textfiles/law/nov_4.law

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 who
are interested in any legal issue discussed in this article
should consult their legal adviser.  Some police procedures ruled
permissible under Federal constitutional law are of questionable
legality under State law or are not permitted at all.

Nonconsensual electronic surveillance involving the interception
of telephone conversations, oral conversations, and electronic
messages is a necessary and effective law enforcement technique
for investigating certain types of serious criminal activity and
conspiracies.(1)  Legal requirements for nonconsensual electronic
surveillance are set forth in Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (hereinafter title III),(2)
as amended by the Electronic Communications Privacy Act (ECPA) of
1986, and various State statutes which must be at least as
restrictive as the Federal statutes.(3)  Compliance with the
provisions of these statutes often requires the expenditure of
considerable time, money, and manpower.

One such provision mandates the sealing of  electronic
surveillance evidence.  It requires that "immediately upon the
expiration of the period of the order [of electronic
surveillance], or the extensions thereof, [the original tape]
recordings [of the interceptions] shall be made available to the
judge issuing such order and sealed under his directions."(4) 
Simply stated, the original tapes must be presented at the
conclusion of the court©ordered period of nonconsensual
interception to the issuing judge who will oversee their sealing
and custody.  Compliance with this judicial sealing requirement
is sometimes delayed or overlooked because investigative
personnel are preoccupied with seeking indictments, making
arrests, and conducting searches.  Unfortunately,  failure to
comply with the sealing requirement can lead to the suppression
of intercepted conversations and the loss of extremely valuable
evidence.(5)

This article is written to assist law enforcement to understand
and to successfully fulfill the sealing mandate.  The article
begins with a discussion of the purpose for this sealing
requirement and its immediacy component.  Next, it reviews the
manner in which Federal and State courts have applied the sealing
requirement.  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 the
electronic surveillance recordings, considering their potential
for modification and the technical difficulty in detecting such
changes.(6)  As one court recognized, judicial sealing
accomplishes this task by "...prevent[ing] tampering, alterations
or 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 a
judicial official immediately at the conclusion of the original
electronic surveillance order.  However, officers may generally
wait to fulfill this mandate until the expiration of any
continuous noninterrupted extensions of that order if the
extensions involve "...the same telephone, the same premises, the
same crime, and substantially the same persons.(8)  For example,
if officers obtain an order authorizing the interception of
telephone calls regarding drug transactions by certain
individuals at a particular phone and obtain a judicial extension
of that order, they may delay their formal sealing efforts until
the conclusion of the continuous surveillance period.  However,
if officers complete the objective of their investigation and
cease their interceptions before the court©authorized time period
has expired, they should fulfill the sealing requirement
immediately at the time of cessation.(9)

IMMEDIACY DEFINED 

When the judicial sealing requirement attaches, officers must
comply with its demands immediately.  The concept of immediacy
usually connotes spontaneity or an absence of any delay.  Law
enforcement officers can normally satisfy this requirement by
presenting the original tapes to the appropriate judicial
official for sealing within 1 or at most 2 days of the final day
of the continuous period of interceptions.(10)  This allows
officers reasonable time to arrange the sealing appearance with
the prosecuting attorney who has supervised the electronic
surveillance and to schedule the sealing appointment with the
appropriate judge.  However, if the formal sealing process is
delayed beyond this limited period, courts must determine whether
the delay is legally acceptable.

ACCEPTABLE DELAY IN SEALING

The standard for determining whether a particular delay in
complying with the judicial sealing requirement is acceptable
varies from jurisdiction to jurisdiction.  In the absence of a
definitive Supreme Court decision, courts use one of the
following three standards in making this determination: 

1) Whether the government, despite the delay, has fulfilled the
purpose of formal sealing by maintaining the integrity of the
tapes; 

2) Whether law enforcement has provided a satisfactory
explanation for the delay; or 

3) Whether officers have complied with a rigid, court©imposed
sealing schedule.

Each of these three standards for determining whether sealing
delay is acceptable is discussed below.

Integrity of Tapes Maintained Standard

Realizing that the goal of judicial sealing is to prevent
alteration or modification of the original tapes, some courts
have indicated that the "absence of any challenge to the
integrity of the tapes, combined with the lack of any indication
that tampering has occurred, goes a long way toward fulfilling
[this] legislative objective."(11)  Therefore, even where there
is a significant period of delay, courts using this standard,
which include the U.S. Courts of Appeals for the Third, Fifth and
Seventh Circuits, will not suppress the tapes if their integrity
has not been violated and the defendant has not been prejudiced
by the delay.(12)

Under this standard, officers can help insure the admissibility
of the original tapes by maintaining them in a safe and secure
manner.  For example, in United States v. Sklaroff,(13) the
recordings were not judicially sealed until 14 days after the
expiration of the nonconsensual electronic surveillance.  During
this delay, the original tapes were vigilantly kept in the FBI's
evidence room with limited and controlled access.  Under these
circumstances, the U. S. Circuit Court of Appeals for the Fifth
Circuit ruled the delay was excusable because there was no
indication the tapes were altered or that the defendant was
prejudiced.  However, courts that apply this standard have put
law enforcement on notice that it is not an open©ended invitation
to ignore formal sealing requirements and that strict compliance
will "avoid considerable uncertainty and delays"(14) in the
judicial process.

