Tennessee state authorities are authorized to conduct a wiretap or, more broadly, electronic surveillance in a certain types of major felonies: class A felony drug cases, criminal gang offenses and sex trafficking. T.C.A. § 40-6-301 et seq.
The statute sees limited use. In fact Nashville, Davidson County is the only jurisdiction in Tennessee applying for these specialized search warrants. We know this because the statute requires judges to report statistics to the State Attorney General who is then required to forward the numbers to the Administrative Office of the United States Courts, although it appears certain statistics are not getting reported.
In 2016 Judges Watkins and Fishburn signed off on 34 wiretaps resulting in five arrests at a cost of $782,829. (See attached
spreadsheet.) That is one-third the average cost of a wiretap.
Tennessee’s Western and Eastern District United States Courts reported 13 wiretap orders in 2016. Statistics for the Middle District, where Nashville is located, are not included in the 2016 report. Nationwide, 68, or about 2% of the intercepted devices were encrypted and 57 of these could not be decrypted.
The statute authorizes law enforcement officers from Davidson, Hamilton, Knox and Shelby counties, who have received training in electronic surveillance to initiate a wiretap application with the approval of their District Attorney General.
In other Tennessee jurisdictions, the District Attorney General may initiate a wiretap on his own or the Tennessee Bureau of Investigation may initiate the process with the approval the relevant District Attorney General. The application for an electronic surveillance warrant is in the form of a sworn affidavit and is presented to a trial court judge, for approval. The application must:
(1) Identity of the cop making the application, and the district attorney general authorizing the application;
(2) provide a 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) Detail the particular offense that has been, is being, or is about to be committed;
(B) Describe the nature and location of the facilities from which or the place where the communication is to be intercepted;
(C) Describe the type of communications sought to be intercepted; and
(D) Identity of all persons, if known, committing the offense and whose communications are to be or may be intercepted;
(3) State 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) State the period of time for which the wiretap 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) State 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 a wiretap, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain results.
The judge may issue a wiretap order 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 class A felony drug offense, criminal gang offenses or sex trafficking.
(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.
The judge’s order must specify:
(1) The identity of all persons, if known, whose communications are to be or may be intercepted;
(2) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
(3) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(4) The identity of the agency authorized to intercept the communications, and the identity of the person authorizing the application; and
(5) The period of time during which the wiretap is authorized (up to 30 days), including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
(6) 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
A person accused of a crime may challenge the legality of a Tennessee wiretap order on the following grounds:
(1) The communication was unlawfully intercepted;
(2) The order of authorization under which it was intercepted is insufficient on its face; or
(3 The interception was not made in conformity with the order of authorization.