Brooklyn Prosecutor Forged Judges' Signatures On Wiretap Warrants To Eavesdrop On A 'Love Interest'

Legal Issues

from the rules-are-for-other-people dept

The reason there are so many controls and layers of oversight over wiretap warrants is because the potential for abuse is huge. The FBI abused its wiretap authority for years, which resulted in new restrictions for federal wiretap warrants. The DEA has found a way to route around these, but at the expense of its investigations.

At the state level, the vetting doesn’t appear to be as thorough. An insider who knew the weaknesses in the system abused wiretap warrants to perform some very personal surveillance.

A high-ranking prosecutor in the Brooklyn district attorney’s office was arrested this week on charges that she used an illegal wiretap to spy on a police detective and one of her colleagues in what a law-enforcement official described as a love triangle gone wrong.

The prosecutor, Tara Lenich, was taken into custody on Monday and fired after investigators in the district attorney’s office learned over Thanksgiving weekend that she had conducted the illicit surveillance because of “a personal entanglement between her and the detective,” according to the law enforcement official, who spoke on the condition of anonymity because of the delicate nature of the case.

Give the wrong person enough power and they’re sure to abuse it. Lenich forged judges’ signatures repeatedly to extend her very personal wiretap warrant every 30 days. This allowed her to illegally eavesdrop on conversations for nearly a year. She ducked questions about her wiretap by claiming she was working on a sensititive investigation in conjunction with the NYPD Internal Affairs department.

As defense lawyer Wilson A. LaFaurie points out, a system heavily-reliant on signatures raises some questions about the trustworthiness of that system.

“The public should have a tangible fear of this,” Mr. LaFaurie said. If prosecutors were willing to forge a judge’s signature, he said, they could also potentially manipulate evidence for other cases by forging the signatures of witnesses, crime victims or police detectives.

At least in the cases of the judges whose signatures were forged, those can be verified by asking the judges themselves. In some of the hypothetical cases LaFaurie refers to, there may be no one to ask.

The most disheartening part of this mini-debacle is the responses from the district attorney’s office. The spokesman for the office says an internal review of protocols and guidelines is underway, but says nothing about digging through Lenich’s cases for other possible misconduct. The best protocols and procedures may already be in place, but that’s not going to stop someone determined to abuse their power. And there’s no way to confirm they haven’t abused this power in the past if you’re not willing to examine their body of work.

Lenich’s lawyer’s statement is even worse, although it can be partially forgiven as he’s not acting as an agent of the state.

Gary Farrell, Ms. Lenich’s lawyer, said he did not believe there was “any merit to the claims that these charges somehow impugn wiretaps for other cases.”

Actually, it does impugn wiretaps for other cases, especially in cases overseen by his client. Her lawyer says there’s nothing to see here, which is fine in terms of advocating for a client. But the DA’s office seems to hold the same opinion, which is much more worrisome. Whenever abuse is uncovered, the usual response is to treat it like a unicorn, rather than possibly a leading indicator of malfeasance yet to be uncovered.

Then there’s this:

Mr. Farrell said Ms. Lenich was well known and well liked in Brooklyn legal circles and had a reputation for fairness and professionalism.

Well, not so much now. All it takes is one severe, felonious abuse of the system to undo all of that goodwill and cause collateral damage to the reputation of the office she served.

Filed Under: brooklyn, lovint, surveillance, tara lenich, wiretaps

Local Superior Court Judge Says DEA's Wiretap Warrant Factory Perfectly Legal

Legal Issues

from the Judge-Malloy's-Wiretap-Warrant-Laundry-Service dept

Over the past several years, the DEA has run hundreds of wiretap warrants through a single county judge’s court after getting them approved by whoever happened to be in the local district attorney’s office when agents need one signed. The latter part of this process runs contrary to statutes enacted specifically to prevent abuse of wiretap warrants by the federal agencies.

The approval process, which had been streamlined to eliminate any possible roadblocks to the DEA’s deployment of wiretaps all over the country, was considered by the DOJ to be far enough outside legal boundaries as to make the warrants questionable, if not legally “toxic.”

The district attorney who was supposed to personally approve these wiretap warrants never did. Former Riverside County district attorney Paul Zellerbach delegated this task to anyone but himself. Because of this, some of the warrants have been challenged in court, leading to the DOJ stepping in to salvage wiretaps its lawyers had previously instructed DEA agents to keep out of federal courts.

Not much of this seems to matter now, as another Riverside County judge has just declared the DEA’s wiretap warrants to be perfectly valid.

