22-2516. Same; application for order, form and contents; issuance of order; contents; duration; extension; recordation of intercepted communications; custody of application and order, disclosure; inve
22-2516
22-2516. Same; application for order, form and contents;issuance of order; contents;duration; extension; recordation ofintercepted communications;custody of application and order, disclosure;inventory, notice to certain persons; evidentiary status of interceptedcommunications; motion to suppress, appeal.(1) Each application for an order authorizing the interception of a wire,oral or electronic communication shall be made in writing, upon oath oraffirmation, to a judge of competent jurisdiction, and shall state theapplicant's authority to make such application. Each application shallinclude the following information:
(a) The identity of the prosecuting attorney making the application,and the identity of the investigative or law enforcement officerrequesting such application to be made;
(b) A full and complete statement of the facts and circumstancesrelied upon by the applicant to justify such applicant'sbelief that an ordershould be issued, including (i) details as to the particular offensethat has been, is being or is about to be committed, (ii) except asprovided in subsection (10),a particulardescription of the nature and location of the facilities from which orthe place where the communication is to be intercepted, (iii) aparticular description of the type of communications sought to beintercepted, and (iv) the identity of the person, if known, committingthe offense and whose communications are to be intercepted;
(c) A full and complete statement as to whether or not otherinvestigative procedures have been tried and failed or why theyreasonably appear to be unlikely to succeed if tried or to be toodangerous;
(d) A statement of the period of time for which the interception isrequired to be maintained and, if the nature of the investigation issuch that the authorization for interception should not automaticallyterminate when the described type of communication first has beenobtained, a particular description of facts establishing probable causeto believe that additional communications of the same type will occurthereafter;
(e) A full and complete statement of the facts known to theapplicant concerning all previous applications made to any judge forauthorization to intercept wire, oral or electroniccommunications involving any ofthe same persons, facilities or places specified in the application, andthe action taken by the judge on each such application; and
(f) Where the application is for the extension of an order, astatement setting forth the results thus far obtained from theinterception, or a reasonable explanation of the failure to obtain suchresults.
(2) The judge may require the applicant to furnish additionaltestimony or documentary evidence in support of the application. Oraltestimony shall be under oath or affirmation, and a record of suchtestimony shall be made by a certified shorthand reporter and reduced towriting.
(3) Upon such application the judge may enter an ex parteorder, as requested or as modified, authorizing the interception of wire,oral or electronic communications within the territorialjurisdiction of suchjudge, if the judge determines on the basis of the facts submitted bythe applicant that:
(a) There is probable cause for belief that a person is committing,has committed or is about to commit a particular offense enumerated insubsection (1) of K.S.A. 22-2515 and amendments thereto;
(b) there is probable cause for belief that particularcommunications concerning the offense will be obtained through suchinterception;
(c) normal investigative procedures have been tried and have failed,or reasonably appear to be unlikely to succeed if tried, or to be toodangerous; and
(d) except as provided in subsection (10), thereis probable cause for belief that the facilities fromwhich, or the place where, the wire, oral or electroniccommunications are to beintercepted are being used, or are about to be used, in connection withthe commission of such offense, or are leased to, listed in the name ofor commonly used by such person.
(4) Each order authorizing the interception of any wire, oralor electronic communication shall:
(a) Specify the identity of the person, if known, whosecommunications are to be intercepted;
(b) specify the nature and location of the communications facilitiesas to which, or the place where, authority to intercept is granted;
(c) specify with particularity a description of the type ofcommunication sought to be intercepted, and a statement of theparticular offense to which it relates;
(d) specify the identity of each agency authorized to intercept thecommunications, and of the person authorizing the application;
(e) specify the period of time during which such interception isauthorized, including a statement as to whether or not the interceptionshall automatically terminate when the described communication has beenfirst obtained; and
(f) upon request of the applicant, direct that a provider of wire orelectronic communication serviceor public utility, landlord, custodian or other personshall furnish the applicant forthwith all information, facilities andtechnical assistance necessary to accomplish the interceptionunobtrusively and with a minimum of interference with the services thatsuch service provider, utility, landlord, custodian orperson is according theperson whose communications are to be intercepted. Any provider of wireor electronic communication serviceor public utility, landlord, custodian or other personfurnishing such facilities or technical assistance shall be compensatedtherefor by the applicantfor reasonable expenses incurred in providing such facilities or technical assistance.
