92. Title III Procedures - Attachment C

Title III Wire Affidavit Checklist for Law Enforcement Agents

This condensed checklist will assist federal law enforcement agents and prosecutors in drafting effective wiretap affidavits. Questions regarding Title III issues can be addressed to agency attorneys or the assigned AUSA.

AFFIDAVIT REQUIREMENTS

1. Agent Qualifications: brief description of law enforcement background of affiant—

   [ ] training
   [ ] prior TIII experience
   [ ] relevant job experience
   [ ] if local, deputization as task force officer, qualified under 18 USC 2510(7)
   [ ] federal law enforcement agency affiliation, qualified under 18 USC 2510(7)

2. Identification of Target Phone: detailed description of device that you seek to intercept, including at minimum—

   [ ] telephone number
   [ ] service provider
   [ ] subscriber name and address
   [ ] electronic serial number (ESN) or international mobile subscriber identity (IMSI) or International Mobile Equipment Identity (IMEI) or mobile equipment identity (MElD)
   [ ] direct connect identity (UFMI) number, if applicable
   [ ] user(s) of target phone

3. Target Subjects: list all persons by full name and/or moniker for whom you have established probable cause to believe are involved in the conspiracy, even if you do not believe that you will intercept them over the target phone. Target interceptees can also be listed separately—those target subjects who are expected to be intercepted.
4. Predicate Offenses: list offenses committed by target subjects. To conduct wire or oral intercept: must show probable cause to believe violation of at least one offense under 18 USC 2516(1). To conduct electronic intercept: must show probable cause to believe violation of any federal felony. Primary narcotics offenses are 21 USC 841, 843, and 846. Primary money laundering offenses are 18 USC 1956 and 1957. Include non-predicate offenses if applicable.
5. Goals of Investigation: describe reasons for tapping target phone and information expected to be obtained.
6. Prior Applications: list all prior electronic surveillance involving either named target subjects or target phone, including

   [ ] date of each prior application, whether approved or denied by a court
   [ ] authorizing court, including state and foreign if known
   [ ] which target or interceptee was named or overheard during the tap
   [ ] type of communication intercepted [wire/oral/electronic]
   [ ] telephone number of phone tapped, if available
   [ ] date range of prior wiretap
   [ ] whether electronic surveillance still ongoing or when ended

   These may be obtained via an electronic surveillance records (ELSUR) check conducted by investigating agency of DEA, FBI, and ICE indices. Include prior state and foreign wiretaps known to the affiant. Note whether prior interceptions are part of, or related to, your investigation. The check has to be current within 45 days of DOJ authorization of the wiretap.

7. Probable Cause: evidence establishing that this phone is being used to further the offenses. Focus on actual use of target phone to facilitate and commit crimes.

   [ ] Background—brief summary of criminal organization, including structure, timing of investigation, roles of target subjects, and goals of investigation.

   [ ] Confidential Sources—identify each CS and state separately for each CS:

   [ ] CS's basis of knowledge
   [ ] why CS is believed to be reliable
   [ ] how CS has been corroborated
   [ ] all favorable and unfavorable facts bearing on credibility, including CS's motivation for cooperating
   [ ] Use of Target Phone (6 Month Rule)—describe use of target phone for criminal purposes within 6 months prior to date of wiretap authorization. Typically based on one or more of:
   [ ] consensually-recorded calls—provide dates of consensually-recorded calls made to target phone by CS and/or UC agent. Summarize calls, include excerpts showing criminal discussions, and de-code language. Show how you verified that call was made over target phone—e.g., in presence of agent, via telephone records, by caller ID, etc.

   [ ] consensually-monitored calls—if not recorded, note if call was monitored by agent and method of verifying that call made over the target phone.

   [ ] court-authorized interceptions—other federal, state or foreign wiretaps that include criminal calls made to the target phone and that were issued and implemented in accordance with federal, state or foreign law.

