13-3010 - Ex parte order for interception; definition

13-3010. Ex parte order for interception; definition

A. On application of a county attorney, the attorney general or a prosecuting attorney whom a county attorney or the attorney general designates in writing, any justice of the supreme court, judge of the court of appeals or superior court judge may issue an ex parte order for the interception of wire, electronic or oral communications if there is probable cause to believe both:

1. A crime has been, is being or is about to be committed.

2. Evidence of that crime or the location of a fugitive from justice from that crime may be obtained by the interception.

B. An application under subsection A shall be made in writing and upon the oath or affirmation of the applicant. It shall include:

1. The name and title of the applicant.

2. A full and complete statement of the facts and circumstances relied upon by the applicant, including the supporting oath or affirmation of the investigating peace officer of this state or any political subdivision of this state to justify the officer's belief that an order should be issued. The statement shall include:

(a) Details as to the particular crime that has been, is being or is about to be committed.

(b) The identity of the person, if known, committing the offense and whose communications are to be intercepted.

(d) A particular description of the nature, identification and location of the communication facility from which or the place where the communication is to be intercepted. If the identification or specific description of the communication facility from which or the place where the communication is to be intercepted is not practical, the affidavit in support of the application must state why:

(i) Specification is impractical.

(ii) Interception from any facility or at any place where the communication may occur is necessary.

3. 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.

4. 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 authorization to intercept should not automatically terminate when the described type of communication has been first obtained, the statement shall include a particular description of facts establishing probable cause to believe that additional communications of the same type will occur after the communication has been first obtained.

5. A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each application.

6. If 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.

C. Upon proper application, a judge may enter an ex parte order authorizing interception, as requested or with any appropriate modifications, if the judge determines on the basis of the facts submitted by the applicant that:

1. There is probable cause to believe that a person is committing, has committed or is about to commit a particular crime.

2. There is probable cause to believe 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.

4. There is probable cause to believe any of the following:

(a) Wire or electronic communications concerning the offense are being made or are about to be made by the person over the communication facilities for which interception authority is granted.

(b) Oral communications concerning the offense are being made or are about to be made by the person in the location for which interception authority is granted.

(c) Communications concerning the offense are being made or are about to be made by the person in different and changing locations, or from different and changing facilities.

D. Each order authorizing the interception of any wire, electronic or oral communication shall specify all of the following:

1. The identity of the person, if known, whose communications are to be intercepted.

2. The nature and location of the communication facilities as to which or the place where authority to intercept is granted. If authority is granted to intercept communications of a person wherever that person is located or from whatever communication facility is used, the order shall so state and shall include any limitations imposed by the authorizing judge as to location, time or manner of the interception. The order shall state that the interception shall not begin until the facilities from which or the place where the communication is to be intercepted is ascertained by the person implementing the interception order.

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 of the person authorizing the application.

5. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

6. That the authorization for interception be executed as soon as practicable, that it be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this section and that it terminate upon attainment of the authorized objective or on the date specified, whichever comes first.

7. That entry may be made to service, install or remove interception devices or equipment if entry is necessary to effect the interception.

E. An order that is entered under this section may not authorize the interception of any wire or oral communication for any period that is longer than is necessary to achieve the objective of the authorization and that exceeds thirty days. This thirty day period begins on the earlier of the day on which the interception actually begins under the order or ten days after the order is signed. The court may grant extensions of any order if an application for an extension is made pursuant to subsection A and the court makes the findings required by subsection C. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and shall not exceed thirty days.

F. Any ex parte order for interception, together with the papers on which the application was based, shall be delivered to and retained by the applicant during the duration of the interception as authority for the interception authorized in the order. The justice or judge issuing the order shall retain a true copy of the order at all times.

G. Within ten days after the termination of the authorized interception, applications made and orders granted under this section shall be returned to and sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. The applications and orders shall be disclosed only on a showing of good cause before a judge of competent jurisdiction or as otherwise provided.

H. If possible, the contents of any communication that is intercepted by any means authorized by this section shall be recorded on any tape, electronic, 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 a way as will protect the recording from editing or alterations. Within ten days after the termination of the authorized interception, the recordings shall be made available to the judge who issued the order and shall be sealed under the judge's directions. Custody of the recordings shall be maintained pursuant to court order. The recordings shall be kept for ten years and shall not be destroyed except on an order of the issuing judge or another judge of competent jurisdiction.

I. Within ninety days after an application under subsection A is denied, or the period of an order or any extension expires, the issuing or denying judge shall serve the persons named in the order or application and any other parties to the intercepted communications as the judge may determine the interests of justice require with an inventory, including notice of all of the following:

1. The fact of the entry of the order or the application.

2. The date of the entry and the period of authorized interception, or the denial of the application.

3. The fact that during the period of authorized interception wire, electronic or oral communications were or were not intercepted. On motion, the judge may make available to the person or the person's attorney for inspection such portions of the intercepted communications, applications and order as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed.

J. On request of the applicant, any order authorizing interception shall direct that the communication service provider, landlords, custodians or other persons furnish the applicant with all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that these persons are according the person whose communications are to be intercepted.

K. The order may require written reports to be made to the issuing judge at specified intervals showing the progress made toward achieving the authorized objective and the need for continued interception.

L. Any order authorizing the interception of wire communications pursuant to this chapter is also deemed to authorize the interception of any electronic communication that may be made over the same equipment or by the same facility.

M. If the intercepted communication is in a code or foreign language and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception.

N. 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 the government or acting under the supervision of a law enforcement officer who is authorized to conduct the interception.

O. The applicant is responsible for providing to the administrative office of the United States courts all reports on applications for or interceptions of wire, electronic or oral communications that are required by federal statutes.

P. For the purposes of this section, "crime" means murder, gaming, kidnapping, robbery, bribery, extortion, theft, an act in violation of chapter 23 of this title, dealing in narcotic drugs, marijuana or dangerous drugs, sexual exploitation of children in violation of chapter 35.1 of this title or any felony that is dangerous to life, limb or property. Crime includes conspiracy to commit any of the offenses listed in this subsection.