The Fourth Amendment of the United States Constitution protects individuals from being subjected to unreasonable searches and seizures.  Specifically, the fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In short, with some limited exceptions, the government is obligated to obtain a judicial officer’s ruling that there is probable cause that a crime has been, or is about to be, committed and describe with specificity where they wish to search and what they wish to find before a search becomes legal.  This analysis becomes a bit more complicated when the thing to be obtained is the words of the suspect.  For instance, if the government knows that a suspected criminal uses a certain phone to further his criminal activity, the government, under traditional Fourth Amendment analysis, would be required to obtain a warrant before tapping the suspect’s phone line.

In Katz v. United States, the United States Supreme Court held that a warrant was required before the government could tap the line in a phone booth.  In Katz, the defendant was accused of running an illegal gambling operation.  The police believed that he used a certain phone booth to place phone calls in furtherance of his criminal enterprise.  So, without obtaining a warrant, the police tapped the line in the phone booth and listened in on the defendant’s phone calls.  The Supreme Court held that the police were required to obtain a warrant that was limited in scope and duration before it could legally tap the phone line.

After Katz, the law on wiretapping evolved both in the courts and in the legislature.  In general, the warrant requirement remained with respect to domestic wiretapping.  In 1978, the Foreign Intelligence Surveillance Act of 1978 was enacted and allowed for warrantless wiretaps in certain exigent instances when national security was at risk, but no wiretaps were fully exempted from judicial review.  After September 11, 2001, the law quickly evolved to increase the government’s ability to use wiretaps without stringent warrant requirements.

In 2006, the American Civil Liberties Union filed a lawsuit in the United States District Court for the Eastern District of Michigan to challenge the National Security Agency’s suspected warrantless wiretapping practices.  Judge Anna Diggs Taylor found the warrantless wiretapping program at issue in that case unconstitutional and illegal, and ordered an immediate halt to it.  Judge Taylor then suspended her own order pending appeal.  On appeal, the Sixth Circuit Court of Appeals held that the plaintiffs who brought the case lacked legal standing to sue because they could not present evidence that they had actually been harmed by the program at issue.  Several other challenges to various programs were filed in the years since, each failing because of the plaintiffs’ lack of standing.

This week, the Justice Department announced for the first time that it would be using evidence obtained pursuant to warrantless wiretaps against a criminal defendant in a court case.  The defendant, Jamshid Muhtorov was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.  Muhtorov is accused of planning to travel to Uzbekistan to join the group.  He has denied the accusations and has pled not guilty.  Most of the government’s case against Muhtorov comes from intercepted emails and recorded phone conversations, all coming as a result of warrantless wiretaps.  Muhtorov is expected to file a motion in court to suppress the evidence against him.  Regardless of the court’s ruling on such a motion, the losing party is nearly certain to appeal the decision, setting in motion a series of legal challenges that will probably result in the Supreme Court weighing in on whether warrantless collection of emails and recording of phone calls to be used against criminal defendants is constitutional.  

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law Group, P.C.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 846-6400 and kassem@jaafarandmahdi.com.