   [ ] transactional probable cause—phone records tying use of the target phone to significant investigative event [CS meeting, seizure, arrest]. When it is impossible to make a consensually-recorded call, linking phone usage to the criminal event demonstrates that target phone is used to facilitate the crime.[FN1]

   [ ] Pen Register Trap & Trace (PRTT)/Toll Analysis—you need to show that the target phone is being used to contact phones of suspected co-conspirators. For each, give date range of the contacts, the total number of calls between the target phone and the other phone, and the date of the last call made between them. Explain how you know that users of the other phones (1) are the users and (2) are involved in the predicate crimes (arrest/conviction history alone is insufficient; sheer volume of contacts is insufficient). Show that some calls have been made between target phone and the other phones within the past 21 days, measured from the date the case is sent to the authorizing official for approval (anticipate adequate time for OEO review). (All known users of incriminating contact phones are by definition subjects to be listed as such and run through the ELSUR check.)
8. Necessity: for each target phone, explain why the following techniques will not work, have been tried and failed, or are too dangerous. Use specific rather than generic examples.

   [ ] Physical surveillance
   [ ] Use of grand jury
   [ ] Confidential sources—explain limitations of each CS individually
   [ ] Undercover agents
   [ ] Search warrants/seizures
   [ ] Interviews
   [ ] Pen register/toll records
   [ ] Trash searches
   [ ] Arrests
   [ ] Financial investigations
   [ ] Other electronic surveillance—any previous or ongoing wiretaps
   [ ] Other applicable techniques, e.g., mobile trackers, pole cameras

9. Minimization plan: state how wiretap will be minimized, tailoring to any specific facts of investigation (e.g., potential interception of privileged conversations, e.g. attorney-client, husband-wife, doctor-patient, priest-penitent). Ask for after-the-fact minimization of coded or foreign language communications. Tailor the minimization plan for the type of intercept, i.e., wire, electronic.
10. Jurisdiction: Demonstrate the connection to the district where the order is to be issued.

    [ ] location of phone or
    [ ] location of signal diversion or
    [ ] location of first overhearing (place of minimization)

11. Differences/Issues for Extensions/Renewals:

    [ ] leave in previous target subjects, add all new ones identified during wiretap so far
    [ ] incorporate prior affidavit(s) by reference, greatly condense background
    [ ] for OEO purposes, probable cause can consist of three or four recent incriminating calls
    [ ] the most recent incriminating call should be within 7 days prior to approval by the AAG[FN2]
    [ ] pen/toll analysis section is not needed, unless wiretap has been down for more than 21 days
    [ ] update necessity, with examples of recent surveillance, interviews, arrests, etc.

12. Differences/Issues for Text Messages—wire versus electronic:

    [ ] must have separate probable cause to believe subject has used and will use text messaging feature to facilitate the predicate crimes
    [ ] must have separate pen/toll analysis section for text messages, or explanation for lack of records with which to make an analysis
    [ ] must have separate statement of how text messages will be minimized—after-the-fact
    [ ] if actual incriminating text message is not possible to obtain, can use subject's reference to use of text messaging accompanied by toll/pen data showing text message(s) to/from other phones used by co-conspirators.

FN 1. For example, CS meets with low-level distributor Target A and discusses purchase of two kilos of cocaine. Target A tells CS that he needs to call "his man" [supplier] to see if cocaine is available. CS does not know who supplies cocaine to Target A. Target A tells CS that he will meet with CS later to inform him if cocaine is available. Minutes later, phone records verify that Target A's phone is used to call a phone [the target phone] used by cocaine supplier [Target B]. An hour later, Target A meets with CS and tells him that the two kilos will be ready the next morning. Assuming that other elements are satisfied, CS's meeting with Target A, coupled with the immediate use of Target A's phone to call target phone, establishes PC to believe that target phone is being used to facilitate drug offenses.

FN 2. If a call within 7 days prior to AAG approval is not possible, the affidavit should explain why (i.e., the target was out of the country but expected to return, the target sporadically but reliably used the phone).

[updated December 2008] [cited in Criminal Resource Manual 89]