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

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

Tue, Dec 15th 2015 3:20am — Tim Cushing

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."

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

43 Comments

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That One Guy (profile), 15 Dec 2015 @ 3:29am

Exactly the sort of mindset you want in a DA
“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.

No, as a matter of fact, they are not guilty, until they've been convicted in a court of law. And if you cannot do that following the laws, guess what, it's not the fault of the law, or due to a 'procedural issue', it's your fault.

Either follow the laws, or don't bother in the first place.

I'm glad this blew up in their face, and while I'd love to think that they'd learn their lesson, and maybe start, oh I dunno, following the law, I fully expect them to instead whine about how it's just too hard to do so, and won't some courageous lawmaker step in and solve the problem for them?
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Anonymous Coward, 15 Dec 2015 @ 3:35am

...Can someone please remind me of the time when criminal actions became procedural errors in the US Penal Code?

Because that seems to be some seriously flawed logic there, given that the DEA is supposed to enforce the law, not pretend like it's only guidelines.

That's the province of Pirates (Source - Pirates of the Caribbean)
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Granger, 15 Dec 2015 @ 3:56am

Re:
Exactly the point -- government agents routinely act above and outside the "law" ... and correctly discern they will not be prosecuted.

This is known as "tyranny". Laws apply only to the little people and commoners.
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Anonymous Coward, 15 Dec 2015 @ 4:19am

It's quite telling when people side with a suspected drug dealer against the criminal actions of the USG.
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That One Guy (profile), 15 Dec 2015 @ 4:20am

Re:
Because Drug War!

Drugs! War! Rules and/or laws have no bearing when you're dealing with drugs and war! And having judges who are willing to look the other way for Drug War related actions certainly helps along the idea that anything goes as long as it's in the name of Drugs and War!

Sarcasm aside, until and unless judges and lawmakers are actually willing to stand up for the rights of the public, even the rights of drug users/dealers, then you'll get cases like this, where even a judge and DA is willing to 'cut corners' if it means making a conviction(though thankfully the conviction part didn't happen this time).
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That One Guy (profile), 15 Dec 2015 @ 4:34am

Re:
Screwed up times can make for some strange allies. Even if you can't stand someone, what they say or do, what they stand for, you still have to support them, because the rights of the public are the same rights of the accused, and if it's determined to be acceptable to strip those rights away from the accused, then everyone's rights are damaged.

Whether it's a matter of justice, where you don't care to see anyone's rights trampled, anyone punished unfairly, or simple self-interest, where you realize that damage to their rights is damage to your rights, defending people's rights can make for some strange support between groups.
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Mason Wheeler (profile), 15 Dec 2015 @ 4:39am

Helios Hernandez
Wow. Who names their son "sun"? :P
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Mason Wheeler (profile), 15 Dec 2015 @ 4:41am

Re: Exactly the sort of mindset you want in a DA
No, as a matter of fact, there is a difference between being objectively guilty and being found guilty by a court. Hopefully a mess like this will lead the DEA to clean up their act so more guilty people won't get away with it like this.
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That Anonymous Coward (profile), 15 Dec 2015 @ 4:59am

Pity that there will be no punishment of those who violated the rights of others. Guilty or not we are all supposed to have the same rights, and if you can't play by the rules you should not be employed or allowed to call your colossal violations of peoples rights a procedural error. You should be suspended, arrested, & tried by the same system you sought to abuse... pity that you will get the rights you tried to deny to others.

When you allow those with power to run wild and protect them from what should be punishment for undermining the very things they are charged with upholding you destroy the whole system. Like with many things we are so very worried about, perhaps we should spend more time looking at "our" actions and make sure they are up to the basic standards required in the system.
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David, 15 Dec 2015 @ 5:08am

Well, something the war on drugs is good for
If people get away with robbery or murder or rape due to "procedural error", that's really hard on the victims. But with regard to drug business, there really are close to no "innocent" victims without some involvement of their own.

