubic Law 108-458-Dec. 17, 2004, sec. 6001(a)]; or (2) any person who—(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).”

  200. 200.

    50 U.S.C. § 1801(a)(4) and (5).

  201. 201.

    50 U.S.C. § 1801(b).

  202. 202.

    50 U.S.C. § 1801(b)(2)(A)(B).

  203. 203.

    50 U.S.C. § 1804(a)(8) and § 1805(c)(1)(D).

  204. 204.

    Baker 2007A, 84.

  205. 205.

    The part on physical searches has the same structure concerning its conditions as the part on electronic surveillance. 50 U.S.C. § 1821-§ 1829.

  206. 206.

    50 U.S.C. § 1842(c), before amendment by the USA PATRIOT Act.

  207. 207.

    Executive Order 12333 (as amended), § 2.2.

  208. 208.

    Executive Order 12333 (as amended), § 2.6.

  209. 209.

    National Security Act of 1947 (as amended), Section 105A(a).

  210. 210.

    See e.g. 50 U.S.C. §§ 1802(b) and 1804(7)(B).

  211. 211.

    50 U.S.C. § 1804(a)(7)(B): FISA Court approves application of electronic surveillance “[…] of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information […].”

  212. 212.

    Kris and Wilson 2007, 10-6 to 10-8.

  213. 213.

    United States v. Truong Ding Hung, 629. F.2d 908 (4th Cir. 1980).

  214. 214.

    The court reached this conclusion by referring to the Keith decision in order to analogously apply the analytical approach of the Supreme Court in Keith. United States v. Truong Ding Hung, 629. F.2d 908 (4th Cir. 1980), 913-914.

  215. 215.

    United States v. Truong Ding Hung, 629. F.2d 908 (4th Cir. 1980), at 915.

  216. 216.

    Ibid., 916.

  217. 217.

    Becker 2003, 597.

  218. 218.

    The Attorney General’s Guidelines on criminal investigation that were applicable prior to the issuance of the Ashcroft Guidelines in 2002 will be analyzed in the ‘shield’ section of this chapter as their main goal was to restrain the FBI’s investigative authority by formulating thresholds and protective conditions.

  219. 219.

    U.S. Department of Justice, Office of Legislative Affairs, Office of the Assistant Attorney General, May 13, 2003, 15.

  220. 220.

    United States v. Rahman, 861 F.Supp 247 (S.D.N.Y. 1994), affirmed 189 f.3d 88 (2nd Cir. 1999), 251.

  221. 221.

    McCormack 2007, 35-38.

  222. 222.

    White 2004, 19.

  223. 223.

    The enactment of the USA PATRIOT Act of 2001 as well as other measures of the post-9/11 era have now dismantled this wall. See on this in detail Chap. 6, Sect. 6.4.

  224. 224.

    Nowak and Rotunda 2005, 317-318.

  225. 225.

    A more detailed explanation of the contents and scope of procedural and substantive due process has been provided in Sect. 5.1.4.2.

  226. 226.

    Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994), 273.

  227. 227.

    Herring v. United States, 555 U.S. 135, 129 S.Ct. 695 (2009), 9.

  228. 228.

    Ibid., 12.

  229. 229.

    American Bar Association. Standing Committee on Association Standards for Criminal Justice (1980), p. 3.6: Standard 3-1.1 The function of the prosecutor.

  230. 230.

    Berger v. United States, 295 U.S. 78, 55 S.Ct. 629 (1935), 88.

  231. 231.

    Ibid., 84.

  232. 232.

    Senna and Siegel 1998, 265-266.

  233. 233.

    Rule 12 (b) Federal Rules of Criminal Procedure.

  234. 234.

    American Bar Association, Standing Committee on Association Standards for Criminal Justice (1980), 3.61: Standard 3-3.11(a) Disclosure of evidence by the prosecutor.

  235. 235.

    Ibid., p. 3.62: Standard 3-3.11(b) and (c).

  236. 236.

    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), 87.

  237. 237.

    Ibid., 86 and 91.

  238. 238.

