2006 Code of Virginia § 19.2-68 - Application for and issuance of order authorizing interception; contents of order; recording and re...

19.2-68. Application for and issuance of order authorizing interception;contents of order; recording and retention of intercepted communications,applications and orders; notice to parties; introduction in evidence ofinformation obtained.

A. Each application for an order authorizing the interception of a wire,electronic or oral communication shall be made in writing upon oath oraffirmation to the appropriate judge of competent jurisdiction and shallstate the applicant's authority to make such application. Each applicationshall be verified by the Attorney General to the best of his knowledge andbelief and shall include the following information:

1. The identity of the attorney for the Commonwealth and law-enforcementofficer who requested the Attorney General to apply for such order;

2. A full and complete statement of the facts and circumstances relied uponby the applicant to justify his belief that an order should be issued,including (i) details as to the particular offense that has been, is being oris about to be committed, (ii) except as provided in subsection I, aparticular description of the nature and location of the facilities fromwhich or the place where the communication is to be intercepted, (iii) aparticular description of the type of communications sought to beintercepted, (iv) the identity of the person, if known, committing theoffense and whose communications are to be intercepted;

3. A full and complete statement as to whether or not other investigativeprocedures have been tried and failed or why they reasonably appear to beunlikely to succeed if tried or to be too dangerous;

4. A statement of the period of time for which the interception is requiredto be maintained. If the nature of the investigation is such that theauthorization for interception should not automatically terminate when thedescribed type of communication has been first obtained, a particulardescription of facts establishing probable cause to believe that additionalcommunications of the same type will occur thereafter;

5. A full and complete statement of the facts concerning all previousapplications known to the individual authorizing and making the application,made to any judge for authorization to intercept wire, electronic or oralcommunications involving any of the same persons, facilities or placesspecified in the application, and the action taken by the judge on each suchapplication;

6. Where the application is for the extension of an order, a statementsetting forth the results thus far obtained from the interception, or areasonable explanation of the failure to obtain such results; and

7. If authorization is requested for observation or monitoring by a policedepartment of a county, or city or by law-enforcement officers of the UnitedStates, a statement containing the name of the police department or UnitedStates agency, and an explanation of the reasons such observation ormonitoring is necessary.

The judge may require the applicant to furnish additional testimony ordocumentary evidence in support of the application.

B. Upon such application the judge may enter an ex parte order, as requestedor as modified, authorizing interception of wire, electronic or oralcommunications if the judge determines on the basis of the facts submitted bythe applicant that:

1. There is probable cause for belief that an individual is committing, hascommitted or is about to commit an offense enumerated in 19.2-66 of thischapter;

2. There is probable cause for belief that particular communicationsconcerning that offense will be obtained through such interception;

3. Normal investigative procedures have been tried and have failed, orreasonably appear to be unlikely to succeed if tried, or to be too dangerous;and interception under this chapter is the only alternative investigativeprocedure available;

4. Except as provided in subsection I, there is probable cause for beliefthat the facilities from which, or the place where, the wire, electronic ororal communications are to be intercepted are being used, or are about to beused, in connection with the commission of such offense, or are leased to,listed in the name of, or commonly used by such person;

5. A wire, electronic or oral communication authorized to be interceptedpursuant to this section may be monitored at any location within theCommonwealth of Virginia.

C. Each order authorizing the interception of any wire, electronic or oralcommunication shall specify:

1. The identity of the person, if known, whose communications are to beintercepted;

2. The nature and location of the communications facilities as to which, orthe place where, authority to intercept is granted;

3. A particular description of the type of communication sought to beintercepted, and a statement of the particular offense enumerated in 19.2-66 to which it relates;

4. That such interception is to be conducted only by the Department of StatePolice;

5. If observation or monitoring by the police department of a county, or cityor by law-enforcement officers of the United States is authorized, only thatpolice department or agency or the officers from any police department of atown which originated the investigation leading to the application shallobserve or monitor the interception; and

6. The period of time during which such interception is authorized, includinga statement as to whether or not the interception shall automaticallyterminate when the described communication has been first obtained.

