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

Legal Issues

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.

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