    United States Attorney’s Manual (available at

    http://www.usdoj.gov/usai/eousa/foia_reading_room/usam/), para 9-90.210(B)(2).

  239. 239.

    18 U.S.C. App. 3 § 1-16 (2009). About this Act see Sect. 5.3.1.3.

  240. 240.

    Kris and Wilson 2007, 24-7. The procedures of CIPA apply when classified materials are sought to be used in criminal proceedings. In civil litigation, the government can withhold information under the ‘state secret privilege’ “if there is a reasonable danger that its disclosure would harm national security.” The state secret privilege has an absolute character, which cannot be balanced in court against the interest of the private litigant to have access to the information. Congress believed that the state secret privilege could not apply in criminal proceedings, considering the tension with the Constitutional right to disclosure. Congress enacted CIPA to provide the possibility to protect classified information also in criminal cases, without necessarily being forced to drop charges when complete declassification is not possible. Kris and Wilson 2007, 24:8. In addition, Congress enacted CIPA “in an effort to combat the growing problem of graymail, a practice whereby a criminal defendant threatens to reveal classified information during the course of his trial in the hope of forcing the government to drop the charge against him.” United States v. Smith, 780 F.2d 1102 (4th Cir. 1985), 1105.

  241. 241.

    Israel et al. 2006, 797-799.

  242. 242.

    18 U.S.C.A. 3504(a)(1) and LaFave et al. 2004, 295.

  243. 243.

    Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

  244. 244.

    Federal Rules of Criminal Procedure, Rule 16(a)(1).

  245. 245.

    Additional requirements regarding the disclosure of information collected by FISA surveillance or physical searches are provided in FISA. Disclosure to “Federal officers” is allowed under FISA under the applicability of the minimization procedure as provided in FISA (50 U.S.C. § 1801(h), 50 U.S.C. 1821(4) and 50 U.S.C. § 1861(g)) and may only be used for lawful purposes. FISA information may also only be used in criminal proceedings with the permission of the Attorney General. See on the use of information obtained by investigative tools authorized under FISA: Kris and Wilson 2007, Chapter 26.

  246. 246.

    Also Rule 16 contains a provision on the basis of which an exception may be made to ordinary discovery rules. Rule 16(d)(1) of the Federal Rules of Criminal Procedure allows a court “for good cause” to “deny, restrict, or defer discovery or inspection or grant other appropriate relief.” The government may under this rule submit a written statement to the court to be inspected ex parte. However, the government has preferred to use CIPA when seeking to keep information shielded from the defense. See: Kris and Wilson 2007, 24-21.

  247. 247.

    Classified information is defined as “any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data [regarding atomic energy].” 18 U.S.C. App. 3 § 1.

  248. 248.

    18 U.S.C. App 3 § 2.

  249. 249.

    Kris and Wilson 2007, 24-10.

  250. 250.

    Ibid., 24-18.

  251. 251.

    Dycus et al. 2007B, 859.

  252. 252.

    Kris and Wilson 2007, 24-26 and 24-27.

  253. 253.

    18 U.S.C. pp. III § 4 and Kris and Wilson 2007, 24-24 and 24-25.

  254. 254.

    Kris and Wilson 2007, 25-28.

  255. 255.

    18 U.S.C. App 3 § 6(a). The defendant or his counsel has a right to be present at these hearings. Kris and Wilson 2007, 25-14.

  256. 256.

    18 U.S.C. App 3 § 6(c).

  257. 257.

    18 U.S.C. App 3 § 6(e).

  258. 258.

    Kris and Wilson 2007, 25-13. See on this subject also: Becker 2008, 6.

  259. 259.

    18 U.S.C. App 3 § 6(c).

  260. 260.

    Kris and Wilson 2007, 25-25.

  261. 261.

    United States v. Zacarias Moussaoui, 382 F.3d 453 (4th Cir. 2004).

  262. 262.

    See in more detail: Becker 2007, 28-32.

  263. 263.

    Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), 389-394.

  264. 264.

    Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), 163 and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), 397.

  265. 265.

    Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), 397.

  266. 266.

