TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 24. WIRETAPPING, ELECTRONIC SURVEILLANCE AND INTERCEPTION OF COMMUNICATIONS

Subchapter I. Electronic Surveillance and Interception of Communications


When used in this chapter:

(1) "Aggrieved person'' means a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed.

(2) "Aural transfer'' means a transfer containing the human voice at any point between and including the point of origin and the point of reception.

(3) "Communication common carrier'' means any person engaged as a common carrier for hire in the transmission of wire or electronic communications.

(4) "Contents,'' when used with respect to any wire, oral or electronic communication, includes any information concerning the identity of the parties to the communication or the existence or substance of that communication.

(5) "Electronic communication'' means any transfer of signs, signals, writing, images, sounds, data or intelligence of any electromagnetic, photoelectronic or photooptical system. However, "electronic communication'' does not include:

a. Any wire or oral communication;

b. Any communication made through a tone-only paging device; or

c. Any communication from a tracking device.

(6) "Electronic communication service'' means any service that provides to users of the service the ability to send or receive wire, oral or electronic communications.

(7) "Electronic communications system'' means any wire, oral, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire, oral or electronic communications, and any computer facilities or related electronic equipment for the wire, oral or electronic storage of electronic communications.

(8) "Electronic, mechanical, or other device'' means any device or electronic communication instrument other than:

a. Any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof, which is furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and is being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business or which is being used by a communications common carrier in the ordinary course of its business or which is being used by an investigative or law-enforcement officer in the ordinary course of that officer's duties; or,

b. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(9) "Electronic storage'' means any temporary, intermediate storage of a wire, oral or electronic communication incidental to the electronic transmission of the communication. "Electronic storage'' includes any storage of a wire, oral or electronic communication by an electronic communication service for purposes of backup protection of the communication.

(10) "Intercept'' means the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical or other device.

(11) "Investigative or law-enforcement officer'' means any officer of this State or a political subdivision of this State, who is empowered by law to conduct investigations or to make arrests for offenses enumerated in this title, any sworn law-enforcement officer of the federal government or of any other state or a political subdivision of another state working with and under the direction of an investigative or law-enforcement officer of this State or a political subdivision of this State, or any attorney authorized by law to prosecute or participate in the prosecution of such offenses.

(12) "Judge,'' when referring to a judge authorized to receive applications for and to enter orders authorizing interception of wire, oral or electronic communications, means 1 or more of the several Judges of the Superior Court to be designated from time to time by the President Judge of the Superior Court to receive applications for and to enter orders authorizing interception of wire, oral or electronic communications pursuant to this chapter.

(13) "Oral communication'' means any oral communication uttered by a person made while exhibiting an expectation that such communication is not subject to interception and under circumstances justifying such expectation, but such term does not include any electronic communication.

(14) "Pen register'' means a device that records and decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. "Pen register'' does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business.

(15) "Person'' means any employee or agent of this State or a political subdivision thereof, or any individual, partnership, association, joint stock company, trust or corporation.

(16) "Readily accessible to the general public'' means, with respect to a radio communication, that the communication is not:

a. Scrambled or encrypted;

b. Transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of the communication; or

c. Except for tone-only paging device communications, transmitted over frequencies reserved for private use and licensed for private use under federal or State law.

(17) "Remote computing service'' means the provision to the public of computer storage or processing services by means of an electronic communications system.

(18) "Trap and trace device'' means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

(19) "User'' means any person or entity that uses an electronic communication service and is duly authorized by the provider of the service to engage in that use.

(20) "Wire communication'' means any aural transfer 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 a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.

72 Del. Laws, c. 232, § 1.;

(a) Prohibited acts. — Except as specifically provided in this chapter or elsewhere in this Code no person shall:

(1) Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral or electronic communication;

(2) Intentionally disclose or endeavor to disclose to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter; or

(3) Intentionally use or endeavor to use the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter.

(b) Penalties for violation of subsection (a) of this section. — Any person who violates subsection (a) of this section shall be guilty of a class E felony and be fined not more than $10,000.