So tossing such cases to teach the DEA a lesson does not leave a judge in the ugly situation of having to explain this step to direct victims and/or their relatives.

Either way, you need to teach law enforcement that it has to heed the laws. But it's much harder to go through with when victims are present in court.
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That One Guy (profile), 15 Dec 2015 @ 5:11am

Re: Re: Exactly the sort of mindset you want in a DA
To someone like the DA, they should be one and the same. It's not their job to decide guilt, it's their job to present the case and let the court decide guilt. Problems crop up when the DA is determining guilt, because as any 'good' prosecutor will tell you, bending and/or breaking the rules doesn't count if you're doing it to catch a guilty person.

Hopefully a mess like this will lead the DEA to clean up their act so more guilty people won't get away with it like this.

Possible, but I wouldn't put high odds on it. More likely they'll just try and find a more agreeable judge for future cases, one who's more willing to overlook 'procedural issues' if it means throwing the book at a druggie/dealer. Can't be that hard to find a federal judge willing to buy the 'good faith exception' excuse usually trotted out in such cases to allow illegally obtained evidence to be admissible after all.
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Anonymous Coward, 15 Dec 2015 @ 5:15am

Let me get this straight.

The DEA and prosecutors BROKE THE LAW, and were found to have done so in a court of law.

What punishments are being meted out to those that broke the law? I'm not talking about the money launderers. I'm talking about the people requesting and granting the wiretaps? These people were found to have engaged in illegal wiretapping and the best that can be done is dismiss the evidence? Is that judge that granted the wiretaps still a judge? Is the prosecutor still practicing law?

Where is the stick to prevent them from doing the same again and again and again, only losing one case out of many ("due to a procedural error") when a sharp-eyed judge realizes that their cases are based on flimsy and illegal evidence?

Until these sort of actions come with a real threat to those perpetrating them, there is nothing that will make the DEA cowboys and their minions change their act.
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That One Guy (profile), 15 Dec 2015 @ 5:16am

Re:
What are you talking about, of course they're being punished! Why, they stand to lose a good $700... $600... $200K(after all the various fees are accounted for) that they rightfully sto- seized from the accused taken from them! If that's not an overbearing and excessive punishment for their actions, I don't know what is! /s
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Anonymous Coward, 15 Dec 2015 @ 5:22am

well, keep hiring lowIQ cops
and wealthy criminals will hire high IQ lawyers (and bankers)
...
what could go wrong?
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Anonymous Coward, 15 Dec 2015 @ 7:04am

Somebody should remind that prosecutor that a defendant's constitutional rights are NOT a "procedural motion". It's bad enough that prosecutors are getting faulty warrants. Now they are bitching that their warrants, their cases and their defendants are being tossed out of court?

Got to hand it to those morons, they want to hobble defendant's rights so that they are found guilty. We should just get rid of the courts and allow prosecutors to just sentence defendants without a trial.
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Anonymous Coward, 15 Dec 2015 @ 7:13am

Re: Re:
I wonder if history will look back on the Drug War as the 21st century's Witch hunts.
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Anonymous Coward, 15 Dec 2015 @ 7:16am

Re:
They'll receive the harshest mandatory minimum paid vacation time afforded to them.
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Anonymous Coward, 15 Dec 2015 @ 8:02am

Re: Re: Re:
I think that award goes to searching for terrorists. It probably would be for the 80s-90s era though.
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Anon, 15 Dec 2015 @ 9:14am

Wrong Call
>“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.

No, they "get away with it" (assuming they are actually guilty, a big leap) only because a whole office ignored the fundamental rules and case law of their business - law - through either total laziness, complete incompetence, or blatant disregard for correct procedures. The blame is entirely upon Ramos and his office for one or all of those failings. They basically handed people couriering millions of dollars of suspect money a "get out of jail free" card by not doing their job properly.

