§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 the 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 the 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 or officers requesting the application, the official or officials 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

(E) Where appropriate, 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 the 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;

(C) Felony criminal property damage involving the danger of bodily injury;

(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;

(C) The subject matter of the conversation;

(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, if possible, shall 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 if:

(A) There are no incriminating statements;

(B) Any incriminating statements are inadmissible at trial pursuant to section 803-45(f); or

(C) 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

(C) The interception was not made in conformity with the order of authorization or approval.

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

(C) The designated judge finds that the specification is not practical; or

(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

(C) The designated judge finds that the purpose has been adequately shown.

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; am L 2015, c 35, §32]

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 (1983).