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DISCOVERY OF ELECTRONIC SURVEILANCE

Interception of conversations by means of electronic surveillance is governed by the Fourth Amendment. Katz v. U.S., 389 US 347, 353 (1967) (stating “we have expressly held that the Fourth Amendment governs not only the seizure of tangible items , but extend as well to the recording of oral statements’). In Alderman v. US, 394 US 165, 182 (1969), the Supreme Court established that all electronic surveillance of a defendant must be disclosed in adversary proceedings before its legality, relevancy, or the defendant’s standing can be determined by a trial court. See also US v. Ivanor, 494 F.2d 593 (3d Cir. 1974), cert. den., 394 US 165.

“[W]e conclude that surveillance records as to which petitioner has standing to object should be turned over to him without being screened in camera by the trial judge. Admittedly, there may be much learned from an electronic surveillance which ultimately contributes nothing to the probative evidence. But winnowing this material from those items which might have made a substantial contribution to the case against a petitioner is a task which should not be entrusted wholly to the court in the first instance. It might be otherwise if the trial judge had only to place the transcript or other record of the surveillance alongside the record evidence and compare the two for textual or substantial similarities. Even that assignment would be difficult enough for the trial judge to perform unaided. But a good deal more is involved. An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words may have special significant to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the government’s case.”

The defendant’s need to know is substantial in light of the timeliness requirements [18

U.S.C. § 2518(10)(A); FED. R. CRIM. P. Rules 12 & 4] relating to his Motion to Suppress. US

  1. Rosenberg, 299 F.Supp. 1241, 1245 (S.D.N.Y. 1969); US v. Lumbowski, 277 F. Supp. 713, 721

(N.D. Ill. 1967); US v. Fainberg, 502 F.2d 1180 (7th Cir. 1974), cert. den., 420 US 926 (1975).

Furthermore, the “Due Process” Clause would require disclosure of all such favorable evidence under Brady v. Maryland, 373 US 83 (1963); US v. Bryant, 439 F.2d 642, 647-48 (D.C.

Cir. 1971), but see U.S. v. Vega, 826 F.3d 514, 533 (D.C. Cir. 2016) (discussing Youngblood’s impact on this holding as it relates to the duty to preserve such evidence before its character is known to the prosecution), and unlike a conventional search, where a defendant is at least generally aware of the occurrence of the search and what has been seized, as well as his entitlement to an inventory under FED. R. CRIM. P. Rule 41, the subject of electronic surveillance may not be apprised of sufficient facts to challenge same unless disclosure is made.

Some courts have held that the “bare claim” itself is legally sufficient to require an affirmative or negative response from the Government. US v. Vielguth, 500 F.2d 267 (9th Cir. 1974); In re Evani, 452 F.2d 1239, 1247 (D.C. Cir. 1971).

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