Presumably there's nothing in this operation that would not have passed muster, done correctly, with the proper procedure? If procedure is not important, why not just waterboard the suspects until they confess all the details? That is supposed to be legal too, if you find the right judge?
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Reverend Dak (profile), 15 Dec 2015 @ 9:21am

The only criminals here are the DEA.
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That One Guy (profile), 15 Dec 2015 @ 9:23am

Re: Wrong Call
Shush you, don't give them ideas.
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Anonymous Coward, 15 Dec 2015 @ 9:27am

Re: Helios Hernandez
> Wow. Who names their son "sun"? :P

Why, Helios Hernandez, Sr, of course!
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Anonymous Coward, 15 Dec 2015 @ 9:27am

Re: Re: Exactly the sort of mindset you want in a DA
stfu, you authoritarian pos
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Anonymous Coward, 15 Dec 2015 @ 10:31am

again the spirit of our forefathers weeps. this is not what they had in mind.
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Anonymous Coward, 15 Dec 2015 @ 10:36am

you know, i could never get my head around what happened to germany in the '30s, but i think i'm beginning to understand the process.

it no longer seems strange at all.
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Anonymous Coward, 15 Dec 2015 @ 10:40am

“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,”

Several things bother me about that sentence. I tried to reframe it dropping the reference to the "suppression motion" - as it would likely not exist if the procedures were correctly followed.

“These people were dealing in drugs, and they are guilty, and because of a procedural issue, they got away with it,”

It still bothered me. So I took out the reference to them being guilty, because due to the procedural issue, they were never found guilty, except within the confines of the prosecutor's head.

“These people were dealing in drugs, and because of a procedural issue, they got away with it,”

But leaving it as-is made things a bit vague. So I decided to put something in. This, I believe, is what he truly meant to say:

“These people were dealing in drugs, and because of a procedural issue that we created, they got away with it,”

This isn't a matter of the defendants playing "nitpick" with minute details - this is about agents purposefully circumventing the law to achieve a conviction. You have to wonder how weak a case must be, if they can't even be bothered to properly get a warrant.
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Whoever, 15 Dec 2015 @ 11:01am

It's quite telling when people side with a suspected drug dealer against the criminal actions of the USG.

There are probably many readers here who think that drug laws are this century's prohibition: laws that do more harm than good. The only people who benefit from the laws are the drug lords.
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Anonymous Coward, 15 Dec 2015 @ 11:25am

better criminals go free than law abiding citizens be treated like criminals
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Anonymous Coward, 15 Dec 2015 @ 11:27am

Re:
when traitors are in charge and decide the laws don't apply to them
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Anonymous Coward, 15 Dec 2015 @ 11:31am

Re:
raises and promotions so they look like model employees who just made 1 mistake when those above them talk to the press about this solitary incident.
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Anonymous Coward, 15 Dec 2015 @ 11:32am

Re:
like we have police doing already eh? judge, jury and executioner.
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Anonymous Coward, 15 Dec 2015 @ 11:33am

Re:
Read the book "rise and fall of the third reich" it is an enlightening read.
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tqk (profile), 15 Dec 2015 @ 12:44pm

Re: Re: Re: Exactly the sort of mindset you want in a DA
More likely they'll just try and find a more agreeable judge for future cases, one who's more willing to overlook 'procedural issues' if it means throwing the book at a druggie/dealer.

I've got to wonder where these guys (judge & prosecutor) got their training. Reading stories like this sounds like they think it's just a game. Roll this dice, or press this button, ... They read the instructions so they think they understand the repercussions of their actions.

However, they've completely ignored the big picture questions like "Why?" They appear to have completely missed that "nation of laws, not of men" stuff and are just working to build up their score because that's what they learned it was all about. Whoever hired them is incompetent and to blame for allowing messes like this to happen.
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tqk (profile), 15 Dec 2015 @ 1:03pm

Re:
The only people who benefit from the laws are the drug lords.

