mechanical devices that identify all outgoing numbers
dialed, whether completed or not from monitored
telephones, do not intercept wire or oral communications
within the meaning of the federal statute. Moreover, the
installation and use of a pen register by the telephone
company at the request of the police does not constitute
a “search” requiring the issuance of a warrant under the
Fourth Amendment since there is no legitimate
expectation of privacy. Smith v. Maryland, 442 U.S. 735,
745-46, 99 S.Ct. 2577, 2583 (1979); but see State v.
Hunt, 91 N.J. 338, 348-50 (1982) (after analogizing toll
billing records, which reflect long distance completed
calls, with pen registers, the New Jersey Supreme Court
concluded that the former were entitled to Fourth
Amendment protection and prohibited the police from
obtaining toll billing records without a warrant). In
Dalia v. United States, 441 U.S. 238, 246-48, 99 S.Ct.
1682, 1688-89 (1979), the United States Supreme
Court held that a covert entry to install court-ordered
electronic surveillance devices was authorized by the
Federal Wiretap Act and did not violate the Fourth
Amendment.
C. Application for a Wiretap Order
In United States v. Adams, 759 F.2d 1099, 1114 (3d
Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336 (1985),
the Third Circuit found that the government need not
exhaust all possible traditional investigative techniques
prior to applying for a wiretap. Id. at 1114. In Adams,
because of the danger involved and the strong possibility
of discovery, the investigation merited the use of
wiretaps. Id.
The Federal Wiretap Act, similar to New Jersey law,
requires that a wiretap application name any individual
the government has probable cause to believe is engaged
in the criminal activity under investigation and whose
conversations the government expects to intercept via the
target telephone. See United States v. Donovan, 429 U.S.
413, 423-24, 97 S.Ct. 658, 665-66 (1977). The
government must also provide the judge with a
description of the general class or classes which the
unnamed, intercepted individuals compromise. Id. at
428-32. In Donovan, the United States Supreme Court
found that the government inadvertently failed to
comply with the provisions, but held nonetheless, that
the omission did not warrant suppression. Id. at 432-34;
see also United States v. Adams, 759 F.2d at 1115
(suppression was unnecessary where the government
failed to name the defendant as a target in its application
for an extension of the wiretap; the information necessary
to name the defendant as a target was not available to the
government until after the application was filed).D. MinimizationIn Scott v. United States, 436 U.S. 128, 137, 98 S.Ct.
1717, 1723 (1978), the United States Supreme Court
set forth the standards to be utilized for an analysis of the
minimization requirement, i.e., it is based on an objective
assessment of an officer’s actions in light of the facts and
circumstances then known to the officer. In United States
v. Adams, the Third Circuit found that even though the
number of non-pertinent intercepted calls was high,
there was no minimization violation because the
conspiracy involved a large number of individuals and the
participants spoke in coded language. Id. at 1115.E. The Sealing RequirementIn United States v. Ojeda Rios, 495 U.S. 257, 110
S.Ct. 1845 (1990), the United States Supreme Court
considered the proper analysis when there is a violation of
the sealing requirement as provided by federal law. See 18
U.S.C. §2518(8)(a). As a prerequisite to admissibility,
electronic surveillance tapes must be sealed immediately
upon the expiration of the underlying surveillance order
in order to ensure the reliability and integrity of evidence
obtained by means of electronic surveillance, or must
provide a “satisfactory explanation” for the absence of a
seal. United States v. Ojeda Rios, 495 U.S. at 259-60,
262-63; see also 18 U.S.C. §2518(8)(a). The sealing
requirement applies not only to a complete failure to seal,
but also to a delay in sealing. United States v. Ojeda Rios,
495 U.S. at 264. The Court further held that the
“satisfactory explanation” must be understood to require
that the government explain not only why a delay
occurred, but also why it is excusable. Id. at 265. In
establishing a reasonable excuse for a delay in sealing, the
government is not required to prove that a particular
understanding of the law is correct, but rather, that its
interpretation was objectively reasonable at the time. Id.
at 266.It should be noted that Ojeda Rios expressly overruled
United States v. Falcone, 505 F.2d 478, 484 (3d Cir.
1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339 (1975)
which had previously held that the failure to seal tapes in
a timely manner would not require suppression so long as
the government could prove that the integrity of the tapes
had not been compromised. See United States v. Ojeda
Rios, 495 U.S. at 265 n. 5; see also United States v. Carson,
969 F.2d 1480, 1483 (3d Cir. 1992); United States v.