    42 U.S.C. § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

  267. 267.

    5 U.S.C. § 552a.

  268. 268.

    5 U.S.C. § 552a and Becker 2005, 63.

  269. 269.

    Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006) and see Becker 2008, 14-15.

  270. 270.

    Ibid., 718.

  271. 271.

    Ibid., 720 and 724.

  272. 272.

    Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967), 60.

  273. 273.

    Internal citation omitted. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119 (1972), 350. See also: Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983), 240.

  274. 274.

    Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971), 450.

  275. 275.

    Warrantless searches have been upheld in emergency circumstances, such as exigent circumstances for the police, when there is a risk that evidence will be destroyed, when there is a danger to police officers or others, but also in situations where the privacy intrusion is more limited and for ‘any other reasons’ for which the police cannot reasonably obtain a warrant before searching. Furthermore, Title III provides some statutory grounds for warrantless surveillance (section 18 U.S.C. 2518(7)). See in more detail about warrantless searches Sect. 5.3.2.1.2.

  276. 276.

    See the previous footnote and Sect. 5.3.2.1.2.

  277. 277.

    Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963), 479-480.

  278. 278.

    LaFave et al. 2004, 141.

  279. 279.

    LaFave et al. 2004, 141. For an arrest, probable cause that a crime has been committed is required and that the person arrested has committed the crime.

  280. 280.

    LaFave et al. 2004, 141.

  281. 281.

    18 U.S.C. § 2518(3)(a).

  282. 282.

    Baker 2007A, 75.

  283. 283.

    Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302 (1949), 175.

  284. 284.

    Ibid., 175-176.

  285. 285.

    According to this test the issuing magistrate should determine, firstly, the reliability of the informant, and, secondly, the reliability of the basis of the knowledge. LaFave et al. 2004, 144.

  286. 286.

    LaFave et al. 2004, 147.

  287. 287.

    Illinois v. Gates, 426 U.S. 213, 103 S.Ct. 2317 (1983), 230-231.

  288. 288.

    Ibid., 216.

  289. 289.

    Ibid., 230.

  290. 290.

    Ibid., 232.

  291. 291.

    Virgina v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008), 1604.

  292. 292.

    LaFave et al. 2004, 152-153.

  293. 293.

    Illinois v. Gates, 426 U.S. 213, 103 S.Ct. 2317 (1983), 239.

  294. 294.

    LaFave et al. 2004, 147-149.

  295. 295.

    See also the thresholds for initiating different investigative steps under the AG’s guidelines for criminal investigations on behalf of the FBI, as described in Sect. 5.3.2.3.

  296. 296.

    Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967), 69.

  297. 297.

    LaFave et al. 2004, 268-269. However, without explicitly relating it to the nature of the investigative method, the Supreme Court has also in many other instances explained that reasonableness is determined by “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” (See e.g. Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008), 1604 and U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001), 119). In general, the degree of the intrusion is thus a factor to be considered in the reasonableness assessment, which may include all kinds of considerations including the method used and, in particular, the level of the expectation of privacy with regard to the place searched.

  298. 298.

    The exact difference as to the quantum of evidence required for probable cause and for a reasonable suspicion has not been precisely defined. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), 27, it was only indicated that “the officer need not to be absolutely certain.” In another case, building upon the Terry decision, the Court went further to define the reasonable suspicion threshold: “The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or ‘hunch.’ (…) The Fourth Amendment requires some minimal level of objective justification for making the stop. (…) That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means a fair probability that contraband or evidence of a crime will be found (…) and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause. (…) The concept of reasonable suspicion, like probable cause, is not readily, or even usefully, reduced to a neat set of legal rules. We think the Court of Appeals' effort to refine and elaborate the requirements of “reasonable suspicion” in this case creates unnecessary difficulty in dealing with one of the relatively simple concepts embodied in the Fourth Amendment. In evaluating the validity of a stop such as this, we must consider the totality of the circumstances-the whole picture.” [internal citations omitted]. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581 (1989), 7-8. “Considering that reasonable suspicion is lower than probable cause and probable cause is understood as a “fair probability”, reasonable suspicion could be understood a standard of a “moderate chance” in the sense of the objective level of knowledge of the police officer.” Compare: Feld 2011, 898, Taslitz 2010, 148 and Safford Unified School District No. 1 v. Reddings, 129 S.Ct. 2633 (2009), 2639.

