US Laws, Codes, Statutes & Cases

                                  TITLE  18
                            CRIMES AND PUNISHMENTS
                                  CHAPTER 67
                           COMMUNICATIONS SECURITY
    18-6708.  PROCEDURE FOR INTERCEPTION OF WIRE, ELECTRONIC OR ORAL
COMMUNICATIONS. (1) Each application for an order authorizing the interception
of a wire, electronic or oral communication shall be made in writing upon oath
or affirmation or by means of an oral affidavit as provided for in the Idaho
Rules of Criminal Practice & Procedure to a judge of competent jurisdiction
and shall state the applicant's authority to make such application. Each
application shall include the following information:
    (a)  The identity of the individual authorized to make application for
    said order pursuant to section 18-6706, Idaho Code;
    (b)  A full and complete statement of the facts and circumstances relied
    upon by 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, or is about to be committed, (ii) except as provided in
    subsection (11) of this section, a particular description of the nature
    and location of the facilities from which or the place where the
    communication is to be intercepted, (iii) a particular description of the
    type of communications sought to be intercepted, (iv) the identity of the
    person, if known, committing the offense and whose communications are to
    be intercepted;
    (c)  A full and complete statement as to 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;
    (d)  A statement of the period of time for which the interception 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;
    (e)  A full and complete statement of the facts concerning all previous
    applications known to the individual making the applications, made to any
    judge for authorization to intercept wire, electronic or oral
    communications involving any of the same persons, facilities or places
    specified in the application, and the action taken by the judge on each
    such application; and
    (f)  Where the application is for the extension of an order, a statement
    setting forth the results thus far obtained from the interception, or a
    reasonable explanation of the failure to obtain such results.
    (2)  The judge may require the applicant to furnish additional testimony
or documentary evidence in support of the application.
    (3)  Upon such application the judge may enter an ex parte order, as
requested or as modified, authorizing interception of wire, electronic or oral
communications within the state of Idaho if the judge determines on the basis
of the facts submitted by the applicant that:
    (a)  There is probable cause for belief that an individual is committing,
    has committed, or is about to commit a particular offense enumerated in
    section 18-6706, Idaho Code;
    (b)  There is probable cause for belief that particular communications
    concerning that offense will be obtained through such interception;
    (c)  Normal investigative procedures have been tried and have failed or
    reasonably appear to be unlikely to succeed if tried or to be too
    dangerous;
    (d)  Except as provided in subsection (11) of this section, there is
    probable cause for belief that the facilities from which, or the place
    where, the wire, electronic or oral communications are to be intercepted
    are being used, or are about to be used, in connection with the commission
    of such offense, or are leased to, listed in the name of, or commonly used
    by such person.
    (4)  Each order authorizing the interception of any wire, electronic or
oral communication shall specify:
    (a)  The identity of the person, if known, whose communications are to be
    intercepted;
    (b)  The nature and location of the communications facilities as to which,
    or the place where, authority to intercept is granted;
    (c)  A particular description of the type of communication sought to be
    intercepted, and a statement of the particular offense to which it
    relates;
    (d)  The identity of the agency authorized to intercept the
    communications, and of the person making the application; and
    (e)  The period of time during which such interception is authorized,
    including a statement as to whether or not the interception shall
    automatically terminate  when the described communication has been first
    obtained.
    (5)  An order authorizing the interception of a wire, electronic or oral
communication shall, upon request of the applicant, direct that a provider of
wire or electronic communication service, landlord, custodian, or other person
shall furnish the applicant forthwith all information, facilities and
technical assistance necessary to accomplish the interception unobtrusively
and with a minimum of interference with the services that such service
provider, landlord, custodian or person is providing the person whose
communications are to be intercepted. Any provider of wire or electronic
communication service, landlord, custodian or other person furnishing such
facilities or technical assistance shall be compensated therefor by the
applicant for reasonable expenses incurred in providing such facilities or
assistance.
    (6)  No order entered under this section may authorize the interception of
any wire, electronic or oral communication for any period longer than is
necessary to achieve the objective of the authorization, nor in any event
longer than thirty (30) days. Such thirty (30) day period begins on the
earlier of the day on which the investigative or law enforcement officer
begins to conduct an interception under the order or ten (10) days after the
order is entered. Extensions of an order may be granted, but only upon
application for an extension made in accordance with subsection (1) of this
section and the court making the findings required by subsection (3) of this
section. The periods of extension shall be no longer than the authorizing
court deems necessary to achieve the purposes for which it was granted and in
no event for longer than thirty (30) days for each extension. Every order and
extension thereof shall contain a provision that the authorization to
intercept shall be executed as soon as practicable, shall be conducted in such
a way as to minimize the interception of communications not otherwise subject
to interception under this chapter, and must terminate upon attainment of the
authorized objective, or in any event in thirty (30) days. In the event the
intercepted communication is in a code or foreign language and an expert in
that foreign language or code is not reasonably available during the
interception period, minimization may be accomplished as soon as practicable
after such interception. An interception under this chapter may be conducted
in whole or in part by government personnel or by an individual operating
under a contract with federal, state or local government and acting under the
supervision of an investigative or law enforcement officer authorized to
conduct the interception.
    (7)  Whenever an order authorizing interception is entered pursuant to
this chapter, the order may require reports to be made to the judge who issued
the order showing what progress has been made toward achievement of the
authorized objective and the need for continued interception. Such reports
shall be made at such intervals as the judge may require.
