Missouri Wiretapping
Mo. Ann. Stat. § 542.400, et seq.
CITATION:
Title XXXVII CRIMINAL PROCEDURE
Chapter 542 Proceedings to Preserve the Peace — Searches and Seizures
WIRETAPPING
542.400- Definitions. (8/28/2002)
542.402- Penalty for illegal wiretapping, permitted activities. (1/1/2017)
542.404- Application for an order — authorization by attorney general — approval by ... (8/28/2002)
542.406- Disclosure of contents — privileged communications. (8/28/2002)
542.408- Application, contents — ex parte order issued, when, contents, extensions ... (8/28/2002)
542.410- Recording of contents, required, how, custody of, duplication, destruction ... (8/28/2002)
542.412- Contents may be used as evidence, when — disclosure of additional evidence ... (8/28/2002)
542.414- Suppression of contents, grounds — right of state to appeal suppression ... (8/28/2002)
542.416- Reports to state courts administrator required, when, contents, who must ... (8/28/2002)
542.418- Use of contents of wiretap in civil action, limitations on — illegal ... (8/28/2002)
542.420- Evidence obtained in violation of law may not be used. (8/28/2002)
542.422- Injunctions of felony violations of sections 542.400 to 542.424, procedure. (8/28/2002)
542.400. Definitions. — As used in sections 542.400 to 542.422, the following words and phrases mean:
(1) "Aggrieved person", a person who was a party to any intercepted wire communication or a person against whom the interception was directed;
(2) "Communication common carrier", an individual or corporation undertaking to transport messages for compensation;
(3) "Contents", when used with respect to any wire communication, includes any information concerning the identity of the parties, the substance, purport, or meaning of that communication;
(4) "Court of competent jurisdiction", any circuit court having general criminal jurisdiction within the territorial jurisdiction where the communication is to be intercepted including any circuit judge specially assigned by the supreme court of Missouri pursuant to section 542.404;
(5) "Electronic, mechanical, or other device", any device or apparatus which can be used to intercept a wire communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, owned by the user or furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or being used by a communications common carrier in the ordinary course of its business or by an investigative office or law enforcement officer in the ordinary course of his duties; or
(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal;
(6) "Intercept", the aural acquisition of the contents of any wire communication through the use of any electronic or mechanical device, including but not limited to interception by one spouse of another spouse;
(7) "Investigative officer" or "law enforcement officer or agency", any officer or agency of this state or a political subdivision of this state, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in sections 542.400 to 542.422, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;
(8) "Oral communication", any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;
(9) "Person", any employee, or agent of this state or political subdivision of this state, and any individual, partnership, association, joint stock company, trust, or corporation;
(10) "Prosecuting attorney", the elected prosecuting attorney of the county or the circuit attorney of any city not contained within a county;
(11) "State", the* state of Missouri and political subdivisions of the state;
(12) "Wire communication", any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of local, state or interstate communications.
--------
(L. 1989 H.B. 277, et al. § 1, A.L. 2002 S.B. 712)
*Word "the" does not appear in original rolls.
(1993) Where city officials recorded conversation of inmate and police officers in public jail, officers could not justifiably have an expectation of privacy, and tape recording of conversation is not wire communication for purposes of Missouri's wiretapping law. Angel v. Williams, 12 F.3d 786 (8th Cir.).
(1998) Communications between a cellular phone and a regular wire phone are wire communications within the purview of the wiretap law. Lee v. Lee, 967 S.W.2d 82 (Mo.App. W.D.).
542.402. Penalty for illegal wiretapping, permitted activities. — 1. Except as otherwise specifically provided in sections 542.400 to 542.422, a person is guilty of a class E felony and upon conviction shall be punished as provided by law, if such person:
(1) Knowingly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire communication;
(2) Knowingly uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when such device transmits communications by radio or interferes with the transmission of such communication; provided, however, that nothing in sections 542.400 to 542.422 shall be construed to prohibit the use by law enforcement officers of body microphones and transmitters in undercover investigations for the acquisition of evidence and the protection of law enforcement officers and others working under their direction in such investigations;
(3) Knowingly discloses, or endeavors to disclose, to any other person the contents of any wire communication, when he knows or has reason to know that the information was obtained through the interception of a wire communication in violation of this subsection; or
(4) Knowingly uses, or endeavors to use, the contents of any wire communication, when he knows or has reason to know that the information was obtained through the interception of a wire communication in violation of this subsection.
