California Police Used Illegal Wiretap Warrants In Hundreds Of Drug Prosecutions

from the all-aboard-the-suppression-train dept

Earlier this month, Brad Heath and Brett Kelman of USA Today reported that the DEA was running a massive amount of wiretap applications through a single judge in Riverside County, California. Judge Helios Hernandez has signed off on five times as many wiretap warrants as any other judge in the United States.

The DEA, being a federal agency, is supposed to be running its wiretap warrant applications past federal judges, rather than county judges, but has seemingly found itself a very willing participant in its southern California surveillance dragnet.

The DOJ isn’t particularly thrilled with the DEA’s warrant funneling. A handful of unnamed federal proecutors stated the agency had been previously warned that its use of a local court meant there was little chance the DOJ would offer its blessing for prosecution at the federal level. Notably, the DOJ legal staff wasn’t concerned enough about the potential illegality of the DEA’s actions to stop it from routing everything through Hernandez’s courtroom. They were only irritated enough to tell the DEA to keep its tainted evidence out of federal courts.

So, a federal agency has already been exposed as participating in likely illegal activity related to one of the most intrusive surveillance options it has at its disposal. Now, Heath and Kelman are back with more bad news from Riverside. It’s not just the feds. It’s also the locals.

Prosecutors in the Los Angeles suburb responsible for a huge share of the nation’s wiretaps almost certainly violated federal law when they authorized widespread eavesdropping that police used to make more than 300 arrests and seize millions of dollars in cash and drugs throughout the USA.

The violations could undermine the legality of as many as 738 wiretaps approved in Riverside County, Calif., since the middle of 2013, an investigation by USA TODAY and The Desert Sun, based on interviews and court records, has found. Prosecutors reported that those taps, often conducted by federal drug investigators, intercepted phone calls and text messages by more than 52,000 people.

This 4th Amendment-violating joint task force involved local cops, federal agents and a very complicit District Attorney’s office. As Heath and Kelman explain, changes made to federal law in the 1960s (and upheld by the Supreme Court in 1974) as a response to the exposure of the FBI’s secret surveillance of civil rights leaders require the government to obtain authorization from the presiding DA before heading to court with a wiretap warrant request.

However, in Riverside County, home to 20% of the nation’s approved wiretap warrants, this approval process was frequently delegated to the DA’s underlings. Former DA Paul Zellerbach — who presided over the massive increase in Riverside County wiretap applications — rarely performed this task himself.

Despite a federal court ruling that only the district attorney himself should usually approve wiretaps, Zellerbach said in two interviews over the past month that he could not recall having reviewed or personally authorized any of the county’s wiretap applications and said he was unaware of the details of the requests. Instead, he said, he delegated that job to one of his assistants.

“I didn’t have time to review all of those,” Zellerbach said. “No way.”

A 2013 Ninth Circuit Appeals Court decision says Zellerbach (and other DAs) can delegate this authority, but only when the District Attorney isn’t physically available (“absent”) and designates someone to act in their place. For Zellerbach, this exception was the rule. His delegation of the approval process often occurred while he was present in his office, as Heath and Kelman discovered.

[R]ecords show Riverside prosecutors routinely requested wiretaps on days when he was working. Federal court records show prosecutors applied for five wiretaps Feb. 18, 2014, for example, when Zellerbach appeared at a news conference to talk about metal thefts. The next week, prosecutors applied for nine more wiretaps on a day when Zellerbach’s office posted a photo on Twitter of him meeting with a delegation of Chinese officials in his office conference room. In each case, reports by the federal court administrative office list [Assistant DA Jeffrey] Van Wagenen, not Zellerbach, as the person who approved the surveillance.

Not only has the DEA been acquiring wiretap warrants in a way that makes the cases too toxic for the DOJ to pursue in federal court, but the apparently illegality of the District Attorney’s actions should make the cases toxic anywhere. Any evidence obtained directly or indirectly from the wiretaps could easily be suppressed. The fact that so many warrants lead back to a single judge and a single DA’s office means defendants shouldn’t have too much trouble determining whether this apparently illegal surveillance helped build a case against them.

The DOJ may be unwilling to do anything more than publicly (but anonymously) express its disgruntlement, but at least the district attorney’s office is in new hands. The new DA (Mike Hestrin) has aligned his officer’s wiretap policy with the 9th Circuit Court’s ruling. He has said, however, that he will defend his predecessor’s wiretap orders if they are challenged in court.