An order authorizing the interception of a wire, electronic or oralcommunication shall, upon request of the applicant, direct that a provider ofwire or electronic communications service, landlord, custodian or otherperson shall furnish the Department of State Police forthwith allinformation, facilities and technical assistance necessary to accomplish theinterception unobtrusively and with a minimum of interference with theservices that such service provider, landlord, custodian or person isproviding the person whose communications are to be intercepted. Any providerof wire or electronic communications service, landlord, custodian or otherperson furnishing such facilities or technical assistance shall becompensated therefor by the Commonwealth for reasonable and actual expensesincurred in providing such facilities or assistance, to be paid out of thecriminal fund.

D. No order entered under this section may authorize the interception of anywire, electronic or oral communication for any period longer than isnecessary to achieve the objective of the authorization, nor in any eventlonger than 30 days which period begins to run on the earlier of the day onwhich the investigative or law-enforcement officer begins to conduct aninterception under the order or 10 days after the date of entry of the order.Extensions of an order may be granted, but only upon application for anextension made in accordance with subsection A of this section and thecourt's making the findings required by subsection B of this section. Theperiod of extension shall be no longer than the authorizing judge deemsnecessary to achieve the purposes for which it was granted and in no eventfor longer than 30 days. Every order and extension thereof shall contain aprovision that the authorization to intercept shall be executed as soon aspracticable, shall be conducted in such a way as to minimize the interceptionof communications not otherwise subject to interception under this chapter,and must terminate upon attainment of the authorized objective, or in anyevent in 30 days. In the event the intercepted communication is in a code orforeign language, and an expert in that foreign language or code is notreasonably available during the interception period, minimization may beaccomplished as soon as practicable after such interception.

E. Whenever an order authorizing interception is entered pursuant to thischapter, the order shall require reports to be made to the judge who issuedthe order showing what progress has been made toward achievement of theauthorized objective and the need for continued interception. Such reportsshall be made at such intervals as the judge shall require.

F. 1. The contents of any wire, electronic or oral communication interceptedby any means authorized by this chapter shall, if possible, be recorded ontape or wire or other comparable device. Should it not be possible to recordthe intercepted communication, a detailed resume of such communication shallforthwith be reduced to writing and filed with the court. The recording ofthe contents of any wire, electronic or oral communication under thissubsection shall be done in such way as will protect the recording fromediting or other alterations and shall not be duplicated except upon order ofthe court as hereafter provided. Immediately upon the expiration of theperiod of the order, or extensions thereof, such recording or detailed resumeshall be made available to the judge issuing such order and sealed under hisdirections. Custody of any recordings or detailed resumes shall be vestedwith the court and shall not be destroyed for a period of 10 years from thedate of the order and then only by direction of the court; provided, however,should any interception fail to reveal any information related to the offenseor offenses for which it was authorized, such recording or resume shall bedestroyed after the expiration of 60 days after the notice required bysubdivision 4 of this subsection is served. Duplicate recordings may be madefor use or disclosure pursuant to the provisions of subsections A and B of 19.2-67 for investigations. The presence of the seal provided for by thissubsection, or a satisfactory explanation for the absence thereof, shall be aprerequisite for the use or disclosure of the contents of any wire,electronic or oral communication or evidence derived therefrom undersubsection C of 19.2-67.

2. Applications made and orders granted or denied under this chapter shall besealed by the judge. Custody of the applications and orders shall be whereverthe judge directs. Such applications and orders shall be disclosed only upona showing of good cause before a judge of competent jurisdiction and shallnot be destroyed except on order of the issuing or denying judge, and in anyevent shall be kept for 10 years.

3. Any violation of the provisions of this subsection may be punished ascontempt of the issuing or denying court.

4. Within a reasonable time but not later than 90 days after the filing of anapplication for an order of authorization which is denied or the terminationof the period of an order or extensions thereof, the issuing or denying judgeshall cause to be served, on the persons named in the order or theapplication, and such other parties to intercepted communications as thejudge may determine in his discretion that is in the interest of justice, aninventory which shall include notice of:

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

(b) The date of the entry and the period of authorized interception, or thedenial of the application;

(c) The fact that during the period wire, electronic or oral communicationswere or were not intercepted; and

(d) The fact that unless he files a motion with the court within 60 daysafter the service of notice upon him, the recordation or resume may bedestroyed in accordance with subdivision 1 of this subsection.