Drug lords have benefited by being able to charge premium prices because illicit drugs are illegal. The LEOs have benefited richly in toys and numbers of personnel. Politicians have benefited richly from having an easy "for the children" campaign issue. The corporate owned and administered prison system is swimming in cash the former provide it to house the losers. Pretty much all of them benefit from a ridiculously relaxed legal system that encourages the "White Hats" to try anything they think might succeed in their favor.

Without propping up the drug lords' incentives, none of the rest would have been possible. It's quite the scam. Al Capone would've loved it. I expect he would've invested his profits in the prison system as his long term hedge.
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tqk (profile), 15 Dec 2015 @ 1:11pm

Re: Helios Hernandez
Who names their son "sun"?

Sun Yat Sen's parents?
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Anonymous Coward, 15 Dec 2015 @ 1:13pm

Re:
The people who benefit from drug laws are the drug companies, the politicians who get money from drug companies, the police and alphabet soup agencies, lawyers, judges, people who have a 401k, some drug dealers and hustlers.

Ending the war will require people to change their reliance on this distorted market created by government manipulation.
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tqk (profile), 15 Dec 2015 @ 1:47pm

Re: Well, something the war on drugs is good for
But with regard to drug business, there really are close to no "innocent" victims without some involvement of their own.

Sadly, that's not true. The "War On Drugs" has been allowed to spill over onto almost anyone. Just walking down the street, or carrying a bag of cash on a train or plane or driving a vehicle, lets the cops assume "proceeds of illicit drugs" leading to civil asset forfeiture, and you have to fight to get it back whether or not you've ever been involved with illicit drugs.
Either way, you need to teach law enforcement that it has to heed the laws. But it's much harder to go through with when victims are present in court.

You mean when they're in court trying to prove their cash, their car, or other property is innocent and should never have been taken in the first place?

The law is an ass and the cure is worse than the disease. They had to pass a constitutional amendment to get rid of Prohibition 1.0. What's Prohibition 2.0 cost so far? I suspect it's incalculable considering all the lives it's crushed under boot heels all around the world.
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Hin Toil Fat, 15 Dec 2015 @ 7:49pm

Technicalities
"Technicalities" in a court case really just means crimes committed by the government. It's sad that those that actually swear to uphold the law care so little when they break it.
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Anonymous Coward, 16 Dec 2015 @ 1:11pm

DEA, fuck you.
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David, 17 Dec 2015 @ 1:55am

Re:
We should just get rid of the courts and allow prosecutors to just sentence defendants without a trial.

Way ahead of you. Look up "plea deal". You get to pick between 2 years in prison and paying $300000 in legal fees to have a serious chance of whittling down 40 years of charges to less than that.

Independent of actual guilt of course.
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David, 17 Dec 2015 @ 1:58am

Re:
That only applies to civilized countries. Where would the NSA be under such conditions?
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Wendy Cockcroft, 17 Dec 2015 @ 2:56am

Re: Re: Exactly the sort of mindset you want in a DA
Ah, but we have been repeatedly told by the media that due process is an impediment to justice and that procedural errors mostly exist because procedures exist.

The maverick who plays by his own rules dishing out his own brand of justice is celebrated while those law enforcement agents who follow procedure to the letter are dismissed as dull jobsworths ('s more'n me job's worth, guv!) getting in the way with their demands for compliance with the law.

Whatever did the entertainment powers that be expect would happen if they continually drip-feed that trope to the public? As long as the people believe that this only affects the bad guys, they're not going to give enough of a damn to kick up a stink about it.

The idea that criminals are getting away with the most heinous crimes "on a technicality" will persist until enough of us call this out for the B.S. that it is. I don't like the idea of some unrepentant felon thumbing his nose at the law because they can't do their job right but they ought to be getting their job right first time. /End rant
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GEMont (profile), 17 Dec 2015 @ 9:10am

nuff sedd
Nothing to add here, cuz you folks rock. :)

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