Vanderbilt Law Review

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Courts Split on the Necessity of Separate Authorization for a Covert Entry Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Daniel Paul Smith

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,' which regulates the use of electronic surveillance, was designed to protect "the privacy of wire and oral communications,"and to delineate "on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."' In general, communications may be intercepted only by law enforcement officers, who are engaged in the investigation of a certain type of crime, and who have obtained a court order based upon probable cause that authorizes the use of electronic surveillance. Although certain details of the particular interception must be specified in the court order, the statute does not expressly require that the judge who authorizes the use of electronic surveillance also authorize covert entries that may be required to place the electronic listening devices Until recently the federal courts apparently had assumed that an order authorizing the use of electronic surveillance implicitly authorized a surreptitious entry by law enforcement officials to install the necessary device. In United States v. Ford," however, the District of Columbia Circuit became the first federal court of appeals to reject this assumption, holding that absent express judicial authorization, a trespassory entry incident to the placement of an electronic listening device is an invasion of privacy that violates the fourth amendment.

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Custodial Suspect's Admissions After Assertion and Subsequent Waiver of Right to Counsel Are Not Per Se Excluded in Absence of Coercion

R. Michael Moore

The holding in this case carries the trend toward reinterpretation of Miranda to an undesirable extreme. Although the rejection of the per se rule will diminish the number of reversals of factually correct convictions, relegating the protection of the right to counsel to the same analysis employed in right to silence cases operates an injustice on criminal suspects. The request for an attorney should trigger greater protection because every effort should be made to insure that the suspect exercises his judgment intelligently. Despite the Supreme Court's retrenchment from the Miranda assumption that all custodial interrogations are inherently coercive, coercion remains a problem, especially where a suspect is confused or unable to exercise his rights intelligently. Thus implementation of a strict waiver test is necessary to secure a suspect's rights in the absence of the per se rule.