Alabama legislature considers wiretaps for drug crimes

| Feb 5, 2021 | Criminal Defense |

Police already possess numerous tools to investigate drug crimes in Alabama that impact rights and privacy. Alabama legislators are now debating a bill that would allow state and local law enforcement to secretly monitor and record someone’s calls and online communications based upon a suspicion of felony drug crimes ranging from marijuana possession to heroin dealing. If enacted, there will have to criminal defense strategies to challenge intercept orders.

House Bill 17

If approved, state and local police could engage in these wiretaps if a local judge finds that there is probable cause to believe the suspect committed, already committed, or will commit a felony drug offense and that the wiretap will produce evidence. Judges must also determine that other investigative procedures were tried and failed, are too dangerous or appear reasonably unlikely to succeed.

Approved, intercepts would apply to phone, internet, or fax machine communications. Police could listen live and record conversations for no more than 30 days unless a judge extends the order.

The order would be kept secret from the person being wiretapped. The bill does not address the time in which the crimes would have to occur.

Alabama and local law enforcement could engage in this monitoring, maintain wiretapping devices, and process intercept order requests without involving federal law enforcement.  State and local law enforcement now must pursue a wiretap under federal guidelines.

Supporters claim that the measure is like federal wiretapping statutes and laws in Mississippi and other states. Proponents also argue that the public is protected because there are civil and criminal penalties for police who abuse these powers.

Objections

Attorneys claim that probable cause, that there it is reasonable to believe the allegations, is the lowest standard of proof justifying these privacy violations. The bill also permits wiretaps for too many types of cases which could be as minor as marijuana possession.

It may be impossible to challenge intercept orders because the person under surveillance does not know about the active wiretap. After that person is notified, they could request that a judge throw out the wiretaps because the intercepts were illegally intercepted, that the judicial order was insufficient or that that the police did not comply with the order. But the person is unable to challenge the initial probable cause finding or assertions that other investigative procedures failed.

The bill could threaten the privacy of people who are not suspected of crimes but hold conversations with suspects. Adequate police training is another issue.

Attorneys can assist people facing the substantial resources of police and prosecutors. Lawyers can help assure their rights are protected.