Superior Court Judge John Molloy ruled that the district attorney was allowed to delegate the responsibility of approving wiretap applications to his second-in-command.

Except that’s not really what happened. Zellerbach, who managed to obtain a warrant of his own by failing to show up for court, never designated any particular person to approve the warrants. As Brett Kelman and Brad Heath reported earlier, Zellerbach himself stated that he delegated this task to “lower level lawyers,” rather than a specific person — contrary to statutes directly stemming from the federal government’s previous abuse of wiretap warrants to surveil civil rights leaders during the 1960s.

Federal law bars the government from seeking court approval for a wiretap unless a top prosecutor has personally signed off on that request.

Zellerbach claimed he had no time to personally approve these wiretap requests. And he probably didn’t, what with the DEA funneling several hundred of these through his office and into the hands of county judge Helios Hernandez (who singlehandedly approved five times as many wiretap warrants as any other judge in the nation).

Judge Molloy, however, likely views this abuse of the system as good police work.

Molloy, a former prosecutor who used to work with wiretap applications, ruled that Zellerbach’s practice of letting his number-two prosecutor sign off on them did not violate state or federal wiretap laws.

Molloy also said that because Zellerbach was away at an education conference in another Southern California town when the specific wiretap defense lawyers were challenging was approved, he would have been allowed to delegate it anyway.

Zellerbach’s second-in-command testified in court that he usually handled wiretap requests, paying no mind to the federal limitation that Zellerbach be actually absent before he had permission to do so.

Under Zellerbach, that person was Van Wagenen. However, on Friday, Van Wagenen testified that he didn’t actually check if Zellerbach was available before he signed hundreds of applications.

“The protocol was that I was to sign the application instead of Mr. Zellerbach,” Van Wagenen said.

“On any occasion?” asked defense attorney Jan Ronis.

“If I was available and in the office, yes,” Van Wagenen answered.

Judge Molloy revisited the questioning minutes later.

‘Did you ever ask Paul Zellerbach to review a wiretap application?” Molloy asked.

“I did not,” Van Wagenen said.

“This is fine” ruled the judge, and at least one warrant — if not dozens of others obtained in the same jurisdiction (which would be a significant percentage of the DEA’s wiretap warrants) — has been given a post facto veneer of lawfulness. This takes some weight off the DOJ’s legal team, which had previously advised the DEA to steer clear of federal prosecutions stemming from questionable warrants. Now, it can just let the highest level local judge’s blessing do its work for it.

Filed Under: dea, helios hernandez, john molloy, paul zellerbach, privacy, riverside county, wiretaps

Court Says 'Plain Hearing' Applies To Wiretaps, But Eavesdropping Must Stop If Target Isn't Actually Using The Targeted Phone

Privacy

from the no-EOP-in-mistakenly-intercepted-calls? dept

The Fourth Amendment contains an exception for “plain view:” evidence of criminal activity seen by law enforcement, whether it’s through a cracked-open doorway, on a vehicle’s seat, etc., can be seized and used without seeking a warrant. The government would also like to avail itself of a “plain hearing” exception, which it can use to salvage evidence of criminal activity in overheard conversations intercepted with a wiretap.

The Ninth Circuit Court of Appeals agrees with the government’s “plain hearing” theory, though not with its assertions on how far the exception should stretch.

The FBI obtained a wiretap warrant for a number it believed belonged to the target of its drug investigation, Ignacio Escamilla. After listening to several conversations about drug dealing, the agents came to the conclusion that Escamilla wasn’t actually using the phone number targeted by the wiretap. However, they felt the conversations they were overhearing were related to the Escamilla drug conspiracy they were investigating. So, they kept listening.

These conversations — which didn’t include the target of the wiretap — led to the arrest of Michael Carey, who pled guilty to drug charges while reserving the option to move to suppress the evidence. The lower court concluded that the government could use wiretap warrants to gather evidence against other individuals, even if they weren’t actually targeted by the wiretap. This was the “plain hearing” holding.

The Appeals Court agrees [PDF] to a certain extent. While the government is welcome to make use of some unrelated evidence it comes across while eavesdropping, it cannot simply continue to intercept conversations once it’s established the target of the warrant is not actually using that phone number.

