DEA Running Massive Wiretap Program Almost Entirely Through A Single California County Courthouse

Legal Issues

from the behold,-the-Machine! dept

The DOJ has been instrumental in curbing abuse and misconduct by local law enforcement agencies around the nation. Its own backyard, however, remains a complete mess.

The FBI and DEA have been obstructing investigations by the DOJ’s Inspector General for several years now. The DOJ only just recently got around to addressing the widespread warrantless use of Stingray devices by both of these agencies. DEA agents are hooking up with prostitutes at “sex parties” while on the clock and receiving bonuses rather than suspensions or pink slips. The US Marshals Service has been acting as a law unto itself, confiscating cell site simulator records to keep them out of the hands of FOIA requesters, flying its own airborne cell tower spoofers and blowing asset forfeiture funds on $10,000 conference room tables.

Now this, as uncovered by Brad Heath and Brett Kelman of USA Today:

Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans’ phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal.

The chain of command for the DEA runs UP to the DOJ, not vice versa, as would be suggested from this paragraph. The DEA apparently isn’t too concerned its parent agency’s own lawyers find its actions potentially illegal. It’s going to do what it’s going to do because drug wars don’t fight themselves.

The DEA is getting away with it because it has its own “connect” in Riverside County. There’s no telling how much venue shopping resulted in this bit of serendipity. All that matters are the results.

Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge’s orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

This massive amount of surveillance — stemming almost entirely from a single judge and his presumably overactive wrist/writs — is problematic. More so are the numerous explanations offered up by officials for this gaping surveillance portal d/b/a Judge Helios Hernandez’s courtroom. Hernandez’s enthusiasm for issuing wiretap warrants to the DEA may have something to do with his history as a narcotics prosecutor. But for the record, he’s offering the following justification for his actions.

Hernandez declined to comment through a spokesman.

The DEA offered this clarification.

Hernandez approved 20 times as many wiretaps as his counterparts in San Bernardino County. DEA officials said they could not explain that difference.

More details were provided by Deena Bennett, who heads the DEA’s wiretap unit.

Bennett, a one-time contestant on the reality show Survivor, rebuffed attempts to contact her, telling a reporter that “the fact that you have my cellphone number is really harassment, and I’m going to report it.”

The DOJ’s lawyers, however, have more to say on the issue. For one, the DOJ believes these warrant requests should be routed through federal courts, rather than state courts, considering they cover violations of federal law and, more importantly, the standards the DEA needs to meet to obtain warrants are higher.

The DEA has used warrants issued by a California county judge to chase down suspects as far away as Virginia and New York. It’s also engaged in parallel construction to cover its tracks, something the DOJ is now investigating. What little the DEA had to say in its defense was that it preferred to seek warrants in areas where it feels more intercession is needed and, most tellingly, where it can perform “most effectively.”

Because it has cut federal courts out of the warrant process, the DEA is likely not showing it has exhausted other investigatory options before asking for intrusive wiretaps. The DOJ’s displeasure with the DEA’s actions means the resulting prosecutions will almost never make their way into federal courts.

“It was made very clear to the agents that if you’re going to go the state route, then best wishes, good luck and all that, but that case isn’t coming to federal court,” a former Justice Department lawyer said.

Or more succinctly:

“They’d want to bring these cases into the U.S. Attorney’s Office, and the feds would tell them no (expletive) way,” a former Justice Department official said.

The troubling implication of these statements is that while the DOJ’s legal counsel may have expressed its displeasure at the DEA’s surveillance overreach, it apparently never stepped in to fix the issue. It simply told the DEA to take its tainted cases elsewhere.

On top of that, the DEA seemed far more interested in simply taking stuff from suspects rather than locking them up.

[D]EA agents and local detectives in South Gate, Calif., near Los Angeles, used a state-court wiretap to target a man named Omar Salazar, who the DEA suspected was tied to a Mexican drug trafficking group. Between searches of Salazar’s car and his house, officers seized $76,869.94, a gun and a cache of illegal drugs, including 36 pounds of methamphetamine and 5 pounds of heroin. Investigators found some of the drugs in a safe in Salazar’s garage, along with a box of ammunition and probation paperwork from one of his previous arrests.

That should have been enough to build a significant federal case with a long mandatory prison sentence, but that was not what happened. Court records show the Justice Department prosecuted the $76,869.94 in a civil asset seizure case. But it did not prosecute Salazar.

The DOJ and local prosecutors probably had nearly 77,000 reasons for abandoning Salazar’s prosecution. Here are none of them.

Neither the DEA nor prosecutors would explain why.

Sounds about right. They probably weren’t expecting to ever answer questions about their actions… at least not questions posed by journalists. As for the DOJ, it make be making angry noises about its troublesome drug enforcement child but it has not shown any willingness to rein the agency in. The problem isn’t going to fix itself and it appears the DEA’s perfectly fine with running its prosecutions through state courts and using warrants from local courts to pursue suspects all over the nation. The DOJ needs to flex a bigger muscle than its tongue if anything’s going to change.

Filed Under: 4th amendment, dea, doj, helio hernandez, riverside, wiretapping