  299. 299.

    Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727 (1967), 536-537.

  300. 300.

    Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868(1968), 27.

  301. 301.

    United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), 706 and 709-710.

  302. 302.

    Israel et al. 2006, 251-252 and LaFave et al. 2004, 229. Exceptions for ‘administrative searches’ were for the first time labeled as searches for the purpose of a special need, other than a law enforcement purpose in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 (1985) in the concurring opinion of Judge Blackmun (at 351). The special needs doctrine has subsequently been explicitly applied in other cases (see e.g. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164 (1987), 873-874, concerning searches for the purpose of enforcing probation system). In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001) the Supreme Court, however, rendered a search of a probationer’s home upon a standard of a reasonable suspicion reasonable by an “ordinary Fourth Amendment analysis” where the reasonableness is the final touchstone, without questioning whether the “official purpose” of the search gave reason for a “special needs” exception like in Griffin v. Wisconsin (at 122)), Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995), 653 (regarding random urine analyses for participants in interscholastic athletics serving the “substantial need of teachers and administrators for freedom to maintain order in schools”), National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1348 (1989), 666 (concerning the drug testing of employees of the Customs service for the purpose (special need) of deterring drug use among employees) and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447 (2000), 47-48 (concerning motor vehicle checkpoints for the purpose of preventing illegal drugs from entering the city of Indianapolis. The Supreme Court held the checkpoints violated the Fourth Amendment, because “the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control.” However, the Supreme Court explicitly considered that its holding: “does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose.”).

  303. 303.

    Recently, courts have also used the ‘special needs doctrine’ as an argument to permit investigative activities in furtherance of national security without adhering to the usual Fourth Amendment restriction applicable to surveillance in the context of a criminal investigation. See on this Chap. 6, Sect. 6.2.2.

  304. 304.

    See: Fenske 2008, 351-352.

  305. 305.

    Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885 (2004), 427.

  306. 306.

    18 U.S.C. § 2510(4).

  307. 307.

    Defined in 18 U.S.C. § 2510(8).

  308. 308.

    See: LaFave et al. 2004, 276-277.

  309. 309.

    18 U.S.C. § 3123(a)(2). Currently, using pen registers or trap and trace devices on cell phones will also reveal the location of the user. The constitutionality of the application of the existing law for these purposes is under discussion as the courts do not seem to agree on the acceptance of the extension of the information intercepted by the tools under the current regulation of pen register and trap/trace device authority. See e.g.: In re Application of United States for an Order for Prospective Cell Site Location Information on a Certain Cellular Telephone, 460 F.Supp. 2d 448, 2006 WL 3016316 (S.D.N.Y. 2006) and In the Matter of an Application of the United States of America for an Order Authorizing the Use of a Pen Register with Caller Identification Device Cell Site Location Authority on a Cellular Telephone, 2009 WL 159187 (S.D.N.Y. 2009).

  310. 310.

    Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577 (1979), 744, established that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” which is the case when someone uses a phone, resulting in conveying the numerical information to the telephone company.

  311. 311.

    Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302 (1949), 176.

  312. 312.

    Considering this legitimizing and protective role, the warrant has been identified as “a key and a shield.” Pfeiffer 2004, 234-235.

  313. 313.

    Coquillette et al., para 641.10.

  314. 314.

    LaFave et al. 2004, 161.

  315. 315.

    Steele v. United States, 267 U.S. 498, 45 S.Ct. 414 (1925), 503.

  316. 316.

    Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153 (1931), 357.

  317. 317.

    LaFave et al. 2004, 165.

  318. 318.

    18 U.S.C. § 2518(1)(b) and (4)(c) (2007).

  319. 319.

