§803-46 - Procedure for interception of wire, oral, or electronic communication.

§803-46 Procedure for interception of wire,
oral, or electronic communication. (a) Each application for an order
authorizing or approving the interception of a wire, oral, or electronic
communication shall be made in writing upon oath or affirmation to a designated
judge and shall be accompanied by a written memorandum recommending approval or
disapproval by the department of attorney general. The application shall state
the applicant's authority to make the application. The term "designated
judge" as used in this section shall not only mean a circuit court judge
specifically designated by the chief justice of Hawaii supreme court, but shall
also mean any circuit court judge or district court judge if no circuit court
judge has been designated by the chief justice, or is otherwise unavailable.
Each application shall include the following information:

(1) The identity of the investigative or law
enforcement officer(s) requesting the application, the official(s) applying for
an order;

(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) except as
provided in subsection (j), 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, (D) the identity or descriptions of all persons, if known,
committing the offense and whose communications are to be intercepted, and
where appropriate (E) the involvement of organized crime;

(3) A full and complete, but not unduly technical or
complex, statement of the facts concerning how the interception is to be
accomplished, and if physical entry upon private premises is necessary, facts
supporting such necessity;

(4) A full and complete statement of facts as to
whether or not 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;

(5) A statement of facts indicating 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
obtained, a particular description of facts establishing probable cause to
believe that additional communications of the same type will occur thereafter;

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

(7) 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 any results.

(b) The designated judge may require the
applicant to furnish testimony or documentary evidence under oath or
affirmation in support of the application. A transcript of the testimony shall
be made and kept with the application and orders.

(c) Upon an application the designated judge
may enter an ex parte order, as requested or as modified, authorizing or
approving interception of wire, oral, or electronic communications within the
county in which the designated judge is sitting, if the designated judge
determines on the basis of the facts submitted by the applicant that:

(1) There is probable cause to believe that an
individual is committing, has committed, or is about to commit[:]

(A) Murder;

(B) Kidnapping;

(D) Distribution of dangerous, harmful or
detrimental drugs; or

(E) Conspiracy to commit one or more of the
above;

or that an individual is committing, has
committed, or is about to commit one of the other offenses specified in section
803-44 and that organized crime is involved;

(2) There is probable cause to believe that
particular communications concerning that offense will be obtained through the
interception;

(3) Normal investigative procedures have been tried
and have failed or reasonably appear to be either unlikely to succeed if tried
or to be too dangerous; and

(4) Except as provided in subsection (j), there is
probable cause to believe 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 such
offense, or are leased to, listed in the name of, or commonly used by that
person.

If the order allows physical entry to accomplish the
interception, the issuing judge shall state why physical entry is appropriate.

(d) Each order authorizing or approving the
interception, of any wire, oral, or electronic communication shall specify:

(1) The identity or description of all persons, if
known, whose communications are to be intercepted;

(2) The nature and location of the communications
facilities as to which, or the place where, authority to intercept is granted,
and the means by which such interceptions shall be made;

(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 the persons applying for the application;

(5) The period of time during which the interception
is authorized, including a statement as to whether or not the interception is
to terminate automatically upon the described communication first being
obtained; and

(6) Who shall be served with the order and by what
means.

Upon request of the applicant, an order authorizing
the interception of a wire, oral, or electronic communication shall direct that
a provider of wire or electronic communication service, landlord, custodian, or
other person shall furnish the applicant as soon as practicable all information,
facilities, and technical assistance necessary to accomplish the interception
unobtrusively and with a minimum of interference with the services that the
provider of wire or electronic communication service, landlord, custodian, or
other person is according 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 the facilities or assistance.

(e) No order entered under this section shall
authorize or approve the interception of any wire, oral, or electronic
communication for any period longer than is necessary to achieve the objective
of the authorization, and in no event for longer than thirty days. The
thirty-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 ten days after the order is entered. Extensions of an order may be
granted, but only upon application for an extension made in accordance with
subsections (a) and (b) of this section and the court making the findings
required by subsection (c) of this section. The period of extension shall be
no longer than the designated judge deems necessary to achieve the purposes for
which it was granted and in no event for 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 this part, and shall terminate upon attainment of the
authorized objective, or in any event in thirty days. If the intercepted
communication is in a code or a 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 may be conducted in whole or in
part by investigative or law enforcement officer(s), or by an individual
operating under a contract with the State or a county, acting under the
supervision of an investigative or law enforcement officer authorized to
conduct the interception.

(1) The interception shall be conducted in such a way
as to minimize the resulting invasion of privacy including but not limited to
the following methods of minimization:

(A) Conversations that appear unlikely to
result in incriminating conversations relating to the offense for which the
order is issued shall be subject to intermittent monitoring; and

(B) Privileged conversations, including those
between a person and the person's spouse, attorney, physician, or clergy, shall
not be intercepted unless both parties to the conversation are named or
described in the application and order.

(2) In determining whether incriminating statements
are likely to occur during a conversation the following factors should be
considered:

(A) The parties to the conversation;

(B) The particular offense being investigated;

(D) The subject matter of previous
conversations between the same parties and whether any incriminating statements
occurred; and

(E) The hour and day of conversation.

(f) Whenever an order authorizing interception
is entered pursuant to this part, the order shall require reports to be made to
the designated 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 such intervals as the designated
judge may require.