2. It is not unlawful under the provisions of sections 542.400 to 542.422:
(1) For an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication, however, communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks;
(2) For a person acting under law to intercept a wire or oral communication, where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception;
(3) For a person not acting under law to intercept a wire communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act.
--------
(L. 1989 H.B. 277, et al. § 2, A.L. 2002 S.B. 712, A.L. 2014 S.B. 491)
Effective 1-01-17
(1998) Communications between a cellular phone and a regular wire phone are wire communications within the purview of the wiretap law. Lee v. Lee, 967 S.W.2d 82 (Mo.App. W.D.).
542.404. Application for an order — authorization by attorney general — approval by judge, probable cause required. — 1. The elected prosecuting attorney of the county with the written authorization of the attorney general of the state of Missouri may make application for an order authorizing the interception of a wire communication. The supreme court of Missouri, upon notice that the attorney general of the state of Missouri has authorized application for an interception of a wire communication, shall appoint a circuit court from a circuit other than the circuit where the application originates to approve or deny the application and to issue any necessary orders. Such court may grant, in conformity with sections 542.400 to 542.422, an order authorizing the interception of wire communications by the law enforcement agency having responsibility for the investigation of the offense if there is probable cause to believe that the interception may provide evidence of a felony which involves the manufacture or distribution of a controlled substance, as the term is defined by section 195.016, or the felony of murder, arson, or kidnapping, or a terrorist threat as defined in section 574.115, or any conspiracy to commit any of the foregoing.
2. Any order entered pursuant to the provisions of sections 542.400 to 542.422 shall require live monitoring by appropriate law enforcement personnel of the interception of any wire communication.
--------
(L. 1989 H.B. 277, et al. § 3, A.L. 2002 S.B. 712)
----------------- 542.404 8/28/2002 -----------------
542.406. Disclosure of contents — privileged communications. — 1. Any investigative officer or law enforcement officer who, by any means authorized by sections 542.400 to 542.422, has lawfully obtained knowledge of the contents of any wire communication, or evidence derived therefrom, may disclose such contents to another investigative officer or law enforcement officer to the extent that such disclosure is necessary to the proper performance of the official duties of the officer making or receiving the disclosure for investigative purposes only.
2. Any investigative officer or law enforcement officer who, by any means authorized by sections 542.400 to 542.422, has lawfully obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents to the extent such use is necessary to the proper performance of his official duties.
3. Any person who has received, by any means authorized by sections 542.400 to 542.422, any information concerning a wire communication, or evidence derived therefrom, intercepted in accordance with the provisions of sections 542.400 to 542.422 shall disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding, including deposition in any court or in any grand jury proceeding, subject to the rules of evidence.
4. No otherwise privileged wire communication intercepted in accordance with, or in violation of, the provisions of sections 542.400 to 542.422 shall lose its privileged character and shall be suppressed upon motion.
--------
(L. 1989 H.B. 277, et al. § 4, A.L. 2002 S.B. 712)
----------------- 542.406 8/28/2002 -----------------
542.408. Application, contents — ex parte order issued, when, contents, extensions granted, when — reports, court may require, when — pen registers, who may request — communication, common carriers may provide aid, immunity from suit, compensation. — 1. Each application for an order authorizing or approving the interception of a wire communication shall be made in writing and shall be submitted to the attorney general for his review and approval. If the attorney general approves the application, he shall join such application, which shall be submitted upon oath or affirmation to a court of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
(1) The identity of the prosecuting attorney making the application together with the identities of the law enforcement agency or agencies that are to conduct the interception;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant to justify his 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) 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; and
(d) The identity of the person and employment, if known, committing the offense and whose communications are to be intercepted;
(e) That the application is sought solely for detection of the crimes enumerated in section 542.404;
(3) 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;
(4) 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 the 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 occur thereafter;
(5) A full and complete statement of the facts concerning all previous applications known or available to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application;
(6) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or an explanation of the failure to obtain such results; and
(7) A statement that adequate resources are available to perform the interception and the estimated number of persons required to accomplish the interception.