(c) Lawful acts. — It is lawful:

(1) For an operator of a switchboard or an officer, employee or agent of a provider of wire or electronic communication service whose facilities are used in the transmission of wire or electronic communication to intercept, disclose or use such communication in the normal course of employment while engaged in any activity that is necessarily incident to the rendition of such person's service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.

(2) For a provider of wire or electronic communication service, its officers, employees and agents, landlords, custodians or other persons to provide information, facilities or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees or agents, landlord, custodian or other specified person has been provided with a court order signed by an authorizing judge directing the provision of information, facilities or technical assistance.

a. An order as prescribed by this paragraph shall set forth the period of time during which the provision of the information, facilities or technical assistance is authorized and specify the information, facilities or technical assistance required.

b. A provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this paragraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the Attorney General of this State or the Attorney General's designee. Any unauthorized disclosure shall render the person liable for compensatory damages.

c. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this chapter.

(3) For an investigative or law-enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law-enforcement officer in such investigation pursuant to a court order issued by the Superior Court pursuant to § 2407 of this title to intercept a wire, oral or electronic communication in order to provide evidence of the commission of the offenses including racketeering, murder, kidnaping, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking, any felony involving risk of physical injury to a victim or any conspiracy or solicitation to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.

(4) For a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitutions or laws of the United States, this State or any other state or any political subdivision of the United States or this or any other state.

(5) For a law-enforcement officer in the course of the officer's regular duty to intercept an oral communication, if:

a. The law-enforcement officer initially detained 1 of the parties and overhears a conversation;

b. The law-enforcement officer is a party to the oral communication;

c. Both parties to the oral communication are present in a law-enforcement facility where there is notice to occupants that such communications are monitored;

d. The law-enforcement officer has been identified as a law-enforcement officer to the other party to the oral communication prior to any interception; or

e. The oral interception is being made as part of a video tape recording.

(6) For an officer, employee or agent of a government emergency communications center to intercept a wire, oral or electronic communication where the officer, agent or employee is a party to a conversation concerning an emergency.

(7) For law-enforcement personnel or those acting under their direction to utilize body wires to intercept oral communications in the course of a criminal investigation when the law-enforcement personnel or a person acting under their direction is a party to the communication. Communications intercepted by such means may be recorded and may be used against the defendant in a criminal proceeding.

(8) For a person:

a. To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;

b. To intercept any radio communication that is transmitted:

1. By any station for the use of the general public or that relates to ships, aircraft, vehicles or persons in distress;

2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;

3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or

4. By any marine or aeronautical communications system;

c. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference; or,

d. For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.

(9) To use a pen register or trap and trace device.

(10) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider or another provider furnishing service toward the completion of the wire or electronic communication or a user of that service, from fraudulent, unlawful or abusive use of the service.

(11) For a person acting under color of law and employed for such purpose by the Department of Correction to intercept an electronic or oral communication of any individual confined to a State correctional facility. At the direction of the Commissioner of Correction or the Commissioner's designee, a person performing an official investigation into suspected criminal activity may monitor and intercept the incoming and outgoing electronic communication of any individual incarcerated in a State correctional facility. The Department may also employ devices to monitor any incarcerated individual's incoming and outgoing electronic communication for words or phrases that would justify further investigation. The Department shall not monitor or intercept any communication between an individual confined in a State correctional facility and that individual's attorney.

(d) Divulging contents of communications. — Except as provided in this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(1) A person or entity providing electronic communication service to the public may divulge the contents of a communication:

a. As otherwise authorized by federal or State law;

b. To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

c. That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law-enforcement agency.

(2) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct that would otherwise be an offense under this subsection is not an offense if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:

a. To a broadcasting station for purposes of retransmission to the general public; or

b. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.

(e) Penalties for divulging contents of communications. — Whoever violates subsection (d) of this section shall:

(1) Except as otherwise provided in this subsection, be guilty of a class F felony and fined not more than $10,000.