The judge, upon the filing of a motion, shall make available to such personor his counsel for inspection the intercepted communications, applicationsand orders. The serving of the inventory required by this subsection may bepostponed for additional periods, not to exceed 30 days each, upon the exparte showing of good cause to a judge of competent jurisdiction.

G. The contents of any intercepted wire, electronic or oral communication orevidence derived therefrom shall not be received in evidence or otherwisedisclosed in any trial, hearing or other proceeding in a state court unlesseach party to the communication and to such proceeding, not less than 10 daysbefore the trial, hearing or proceeding, has been furnished with a copy ofthe court order, accompanying application under which the interception wasauthorized and the contents of any intercepted wire, electronic or oralcommunication that is to be used in any trial, hearing or other proceeding ina state court. This 10-day period may be waived by the judge if he finds thatit was not possible to furnish the party with the above information 10 daysbefore the trial, hearing or proceeding and that the party will not beprejudiced by the delay in receiving such information; provided that suchinformation in any event shall be given prior to the day of the trial, andthe inability to comply with such 10-day period shall be grounds for thegranting of a continuance to either party.

The judge who considers an application for an interception under thischapter, whether issuing or denying the order, shall be disqualified frompresiding at any trial resulting from or in any manner connected with suchinterception, regardless of whether the evidence acquired thereby is used insuch trial.

H. Any aggrieved person in any trial, hearing or proceeding in or before anycourt, department, officer, agency, regulatory body or other authority of theCommonwealth, or a political subdivision thereof, may move to suppress thecontents of any intercepted wire, electronic or oral communication, orevidence derived therefrom, on the grounds that:

1. The communication was unlawfully intercepted, or was not intercepted incompliance with this chapter; or

2. The order of the authorization or approval under which it was interceptedis insufficient on its face; or

3. The interception was not made in conformity with the order ofauthorization or approval; or

4. The interception is not admissible into evidence in any trial, proceedingor hearing in a state court under the applicable rules of evidence.

Such motion shall be made before the trial, hearing or proceeding unlessthere was no opportunity to make such motion or the person was not aware ofthe grounds of the motion. If the motion is granted pursuant to subdivision1, 2 or 3 of this subsection, the contents of the intercepted wire,electronic or oral communication or evidence derived therefrom shall betreated as having been obtained in violation of this chapter. The judge, uponthe filing of such motion by the aggrieved person, shall make available tothe aggrieved person, or his counsel, for inspection the interceptedcommunication.

I. The requirements of subdivision 2 of subsection A and subdivision 4 ofsubsection B of this section relating to the specification of the facilitiesfrom which, or the place where, the communication is to be intercepted do notapply if:

1. In the case of an application with respect to the interception of an oralcommunication:

(a) The application contains a full and complete statement as to why suchspecification is not practical and identifies the person committing theoffense and whose communications are to be intercepted; and

(b) The judge finds that such specification is not practical; or

2. In the case of an application with respect to a wire or electroniccommunication:

(a) the application identifies the person believed to be committing theoffense and whose communications are to be intercepted and the applicantmakes a showing of a purpose, on the part of that person, to thwartinterception by changing facilities; and

(b) the judge finds that such purpose has been adequately shown.

The interception of a communication under an order issued pursuant to thissubsection shall not begin until the facilities from which, or the placewhere, the communication is to be intercepted is ascertained by the personimplementing the interception order. A provider of wire or electroniccommunications service that has received an order issued pursuant to thissubdivision 2 may move the court to modify or quash the order on the groundthat its assistance with respect to the interception cannot be performed in atimely or reasonable fashion. The court, upon notice to the Attorney General,shall decide the motion expeditiously.

(Code 1950, 19.1-89.8; 1973, c. 442; 1975, c. 495; 1976, c. 163; 1977, c.335; 1979, c. 602; 1980, c. 244; 1988, c. 889; 2002, c. 91; 2005, c. 934.)