2. The court may require the applicant to furnish additional testimony or documentary evidence in support of the application.
3. Upon such application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire communications within the territorial jurisdiction of the court, if the court determines on the basis of the facts submitted by the applicant that:
(1) Probable cause exists to believe that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 542.404;
(2) Probable cause exists to believe that particular communications concerning that offense will be obtained through such interception;
(3) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(4) Probable cause exists to believe that the facilities from which, or the place where, the wire 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 such person.
4. Each order authorizing or approving the interception of any wire communication shall specify:
(1) The identity of the person and employment, if known, whose communications are to be intercepted;
(2) The nature and location of the communication facilities as to which, or the place where, authority to intercept is granted including whether the interception involves a cellular or other wireless device;
(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 of the person authorizing the application;
(5) The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
5. No order entered under this section may authorize or approve the interception of any wire communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection 1 of this section and the court making the findings required by subsection 3 of this section. The period of extension shall be no longer than the court deems necessary to achieve the purposes for which it was granted and in no event 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 sections 542.400 to 542.422, and shall terminate upon attainment of the authorized objective, or in any event in thirty days.
6. Whenever an order authorizing interception is entered pursuant to the provisions of sections 542.400 to 542.422, the order may require reports to be made to the court who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court may require, but in no case longer than thirty days.
7. Notwithstanding any other provisions of sections 542.400 to 542.422, any law enforcement officer with the approval of the prosecuting attorney may request an order of an appropriate court whenever reasonable grounds therefor exist to have a pen register placed in effect, which pen register will only determine the phone number to which the call is placed.
8. Notwithstanding any other provision of law to the contrary, communication common carriers, and their officers, employees and agents, may provide information, facilities or technical assistance to persons authorized by law to intercept wire communications, if the communication common carrier, its officers, employees or agents have been provided with a court order directing such assistance signed by the authorizing court. The court order shall set forth the period of time during which the provision of the information, facilities or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No cause of action shall lie in any court against any communication common carrier, its officers, employees, and agents for providing information, facilities or assistance in accordance with the terms of an order under this subsection. Any communication common carrier furnishing such facilities or technical assistance shall be compensated therefor by the prosecuting attorney at the prevailing rates.
--------
(L. 1989 H.B. 277, et al. § 5, A.L. 2002 S.B. 712)
----------------- 542.408 8/28/2002 -----------------
542.410. Recording of contents, required, how, custody of, duplication, destruction of — applications and orders sealed by court, disclosure, when, destruction of — penalty — notice to persons named in order, when, right to inspect and copy contents. — 1. The contents of any wire communication intercepted by any means authorized by sections 542.400 to 542.422 shall be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication as required by this section shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the court issuing such order and shall be sealed under its directions. Custody of the recordings shall be wherever the court orders. The recordings shall not be destroyed except upon an order of the issuing court and in any event shall be kept for ten years. Duplicate recordings shall be made for use for disclosure pursuant to the provisions of subsections 1 and 2 of section 542.406 for investigations and discovery in accordance with applicable supreme court rules. The presence of the seal provided for by subsection 2 of this section, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire communication or evidence derived therefrom under the provisions of subsection 3 of section 542.406.
2. Applications made and orders granted under sections 542.400 to 542.422 shall be sealed by the court. Custody of the applications and orders shall be wherever the court directs. Such applications and orders shall be disclosed only upon a showing of good cause before a court of competent jurisdiction and shall not be destroyed except on order of the issuing or denying court, and in any event shall be kept for ten years.