In short, we see no reason to depart from principles requiring cessation of a wiretap once the government knows or reasonably should know that the person speaking on the tapped line is not involved in the target conspiracy. See Ramirez, 112 F.3d at 851–52. The government may use evidence obtained from a valid wiretap “[p]rior to the officers’ discovery of [a] factual mistake” that causes or should cause them to realize that they are listening to phone calls “erroneously included within the terms of the” wiretap order. Cf. Garrison, 480 U.S. at 87–88. And once the officers know or should know they are listening to conversations outside the scope of the wiretap order, they must discontinue monitoring the wiretap until they secure a new wiretap order, if possible.

However, this conclusion doesn’t automatically result in suppression of the recorded evidence. The Appeals Court notes that the defendant and the government are diametrically opposed on the admissibility of the evidence.

It is unclear how much of the government’s wiretap evidence may fall outside of the “plain hearing” doctrine. Because the parties staked out polarized positions before the district court—the government arguing for all wiretap evidence, Carey for none of it—and because the district court adopted the government’s position in denying the motion to suppress, the record lacks the findings necessary to determine what evidence was admissible against Carey. We vacate the district court’s order denying the motion to suppress and remand on an open record to determine what evidence is admissible against Carey under the legal framework set forth above.

So, we can add “plain hearing” and “plain sight” to the “plain smell” exception used by far too many law enforcement officers to begin fishing expeditions and wander outside the confines of the Supreme Court’s Rodriguez decision.

Filed Under: 4th amendment, eavesdropping, plain hearing, wiretaps

Arrest Warrant Issued For District Attorney Involved In DEA's California Wiretap Warrant Mill

Legal Issues

from the DEA-DOA dept

Former Riverside District Attorney Paul Zellerbach is in trouble, as Brad Heath and Brett Kelman report for The Desert Sun.

A judge issued an arrest warrant Tuesday for former Riverside County District Attorney Paul Zellerbach after he failed to appear at a court hearing to answer questions about an eavesdropping operation so vast it once accounted for nearly a fifth of all U.S. wiretaps.

[…]

“He should have been there,” said Jan Ronis, the attorney who subpoenaed Zellerbach. “But he just blew us off. We could have had court today.”

It’s not uncommon for Zellerbach to go missing when people need him. When Zellerbach ran the DA’s office, he was rarely there. The DEA found his office to be just as accommodating, with or without him, though. Although the DEA was supposed to run its wiretap warrant requests through federal judges and have them signed by the district attorney himself, it often found it easier to obtain a signature from whoever happened to be at the office and run them by Riverside County judge Helios Hernandez, who approved five times as many wiretap applications as any other judge in the US.

The wiretap applications’ reach frequently exceeded their jurisdictional grasp, traveling far outside of Riverside County, California, to be deployed against suspects as far away as North Carolina. But that was only one issue with the warrants applications approved by Zellerbach’s office.

The DOJ’s lawyers didn’t like the DEA’s skirting of federal rules for wiretap applications.

“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.

California’s wiretap laws weren’t being followed either, thanks to Zellerbach holding office in absentia.

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.

Now, the DEA’s toxic and possibly illegal wiretap warrants are being challenged, now that defense lawyers know exactly how much — and how often — state and federal requirements were being skirted by the drug warriors. That’s what has led to Zellerbach’s arrest warrant.

The first challenge, filed in Kentucky, led a federal judge to say that Riverside had issued so many wiretaps “that constitutional requirements cannot have been met.” The second challenge, filed locally, led to the warrant being issued for Zellerbach.

Zellerbach was subpoenaed to appear in the case of Christian Agraz, 33, an accused drug trafficker who was allegedly caught on a wiretap selling bricks of heroin in 2014.

The former DA did not appear at the hearing in the Agraz case on Tuesday morning, so Judge Michele Levine issued a bench warrant and assigned a bail of $1,500.

The constitutional requirements say Zellerbach was supposed to sign each wiretap application personally. Paul Zellerbach can’t recall approving a single one of the hundreds that flowed through his office over the years.

The DEA’s Riverside County-centric drug war looks like it’s going to result in several cases being tossed out. Fortunately, the DEA still can keep everything it’s claimed via civil asset forfeiture, which makes good busts out of bad ones and makes obtaining convictions entirely optional.

Filed Under: dea, district attorney, doj, paul zellerbach, riverside county, wiretaps

DEA Finally Decides To Do Something About Its Wiretap Warrant Abuses

Legal Issues

from the Re:-Something:-Will-this-do? dept

The DEA will no longer be able to waltz into Riverside County (CA) judge Helios Hernandez’s chambers and walk out with signed wiretap warrants. I mean, they’ll still be able to get Judge Hernandez to sign warrants. After all, no one does it better:

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.