    In general, when the interception of oral communications is not practical: 18 U.S.C. § 2518(11)(a), and when the person whose communications are to be intercepted thwarts the interception by switching devices in the case of the interception of wired or electronic communications: 18 U.S.C. § 2518(11)(b).

  320. 320.

    See e.g. U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992), 1444-1445 and United States v. Tomero, 462 F.Supp.2d 565 (S.D.N.Y. 2006).

  321. 321.

    U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992), 1444.

  322. 322.

    Ibid., 1445.

  323. 323.

    Ibid., 1445 and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), 355-356.

  324. 324.

    18. U.S.C. § 2518(7).

  325. 325.

    LaFave et al. 2004, 270.

  326. 326.

    United States v. Duffey, 2009 WL 2356156 (N.D.Tex. 2009), 6.

  327. 327.

    See in this regard: Amar 1997.

  328. 328.

    Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), 357.

  329. 329.

    Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008), 1608.

  330. 330.

    Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013 (1987), 87.

  331. 331.

    Ibid., 88.

  332. 332.

    See Rule 41(f) of the Federal Rules of Criminal Procedure.

  333. 333.

    General, wide searches. The following goals of the knock-and-announce rule can be formulated: “(i) it decreases the potential for violence, as an unannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures; (ii) it protects privacy by minimizing the chance of entry of the wrong premises and even when there is no mistake, allows those within a brief time to prepare for the police entry; and (iii) it prevents the physical destruction of property by giving the occupant the opportunity to admit the officer.” LaFave et al. 2004, 167.

  334. 334.

    Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914 (1995), 929 and 933.

  335. 335.

    Ibid., 934.

  336. 336.

    Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416 (1997), 394.

  337. 337.

    United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992 (1998), 71.

  338. 338.

    Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682 (1979), 248.

  339. 339.

    United States v. Freitas, 800 F.2d 1451 (9th Cir. 1968), 1456.

  340. 340.

    Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 60 (1967). See also Sect. 5.3.2.2 footnote 363.

  341. 341.

    United States v. Freitas, 800 F.2d 1451 (9th Cir. 1968), 1456.

  342. 342.

    Ibid., 1456.

  343. 343.

    United States v. Villegas, 899 F.2d 1324 (2nd Cir. 1990), 1337.

  344. 344.

    Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008), 1604.

  345. 345.

    Ibid., 1604 and 1605.

  346. 346.

    LaFave et al. 2004, 107-108.

  347. 347.

    Byod v. United States, 116 U.S. 616, 6 S.Ct. 524, 633 (1886). The Fifth Amendment provides that: “No person (…) shall (…) be compelled in any criminal case to be a witness against himself (…)” US Constitution, Amendment V.

  348. 348.

    Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), p. 655.

  349. 349.

    Ibid., 648.

  350. 350.

    United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), 919.

  351. 351.

    Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160 (1987), 350.

  352. 352.

    United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), 922-923.

  353. 353.

    Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159 (2006), 594.

  354. 354.

    Bal 2007.

  355. 355.

    LaFave et al. 2004, 543.

  356. 356.

    Herring v. United States, 555 U.S. 135,129 S.Ct. 695 (2009), 12.

  357. 357.

    Ibid., 9. See also Sect. 5.3.1.1.

  358. 358.

    Ibid., 5, 10 and 12.

  359. 359.

    Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266 (1939), 341. See also LaFave et al. 2004, 509.

  360. 360.

    Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984), 446.

  361. 361.

    Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529 (1988), 537, citing Nix v. Williams, 467 U.S. 431, 104 S.Ct 2501 (1984), 443, in which the independent source exception was applied in a Sixth Amendment context.

  362. 362.

    Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529 (1988), 539.

  363. 363.

    See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), 356: “In omitting any requirement of advance notice, the federal court that authorized electronic surveillance in Osborn simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement could provoke the escape of the suspect or the destruction of critical evidence.” Also in Berger v. New York (1967) the Supreme Court had emphasized that notice prior to eavesdropping cannot reasonably be given as it undermines the whole purpose of the eavesdropping. However, here the Supreme Court suggested that, considering the relevance of a notification requirement for the reasonableness of a conventional search warrant, some showing of exigent circumstances shall be provided to compensate for the absence of a notification requirement in the warrant authorizing eavesdropping. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967), 60.