3. Any violation of the provisions of this section shall be punishable as a class A misdemeanor.
4. Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under the provisions of sections 542.400 to 542.422 or the termination of the period of an order or extensions thereof, whichever is later, the issuing or denying court shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications an inventory which shall include notice of:
(1) The fact of the entry of the order or the application;
(2) The date of the entry and the period of authorized, approved interception;
(3) The fact that during the period oral communications were or were not intercepted; and
(4) The nature of said conversations.
The court, upon the filing of a motion, shall make available to such person or his counsel for inspection and copying such intercepted communications, applications and orders.
--------
(L. 1989 H.B. 277, et al. § 6, A.L. 2002 S.B. 712)
----------------- 542.410 8/28/2002 -----------------
542.412. Contents may be used as evidence, when — disclosure of additional evidence to defendant. — 1. The contents of any intercepted wire communications or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in federal or state court nor in any administrative proceeding unless each party, in compliance with supreme court rules relating to discovery in criminal cases, hearings and proceedings, has been furnished with a copy of the court order and accompanying application under which the interception was authorized or approved and a transcript of any intercepted wire communication or evidence derived therefrom.
2. If the defense in its request designates material or information not in the possession or control of the state, but which is, in fact, in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defendant's counsel, and if the state's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court, upon request, shall issue suitable subpoenas or orders to cause such material or information to be made available to the state for disclosure to the defense.
--------
(L. 1989 H.B. 277, et al. § 7, A.L. 2002 S.B. 712)
----------------- 542.412 8/28/2002 -----------------
542.414. Suppression of contents, grounds — right of state to appeal suppression motion, when. — 1. Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, the state, or a political subdivision thereof, may move to suppress the contents of any intercepted wire communication, or evidence derived therefrom, on the grounds that:
(1) The communication was unlawfully intercepted;
(2) The order of authorization or approval under which it was intercepted is insufficient on its face;
(3) The interception was not made in conformity with the order of authorization or approval; or
(4) The communication was intercepted in violation of the provisions of the Constitution of the United States or the state of Missouri or in violation of a state statute.
Such motion shall be made before the trial, hearing, or proceeding unless there was no reasonable opportunity to make such motion or the person was not aware of the existence of grounds for the motion. If the motion is granted, the contents of the intercepted wire communication, or evidence derived therefrom or the contents of any communication intercepted as a result of any extension of the original order authorizing or approving the interception of wire communication, and any evidence derived therefrom, shall be treated as having been obtained in violation of sections 542.400 to 542.422.
2. In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion to suppress made under subsection 1 of this section if the prosecuting attorney shall certify to the court or other official granting such motion that the appeal be taken within thirty days after the date the order was entered and shall be diligently prosecuted.
--------
(L. 1989 H.B. 277, et al. § 8, A.L. 2002 S.B. 712)
----------------- 542.414 8/28/2002 -----------------
542.416. Reports to state courts administrator required, when, contents, who must report — state courts administrator to report to general assembly, when — rules and regulations. — 1. Within thirty days after the expiration of an order or each extension thereof entered pursuant to the provisions of section 542.408, the issuing court shall report to the state courts administrator:
(1) The fact that an order or extension was applied for;
(2) The kind of order or extension applied for;
(3) The fact that the order or extension was granted as applied for, was modified, or was denied;
(4) The period of interceptions authorized by the order, and the number and duration of any extensions of the order;
(5) The offense specified in the order or application, or extension of an order;
(6) The identity of the applying investigative officer or law enforcement officer and agency making the application and the person authorizing the application; and
(7) The nature of the facilities from which or the place where communications were to be intercepted.