He’s so efficient even the DEA can’t quite wrap its mind around it.

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

The DEA never let Rule 41 jurisdiction limitations bother them. Agents used wiretap warrants to track suspects all over the nation. The DEA also didn’t let the DOJ’s hesitancy to condone its actions/warrants get in the way of its drug warring. DOJ lawyers heavily hinted that if the DEA wanted to use questionable wiretap warrants, it had better not be dragging its raggedy affidavits into federal court.

But drag those affidavits into federal court it did, forcing the DOJ to defend the very warrants it told the DEA to stop dropping off at its place. The DOJ’s lawyers said the toxic, possibly illegal warrants were actually 100% legal, perfectly compliant with federal and state law — even though they were missing the signature of the local District Attorney, as required by federal law.

The DEA — having had its bogus warrant assembly line exposed by USA Today’s Brad Heath and Brett Kelman — is finally moving towards curbing its wiretap abuse.

The Drug Enforcement Administration has ordered its agents to seek input from federal prosecutors before tapping Americans’ phone calls or text messages, months after it came under fire for a vast and legally questionable eavesdropping program in the Los Angeles suburbs.

The rules are a significant change for the drug agency, which had dramatically increased its use of wiretaps over the past decade by seeking authorization from state judges and prosecutors who were willing to approve the surveillance more quickly and with less scrutiny.

In theory, this means DEA agents will have to have federal prosecutors sign off on affidavits/warrants before running them past whoever happens to be manning the desk at the local DA’s office. This won’t necessarily make them more compliant with federal law, as it has historically been truly rare to find the local DA actually in his office, but it does mean there will finally be some oversight in place. To date, the only “oversight” the DEA has had to endure is the occasional DOJ lawyer telling agents “no fucking way” (ACTUAL QUOTE) whenever they approached federal prosecutors with a drug bust.

And, unless DEA brass is really serious about changing the agency’s shady methods, it’s likely nothing will change. Drug warriors, like water, seek their own level, running downhill against the least resistance.

Wiretaps are considered so intrusive that federal law requires approval from a senior Justice Department official before agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on state court wiretaps, even when sought by federal agents.

Unless the DEA (or Congress) closes this loophole, nothing will change. There may be a temporary improvement, but it will be just that: temporary. The DEA has long been used to jumping zero hurdles on its way to intercepting communications. There’s no reason to believe it won’t revert to form unless steps are taken to prevent it. In fact, the DEA’s actions will probably have less effect on its wiretap abuse than the installation of a new district attorney. As of the end of February, DA Mike Hestrin had only approved 14 wiretap warrants — a huge decrease from the 126 approved over the same two-month period last year.

Filed Under: abuse, dea, helios hernandez, riverside, warrants, wiretaps

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

DEA Loses Big Drug Case, Thanks To Illegal Wiretap Warrants Prosecutor Calls 'Procedural Errors'

Privacy

from the self-inflicted-wounds-all-someone-else's-fault dept

The DOJ’s counsel warned the DEA that its illegal wiretaps would get them into trouble.

“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…”

“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.

But the DEA persisted, because it had a man [read: magistrate judge] on the inside. Judge Helios Hernandez, a state-level judge, approved five times as many wiretap warrants as any other judge in the country, acting as a rubber stamp for the DEA and the California law enforcement agencies it collaborated with. The DEA should have been running these warrant applications through a federal judge, but it seemed much happier with this arrangement.

The highly-questionable wiretap warrants have finally started to cause it problems. Brad Heath and Brett Kelman of USA Today — the journalists who uncovered the massive, illegal wiretap program — are now reporting that one of the faulty warrants has just cost the DEA a year’s worth of surveillance efforts and, quite possibly, a significant amount of seized assets.

Federal drug agents spent months watching a tiny California jewelry store sandwiched between an auto parts shop and an apartment house with bars on its windows. They secretly recorded its owner’s phone calls and intercepted couriers carrying away boxes full of cash, sometimes stuffed with $100,000 or more. For more than a year, they gathered evidence that the store was laundering millions of dollars for drug traffickers.

[…]

Prosecutors determined that wiretaps the U.S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $800,000 drug agents seized.

The problem with the warrants used in this case were numerous. First, many of the suspects were prosecuted in San Bernardino while the wiretap warrants themselves were issued by the friendly courts in Riverside. On top of that, the warrants — which were supposed to be signed only by a top prosecutor — were signed by lower-level lawyers. This practice ran afoul of a restriction enacted in response to the FBI’s abuse of wiretaps to surveil civil rights leaders in the 1960s.