  364. 364.

    18 U.S.C. § 2518(8)(d) (prior to the amendments by the USA PATRIOT Act of 2001).

  365. 365.

    18 U.S.C. § 2518(5).

  366. 366.

    United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125 (1972), 302.

  367. 367.

    LaFave et al. 2004, 280-281. The officials entitled to submit an order for the authorization of surveillance are enumerated in 18 U.S.C. § 2516(1).

  368. 368.

    United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820 (1974), 515-516.

  369. 369.

    18 U.S.C. § 2518(1).

  370. 370.

    18 U.S.C. § 2518(1)(b).

  371. 371.

    United States v. Kahn, 415 U.S. 143, 94 S.Ct. 997 (1974), 152 and 155.

  372. 372.

    Ibid., 146.

  373. 373.

    Ibid., 158.

  374. 374.

    18 U.S.C. § 2518(4).

  375. 375.

    Lower courts have held that compliance with the statutory requirements (by merely indicating the offense under investigation) of Title III is in compliance with the Fourth Amendment. LaFave et al. 2004, 269 and 282. For the importance of the particularity requirement in surveillance cases, as set out by the Supreme Court before the enactment of Title III, see Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 (1967), 55-56.

  376. 376.

    18 U.S.C. § 2518(1)(d).

  377. 377.

    18 U.S.C. § 2518(1)(d).

  378. 378.

    18 U.S.C. § 2518(1)(e).

  379. 379.

    18 U.S.C. § 2518(3)(a).

  380. 380.

    18 U.S.C. § 2518(3)(d). This does not apply when the exception for the ‘roving tap’ is applicable under 18 U.S.C. § 2518(11) (the specification of the facilities or place may be omitted upon a particularized showing of need). The examination that the authorizing judge must conduct is described in § 2518(3), providing that the judge must determine “on the basis of the facts submitted by the applicant that: (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.”

  381. 381.

    United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820 (1974), 515.

  382. 382.

    LaFave et al. 2004, 283.

  383. 383.

    18 U.S.C. § 2518(4).

  384. 384.

    18 U.S.C. § 2518(5).

  385. 385.

    18 U.S.C. § 2518(10)(b).

  386. 386.

    See: LaFave et al. 2004, 285.

  387. 387.

    LaFave et al. 2004, 90.

  388. 388.

    18 U.S.C. § 2518(8)(a).

  389. 389.

    18 U.S.C. § 2518(5): “(…) in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.”

  390. 390.

    American Bar Association Standards for Criminal Justice (2001), Electronic Surveillance, Third Edition, Section A: Electronic Surveillance of Private Communications, 56, 126-139 and 135-144 and Blum et al. 2010, para 412-415.

  391. 391.

    Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717 (1978), 130-131 and 132.

  392. 392.

    Ibid., 140 and 142.

  393. 393.

    18 U.S.C. § 2518(8)(d).

  394. 394.

    18 U.S.C. § 2518(d) (1)-(3).

  395. 395.

    18 U.S.C. § 2518(8)(d).

  396. 396.

    18 U.S.C. § 2518(10)(a). It is remarkable that the provision only mentions that someone may move for the suppression of the contents of any wire or oral communication intercepted, without referring to electronic communications. When the interception of electronic communications was added to Title III in 1986, no changes were made to the language of this exclusionary rule. LaFave et al. 2004, 291.

  397. 397.

    United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820 (1974), 527.

  398. 398.

    Ibid., 528.

  399. 399.

    United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849 (1974), 574-575.

  400. 400.

    United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820 (1974), 528.

  401. 401.

    Jones 2009, 137 and 141-142.

  402. 402.

    28 U.S.C. § 533.

  403. 403.

    Podgor 2004, 170 and Elliff 1984, 786.

  404. 404.

