CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 7, 2012

Fettig on Applying Leon to Government Reliance on Wiretap Orders

Fettig derikDerik T. Fettig (Hamline University School of Law) has posted When 'Good Faith' Makes Good Sense: Applying Leon’s Exception to the Exclusionary Rule to the Government’s Reasonable Reliance on Title III Wiretap Orders (Harvard Journal on Legislation, Vol. 49, p. 373, 2012) on SSRN. Here is the abstract:

The good faith exception to the exclusionary rule, as set out by the Supreme Court in United States v. Leon, is well established when the government relies on a traditional search warrant. Its applicability to the government’s reliance on wiretap orders issued under Title III, the federal wiretap law, remains an open question, however. While there is a circuit split on the issue, commentators have uniformly opposed application of the good faith exception in Title III cases. By contrast, this Article makes a comprehensive case for a good faith exception for the government’s reasonable reliance on Title III wiretap orders. First, this Article briefly outlines Title III’s suppression remedy, the law related to the exclusionary rule outside the wiretap context, and the circuit split over application of the good faith exception in Title III wiretap cases. Next, this Article analyzes the current divide in the courts and considers the arguments of commentators opposed to a good faith exception in wiretap cases. It concludes that the text and legislative history of Title III support application of the good faith exception but acknowledges that outcome is not clear under the current version of the statute. Thus, this Article concludes by examining the normative and practical implications of a good faith amendment to Title III. It argues that the good faith exception is more applicable to reliance on wiretap orders than reliance on traditional search warrants, in part due to the more detailed requirements for the government to obtain authorization for electronic surveillance. It also addresses specific concerns raised by courts and commentators and explains why inclusion of a good faith amendment in Title III will not lead to increased government wiretapping or an erosion of Title III’s suppression remedy.

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