DOJ Steps In To Salvage The DEA's Toxic, Possibly Illegal Wiretaps

from the oh-wait,-there's-actual-MONEY-on-the-line dept

Late last year, USA Today's Brad Heath and Brett Kelman uncovered a massive DEA wiretap program -- one that was being run almost exclusively through a single California state court judge and being signed off on by a single DA's office. The wiretaps were likely illegal, seeing as the warrants weren't being run by federal judges. They also weren't being signed by the top prosecutor in the area, as is required federal law.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request, a requirement Congress added after the FBI wiretapped civil rights leaders in the 1960s. The only exception is when the district attorney is “absent” and has authorized someone else to act in his place, a federal appeals court ruled in 2013.
The wiretaps -- and the evidence obtained -- were considered so toxic, DOJ lawyers were telling the DEA not to drag them into any of its courtroom battles.
"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.


"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.
Despite this rolling up of the welcome mat and changing of the locks, the DOJ is making an appearance in a case involving one of these dubious wiretaps. Brad Heath reports the Justice Department is trying to salvage one of the DEA's cases, which is in danger of having the wiretap evidence suppressed.
The Justice Department urged a judge not to throw out a series of wiretaps agents used to arrest an accused marijuana trafficker, saying the surveillance was “authorized in accordance with state and federal law.” That defense came in a filing Monday in federal court in Louisville.
Someone up top must have been concerned about losing a big drug bust. This case has gone federal and it involves a large amount of cash -- something that is certainly motivating the DEA to keep its evidence intact.
In May 2014, DEA Riverside informed DEA Louisville, who in turn informed Detective Murphy, that Shewmaker had been arrested near Perris, California, and that a consent search of his vehicle had resulted in the seizure of $418,930 in U.S. currency from hidden compartments inside the front and rear passenger side door panels.
The DOJ is arguing that the lack of a signature by the top prosecutor in the area shouldn't result in the suppression of evidence. It claims the defense is reading far too much into the California statute that determines who can and can't sign off on federal wiretap requests.
Thus, in the instant case, suppression is implicated only if this Court finds that the California legislature intended to require each district attorney, no matter how large or small their particular jurisdiction might be, to personally review and authorize every single wiretap application unless they were physically absent from the office, in which cases a properly designated subordinate might perform the review and authorization, and that the legislature regarded this requirement as a central purpose of the legislative intent to ensure that wiretaps were only authorized in appropriate cases. Surely, had this been the legislative intent, the law would be more specific about what “absence” means. It seems obvious that the legislature was primarily concerned about the scope of the designation, that is, to ensure that the authorization to review a wiretap application was given to a high-ranking assistant who was essentially authorized to run the office in the district attorney’s absence.
State law says the "top prosecutor" must sign them, unless he's absent. The DEA funneled its wiretap requests through the office of The Prosecutor Who Wasn't There.
Riverside County’s former district attorney, Paul Zellerbach, has acknowledged that he allowed lower-level lawyers to do that job, saying he could not recall ever having reviewed a wiretap application himself. Four of the wiretaps in the Kentucky case were approved by one of Zellerbach’s assistants, and one was approved by an assistant to his successor.
So much for the statute preventing abuse, if that's the way the DOJ chooses to read it. Rather than going to a top prosecutor -- someone who was supposed to ensure the proper probable cause was present and that the requesting agency had exhausted all other options -- the paperwork landed on the desk of whoever was available and could wield a pen with relative competence.

The assistant US attorney defending the previously-indefensible wiretaps says there's no reason technicalities like sidestepping federal law and state statutes should result in evidence suppression.
Fentress said that even if the wiretap applications were deficient, the problems were minor enough that the judge should not block the government from using them as evidence.
An argument for giving the government "good faith" credit, even though the deficient warrants were only a few months ago considered toxic enough DOJ lawyers were telling the DEA to stay the hell away from federal courts. Perhaps the DOJ wouldn't be in this awkward position if it had simply told the DEA to do things by the book, rather than take the path of least no resistance.

