Wiretap Evidence in Federal Drug Conspiracy Cases

In federal drug conspiracy prosecutions, wiretaps allow the government to conduct sprawling investigations against large-scale drug trafficking organizations and obtain direct of evidence of communications among alleged members. Title III, the wiretap statute, allows investigators to intercept telephone calls and texts to identify suppliers, couriers, and organizers who rarely come into contact with drugs.

That said, wiretaps are heavily regulated, and the laws are designed to protect the privacy of those whose communications are being intercepted. If the government fails to meet constitutional or statutory requirements for obtaining or executing a wiretap, the evidence obtained from the wiretap can be suppressed at trial.

What is a “wiretap”?

A wiretap is a court order authorizing the police to intercept wire, oral, and other electronic communications, most commonly phone calls and text messages, under Title III of the Omnibus Crime Control and Safe Streets Act. Law enforcement agents use wiretaps in drug‑conspiracy cases to identify supply chains and build cases against individuals who coordinate financing, procurement, or distribution but do not physically handle narcotics. 

In addition to obtaining these intercepted communications, agents frequently testify that certain words or phrases in the communications are “code” for drug quantities, prices, locations, or logistics, and sometimes the government tries to qualify their agents as experts in “drug codes.” 

Because wiretap orders intrude on private communications, which are generally protected by the Fourth Amendment of the U.S. Constitution, Congress has imposed several requirements that law enforcement has to comply with when they apply for a wiretap.

How does the Government obtain a wiretap?

The government can only intercept a target’s communications if it first obtains a court order authorizing a wiretap, and only the Attorney General or certain specially designated DOJ officials may authorize an application for a wiretap; improper authorization can require suppression. 

To obtain a wiretap, the government’s application must meet several strict requirements. An application for a wiretap must establish probable cause that a specified offense has been, is being, or will be committed; that particular communications concerning that offense will be intercepted; and that the target phone or other communications device is being used in connection with that offense. 

In addition to probable cause, the application must also satisfy the “necessity requirement”  by providing a full and complete statement of investigative steps that have already been tried—or why they are reasonably unlikely to succeed or too dangerous to try–and that a wiretap is necessary to advance the investigation. In most applications, law enforcement will detail the steps they’ve already taken, like working with confidential sources, conducting controlled purchases, physical surveillance, serving subpoenas, obtaining pen registers and toll records, getting GPS and other location data, trash pulls, and executing search warrants. 

There are several requirements that the government must comply with even after getting the wiretap, or else the communications they intercept may be inadmissible at trial. Title III requires minimization—agents must make an effort to avoid capturing non‑pertinent or irrelevant communications, even if they think their targets are talking in code. The law also requires the prompt sealing of the wiretap application and order and any recorded communications after a wiretap order has expired. 

Unreasonable minimization or unjustified sealing delays can lead to suppression of the communications if the defendant files a motion to suppress. Courts evaluate whether the government has complied with the wiretap statute’s requirements based on the facts and circumstances of the investigation.

Can the government use wiretap evidence at trial ?

Yes—if the government obtained the wiretap lawfully and complied with Title III, intercepted calls and text messages can be used as evidence at trial to establish that the defendant was knowingly engaged in handling or distributing drugs. In cases where the government has no direct evidence of the defendant engaged in drug dealing or being around drugs, wiretap evidence can be the difference between a conviction and a dismissal.

If the government’s interceptions violated the wiretap statute or the Constitution, 18 U.S.C. § 2515 bars use of the contents and any derivative evidence, and § 2518(10)(a) authorizes a motion to suppress. Failures that commonly lead to suppression include lack of proper high‑level authorization, conclusory or misleading necessity showings, unreasonable minimization, sealing delays without a satisfactory explanation, and interceptions beyond the order’s scope or territorial jurisdiction.

What are the defenses against wiretap evidence?

A successful defense strategy in cases involving wiretap investigations begins with a thorough review of the wiretap application and all related wiretap documents. The defense can challenge authorization if the application was not approved by an official listed in § 2516(1). Necessity can be attacked where affidavits are boilerplate, omit viable investigative methods that were not tried, or overstate law enforcement’s effort. Minimization can be challenged where agents unreasonably captured clearly personal, privileged, or non‑pertinent calls, and a delay in sealing recordings can require suppression if the government cannot justify the delay. 

Law enforcement’s interpretation of the calls, and any alleged use of “code words,” can also be challenged. Agents always want the jury to assume that drug dealers speak in code, but sometimes, “ten cans of paint” are actually ten cans of paint. The defense can and should demand corroboration from surveillance logs, controlled buys, lab reports, and financial records to tie the intercepted communications to actual drug dealing activities. 

The defense can also challenge the audibility, translation, or transcription of the communications and litigate admissibility under the Rules of Evidence, including whether the case agent’s testimony is lay or expert opinion and whether their methodology for “de-coding” the communications is reliable.

Contact our firm

Our firm has litigated wiretap issues in federal drug cases across the United States, including by contesting necessity, minimization, sealing, scope, and authorization challenges. We combine targeted records subpoenas with rigorous legal research to identify statutory defects and evidentiary weaknesses. Contact our firm if you or your loved one is facing a federal drug conspiracy case that includes wiretap evidence.