40-6-304 - Order for electronic surveillance Application Required findings Expiration of order Recordings Evidence Motions to suppress. - Tennessee Statutes

40-6-304. Order for electronic surveillance Application Required findings Expiration of order Recordings Evidence Motions to suppress.

(a)  Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction in the district where the interception of a wire, oral or electronic communication is to occur, or in any district where jurisdiction exists to prosecute the underlying offense to support an intercept order under § 40-6-305. The application shall state the investigative or law enforcement officer's authority to make the application and shall include the following information:

     (1)  Identity of the investigative or law enforcement officer making the application, and the district attorney general authorizing the application;

     (2)  A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that an order should be issued, including:

          (A)  Details as to the particular offense that has been, is being, or is about to be committed;

          (B)  A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

          (C)  A particular description of the type of communications sought to be intercepted; and

          (D)  The identity of all persons, if known, committing the offense and whose communications are to be or may be intercepted;

     (3)  A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

     (4)  A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

     (5)  A full and complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, made to any judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each application; and

     (6)  Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.

(b)  The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(c)  Upon an application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the district in which the judge is sitting, and outside that district but within the state of Tennessee in the case of a mobile interception device, if the judge determines on the basis of the facts submitted by the applicant that:

     (1)  There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 40-6-305;

     (2)  There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

     (3)  Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and

     (4)  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 about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.

(d)  (1)  Each order authorizing the interception of any wire, oral or electronic communication under this part or §§ 39-13-601 39-13-603 shall specify:

          (A)  The identity of all persons, if known, whose communications are to be or may be intercepted;

          (B)  The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

          (C)  A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

          (D)  The identity of the agency authorized to intercept the communications, and the identity of the person authorizing the application; and

          (E)  The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

     (2)  An order authorizing the interception of a wire, oral or electronic communication under this part or §§ 39-13-601 39-13-603 shall, upon the request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the applicant with all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.

(e)  No order entered under this section may authorize or approve the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty (30) days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten (10) days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) and the court making the findings required by subsection (c). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty (30) days. Every order and extension of an order shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in a way as to minimize the interception of communications not otherwise subject to interception under this part or §§ 39-13-601 39-13-603, and must terminate upon attainment of the authorized objective, or in any event in thirty (30) days. In the event the intercepted communication is in a code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after interception. An interception under this part or §§ 39-13-601 39-13-603 may be conducted in whole or in part by state personnel, or by an individual operating under a contract with the state, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(f)  (1)  The contents of any wire, oral or electronic communication intercepted by any means authorized by this part or §§ 39-13-601 39-13-603 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral or electronic communication under this subsection (f) shall be done in a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of the order, the recordings shall be made available to the judge issuing the order and sealed under the judge's direction. All recordings of wire, oral or electronic communications shall be treated as confidential and shall not be open for inspection by members of the public. Custody of the recordings shall be wherever the judge orders. The recordings shall not be destroyed except upon an order of the issuing judge and in any event shall be kept for ten (10) years; provided, that upon the agreement of the person whose communications were intercepted, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of all recordings at any time. Duplicate recordings may be made for use or disclosure, pursuant to the provisions of § 40-6-306(a) and (b) for investigations, upon an order of the issuing judge. All duplicate recordings or written transcripts shall be treated as confidential and shall not be open for inspection by members of the public. Upon an order of the issuing judge, the contents of any wire, oral or electronic communication may be unsealed and used while giving testimony, pursuant to the provisions of § 40-6-306(c). The presence of the seal provided for by this subsection (f), or a satisfactory explanation for the absence of the seal, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under § 40-6-306(c). All wire, oral or electronic communications that are not disclosed while giving testimony retain their confidential character and shall not be open for inspection by members of the public. Immediately following duplication or use while giving testimony, the recordings shall be returned to the judge issuing the order and resealed under the judge's direction.

     (2)  Applications made and orders granted under this section shall be treated as confidential and shall not be open for inspection by members of the public. Applications and orders shall be sealed by the judge and custody shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge and in any event shall be kept for ten (10) years. Upon the agreement of the person named in the order or application, or that person's counsel, and the appropriate district attorney general, the issuing judge may order the destruction of such applications and orders at any time.

     (3)  Any violation of the provisions of this subsection (f) may be punished as contempt of the issuing or denying judge.

     (4)  Within a reasonable time, but not later than ninety (90) days after the termination of an order of approval under subsections (c) and (d), or an order authorizing an extension under subsection (e), or the denial of an order under subsection (c), the issuing or denying judge shall cause an inventory to be served on the persons named in the order or application and any other parties to intercepted communications as determined by the judge exercising judicial discretion in the interest of justice. The inventory shall include notice of:

          (A)  The fact of entry of the order or the application;

          (B)  The date of the entry and the period of authorized interception, or the denial of the application; and

          (C)  The fact that during the period wire, oral or electronic communications were or were not intercepted.

     (5)  The judge, upon the filing of a motion, may, in the judge's discretion, make available to the person or the person's counsel for inspection any portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this subsection (f) may be postponed for ninety (90) days. At the end of this period, the judge may allow additional ninety-day extensions, but only on further showing of good cause.

(g)  The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a state court unless each party, not less than ten (10) days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the judge if the judge finds that it was not possible to furnish the party with the information ten (10) days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.

(h)  (1)  Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the state of Tennessee or a political subdivision of the state may move to suppress the contents of any intercepted wire, oral or electronic communication, or evidence derived therefrom, on the grounds that:

          (A)  The communication was unlawfully intercepted;

          (B)  The order of authorization under which it was intercepted is insufficient on its face; or

          (C)  The interception was not made in conformity with the order of authorization. The motion shall be made before the trial, hearing or proceeding, unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, oral or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this part or §§ 39-13-601 39-13-603. The judge, upon the filing of a motion by the aggrieved person, may, in the judge's discretion, make available portions of the intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justice.

     (2)  In addition to any other right to appeal, the state has the right to appeal from an order granting a motion to suppress made under subdivision (h)(1), or the denial of an application for an order of approval, if the district attorney general certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within thirty (30) days after the date the order was entered and shall be diligently prosecuted.

[Acts 1994, ch. 964, § 5; 2005, ch. 87, § 1.]