    See: Special Report of the DoJ’s Office of the Inspector General 2005, 34-36. In addition, on December 15, 1976, Attorney General Levi issued guidelines on the “Use of Informants in Domestic Security, Organized Crime, and Other Criminal Investigations,” which aimed to minimize the use of informants, to protect individual rights and to adopt policy preventing the government from violating the law when using informants. These guidelines on the use of informants were importantly revised by the Civiletti Guidelines of 1980 and, subsequently, by the Reno Guidelines of 2001. See Special Report of the DoJ’s Office of the Inspector General 2005, 37-38, 39-41 and 57-58.

  405. 405.

    In 1989 Attorney General Dick Thornburgh issued some amendments to the Smith Guidelines, primarily in order to implement some legislative changes. In essence, the Smith Guidelines were untouched and remained into place until the Ashcroft Guidelines of 2002. Jones 2009, 146.

  406. 406.

    Special Report of the DoJ’s Office of the Inspector General 2005, 37 (footnote 55).

  407. 407.

    Section I, Levi Guidelines, FBI Statutory Charter. Hearings Before the Senate Committee on the Judiciary, 95th Cong. Pt. 1, 20-26 (1978) (henceforth: Levi Guidelines), 20.

  408. 408.

    Section II(A) Levi Guidelines, 20.

  409. 409.

    Section II(C) Levi Guidelines, 20-21.

  410. 410.

    Section II(E) Levi Guidelines, 21.

  411. 411.

    Section II(F) Levi Guidelines, 21-22.

  412. 412.

    Section II(G) Levi Guidelines, 22.

  413. 413.

    Section II(H) Levi Guidelines, 22.

  414. 414.

    Section II(I) Levi Guidelines, 22.

  415. 415.

    Section II(J) Levi Guidelines, 22-23.

  416. 416.

    Section IV Levi Guidelines, 24-25.

  417. 417.

    Jones 2009, 142.

  418. 418.

    Hearing before the Subcommittee on Security and Terrorism on the Committee on the Judiciary United States Senate, 98th Congress, First Session on Attorney General’s Guidelines for Domestic Security Investigations (Smith Guidelines), March 25, 1983, Serial No. J-98-25, S. Hrg 98-176 (henceforth: Smith Guidelines 1983), 47 (Appendix).

  419. 419.

    Smith Guidelines 1983, 48 (Appendix).

  420. 420.

    See: Smith Guidelines 1983, 53.

  421. 421.

    Section II(B) Smith Guidelines 1983, 55.

  422. 422.

    Section II(B)(2)–(4) Smith Guidelines 1983, 56.

  423. 423.

    Section II(B)(4)–(6) Smith Guidelines 1983, 56-57.

  424. 424.

    Section II(C)(1) Smith Guidelines 1983, 57.

  425. 425.

    Section II(C)(2) Smith Guidelines 1983, 57.

  426. 426.

    Section II(C)(4) Smith Guidelines 1983, 57-58.

  427. 427.

    Section IV Smith Guidelines 1983, 63.

  428. 428.

    Section III Smith Guidelines 1983, 58.

  429. 429.

    Section III Smith Guidelines 1983, 59.

  430. 430.

    Racketeering activities are those activities that were included in the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. 1961(1) (1983)).

  431. 431.

    Section III(A)(1)–(2) Smith Guidelines 1983, 59.

  432. 432.

    Special Report of the DoJ’s Office of the Inspector General 2005, 48.

  433. 433.

    Section III(A)(3) Smith Guidelines 1983.

  434. 434.

    Section III(B)(1)(a) Smith Guidelines 1983.

  435. 435.

    Section III(B)(1)(c) Smith Guidelines 1983.

  436. 436.

    Section III(B)(4)(d) Smith Guidelines 1983.

  437. 437.

    See Section III(B)(2)–(4) Smith Guidelines 1983.

  438. 438.

    Special Report of the DoJ’s Office of the Inspector General 2005, 48.

  439. 439.

    Special Report of the DoJ’s Office of the Inspector General 2005, 56.

  440. 440.

    Jones 2009, 144-145.

  441. 441.

    Section IV Smith Guidelines 1983.

  442. 442.

