Challenging State Wiretaps: Who Asked for The Order? The Answer May Support Suppression

The federal Wiretap Act governs all wiretaps, including those used by state or local officials pursuant to state court authorizations. Notwithstanding apparently unambiguous requirements, many states have enacted wiretap statutes that appear to be inconsistent with the federal law. Perhaps the most common discrepancies are those regarding the categories of government attorneys who may apply for, or authorize applications for, wiretap orders. The federal statute narrowly defines the group of attorneys who may do so, but many state statutes purport to create a broader group of permissible applicants, and state officials frequently rely on these more permissive state statutes. What is the result? A significant number of wiretap orders issued by state courts may be vulnerable to attack.