Enhanced Oversight of Search Warrants and Title III Wiretaps

Prosecutors and federal agents are entrusted with broad and largely unchecked authority to conduct most aspects of their investigations. For example, they serve grand jury subpoenas that compel the production of evidence and witness testimony. They can conduct physical surveillance of subjects and even introduce undercover agents and confidential informants to them in order to build prosecutions. All of this can be done without any judicial approval. However, two of the most potent investigative tools that prosecutors and agents use to build their investigations — the search warrant and the Title III wiretap — do require judicial approval under the Fourth Amendment. As some commentators (including one of the authors of this article) have observed, search warrants and wiretaps were once used primarily to investigate organized crime, drug dealing and terrorism. In recent years, however, prosecutors have employed these tools increasingly in the context of white-collar crime to the point where it is now commonplace. See, Robert H. Hotz, Jr. & Harry Sandick, "Search Warrants in White-Collar Crime Cases," The Review of Securities and Commodities Regulation, Vol. 45 No. 12 (June 20, 2012).