Section 65.60. Content of Affidavit

Section 5709(3) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5709(3), provides that the investigative or law enforcement officer shall execute an affidavit setting forth information justifying the application for an order authorizing interception of wire, electronic, or oral communications. The affidavit should contain the following:

A. The affiant’s title, pertinent employment history, authority to conduct investigations, and experience in conducting investigations of similar offenses. See 18 Pa.C.S. § 5709(2).

B. The name, qualifications, and State Police certification number of the officers who will supervise and conduct the interception of the communications as well as the agency which will conduct the interception. See 18 Pa.C.S. § 5709(2).

C. A statement by the affiant setting forth facts which, when viewed in light of the totality of the underlying circumstances, establish their intrinsic reliability.

Comment

See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983).

D. The identity of the person or persons, if known, who are believed to be committing one or more of the crimes in 18 Pa.C.S. § 5708, and whose communications will be intercepted. See 18 Pa.C.S. § 5709(3)(i).

E. The particular type of communication to be intercepted; e.g., in gambling case, transmittal and acceptance of wagers placed on the outcome of sporting events and horse race results, line information, etc. See 18 Pa.C.S. § 5709(3)(iii).

F. The character and location of the particular wire or electronic communication facilities involved or the particular place where the oral communications will be intercepted, see 18 Pa.C.S. § 5709(3)(v), except where target specific orders pursuant to 18 Pa.C.S. § 5712.1 are sought.

G. Where 18 Pa.C.S. § 5712.1, governing target specific wiretaps does not apply, a detailed statement of the facts and circumstances establishing probable cause to believe that:

1. The subject(s) has committed, is committing or will commit one of the crimes enumerated in 18 Pa.C.S. § 5708;

2. The particular wire, electronic, or oral communications of the subject(s) concerning those offenses may be obtained through the proposed interception;

3. The facilities from which, or the place where, the wire, electronic, or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name(s) of, or commonly used by such subject(s).

H. The period of time (not to exceed thirty (30) days) for which the interception will be needed, and if the character 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 particular statement of facts establishing probable cause to believe that additional communications of the same type will occur and should be intercepted thereafter.

I. A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and failed or reasonably appear unlikely to succeed if tried or are too dangerous to employ, e.g., normal investigative procedures would include standard visual or aural surveillance techniques, questioning of subject under an immunity grant or use of search warrants.

J. The basic probable cause in the affidavit should, whenever practical, be no more than twenty-one (21) days old.

K. In the event a pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device has been or is being utilized to support the affidavit under this Rule, the Attorney General, District Attorney, or designee shall, as part of the application, certify that the authority for the use of the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device which was or is being utilized was obtained pursuant to probable cause. See Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); 18 Pa.C.S. § 5772(b)(3); 18 Pa.C.S. § 5773. A copy of the affidavit of probable cause submitted in support of the application for the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification must accompany the application for the wiretap.

The provisions of this § 65.60 adopted June 10, 2015, effective June 10, 2015, 45 Pa.B. 5906.