(2) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was not the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

be guilty of a class A misdemeanor.

(3) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

be guilty of an unclassified misdemeanor.

(f) Civil liability for violations of § 2402 or § 2403 of this title. — A person who engages in conduct in violation of § 2402 or § 2403 of this title is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:

(1) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

(2) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 [47 C.F.R. § 74.401 et seq.] of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is not for a tortious or illegal purpose or for purpose of direct or indirect commercial advantage or private commercial gain.

(g) Injunctive relief — Civil penalties. — The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person's first offense under paragraph (e)(1) of this section and the person has not been found liable in a prior civil action under § 2409 of this title. However, in any action under this subsection, if the violation is a second or subsequent offense under paragraph (e)(1) of this section or if the person has been found liable in a prior civil action under § 2409 of this title, the person is subject to a mandatory civil fine of not less than $400. The Court may use any means within its authority to enforce an injunction issued under this subsection and shall impose a civil fine of not less than $500 for each violation of an injunction issued under this subsection.

72 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Prohibited acts. — Except as otherwise specifically provided by this chapter, any person who manufactures, assembles, possesses or sells any electronic, mechanical or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral or electronic communications, shall be guilty of a Class F felony and be fined not more than $10,000.

(b) Lawful acts. — It is lawful under this section for:

(1) A provider of wire or electronic communication service or an officer, agent, employee of, or person under contract with a service provider, in the normal course of the business of providing that wire or electronic communication service, to manufacture, assemble, possess or sell any electronic, mechanical or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral or electronic communications.

(2) A person under contract with the United States, a state, a political subdivision of a state or the District of Columbia, in the normal course of the duties of the United States, a state, a political subdivision thereof or the District of Columbia to manufacture, assemble, possess or sell any electronic, mechanical or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral or electronic communications.

(3) An officer, agent or employee of the United States in the normal course of that individual's lawful duties to manufacture, assemble, possess or sell any electronic, mechanical or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral or electronic communications. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.

(4) An officer, agent or employee of a law-enforcement agency of this State or a political subdivision of this State in the normal course of that individual's lawful duties to manufacture, assemble, possess or sell any electronic, mechanical or other device knowing or having reason to know that the design of the device is primarily for the purpose of the surreptitious interception of wire, oral or electronic communications; provided, however, that the particular officer, agent or employee is specifically authorized by the chief administrator of such law-enforcement agency to manufacture, assemble or possess the device for a particular law-enforcement purpose. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.

72 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

Whenever any wire or oral communication has been intercepted, no part of the contents of the 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 this State or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

72 Del. Laws, c. 232, § 1.;

The Attorney General, Chief Deputy Attorney General, State Prosecutor or Chief Prosecutor of any county may apply to a judge authorized to receive intercept applications and the judge, in accordance with § 2407 of this title, may grant an order authorizing the interception by investigative or law-enforcement officers of wire, oral or electronic communications when the interception may provide evidence:

(1) Of the commission of the offense of racketeering, murder, kidnaping, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, dealing in controlled substances or counterfeit controlled substances, prison escape, jury tampering, or stalking;

(2) Of the commission of any felony creating a risk of physical injury to a person;

(3) Of any conspiracy or solicitation to commit any of the offenses set forth in paragraph (1) or (2) of this section; or

(4) Aiding in the apprehension of the perpetrator of any of the offenses set forth in this section.

No application or order shall be required if the interception is lawful under the provisions of § 2406(c) of this title.

72 Del. Laws, c. 232, § 1.;

(a) Disclosure by investigative or law-enforcement officer. — Any investigative or law-enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom may disclose the contents to another investigative or law-enforcement officer of any state, any political subdivision of a state, the United States or any territory, protectorate or possession of the United States, including the District of Columbia, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(b) Use of contents by officer. — Any investigative or law-enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom or an investigative or law-enforcement officer of any state or any political subdivision of a state, the United States or any territory, protectorate or possession of the United States, including the District of Columbia, who obtains such knowledge by lawful disclosure may use the contents to the extent that the use is appropriate to the proper performance of the officer's official duties.