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Comments on “California Police Used Illegal Wiretap Warrants In Hundreds Of Drug Prosecutions”

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Uriel-238 (profile) says:

So all those druggies walked, right?

So those three hundred arrests have been released and cleared and all their money and drugs (or fair market compensation) have been returned to them, yes?

If the answer is not yes then no-one is going to have any cause to do different in the future.

If the state can break the rules without sufficient blowback, then the state is going to continue to break the rules.

And then they aren’t really rules, are they?

James T (profile) says:

Re: So all those druggies walked, right?

Seems like you didn’t read the article.

“The new DA (Mike Hestrin) has aligned his officer’s wiretap policy with the 9th Circuit Court’s ruling. He has said, however, that he will defend his predecessor’s wiretap orders if they are challenged in court.”

So no, none of the people have been cleared. The new DA is promising to fight anyone who tries to get free of this mess.

Anonymous Coward says:

deep undercover

And over on the other side of the pond, UK police prefer the HANDS ON approach to investigating suspects. They might have had search warrants, but they didn’t have FUCK WARRANTS.

“Lisa” was deceived into having a six-year-long sexual and romantic relationship with an undercover police officer called Mark Kennedy, who eventually left the police and went to work for a private intelligence firm that sells information on activist groups to corporations.

Kennedy was a married man with children, though he was estranged from his wife. The UK government helped him keep his true identity secret from Lisa and the other women Kennedy seduced, providing him with false papers and other cover. A group of handlers routinely directed him on how to conduct his affair with Lisa, keeping close track of their lives together.

Lisa’s story describes something traumatic and unforgivable. It was done with the assistance of a giant, multi-billion-pound, all-surveiling government, which then covered up and lied about the practice.

GEMont (profile) says:

The dooH niboR continues unabated.

No biggie.

Cops were only after the cash anyway and I’m pretty sure that while the tainted evidence gained illegally by cops will make taking the “perps” to court impossible – saving the cops untold hours of actual investigative and clerical labor – it will have no bearing at all on the legal guilt of the evil money they “arrested”.

Everyone knows that money gathered through the Asset Forfeiture Program is always guilty until divvied up and spent by duly authorized members of a local or federal police force.

So, all in all, just another win-win situation for the crooked Sherriff of Nottingham LEOs and the Reverse Robin Hood Program.

Anonymous Coward says:

Can we just end the idiotic and unconstitutional drug “war” already? Prohibition clearly didn’t work for booze any more than it did for birth control pills and abortion.

Legalize and regulate like Portugal has done, letting people have their vices while still offering rehab clinics for those who get in over their head.

The one time Christie offers an ounce of compassion — in this case, for a family that lost a loved one to addiction — his already abysmal poll numbers plummet to negative numbers. Meanwhile, rather than push back against the arbiters of fun, Democrats get jealous of the conservative vice (and speech) police, and institute ridiculous prohibitions of their own on smoking, Pepsi, and “micro aggressions.”

Is there no end to these busybodies? What happened to live and let live, or let die as Sir Paul once said?

GEMont (profile) says:

Re: Re:

Prohibition clearly didn’t work for booze any more than it did for birth control pills and abortion.

That actually depends on what you mean by the word “work”.

If by “work” you mean “prevent the use of, or practice of”, well then you’re absolutely right – prohibition does not work, ever.

Its pretty much impossible to legislate morality effectively and prohibition is always about trying to legally prevent some people from doing something that some other people do not like.

However, if by “work”, you mean give the powers that be the ability and opportunity to pass new laws that strip people of their rights and make arrest and seizure an easy, lucrative method for profiteering by law enforcement agencies, politicians, lawyers and other power parasites, then you would be completely wrong.

When it comes to making power parasites, police and government agencies rich and powerful by removing rights from the population, legally, the only thing that works better than Prohibition, is War.

Like all the War On scams, prohibition always fails to do what it is supposed to do, insuring both that the prohibited practice continues being practiced by the public, and thus that the laws pertaining to that prohibition will escalate towards more and more draconian and rights-killing legal measures to continue the fake “fight against” that prohibited practice.

Prohibition, like all “War On” scams is initiated specifically to eliminate human rights and make government stronger legally and its members rich through graft and asset seizures.

It is not intended to “work” any other way.

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