Satisfactory Explanation for Delay Standard

Some courts will not excuse a sealing delay, even if the
original recordings have not been altered, unless the government
is able to provide a satisfactory explanation for the failure to
immediately seal the tapes at the conclusion of the period of
continuous surveillance.  These courts reason that title III
requires a satisfactory explanation for the absence of the
judicial seal(15) and that a similar explanation is necessary
when the tapes are not immediately sealed.(16)  Accordingly, the
U.S. Court of Appeals for the First Circuit has recognized that 
"when sealing is other than 'immediate'... resultant evidence can
be utilized if-and only if-a 'satisfactory explanation' for the
delay eventuates."(17)

The circumstances that amount to a satisfactory explanation for a
delay are determined on a case©by©case basis, but a "plain and
simple failure to regard sealing the tapes as a priority"(18) is
never sufficient.  Instead, the government must set forth a
particularized explanation for the delay.  First, the government
must show that the tapes have not been compromised, that the
delay provided no tactical advantage, and that proper security
measures were employed in storing the original tapes.(19)

Second, the good faith of the officers involved must be
established.  Courts pay particular attention to the diligence of
law enforcement personnel in attempting to satisfy the sealing
prescription and whether the circumstances causing the delay were
unforeseeable.(20)  For example, in United States v. Massino,(21)
a 15©day delay in sealing was satisfactorily explained by the
need to divert all available personnel to determine the cause of
a leak in the investigation which was discovered the day before
the electronic surveillance order expired.  The court found there
was an urgent need to investigate the leak which threatened to
expose and endanger several informants and that the need for that
investigation could not have been anticipated.

Similarly, in United States v. Rodriguez,(22) a 14-day delay was
found acceptable because the supervising prosecuting attorney
was engaged in an unrelated multidefendant trial at the end of
the surveillance period.  Courts do not, however, excuse sealing
delays merely because of the busy schedule of the supervising
attorney or officer.  For example, one State court rejected an
explanation that a short delay was attributable to difficulty in
retrieving the tapes from the supervising prosecutor and the
unavailability of the judge who had issued the wiretap order. 
The court determined that other justices were available to
accomplish sealing and that "inadequate police procedures...do
not constitute a valid excuse."(23)

A third factor considered by those jurisdictions that apply the
satisfactory explanation standard is the time necessary to
prepare the original tapes for sealing.(24)  For example, one
court sustained several sealing delays ranging from 3 to 8 days
because there was no evidence of tampering or prejudice to the
defendant, and the tapes had to be transported a long distance
for duplication and judicial sealing.(25)  However, courts
recognize that law enforcement officers can make simultaneous
duplicate recordings of their interceptions on a second recorder,
or make copies of the original tapes on fast duplicators.  In
that regard, one Federal district court rejected an explanation
for a 12©day delay in the absence of a proffer of why duplicate
tapes used for transcription were not made promptly by the use of
available sophisticated technical equipment.(26)

Finally, the length of the delay is a crucial factor in
determining the justification for any sealing tardiness.  In
United States v. Ardito,(27) the U.S. Court of Appeals for the
Second Circuit found a 5-day delay acceptable because two of
those days were holidays, the issuing judge was unavailable for a
third day, the officers responsible for delivering the
recordings for sealing were busy seeking another wiretap order,
and there was no prejudice to the accused.  Conversely, a
lengthier delay is more difficult to satisfactorily explain.  For
example, in United States v. Rios,(28) FBI Special Agents
conducted several court©ordered intercepts of wire and oral
conversations.  At trial, the government attempted to explain
sealing delays of 82 and 118 days.  Despite proof that the tapes
were not modified and that the supervising attorney mistakenly
and in good faith misunderstood when the sealing obligation
attached, the court found the explanation inadequate for delays
of such magnitude.  The court held the government "...to a
reasonably high standard of at least acquaintance with the
[sealing] requirements of law"(29) and ruled inadmissible over
400 reel©to©reel tapes of intercepted conversations.

Court©Mandated Procedures for Sealing

As the above discussion indicates, it is difficult to predict
whether a particular explanation for a delay in judicial sealing
is acceptable, and courts often hold extensive and costly
pretrial hearings to resolve that issue.  In an effort to
overcome these problems and provide timely judicial oversight of
the sealing process, one court has crafted specific time
limitations and procedures.  