(c) Disclosure while giving testimony. — Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of any state or any political subdivision of a state, the United States or any territory, protectorate or possession of the United States, including the District of Columbia.

(d) Privileged character of communication not lost. — Any contents of wire, oral or electronic communication intercepted in accordance with or in violation of the provisions of this chapter that would otherwise be considered privileged under the law do not lose their privileged character through such interception.

(e) Communications relating to offenses not specified in order. — When an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized herein, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof and evidence derived therefrom may be disclosed or used consistent with subsection (a), (b) or (c) of this section. The contents and any evidence derived therefrom may be used under subsection (c) of this section when authorized or approved by a judge authorized to receive intercept applications where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this chapter. Such application should be made forthwith.

(f) Disclosure by law-enforcement officers of other jurisdictions. — Any investigative or law-enforcement officer of any state or political subdivision of a state, the United States, or any territory, protectorate or possession of the United States, including the District of Columbia, who has lawfully received any information concerning a wire, oral or electronic communication or evidence lawfully derived therefrom that would have been lawful for a law-enforcement officer of this State to receive pursuant to this chapter may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this State or any political subdivision of this State.

72 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Application. — Any application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make the application. Each application shall include the following information:

(1) The identity of the investigative or law-enforcement officer making the application and the officer authorizing the application;

(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. A description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

c. A description of the type of communication sought to be intercepted; and

d. The identity of the person, if known, committing the offense and whose communications are to be intercepted;

(3) A full and complete statement as to whether or not other investigative procedures have been tried and failed, why such procedures reasonably appear to be unlikely to succeed if tried, or why such procedures would be too dangerous if tried;

(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 interception should not automatically terminate when the described type of communication has been first obtained, a description of facts establishing probable cause to believe additional communications of the same type will occur thereafter;

(5) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application that have been made to a judge for authorization to intercept wire, oral or electronic communications involving any of the same persons, facilities or places specified in the application and the action taken on each application; and

(6) 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 the results.

(b) Additional evidence in support of applications. — The judge may require the applicant to furnish additional testimony or documentary evidence in support of an application.

(c) Issuance of order.

(1) Upon the application a judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or electronic communications within the territorial jurisdiction permitted under paragraph (2) or (3) of this subsection, if the judge determines on the basis of the facts submitted by the applicant that:

a. There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense enumerated in § 2405 of this title;

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

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; and

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 an individual engaged in criminal activity described.

(2) Except as provided in paragraph (3) of this subsection, an ex parte order issued under paragraph (1) of this subsection may authorize the interception of wire, oral or electronic communications only within the territorial jurisdiction of the court in which the application was filed.

(3) If an application for an ex parte order is made by the Attorney General or other designee, an order issued under paragraph (1) of this subsection may authorize the interception of communications sent or received by a mobile telephone anywhere within the State so as to permit the interception of the communications regardless of whether the mobile telephone is physically located within the jurisdiction of the court in which the application was filed at the time of the interception; however, the application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.

(d) Contents of order.

(1) Each order authorizing the interception of any wire, oral or electronic communication shall specify:

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

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

c. A description of the type of communication sought to be intercepted and a statement of the offense to which it relates;

d. The identity of the agency authorized to intercept the communications and of the person authorizing the application; and

e. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(2) An order authorizing the interception of a wire, oral or electronic communication, upon request of the applicant, shall direct that a provider of wire or electronic communication service, landlord, custodian or other person furnish the applicant forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian or person ordered by the court accords 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 facilities or assistance.

(e) Extensions.

(1) An order entered under this section may not authorize the interception of any wire, oral or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-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 10 days after the order is entered.

(2) Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) of this section and upon the court making the findings required by subsection (c) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days.

(3) 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 chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days.

(4) In the event the intercepted communication is in a code or 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 under this chapter may be conducted in whole or in part by federal, State or local government personnel, or by an individual operating under a contract with the State or a political subdivision of the State acting under the supervision of an investigative or law-enforcement officer authorized to conduct the interception.