(5) No order entered under this section may authorize theinterception of any wire, oral or electronic communicationfor any period longerthan is necessary to achieve the objective of the authorization, nor inany event longer than 30 days.Such thirty-day period begins on the earlier of the day on which theinvestigative or law enforcement officer first begins to conduct aninterception under the order or 10 days after the order is entered.Extensions of an order may begranted, but only upon application for an extension made in accordancewith subsection (1) of this section and the court making the findingsrequired by subsection (3) of this section. The period of any suchextension shall be no longer than the authorizing judge deems necessaryto achieve the purposes for which it was granted and in no event forlonger than 30 days. Every order and extension thereof shallcontain a provision that the authorization to intercept shall beexecuted as soon as practicable, shall be conducted in such a way as tominimize the interception of communications not otherwise subject tointerception under this act, and must terminate upon attainment of theauthorized objective, or in any event in 30 days.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 availableduring the interception period, minimization may be accomplished as soonas practicable after such interception. An interception under this chaptermay be conducted in whole or in part by government personnel, or by an individualoperating under a contract with the government, acting under the supervisionof an investigative or law enforcement officer authorized to conduct the interception.
(6) Whenever an order authorizing the interception of wire or oralcommunications is entered pursuant to this act, the order may requirereports to be made to the judge who issued the order showing whatprogress has been made toward achievement of the authorized objectiveand the need for continued interception. Such reports shall be made atsuch intervals as the judge may require.
(7) (a) The contents of any wire, oral or electroniccommunication interceptedby any means authorized by this act shall be recorded, if possible, ontape or wire or other comparable device. The recording of the contentsof any wire, oral or electronic communication under thissubsection shall be done ina manner which will protect the recording from editing or otheralterations. Immediately upon the expiration of the period of theorder, or extensions thereof, such recordings shall be made available tothe judge issuing such order and sealed under such judge's directions.Custody of the recordings shall be wherever the judge orders, and therecordings shall not be destroyed except upon order of the issuing ordenying judge and, in any event, shall be kept for not less than 10years. Duplicate recordings may be made for use or disclosurepursuant to the provisions of subsections (2) and (3) of K.S.A. 22-2515and amendments thereto for investigations. The presence of the seal provided forby this subsection, or a satisfactory explanation for the absencethereof, shall be a prerequisite for the use or disclosure of thecontents of any wire, oral or electronic communication orevidence derived therefromunder subsection (4) of K.S.A. 22-2515 and amendments thereto.
(b) Applications made and orders granted under this act shall besealed by the judge. Custody of the applications and orders shall bewherever the judge directs. Such applications and orders shall bedisclosed only upon a showing of good cause before a judge of competentjurisdiction and shall not be destroyed except on order of the issuingor denying judge, and in any event shall be kept for not less than 10 years.
(c) Any violation of the provisions of paragraph (a) or (b) of thissubsection may be punished as contempt of the issuing or denying judge.
(d) Within a reasonable time but not later than 90 daysafter the termination of the period of an order or extensions thereofthe issuing or denying judge shall cause to be served on the personsnamed in the order or the application and, in the interest of justice,such other parties to intercepted communications as the judge maydetermine, an inventory which shall include notice of:
(i) the fact of the entry of the order or the application;
(ii) the date of the entry and the period of authorized, approved ordisapproved interception, or the denial of the application; and
(iii) the fact that during the period wire, oral orelectronic communicationswere or were not intercepted.
The judge, upon the filing of a motion in such judge'sdiscretion, may make available to such person or such person's counsel forinspection, such portions of the intercepted communications,applications and orders as the judge determines to be in the interest ofjustice. On an ex parte showing of good cause to a judge ofcompetent jurisdiction the serving of the inventory required by thissubsection may be postponed.