Because Riverside District Attorney Paul Zellerbach rarely felt the need to comply with this restriction, hundreds of granted warrants are equally suspect. More cases are likely to be tossed in the future. Defense lawyers as far away as Kentucky and Oregon (where Riverside-granted warrants were deployed) are taking a closer look at the government’s paperwork.

The most ridiculous reaction has come from the head of the office that just saw all of its evidence tossed. According to San Bernardino’s top prosecutor, illegal wiretap warrants are no big deal — certainly not worthy of having a yearlong investigation nullified.

“These people were dealing in drugs, and they are guilty, and because of a procedural issue and a suppression motion, they got away with it,” said Mike Ramos, the district attorney in San Bernardino, Calif., whose office prosecuted the case.

Man, those “getting away with it” grapes look incredibly sour. For many years, it has been the DEA and local law enforcement “getting away with it.” These “procedural errors” never seemed to concern the agencies that used illegally obtained evidence to put people in prison. It’s not until one gets away that anyone expresses an opinion on hundreds of illegal wiretap warrants. And the statement that’s delivered isn’t one of regret or contrition, but one of resentment that “guilty” people can also benefit from “procedural errors.”

Filed Under: 4th amendment, dea, helios hernandez, riverside, san bernardino, warrants, wiretaps

California Police Used Illegal Wiretap Warrants In Hundreds Of Drug Prosecutions

Privacy

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.

Filed Under: california, dea, riverside, warrants, wiretaps

Documents Show DEA Running Ever-Increasing Number Of Wiretap Applications Through Friendlier Local Courts

Legal Issues

from the why-be-accountable-when-you-can-be-efficient? dept

It looks like the DEA has upped the amount of surveillance it’s performing, most likely not as a result of increasing drug trafficking, but more likely due to other contributing factors. According to information obtained through a USA Today FOIA request, 2014 was a record year for DEA wiretapping — another in a decade-long string of consecutive “record years.” (A slight, probably-Snowden-related dip in requests notwithstanding.)

The DEA conducted 11,681 electronic intercepts in the fiscal year that ended in September. Ten years earlier, the drug agency conducted 3,394.

At first glance, it would appear that the DEA is simply being more aggressive in its drug enforcement efforts. But more likely this is a sign that the DEA is just getting better at streamlining its wiretapping request procedures. To begin with, it appears the DEA doesn’t feel federal courts need to be involved in federal investigations — at least not when local courts will perform the same function but faster and with fewer questions asked.

DEA agents now take 60% of those requests directly to local prosecutors and judges from New York to California, who current and former officials say often approve them more quickly and easily.

Not only does this allow DEA agents to more easily obtain permission to deploy wiretaps, but its “BUY LOCAL!” plan allows it to dodge additional scrutiny from the DOJ. While state courts are supposed to adhere to DOJ guidelines while approving wiretaps, it appears smaller courts are less likely to challenge DEA requests.

Agents said many of the cases in which state judges authorize wiretaps end up being prosecuted in state courts, where challenges to wiretap evidence are less common. According to records the district attorney submitted to California’s attorney general, for example, only about 2% of the 1,400 wiretaps authorized in Riverside County over the past five years were later challenged in state court.

As USA Today’s Brad Heath points out, the DEA seems to love Riverside County. Judges there approved more wiretap applications than any other jurisdiction in the country, leading to the applications routed through it doubling from 2013 to 2014.

The DEA, however, claims there’s no venue shopping or DOJ-ducking going on here. It’s all just part of the magical complicated world of drug enforcement.

Moses said DEA agents were “making no attempt to circumvent federal legal standards and protections by instead pursuing state wiretap authorizations.” Instead, he said, the rapid growth of state-authorized eavesdropping reflects local prosecutors’ increased willingness to take on complex wiretap investigations, which often involve teams of local police and federal agents. At the same time, he said, some federal prosecutors “may be unable to support wire intercept investigations due to manpower or other resource considerations,” so agents take their cases to state officials rather than see them dropped.

That all sounds very plausible, but still doesn’t explain why the DEA is running so many joint operations out of Riverside County. Be that as it may, the uptick in requests can also be attributed to the agency’s long-running parallel construction schemes, which may now include communications gathered with the assistance of purchased exploits and malware. While many judges may be a bit hesitant to sign off on man-in-the-middle attacks to implant spyware on cellphones, they’re perfectly happy to John Hancock normal law enforcement methods like wiretaps that achieve the same end.