    Transcript of the press briefing by Attorney General Smith and the Director of the FBI Webster on the new guidelines, Washington, D.C., March 7 1983, published in: Smith Guidelines 1983, 72.

  443. 443.

    See Section I (General Principles) of the Smith Guidelines 1983, 54 and the Special Report of the DoJ’s Office of the Inspector General 2005, 49.

  444. 444.

    See Sect. 5.2.2.3.2.

  445. 445.

    LaFave et al. 2004, 265.

  446. 446.

    United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125 (1972), 322.

  447. 447.

    Howell 2006, 118. The two congressional oversight committees also played an important role in the enactment of FISA.

  448. 448.

    The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection, issued and classified by John Ashcroft on October 31, 2003 (declassified by AG Gonzales on August 2, 2007), available at: http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf (accessed October 14, 2010). See on these guidelines, Chap. 6, Sect. 6.4.2.2.

  449. 449.

    The Guidelines preceding the current guidelines on NSI are the Attorney General Reno Guidelines issued on May 25, 1995, available at: http://www.fas.org/irp/agency/doj/fbi/terrorismintel2.pdf (accessed October 14, 2010). The Guidelines intended to govern all “foreign intelligence, foreign counterintelligence, foreign intelligence support activities, and intelligence investigations of international terrorism” on behalf of the FBI as to their task as an intelligence agency in accordance with Executive Order 12333.

  450. 450.

    Lawson Mack and Kelly 2004, 127.

  451. 451.

    Title 50 War and National Defense, Chapter 36 Foreign Intelligence Surveillance, 50 U.S.C. § 1804(a).

  452. 452.

    50 U.S.C. § 1804(a)(7)(B): FISA Court approves application of electronic surveillance “[…] of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information […].”

  453. 453.

    Musch 2003, 72.

  454. 454.

    United States v. Truong Ding Hung, 629. F.2d 908 (4th Cir. 1980). See in detail Sect. 5.2.2.3.2.

  455. 455.

    E.g.: United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988), United States v. Biasucci, 786 F.2d 504 (2nd Cir. 1986) and United States v. Johnson, 952 F.2d 565 (1st Cir. 1991).

  456. 456.

    50 U.S.C. § 1804(a)(7)(C) (2007).

  457. 457.

    In re Kevork, 634 F.Supp 1002 (C.D.Cal. 1985), affirmed In re Kevork, 788 F2d 566 (9th Cir. 1968), assessed compliance with the minimization procedures: the use of an automatic tape recorder does not violate the minimization procedures, because the minimization of the gathered information can occur in several stages instead of at the moment of the acquisition itself when coded or cryptic language is used, the recording was necessary to avoid the loss of fragile information and Congress has intended that the Government has the opportunity to analyze the information acquired in a counterintelligence and counterterrorism case, particularly when the critical conservations were in a foreign (in this case Armenian) language.

  458. 458.

    50 U.S.C. § 1805(a)(4).

  459. 459.

    50 U.S.C. § 1801(b)(1) determines what is covered by an agent of a foreign power not being a US person and 50 U.S.C. § 1801(b)(2) determines when a US person can be considered as an agent of a foreign power.

  460. 460.

    50 U.S.C. § 1801(b)(2).

  461. 461.

    50 U.S.C. § 1801(a)(4).

  462. 462.

    Lobel, 787.

  463. 463.

    50 U.S.C. § 1805(a)(3).

  464. 464.

    50 U.S.C. § 1805(b).

  465. 465.

    Musch 2003, 108-109.

  466. 466.

    50 U.S.C. § 1805(e)(1).

  467. 467.

    Baker 2007A, 84.

  468. 468.

    United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), 73-74. See also: United States v. Falvey, 540 F.Supp. 1306 (E.D.N.Y. 1982), 1313.

  469. 469.

    Herring v. United States, 555 U.S. 135, 129 S.Ct. 695 (2009), 207.

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    Dr. Marianne F. H. Hirsch Ballin

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Hirsch Ballin, M.F.H. (2012). The System of Criminal Investigation in the United States. In: Anticipative Criminal Investigation. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-843-9_5

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