(8) The contents of any intercepted wire, oral orelectronic communication orevidence derived therefrom shall not be received in evidence orotherwise disclosed in any trial, hearing or other proceeding in anyfederal court or court of this state, unless each party, not less than 10days before the trial, hearing or proceeding, has beenfurnished with a copy of the court order, and accompanying application,under which the interception was authorized. Such ten-day period may bewaived by the judge, if the judge finds that it was not possible tofurnish the party with the above information 10 days before thetrial, hearing or proceeding, and that the party will not be prejudicedby the delay in receiving such information.
(9) (a) Any aggrieved person in any trial, hearing or proceeding inor before any court, department, officer, agency, regulatory body orother authority of the United States, this state, or a politicalsubdivision thereof, may move to suppress the contents of anyintercepted wire or oral communication, or evidence derived therefrom,on the grounds that:
(i) The communication was unlawfully intercepted;
(ii) The order of authorization under which it was intercepted isinsufficient on its face; or
(iii) The interception was not made in conformity with the order ofauthorization.
Such motion shall be made before the trial, hearing or proceeding,unless there was no opportunity to make such motion or the person wasnot aware of the grounds of the motion. If the motion is granted, thecontents of the intercepted wire or oral communication, or evidencederived therefrom, shall be treated as having been obtained in violationof this act. Upon the filing of such motion by the aggrieved person,the judge in such judge's discretion may make availableto the aggrievedperson or such person's counsel for inspection such portions of theintercepted communication or evidence derived therefrom as the judgedetermines to be in the interest of justice.
(b) In addition to any other right to appeal, the state shall havethe right to appeal:
(i) From an order granting a motion to suppress made under paragraph(a) of this subsection. Such appeal shall be taken within 10 daysafter the order of suppression was entered and shall be diligentlyprosecuted as in the case of other interlocutory appeals or under suchrules as the supreme court may adopt;
(ii) From an order denying an application for an order authorizingthe interception of wire or oral communications, and any such appealshall be ex parte and shall be in camera in preference to all otherpending appeals in accordance with rules promulgated by the supremecourt.
(10) The requirements of subsections (1)(b)(ii) and (3)(d) of this sectionrelating to the specification of the facilities from which, or the placewhere, the communication is to be intercepted do not apply if:
(a) In the case of an application with respect to the interception ofan oral communication:
(i) The application is by a law enforcement officer and is approvedby the attorney general and the county or district attorney where the applicationis sought;
(ii) the application contains a full and complete statement as to whysuch specification is not practical and identifies the person committingthe offense and whose communications are to be intercepted; and
(iii) the judge finds that such specification is not practical; and
(b) in the case of an application with respect to a wire or electroniccommunication:
(i) the application is by a law enforcement officer and is approvedby the attorney general and the county or district attorney where the applicationis sought;
(ii) the application identifies the person believed to be committingthe offense and whose communications are to be intercepted and the applicantmakes a showing of a purpose, on the part of that person, to thwart interceptionby changing facilities; and
(iii) the judge finds that such purpose has been adequately shown.
(11) An interception of a communication under an order with respectto which the requirements of subsections (1)(b)(ii) and (3)(d) of this sectiondo not apply by reason of subsection (10) shall not begin until the facilitiesfrom which, or the place where, the communication is to be intercepted isascertained by the person implementing the interception order. A providerof wire or electronic communications service that has received an orderas provided for in subsection (10)(b) may move the court to modify or quashthe order on the ground that its assistance with respect to the interceptioncannot be performed in a timely or reasonable fashion. The court, upon noticeto the government, shall decide such a motion expeditiously.
(c) The remedies and sanctions described in this chapter with respectto the interception of electronic communications are the only judicial remediesand sanctions for nonconstitutional violations of this act involving suchcommunications.
History: L. 1974, ch. 150, § 3; L. 1976, ch. 165, § 4;L. 1988, ch. 117, § 3; July 1.