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Filed Under: dea, doj, paul zellerbach, riverside, warrantless wiretaps, wiretaps

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  • icon
    GMacGuffin (profile), 24 Mar 2016 @ 2:16pm

    "Absence" ...and all I hear in my head is Catch-22

    Maj. Major Major Major: Sergeant, from now on, I don't want anyone to come in and see me while I'm in my office. Is that clear?
    First Sgt. Towser: Yes, sir. What do I say to people who want to come in and see you while you're in your office?
    Maj. Major Major Major: Tell them I'm in and ask them to wait.
    First Sgt. Towser: For how long?
    Maj. Major Major Major: Until I've left.
    First Sgt. Towser: And then what do I do with them?
    Maj. Major Major Major: I don't care.
    First Sgt. Towser: May I send people in to see you after you've left?
    Maj. Major Major Major: Yes.
    First Sgt. Towser: You won't be here then, will you?
    Maj. Major Major Major: No.
    First Sgt. Towser: I see, sir. Will that be all?
    Maj. Major Major Major: Also, Sergeant, I don't want you coming in while I'm in my office asking me if there's anything you can do for me. Is that clear?
    First Sgt. Towser: Yes, sir. When should I come in your office and ask if there's anything I can do for you?
    Maj. Major Major Major: When I'm not there.
    First Sgt. Towser: What do I do then?
    Maj. Major Major Major: Whatever has to be done.
    First Sgt. Towser: Yes, sir.

    reply to this | link to this | view in chronology ]

  • identicon
    crips-bloods-hells angels-doj-dea-fbi, 24 Mar 2016 @ 2:24pm

    All same same

    Gang bangers back each other up I'm shocked at least the "criminals" have murdered thousands fewer people.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Mar 2016 @ 2:28pm

    There is an actual question whether they are doing something illegal yet again.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Mar 2016 @ 3:20pm

    Sucks the accused would get off, but if there is no punishment for breaking the law there is no reason to follow it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2016 @ 3:24pm

      Response to: Anonymous Coward on Mar 24th, 2016 @ 3:20pm

      The good faith exception also just leads to law enforcement stretching the law then asking forgiveness knowing it won't really make any difference. Start throwing out evidence and law enforcement will care a lot more and think before stretching what the law alllows

      reply to this | link to this | view in chronology ]

  • icon
    scotts13 (profile), 24 Mar 2016 @ 5:20pm

    Goose vs. Gander

    Can I get a "good faith" exemption if I break some minor federal laws?

    reply to this | link to this | view in chronology ]

  • identicon
    Melody A. Kramer, 24 Mar 2016 @ 6:30pm

    Corrupt defending the corrupt

    When is somebody on the side of law enforcement or prosecutors in this country going to stand up to rampant abuse of civil rights and clear legislative mandates? Why do people not trust cops, not trust prosecutors, not trust the "justice" system? Because of stuff like this. If the DOJ is going to back the DEA who is acting in collusion with the local DA's office, how is any individual defendant to get a fair chance or even level playing field in court? Defendants are required to be treated as innocent until proven guilty, and the government (of whatever branch) is only allowed to attempt to prove guilt through legally permissive and obtained evidence. That's the law. But apparently the law does not apply in Riverside County.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2016 @ 8:48pm

      Re: Corrupt defending the corrupt

      when the law stops treating everyone equally people start taking the law into their own hands to get justice.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 24 Mar 2016 @ 8:35pm

    Marijuana? Really?

    Wiretapping... a "gateway crime".

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 24 Mar 2016 @ 10:30pm

    Totally different, really

    When criminals break the law they deserve to be punished as harshly as the law allows so they and others know not to do it again in the future.

    When those tasked (theoretically) with upholding the law break the law then it's no big deal, and it's not like it was a very important law or anything so judges should just let it slide unless they want to side with the criminals(without badges).

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 25 Mar 2016 @ 1:41pm

    So dumb

    How stupid do you have to be to consent to a search when you have that much drug money hidden in the car? And the DEA needs to break the law to catch drug dealers who are this dumb?

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 26 Mar 2016 @ 12:05am

    Its definitely worth a shot, since there's no repercussions if it fails.

    Oh hell, its a half million dollars!!

    How can the Department of Justification and the Drug Entrapment Agency NOT do their level best to push this through court?

    Its a half million dollars.

    That's like the equivalent of half of a new Porsche for each of the brass involved in the case plus a couple grand for each of the underlings.

    No way they're gonna let a little annoyance like the Law of the Land get between them and half a million dollars.

    Why, that would be downright Un-American.

    Capitalists need Capital!!


    reply to this | link to this | view in chronology ]

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