(5) Notwithstanding any other provision of this chapter, any investigative or law-enforcement officer specially designated by the Attorney General or designee who reasonably determines that:

a. An emergency situation exists that involves:

1. Immediate danger of death or serious physical injury to any person;

2. Activities related to escape or attempted escape from custody;

3. Conspiratorial activities threatening the national security interest; or

4. Conspiratorial activities characteristic of organized crime;

that requires a wire, oral or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained; and

b. There are grounds upon which an order could be entered under this chapter to authorize such interception;

may intercept such wire, oral or electronic communication if an application for an order approving the interception is made in accordance with this section within 48 hours after the interception has occurred or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, the contents of any wire, oral or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (g) of this section on the person named in the application.

(f) Reports to issuing judge. — Whenever an order authorizing interception is entered pursuant to this section, the order shall require reports to be made to the 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 the time and place required by the issuing judge.

(g) Recordings of contents of intercepted communications; sealing applications and orders; notice to parties.

(1) The contents of any wire, oral or electronic communication intercepted by any means authorized by this section, 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 in a way as will protect the recording from editing or other alterations as may be practicable. Upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under the judge's directions. Custody of the recordings shall be wherever ordered by the issuing judge. The recordings may not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for lawful use or disclosure pursuant to this chapter. The presence of the seal provided by this subsection or a satisfactory explanation for the absence thereof shall be a prerequisite for the use of disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom under this chapter.

(2) Applications made and orders granted under this subsection shall be sealed by the issuing or denying judge. Custody of the applications and orders shall be as ordered by that judge. The applications and orders shall be disclosed only upon a showing of good cause before that judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.

(3) Any violation of the provisions of this subsection may be punished as criminal contempt in violation of § 1271 of this title by the issuing or denying judge.

(4) Within a reasonable time but not later than 90 days after the termination of the period of an order or extensions thereof, the issuing judge shall cause to be served, on the persons named in the order and the other parties to intercepted communications as the judge may determine in that judge's discretion that is in the interest of justice, an inventory that shall include notice of:

a. The fact of the entry of the order;

b. The date of the entry of the order and the period of authorized interception; and,

c. The fact that during the period, wire, oral or electronic communications were or were not intercepted.

The judge, upon the filing of a motion, shall make available to the person or the person's counsel for inspection, portions of the intercepted communications, applications and orders pertaining to that person and the alleged crime.

(5) Upon an ex parte motion showing of good cause to the judge, the serving of any inventory required by this section may be delayed. The periods of delay may not be longer than the authorizing judge deems necessary to achieve the purposes for which such delay was granted and in no event for longer than 30 days. No more than 3 periods of delay may be granted. Any order issued extending the time in which the inventory notice is to be served must be under seal of the court and treated in the same manner as the order authorizing interception.

(h) Prerequisites to use of contents of communication as evidence. — The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in the courts of this State unless each party, not less than 10 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. Where no application or order was required for the interception under the provisions of this chapter, each party, not less than 10 days before the trial, hearing or proceeding, shall be furnished with information concerning when, where and how the interception took place and why no application or order was required. This 10-day period may be waived by the judge if that judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information.

(i) Suppression of contents of communication; appeal from denial of application for order of approval.

(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 contents 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 under which it was intercepted is insufficient under this chapter; or

c. The interception was not made in conformity with the order of authorization granted under this chapter.

(2) This motion shall be made at least 10 days before the trial, hearing or proceeding except upon good cause shown. 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 chapter. The judge, upon the filing of the motion by the aggrieved person, in that judge's discretion may make available to the aggrieved person or such person's counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

(3) In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval if the Attorney General or Deputy Attorney General shall certify to the judge denying the application that the appeal is not taken for the purposes of delay. The appeal shall be taken within 30 days after the date the order was entered.