In United States v. Massino,(30) the U.S. Court of Appeals for
the Second Circuit held that if the original tapes are not
presented for sealing within 2 days of the expiration of any
continuous period of court©ordered electronic surveillance, the
government must then comply with the following definitive
guidelines: 

1)  If the delay is from 2 to 5 days, the government must at the
time of judicial sealing submit affidavits documenting reasons
for its tardiness;

2)  If the delay is to be over 5 days, the government must seek
an extension of time in which to submit the tapes for sealing
from the judge who issued the surveillance order; and 

3)  If the issuing judicial officer is unavailable, the
extension order must still be obtained from another judge with
appropriate jurisdiction.

The court concluded that these court©mandated procedures
"...will create an incentive for the government to give priority
to sealing, and judicial oversight at an early stage will limit
justifiable delays in the shortest time necessary.  A failure of
the government to follow this procedure will of course undermine
any claim of satisfactory explanation."(31)  In the future, other
courts may specifically delineate sealing standards in their
orders authorizing nonconsensual electronic interceptions which
law enforcement officers should carefully review and follow.

RECOMMENDED PROCEDURES 

Concerted efforts to comply with judicial sealing requirements
immediately at the conclusion of the continuous electronic
surveillance period will avoid unnecessary litigation and assure
the admissibility of valuable evidence.  To avoid the
devastating loss of incriminating evidence because of a sealing
violation, law enforcement officers should adhere to the
following procedures.  First, they should attempt to submit the
original recordings of all nonconsensual interceptions to the
issuing judicial authority for formal sealing within 1 or at the
most 2 days of continuous the expiration of the surveillance
period.  Second, they should maintain close contact with the
supervising prosecuting attorney and insure the scheduling of an
appointment with the appropriate judge for the express purpose of
fulfilling the sealing function.  Third, if a sealing delay is
anticipated, officers should document the causes for the delay,
immediately inform the supervising attorney, and consider seeking
an extension of time from the appropriate judicial official.

The following additional suggestions are offered to assist
officers in complying with the sealing requirement in a timely
and orderly fashion:

1)  While intercepting the communications, officers should make
at least one duplicate recording simultaneous with the original
tape by using multiple recording devices;(32) the devices should
be configured to avoid electronic erasure or physical alteration
of the tapes.  This procedure reduces the possibility of either
accidently erasing or recording over the original tapes, and
provides duplicate tapes which are available for review,
translation, and transcription.

2)  Officers supervising the electronic surveillance should task
sufficient personnel to immediately review the duplicate tapes in
order to obtain lead information and to insure reproduction
quality.  If the duplicates are unclear or garbled, the original
recording should be copied before formal sealing.  If a flawed
duplicate tape is discovered after the original is sealed,
officers should seek express judicial permission to reaccess the
original 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 the
original tapes in a manner that assures their security and
integrity and allows for their later identification.  Persons
monitoring the interceptions should contemporaneously mark the
tape leader with the case number or name, the location and date
of monitoring, and their initials.  Once removed from the
recorder, these marked tapes should immediately be placed in some
type of enclosure, such as an over©sized envelope, which also
reflects the case name, the location and date of the
interceptions, and the monitoring officers' identities.  A chain-of-
custody log for these original tapes should be maintained and
they should be stored in a secure area where access is monitored
by logging all persons who enter and the reasons for their entry.

4)  Officers should institute a tickler system to remind them of
the specific date the sealing requirement attaches and their
responsibility to arrange through the supervising prosecutor a
sealing appointment with the appropriate judicial official.

5)  If the sealing judge orders the sealed tapes maintained by
law enforce¬ment personnel rather than the clerk of court, they
should be stored in a locked cabinet which is clearly marked as
containing judicially sealed material and located in a room with
restricted and monitored access.  Officers should obtain an
inventory of the sealed tapes from the sealing judge (34) and
access them only pursuant to explicit judicial permission.

CONCLUSION

Federal and State electronic surveillance statutes require that
the original tapes of any court©ordered nonconsensual
interception be immediately returned to the authorizing judicial
official for sealing.  Since violations of this sealing
requirement can lead to the exclusion of the intercepted
communications, it is imperative that law enforcement officers
execute electronic surveillance orders in a manner that ensures
compliance.

Footnotes

1.  In 1988, Federal and State courts combined to authorize over
700 nonconsensual electronic surveillance orders.  Over one©half
of these listed drugs as the most serious offense being
investigated.  A total of 2,486 individuals were arrested as a
result of this surveillance activity.  Report on Applications for
Orders Authorizing or Approving the Interception of Wire, Oral or
Electronic Communications (Wiretap Report) For the Period January
1, 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); United
States 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 of
the specific order or extension, not at the end of any continuous
period 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, 485
N.E.2d 189 (N.Y. Ct. App. 1985); People v. Edelstein, 429 N.E.2d
803 (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); United
States 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, 688
F.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); United
States v. Gerena, supra note 9; United States v. Ricco, supra
note 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).