Iowa Code § 808B.5 — IA Code / Title XVI / Chapter 808B / Section 808B.5
Application and order.
Status: in_force

(1) An 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 court and shall state the applicant’s authority to make the application. An application shall include the following information:

(1) (a) The identity of the special state agent requesting the application, the supervisory officer reviewing and approving the request, and the approval of the administrator of a division of the department of public safety under whose command the special state agent making the application is operating or the administrator’s designee.

(1) (b) A full and complete statement of the facts and circumstances relied upon by the applicant to justify the belief that an order should be issued, including details as to the particular offense that has been, is being, or is about to be committed, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, a particular description of the type of communications sought to be intercepted, and the identity of the person, if known, committing the offense and whose communications are to be intercepted.

(1) (c) A full and complete statement as to whether 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.

(1) (d) A statement of 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 first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will subsequently occur.

(1) (e) A full and complete statement of the facts concerning all previous applications known to the individuals authorizing and making the application, made to any court 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 court on those applications.

(1) (f) If 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 results.

(2) The court may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(3) Upon application the court may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications within the territorial jurisdiction of the court, if the court finds on the basis of the facts submitted by the applicant all of the following:

(3) (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a felony offense involving dealing in controlled substances, as defined in section 124.101, subsection 5.

(3) (b) There is probable cause for belief that particular communications concerning the offense will be obtained through the interception.

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

(3) (d) There is probable cause for belief 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 the offense, or are leased to, listed in the name of, or commonly used by the person whose communications are to be intercepted.

(4) Each order authorizing the interception of a wire, oral, or electronic communication shall specify all of the following:

(4) (a) The identity of the person, if known, whose communications are to be intercepted.

(4) (b) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted.

(4) (c) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which the communication relates.

(4) (d) The identity of the agency authorized to intercept the communications, and of the person requesting the application.

(4) (e) The period of time during which interception is authorized, including a statement as to whether the interception shall automatically terminate when the described communication has been first obtained.

(5) Each order authorizing the interception of a wire, oral, or electronic communication shall, upon request of the applicant, direct that a communications common carrier, landlord, custodian, or other person shall furnish to the applicant all information, facilities, and technical assistance necessary to accomplish the interception inconspicuously and with a minimum of interference with the services that the carrier, landlord, custodian, or person is giving to the person whose communications are to be intercepted. Any communications common carrier, landlord, custodian, or other person furnishing facilities or technical assistance shall be compensated by the applicant at the prevailing rates.

(6) An order entered under this section shall not authorize the interception of a wire, oral, or electronic communication for a period longer than is necessary to achieve the objective of the authorized interception, or in any event longer than thirty days. The thirty-day period shall commence on the date specified in the order upon which the commencement of the interception is authorized or ten days after the order is entered, whichever is earlier. An extension of an order may be granted, but only upon application for an extension made in accordance with subsection 1 and the court making the findings required by subsection 3. The period of extension shall be no longer than the authorizing court deems necessary to achieve the purposes for which it was granted and in no event longer than thirty days. Every order and its extension 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 section and sections 808B.1 through 808B.4, 808B.6, and 808B.7, and shall terminate upon attainment of the authorized objective, or in any event in thirty days.

(7) If an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the court which 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 intervals as the court requires.

(8) (a) The contents of a wire, oral, or electronic communication intercepted by a means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of a wire, oral, or electronic communication under this subsection shall be done in a way which will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions of it, the recordings shall be made available to the court issuing the order and shall be sealed under the court’s directions. Custody of the recordings shall be in accordance with the court order. Recordings shall be kept for five years and shall then be destroyed unless it is necessary to keep the recordings due to a continued legal process or court order, but the recordings shall not be kept for longer than ten years. Duplicate recordings may be made for disclosure or use pursuant to section 808B.4, subsections 1 and 2. The presence of a seal, or a satisfactory explanation for its absence, is a prerequisite for the disclosure or use of the contents of a wire, oral, or electronic communication or evidence derived from a communication under section 808B.4, subsection 3.

(8) (b) Applications made and orders granted under this chapter shall be sealed by the court. Custody of the applications and orders shall be in accordance with the directives of the court. The applications and orders shall be disclosed only upon a showing of good cause before a court and shall be kept for five years and shall then be destroyed unless it is necessary to keep the applications or orders due to a continued legal process or court order, but the applications and orders shall not be kept for longer than ten years.

(8) (c) A violation of this subsection may be punished as contempt of court.

(9) (a) Within a reasonable time, but not longer than ninety days, after the termination of the period of an order or its extensions, the court shall cause a notice to be served on all persons named in the order or the application which includes the following:

(9) (a) The names of other parties to intercepted communications if the court determines disclosure of the names to be in the interest of justice.

(9) (a) An inventory which shall include all of the following:

(9) (a) The date of the application.

(9) (a) The date of the entry of the court order and the period of authorized, approved, or disapproved interception, or the denial of the application.

(9) (a) Whether, during the period, wire, oral, or electronic communications were or were not intercepted.

(9) (b) The court, upon the filing of a motion by a person whose communications were intercepted, shall make available to the person or the person’s attorney for inspection the intercepted communications, applications, and orders. On an ex parte showing of good cause to a court, the service of the inventory required by this subsection may be postponed.

(10) The contents of an intercepted wire, oral, or electronic communication or evidence derived from the wire, oral, or electronic communication shall not be received in evidence or otherwise disclosed in a trial, hearing, or other proceeding in a federal or state court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. This ten-day period may be waived by the court if it finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information. If the ten-day period is waived by the court, the court may grant a continuance or enter such other order as it deems just under the circumstances.

(11) An aggrieved person in a trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this state, may move to suppress the contents of an intercepted wire, oral, or electronic communication, or evidence derived from the wire, oral, or electronic communication, on the grounds that the communication was unlawfully intercepted, the order of authorization under which it was intercepted was insufficient on its face, or the interception was not made in conformity with the order of authorization. The motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make the 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 from the wire, oral, or electronic communication, shall be treated as having been obtained in violation of this chapter.

(12) A special state agent may make application to a judicial officer for the issuance of a search warrant to authorize the placement, tracking, or monitoring of a global positioning device, supported by a peace officer’s oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the special state agent’s application, and probable cause for believing the grounds exist. Upon a finding of probable cause to issue such a warrant, the judicial officer shall issue a warrant, signed by the judicial officer with the judicial officer’s name of office, directed to any peace officer, commanding that the peace officer place, track, or monitor the global positioning device.

(13) Upon the request of an investigative or law enforcement officer, a judge may issue a subpoena or other court order in order to obtain information and supporting documentation regarding contemporaneous or prospective wire or electronic communications based upon a finding that a prosecuting attorney is engaged in a criminal investigation of an offense listed in section 808B.3.

(14) Notwithstanding any other provision of law, upon the request of an investigative or law enforcement officer, a judge may authorize the capture of a wire or oral communication by a pen register or trap and trace device, if a judge finds that there is probable cause to believe that a wire or oral communication relevant to a valid search warrant will occur at any point while the warrant is in effect.

(15) An appeal by the attorney general from an order granting a motion to suppress or from the denial of an application for an order of approval shall be pursuant to section 814.5, subsection 2.

89 Acts, ch 225, §26; 99 Acts, ch 78, §12 – 21; 99 Acts, ch 208, §63; 2009 Acts, ch 88, §10