    (8)  (a) The contents of any wire, electronic or oral communication
    intercepted by any means authorized by this chapter shall, if possible, be
    recorded on tape or wire or other comparable device. The recording of the
    contents of any wire, electronic or oral communication under this
    subsection shall be done in such way as will protect the recording from
    editing or other alterations. Immediately upon the expiration of the
    period of the order, or extensions thereof, such recordings shall be made
    available to the judge issuing such order and sealed under his directions.
    Custody of the recordings shall be wherever the judge orders. They shall
    not be destroyed except upon an order of the issuing or denying court and
    in any event shall be kept for ten (10) years. Duplicate recordings may be
    made for use or disclosure pursuant to the provisions of  subsections (1)
    and (2) of section 18-6707, Idaho Code, for investigations. The presence
    of the seal provided for by this subsection, or a satisfactory explanation
    for the absence thereof, shall be a prerequisite for the use or disclosure
    of the contents of any wire, electronic or oral communication or evidence
    derived therefrom under subsection (3) of section 18-6707, Idaho Code.
    (b)  Applications made and orders granted under this chapter shall be
    sealed by the judge. Custody of the applications and orders shall be
    wherever the judge directs. Such applications and orders shall be
    disclosed only upon a showing of good cause before a judge of competent
    jurisdiction and shall not be destroyed except on order of the issuing or
    denying judge and in any event shall be kept for ten (10) years.
    (c)  Any violation of the provisions of this subsection may be punished as
    contempt of the issuing or denying judge.
    (d)  Within a reasonable time but not later than ninety (90) days after
    the filing of an application for an order of approval under this section
    which is denied or the termination of the period of an order or extensions
    thereof, the issuing or denying judge shall cause to be served, on the
    persons named in the order or the application, and such other parties to
    intercepted communications as the judge may determine in his discretion
    that is in the interest of justice, an inventory which shall include
    notice of:
         (1)  The fact of the entry of the order or the application;
         (2)  The date of the entry and the period of authorized, approved or
         disapproved interception, or the denial of the application; and
         (3)  The fact that during the period wire, electronic or oral
         communications were or were not intercepted.
The judge, upon the filing of a motion, may in his discretion make available
to such person or his counsel for inspection such portions of the intercepted
communications, applications and orders as the judge determines to be in the
interest of justice. On an ex parte showing of good cause to a judge of
competent jurisdiction the serving of the inventory required by this
subsection may be postponed.
    (9)  The contents of any intercepted wire, electronic or oral
communication or evidence derived therefrom shall not be received in evidence
or otherwise disclosed in any trial, hearing, or other proceeding in a federal
or state court unless each party, not less than ten (10) days before the
trial, hearing, or proceeding has been furnished with a copy of the court
order and accompanying application under which the interception was
authorized. This ten (10) day period may be waived by the court if it finds
that it was not possible to furnish the party with the above information ten
(10) days before the trial, hearing, or proceeding and that the party will not
be prejudiced by the delay in receiving such information.
    (10) (a) Any aggrieved person in any trial, hearing, or proceeding in or
    before any court, department, officer, agency, regulatory body, or other
    authority of the United States, a state, or a political subdivision
    thereof, may move to suppress the contents of any intercepted wire,
    electronic or oral communication, or evidence derived therefrom, on the
    grounds that:
         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.
    Such motion shall be made before the trial, hearing, or proceeding,
    pursuant to the Idaho rules of criminal or civil procedure or the hearing
    rules of the respective body, as applicable.
    (b)  In addition to any other right to appeal, the state of Idaho shall
    have the right to appeal from an order granting a motion to suppress made
    under paragraph (a) of this subsection. Such appeal shall be taken within
    thirty (30) days after the date the order was entered.
    (c)  The remedies and sanctions described in this section with respect to
    the interception of electronic communications are the only judicial
    remedies and sanctions for nonconstitutional violations of this chapter
    involving such communications.
    (11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section
relating to the specification of the facilities from which, or the place
where, the communication is to be intercepted do not apply if:
    (a)  In the case of an application with respect to the interception of an
    oral communication:
         (i)   The application contains a full and complete statement as to
         why such specification is not practical and identifies the person
         committing the offense and whose communications are to be
         intercepted; and
         (ii)  The judge finds that such specification is not practical; and
    (b)  In the case of an application with respect to a wire or electronic
    communication:
         (i)   The application identifies the person believed to be committing
         the offense and whose communications are to be intercepted and the
         applicant makes a showing that there is probable cause to believe
         that the person's actions could have the effect of thwarting
         interception from a specified facility;
         (ii)  The judge finds that such showing has been adequately made; and
         (iii) The order authorizing or approving the interception is limited
         to interception only for such time as it is reasonable to presume
         that the person identified in the application is or was reasonably
         proximate to the instrument through which such communication will be
         or was transmitted.
    (12) An interception of a communication under an order with respect to
which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do
not apply by reason of subsection (11)(a) of this section shall not begin
until the place where the communication is to be intercepted is ascertained by
the person implementing the interception order. A provider of wire or
electronic communications service that has received an order as provided for
in subsection (11)(b) of this section may move the court to modify or quash
the order on the ground that its assistance with respect to the interception
cannot be performed in a timely or reasonable fashion. The court, upon notice
to the state, shall decide such a motion expeditiously.