(g)(1) The contents of any wire, oral, or electronic
communication intercepted by any means authorized by this part shall, if
possible, 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 to protect the recording from being edited or
otherwise altered. Immediately upon the expiration of the time period provided
in the order, or extensions thereof, the recording shall be made available to
the designated judge issuing the order and sealed under the designated judge's
directions. Custody of the recording shall be determined by order of the
designated judge. Recordings and other evidence of the contents of
conversations and applications and orders shall not be destroyed except upon an
order of the designated judge and in any event shall be kept for ten years.
However, upon the request of all the parties to particular conversations,
evidence of conversations between those parties shall be destroyed (A) if there
are no incriminating statements; (B) if any incriminating statements are
inadmissible at trial pursuant to section 803‑45(f); or (C)
if the interception of the conversations is determined to have been illegal.
Duplicate recordings may be made for use or disclosure pursuant to
section 803-45(a) and (b) for investigations. The presence of the seal
required by this subsection, or a satisfactory explanation for the absence
thereof, shall be a prerequisite for the use or disclosure of the contents of
any wire, oral, or electronic communication or evidence derived therefrom under
section 803-45(c).

(2) Applications made and orders granted under this
part, and evidence obtained through court-ordered interceptions shall be sealed
by the designated judge. Custody of the above shall be wherever the designated
judge directs. Applications and orders shall be disclosed only upon a showing
of good cause before a designated judge and shall not be destroyed, except upon
order of the designated judge, and, in any event, shall be kept for ten years.

(3) Any violation of the provisions of this
subsection may be punished as contempt by the designated judge.

(4) Within a reasonable time but no later than ninety
days after either the filing of an application for an approval under subsection
(d) that is denied or the termination of the period of an order or extensions
thereof, the designated judge shall cause an inventory to be served on the
persons named in the order, on all other known parties to intercepted
communications, and to any other persons as the court may determine is in the
interest of justice. The inventory shall include notice of:

(A) The fact of the entry of the order;

(B) The date of the entry and the period of
authorized, or approved interception; and

(C) The fact that during the applicable time
period, wire, oral, or electronic communications were or were not intercepted.

The
designated judge, upon the filing of a motion, may make available to the person
or the person's counsel for inspection after the inventory has been served all
portions of the intercepted communications that contain conversations of that
person, applications, orders, and other evidence obtained as a result of the
use of interception orders. The designated judge may order the additional
disclosure as the designated judge determines to be in the interest of
justice. On an ex parte showing of good cause, the designated judge may permit
the serving of the inventory required by this subsection to be postponed.

(h) The contents of any intercepted wire,
oral, or electronic communication or evidence derived therefrom shall not be
received in evidence or otherwise disclosed in any trial, hearing, or other
proceeding in any court of this State unless each party, not less than thirty
days before the trial, hearing or proceeding, has been furnished with copies of
the documents required to be disclosed, and contents of intercepted
communications or other evidence obtained as a result of interception which is
sought to be admitted in evidence. This thirty-day period may be shortened or
waived by the court if it finds that the party will not be prejudiced by the
delay in receiving such information.

(i)(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 content 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 or approval
under which it was intercepted is insufficient on its face; or

Such
motion shall be made before the trial, hearing, or proceedings unless there was
no opportunity to make such motion or the person was not aware of the grounds
of the motion. 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 part. The court, or other
official before whom the motion is made, upon the filing of the motion by the
aggrieved person, may make available to the aggrieved person or the aggrieved
person's counsel for inspection portions of the recording that contain
intercepted communications of the defendant or evidence derived therefrom, the
applications, orders, transcript of testimony, and such additional evidence as
the court determines to be in the interest of justice.

(2) In addition to any other right to appeal the
State shall have the right to appeal:

(A) From an order granting a motion to
suppress made under paragraph (1) of this subsection if the attorney general or
prosecuting attorney of a county, or their designated representatives, shall
certify to the designated judge or other official granting the motion that the
appeal shall be taken within thirty days after the date the order of
suppression was entered and shall be diligently prosecuted as in the case of
other interlocutory appeals or under such rules as the supreme court may adopt;

(B) From an order denying an application for
an order of authorization or approval, and such an appeal shall be in camera
and in preference to all other pending appeals in accordance with rules
promulgated by the supreme court.

(j) The requirements of subsections (a)(2)(B)
and (c)(4) relating to the specification of the facilities from which, or the
place where, the communication is to be intercepted do not apply if:

(1) In the case of an application with respect to the
interception of an oral communication:

(A) The application is by an investigative or
law enforcement officer and is approved by the attorney general, a county
prosecuting attorney, or one of their designees;

(B) The application contains a full and
complete statement as to why the specification is not practical and identifies
the person committing the offense and whose communications are to be
intercepted; and

(2) In the case of an application with respect to a
wire or electronic communication:

(A) The application is by an investigative or
law enforcement officer and is approved by the attorney general, a prosecuting
attorney, or one of their designees;

(B) The application identifies the person
believed to be committing the offense and whose communications are to be
intercepted and the applicant makes a showing of a purpose on the part of that
person to thwart interception by changing facilities; and

An interception of a communication under an order
with respect to which the requirements of subsections (a)(2)(B) and (c)(4) do
not apply by reason of subsection (j) shall not begin until the facilities from
which, or the place where the communication is to be intercepted, is
ascertained by the person implementing the interception order. A provider of
wire or electronic communications service that has received an order as
provided for in subsection (d) may move the court to modify or quash the order
on the ground that its assistance with respect to the interception cannot be
performed in a timely or reasonable manner. The court, upon notice to the
State, shall decide the motion expeditiously. [L 1978, c 218, pt of §2; gen ch
1985; am L 1986, c 303, §6; am L 1989, c 164, §8; am L 1990, c 34, §§37, 38;
gen ch 1993; am L 2006, c 200, pt of §4]

Case Notes

Lack of express remedy for one aggrieved by bugging was
inadvertent and evidence obtained in violation of wiretap law should be
suppressed. 66 H. 653, 675 P.2d 754.