§ 2407 — Ex parte order authorizing interception

(a)Application. —Any application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make the application. Each application shall include the following information:

(1) The identity of the investigative or law-enforcement officer making the application and the officer authorizing the application;

(2) A full and complete statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that an order should be issued, including:

a. Details as to the particular offense that has been, is being, or is about to be committed;

b. A description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

c. A description of the type of communication sought to be intercepted; and

d. The identity of the person, if known, committing the offense and whose communications are to be intercepted;

(3) A full and complete statement as to whether or not other investigative procedures have been tried and failed, why such procedures reasonably appear to be unlikely to succeed if tried, or why such procedures would be too dangerous if tried;

(4) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a description of facts establishing probable cause to believe additional communications of the same type will occur thereafter;

(5) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application that have been made to a judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities or places specified in the application and the action taken on each application; and

(6) When the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain the results.

(b)Additional evidence in support of applications. —The judge may require the applicant to furnish additional testimony or documentary evidence in support of an application.

(c)Issuance of order. —(1) Upon the application a judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the territorial jurisdiction permitted under paragraph (c)(2) or (3) of this section, if the judge determines on the basis of the facts submitted by the applicant that:

a. There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense enumerated in § 2405 of this title;

b. There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

c. Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and

d. There is probable cause for belief that the facilities from which or the place where the wire, oral or electronic communications are to be intercepted are being used or are about to be used in connection with the commission of the offense or are leased to, listed in the name of, or commonly used by an individual engaged in criminal activity described.

(2) Except as provided in paragraph (c)(3) of this section, an ex parte order issued under paragraph (c)(1) of this section may authorize the interception of wire, oral or electronic communications only within the territorial jurisdiction of the court in which the application was filed.

(3) If an application for an ex parte order is made by the Attorney General or other designee, an order issued under paragraph (c)(1) of this section may authorize the interception of communications sent or received by a mobile telephone anywhere within the State so as to permit the interception of the communications regardless of whether the mobile telephone is physically located within the jurisdiction of the court in which the application was filed at the time of the interception; however, the application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.

(d)Contents of order. —(1) Each order authorizing the interception of any wire, oral or electronic communication shall specify:

a. The identity of the person, if known, whose communications are to be intercepted;

b. The nature and location of the communications facilities as to which or the place where authority to intercept is granted;

c. A description of the type of communication sought to be intercepted and a statement of the offense to which it relates;

d. The identity of the agency authorized to intercept the communications and of the person authorizing the application; and

e. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(2) An order authorizing the interception of a wire, oral or electronic communication, upon request of the applicant, shall direct that a provider of wire or electronic communication service, landlord, custodian or other person furnish the applicant forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian or person ordered by the court accords the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing the facilities or technical assistance shall be compensated by the applicant for reasonable expenses incurred in providing facilities or assistance.

(e)Extensions. —(1) An order entered under this section may not authorize the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law-enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered.

(2) Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) of this section and upon the court making the findings required by subsection (c) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days.

(3) Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days.

(4) In the event the intercepted communication is in a code or foreign language and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. An interception under this chapter may be conducted in whole or in part by federal, State or local government personnel, or by an individual operating under a contract with the State or a political subdivision of the State acting under the supervision of an investigative or law-enforcement officer authorized to conduct the interception.

(5) Notwithstanding any other provision of this chapter, any investigative or law-enforcement officer specially designated by the Attorney General or designee who reasonably determines that:

a. An emergency situation exists that involves:

1. Immediate danger of death or serious physical injury to any person;

2. Activities related to escape or attempted escape from custody;

3. Conspiratorial activities threatening the national security interest; or

4. Conspiratorial activities characteristic of organized crime;

that requires a wire, oral or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained; and

b. There are grounds upon which an order could be entered under this chapter to authorize such interception;

may intercept such wire, oral or electronic communication if an application for an order approving the interception is made in accordance with this section within 48 hours after the interception has occurred or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, the contents of any wire, oral or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (g) of this section on the person named in the application.

(f)Reports to issuing judge. —Whenever an order authorizing interception is entered pursuant to this section, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the time and place required by the issuing judge.

(g)Recordings of contents of intercepted communications; sealing applications and orders; notice to parties. —(1) The contents of any wire, oral or electronic communication intercepted by any means authorized by this section, if possible, shall be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral or electronic communication under this subsection shall be done in a way as will protect the recording from editing or other alterations as may be practicable. Upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under the judge’s directions. Custody of the recordings shall be wherever ordered by the issuing judge. The recordings may not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for lawful use or disclosure pursuant to this chapter. The presence of the seal provided by this subsection or a satisfactory explanation for the absence thereof shall be a prerequisite for the use of disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under this chapter.

(2) Applications made and orders granted under this subsection shall be sealed by the issuing or denying judge. Custody of the applications and orders shall be as ordered by that judge. The applications and orders shall be disclosed only upon a showing of good cause before that judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.

(3) Any violation of the provisions of this subsection may be punished as criminal contempt in violation of § 1271 of this title by the issuing or denying judge.

(4) Within a reasonable time but not later than 90 days after the termination of the period of an order or extensions thereof, the issuing judge shall cause to be served, on the persons named in the order and the other parties to intercepted communications as the judge may determine in that judge’s discretion that is in the interest of justice, an inventory that shall include notice of:

a. The fact of the entry of the order;

b. The date of the entry of the order and the period of authorized interception; and,

c. The fact that during the period, wire, oral or electronic communications were or were not intercepted.

The judge, upon the filing of a motion, shall make available to the person or the person’s counsel for inspection, portions of the intercepted communications, applications and orders pertaining to that person and the alleged crime.

(5) Upon an ex parte motion showing of good cause to the judge, the serving of any inventory required by this section may be delayed. The periods of delay may not be longer than the authorizing judge deems necessary to achieve the purposes for which such delay was granted and in no event for longer than 30 days. No more than 3 periods of delay may be granted. Any order issued extending the time in which the inventory notice is to be served must be under seal of the court and treated in the same manner as the order authorizing interception.

(h)Prerequisites to use of contents of communication as evidence. —The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in the courts of this State unless each party, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order and accompanying application under which the interception was authorized. Where no application or order was required for the interception under the provisions of this chapter, each party, not less than 10 days before the trial, hearing or proceeding, shall be furnished with information concerning when, where and how the interception took place and why no application or order was required. This 10-day period may be waived by the judge if that judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information.

(i)Suppression of contents of communication; appeal from denial of application for order of approval. —(1) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of this State or a political subdivision thereof may move to suppress the contents of any intercepted wire, oral or electronic communication or evidence derived therefrom on the grounds that:

a. The communication was unlawfully intercepted;

b. The order of authorization under which it was intercepted is insufficient under this chapter; or

c. The interception was not made in conformity with the order of authorization granted under this chapter.

(2) This motion shall be made at least 10 days before the trial, hearing or proceeding except upon good cause shown. If the motion is granted, the contents of the intercepted wire, oral or electronic communication or evidence derived therefrom shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of the motion by the aggrieved person, in that judge’s discretion may make available to the aggrieved person or such person’s counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

(3) In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval if the Attorney General or Deputy Attorney General shall certify to the judge denying the application that the appeal is not taken for the purposes of delay. The appeal shall be taken within 30 days after the date the order was entered.

Legislative History

72 Del. Laws, c. 232, § 1 ; 70 Del. Laws, c. 186, § 1