Filed Under: dea, jurisdiction shopping, roving, surveillance, wiretaps

Judge Tells FBI It Doesn't Have A 'Two-Minute Rule' That Allows It To Listen In On Personal Phone Calls

Privacy

from the first-two-minutes-of-privacy-violations-free-w/purchase-of-full-investigation! dept

Something the FBI has long considered to be part of its wiretapping efforts has been rejected by the Second Circuit Court of Appeals. Much like many people believe a 30-second-or-less clip from a movie, TV show or song entitles them to claim fair use, the FBI believes that a two-minute or less phone conversation can be listened to in its entirety even if it has nothing to do with the investigation at hand.

The U.S. Court of Appeals for the Second Circuit declined to adopt a rule that agents get a “two-minute presumption” on the reasonableness of wiretapping calls that are personal in nature.

The circuit did so while dismissing a civil suit brought against FBI agents by a woman who claimed her privacy was violated when agents taped intimate phone calls between herself and her husband during a criminal investigation.

The circuit said the woman, Arlene Villamia Drimal, will be allowed to file a new complaint against the agents.

Drimal is the wife of convicted insider trader Craig Drimal. She sued 16 FBI agents for conversations they overheard in 2007 and 2008 while executing a wiretap secured under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, §§2510-2522.

This doesn’t necessarily “put to death” the two-minute window on personal calls FBI agents grant themselves, contrary to Drimal’s lawyer’s claims. The ruling is very specifically narrowed to cover only the FBI agents’ actions in this case. The 16 agents listed in Drimal’s lawsuit moved for dismissal, citing qualified immunity and pointing to a previous decision which allowed the FBI approximately two minutes to ascertain a call’s purpose and relevance.

They cited the Second Circuit case of United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), where the court held a wiretap that monitored 2,058 in a large narcotics case did not violate Title III minimization requirement.

The Bynum court excluded calls under two minutes from its evaluation of the wiretap because “in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversations as merely social or possibly tainted.”

The FBI has an indeterminate amount of time to discern the intent and content of wiretapped calls, with an obligation to disconnect as soon as it’s surmised the phone call has no investigatory relevance. This still remains in force, even with this rejection of its “two minute” argument. Without a doubt, this allowance has been abused to listen in on phone calls of a personal nature, but its intent is to minimize privacy violations while still allowing agents to collect evidence. What distinguishes this case from others is that the FBI agents were caught not “minimizing” wiretapped calls in violation of the court order authorizing the wiretap. This abusive behavior was called out by the presiding judge.

This case does not present the same circumstances as Bynum. Many of the violations here took place in the early stages of the wiretap when defendants were less familiar with the case and with Mrs. Drimal’s lack of involvement in it, but the agents should have realized reasonably early in the wiretap that these husband and wife conversations were not relevant to the investigation. As Judge Sullivan noted in Goffer, Mr. and Mrs. Drimal occasionally discussed “deeply personal and intimate” issues, 756 F. Supp. 2d at 594, and “in each of these calls it should have been apparent within seconds that the conversation was privileged and non?pertinent,” id. at 595.

As a result, the reasoning from Bynum that it would be too difficult to minimize calls under two minutes is not applicable here where agents could determine in seconds that the calls between husband and wife were entirely personal in nature. The two?minute presumption we applied in Bynum thus does not automatically shield defendants against the failures to minimize calls under two minutes that the putative amended complaint is likely to allege.

On one hand, the ruling undercuts the FBI’s assumption that all calls under two minutes in length can be listened to in their entirety, no matter their relevance to ongoing investigations. On the other hand, the ruling cannot be applied broadly to other FBI wiretapping efforts. Civil suits brought over alleged privacy violations aren’t going to be any easier to pursue as the “window” for FBI eavesdropping is still wide open, what with the Bynum ruling only applying to the specific facts of that case, rather than FBI wiretapping in general.

Drimal’s case was aided by a couple of unlikely incidents, one of which was two agents’ open admissions that they had listened to privileged phone calls. The other factor weighing into this decision was the very specific instructions the agents received, not only from the court issuing the wiretap order, but also from the US State’s Attorney. Without these two elements, the FBI would likely have been found to be acting lawfully within the confines of its wiretap policies and applicable court orders.

Filed Under: 4th amendment, doj, drimal, eavesdropping, fbi, phone calls, second circuit, two minute rule, warrants, wiretaps