72 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Report by Judge. — Within 30 days after the expiration of an order or an extension or renewal thereof entered under this chapter or the denial of an order confirming verbal approval of interception, the issuing or denying Judge shall make a report to the President Judge of the Superior Court stating:

(1) That an order, extension or renewal for which application was made;

(2) The type of order for which application was made;

(3) That the order was granted as applied for, was modified or was denied;

(4) The period of the interceptions authorized by the order and the number and duration of any extensions or renewals of the order;

(5) The offense specified in the order or extension or renewal of an order;

(6) The identity of the person authorizing the application and of the investigative or law-enforcement officer and agency for whom it was made; and

(7) The character of the facilities from which or the place where the communications were to be intercepted.

(b) Reports by Attorney General. — The Attorney General or Deputy Attorney General specifically designated by the Attorney General shall make and file all reports required by federal law.

72 Del. Laws, c. 232, § 1.;

(a) Civil liability. — Any person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, uses, or procures any other person to intercept, disclose or use the communications and be entitled to recover from any person:

(1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and,

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

(b) Defense. — A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

72 Del. Laws, c. 232, § 1.;

Any person who breaks and enters, enters under false pretenses, or trespasses upon any premises with the intent to place, adjust or remove wiretapping or electronic surveillance or eavesdropping equipment without a court order shall be guilty of a class C felony.

72 Del. Laws, c. 232, § 1.;

(a) The Superintendent of the Delaware State Police or the commander of the law-enforcement agency of any political subdivision of this State may designate 1 or more law-enforcement officers as hostage and barricade communications specialists.

(b) Each communication common carrier providing service to Delaware residents shall designate 1 or more individuals to provide liaison with law-enforcement agencies for the purposes of this section.

(c) The supervising law-enforcement officer, who has jurisdiction in any situation in which there is probable cause to believe that a criminal enterprise involving hostage holding is occurring or that a person has barricaded himself or herself within a structure and poses an immediate threat of physical injury to others, may order a communication common carrier, or a communication common carrier's employee, officer or director, or a hostage and barricade communications specialist to interrupt, reroute, divert or otherwise control any wire, oral or electronic communications service involved in the hostage or barricade situation for the purpose of preventing wire, oral or electronic communication by a hostage holder or barricaded person with any person other than a law-enforcement officer or a person authorized by the officer or for the purpose of otherwise monitoring communications in the hostage or barricade situation.

(d) A hostage and barricade communications specialist shall be ordered to act under subsection (c) of this section only if the communication common carrier providing service in the area has been contacted and requested to act under subsection (c) of this section and:

(1) Declines to respond to the officer's request because of a threat of physical injury to its employees; or

(2) Indicates when contacted that it will be unable to respond appropriately to the officer's request within a reasonable time from the receipt of the request.

(e) The supervising law-enforcement officer may give an order under subsection (c) of this section only after that supervising law-enforcement officer has given written or oral representation of the hostage or barricade situation to the communication common carrier providing service to the area in which it is occurring. If an order is given based on an oral representation, the oral representation shall be followed by a written confirmation of that representation within 48 hours of the order.

(f) Good faith reliance on an order by a supervising law-enforcement officer who has the real or apparent authority to issue an order under this section shall constitute a complete defense to any action against a communication common carrier or a communication common carrier's employee, officer or director that arises out of attempts by the communication common carrier or the employee, officer or director of the communication common carrier to comply with such an order.

(g) For the purposes of this section, "supervising law-enforcement officer'' means an officer having a rank equivalent to or greater than a lieutenant of any law-enforcement agency of the State or any political subdivision of the State.

72 Del. Laws, c. 232, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Giving notice of interception. — A person who has knowledge that an investigative or law-enforcement officer has been authorized or has applied for authorization under this chapter to intercept wire, oral or electronic communications may not give notice or attempt to give notice of an authorized interception or pending application for authorization for interception to any other person in order to obstruct, impede or prevent such interception.

(b) Penalties. — A person who violates the provisions of subsection (a) of this section shall be guilty of a class F felony and be fined not more than $10,000.

72 Del. Laws, c. 232, § 1.;