2. In January of each year, the principal prosecuting attorney for any political subdivision of the state shall report to the state courts administrator:
(1) The information required by subdivisions (1) through (7) of subsection 1 of this section with respect to each application for an order or extension made during the preceding calendar year;
(2) A general description of the interceptions made under such order or extension, including:
(a) The approximate nature and frequency of incriminating communications intercepted;
(b) The approximate nature and frequency of other communications intercepted;
(c) The approximate number of persons whose communications were intercepted; and
(d) The approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
(3) The number of arrests resulting from interceptions made under such order or extension, and the offenses for which arrests were made;
(4) The number of trials resulting from such interceptions;
(5) The number of motions to suppress made with respect to such interceptions, and the number granted or denied;
(6) The number of convictions resulting from such interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions; and
(7) The information required by subdivisions (2) through (6) of this subsection with respect to orders or extensions obtained in the preceding calendar year.
3. In April of each year the state courts administrator shall transmit to the Missouri general assembly a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire communications and the number of orders and extensions granted or denied during the preceding calendar year. Such report shall include a summary and analysis of the data required to be filed with the state courts administrator by subsections 1 and 2 of this section. The state courts administrator may promulgate rules and regulations dealing with the content and form of the reports required to be filed by subsections 1 and 2 of this section.
--------
(L. 1989 H.B. 277, et al. § 9, A.L. 2002 S.B. 712)
----------------- 542.416 8/28/2002 -----------------
542.418. Use of contents of wiretap in civil action, limitations on — illegal wiretap, cause of action, damages, attorney fees and costs — good faith reliance on court order a prima facie defense. — 1. The contents of any wire communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any civil or administrative proceeding, except in civil actions brought pursuant to this section.
2. Any person whose wire communication is intercepted, disclosed, or used in violation of sections 542.400 to 542.422 shall:
(1) Have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications; and
(2) Be entitled to recover from any such person:
(a) Actual damages, but not less than liquidated damages computed at the rate of one hundred dollars a day for each day of violation or ten thousand dollars whichever is greater;
(b) Punitive damages on a showing of a willful or intentional violation of sections 542.400 to 542.422; and
(c) A reasonable attorney's fee and other litigation costs reasonably incurred.
3. A good faith reliance on a court order or on the provisions of section 542.408 shall constitute a prima facie defense to any civil or criminal action brought under sections 542.400 to 542.422.
4. Nothing contained in this section shall limit any cause of action available prior to August 28, 1989.
--------
(L. 1989 H.B. 277, et al. § 10, A.L. 2002 S.B. 712)
(1998) Communications between a cellular phone and a regular wire phone are wire communications within the purview of the wiretap law. Lee v. Lee, 967 S.W.2d 82 (Mo.App. W.D.).
(1999) Section applies only to exclude evidence obtained pursuant to an authorized wiretap. Phillips v. American Motorist Insurance Co., 996 S.W.2d 584 (Mo.App.W.D.).
----------------- 542.418 8/28/2002 -----------------
542.420. Evidence obtained in violation of law may not be used. — Whenever any wire communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a state, or a political subdivision thereof if the disclosure of that information would be in violation of sections 542.400 to 542.422.
--------
(L. 1989 H.B. 277, et al. § 11, A.L. 2002 S.B. 712)
(1998) Communications between a cellular phone and a regular wire phone are wire communications within the purview of the wiretap law. Lee v. Lee, 967 S.W.2d 82 (Mo.App. W.D.).
----------------- 542.420 8/28/2002 -----------------
542.422. Injunctions of felony violations of sections 542.400 to 542.424, procedure. — Whenever it shall appear that any person is engaged or is about to engage in any act which constitutes or will constitute a felony violation of sections 542.400 to 542.422, the attorney general may initiate a civil action in a circuit court to enjoin such violation. The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the state or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the rules of civil procedure except that, if an indictment has been returned against the respondent, discovery is governed by the rules of criminal procedure.
--------
(L. 1989 H.B. 277, et al. § 12, A.L. 2002 S.B. 712)
For more information, see here: https://revisor.mo.gov/main/OneSection.aspx?section=542.402
These materials were obtained directly from the State Government public websites and are posted here for your review and reference only. No Claim to Original State Government Works. This may not be the most recent version. The State may have more current information. We make no guarantees or warranties about the accuracy or completeness of this information, or the information linked to. Please check the linked sources directly.