Effective - 28 Aug 2002
542.408. Application, contents — ex parte order issued, when, contents, extensions granted, when — reports, court may require, when — pen registers, who may request — communication, common carriers may provide aid, immunity from suit, compensation. — 1. Each application for an order authorizing or approving the interception of a wire communication shall be made in writing and shall be submitted to the attorney general for his review and approval. If the attorney general approves the application, he shall join such application, which shall be submitted upon oath or affirmation to a court of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
(1) The identity of the prosecuting attorney making the application together with the identities of the law enforcement agency or agencies that are to conduct the interception;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his 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 particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
(c) A particular description of the type of communications sought to be intercepted; and
(d) The identity of the person and employment, if known, committing the offense and whose communications are to be intercepted;
(e) That the application is sought solely for detection of the crimes enumerated in section 542.404;
(3) A full and complete statement as to whether other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried, or to be too dangerous;
(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 the interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(5) A full and complete statement of the facts concerning all previous applications known or available to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application;
(6) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or an explanation of the failure to obtain such results; and
(7) A statement that adequate resources are available to perform the interception and the estimated number of persons required to accomplish the interception.
2. The court may require the applicant to furnish additional testimony or documentary evidence in support of the application.
3. Upon such application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire communications within the territorial jurisdiction of the court, if the court determines on the basis of the facts submitted by the applicant that:
(1) Probable cause exists to believe that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 542.404;
(2) Probable cause exists to believe that particular communications concerning that offense will be obtained through such interception;
(3) 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
(4) Probable cause exists to believe that the facilities from which, or the place where, the wire communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
4. Each order authorizing or approving the interception of any wire communication shall specify:
(1) The identity of the person and employment, if known, whose communications are to be intercepted;
(2) The nature and location of the communication facilities as to which, or the place where, authority to intercept is granted including whether the interception involves a cellular or other wireless device;
(3) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(4) The identity of the agency authorized to intercept the communications, and of the person authorizing the application;
(5) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
5. No order entered under this section may authorize or approve the interception of any wire communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection 1 of this section and the court making the findings required by subsection 3 of this section. The period of extension shall be no longer than the court deems necessary to achieve the purposes for which it was granted and in no event longer than thirty days. 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 sections 542.400 to 542.422, and shall terminate upon attainment of the authorized objective, or in any event in thirty days.
6. Whenever an order authorizing interception is entered pursuant to the provisions of sections 542.400 to 542.422, the order may require reports to be made to the court who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court may require, but in no case longer than thirty days.
7. Notwithstanding any other provisions of sections 542.400 to 542.422, any law enforcement officer with the approval of the prosecuting attorney may request an order of an appropriate court whenever reasonable grounds therefor exist to have a pen register placed in effect, which pen register will only determine the phone number to which the call is placed.
8. Notwithstanding any other provision of law to the contrary, communication common carriers, and their officers, employees and agents, may provide information, facilities or technical assistance to persons authorized by law to intercept wire communications, if the communication common carrier, its officers, employees or agents have been provided with a court order directing such assistance signed by the authorizing court. The court order shall set forth the period of time during which the provision of the information, facilities or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No cause of action shall lie in any court against any communication common carrier, its officers, employees, and agents for providing information, facilities or assistance in accordance with the terms of an order under this subsection. Any communication common carrier furnishing such facilities or technical assistance shall be compensated therefor by the prosecuting attorney at the prevailing rates.
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(L. 1989 H.B. 277, et al. § 5, A.L. 2002 S.B. 712)