With Arrival Of New DA, The DEA's 'Likely Illegal' Wiretap Warrants More Legal, Less Prolific

from the the-rubber-stamp-is-gone-and-the-inkpad-has-run-dry dept

The DEA's South California wiretap kingdom is crumbling. Run almost solely through a single, very obliging judge and approved by an assortment of DA's office underlings, the wiretap warrants were so toxic the DOJ wouldn't touch them. Local prosecutors would, however, but now they're finding their cases falling apart.

The likely illegal wiretap program skirted guidelines meant to prevent exactly this sort of abuse. In response to the FBI's abuse of wiretaps to surveil civil rights leaders (including Martin Luther King Jr.) during the 1960s, the DOJ stated warrants had to be signed off by the top prosecutor in the area they were deployed: in this case, Riverside District Attorney Paul Zellerbach. Zellerbach delegated when he shouldn't have, compounding other problems, like the DEA's use of a county judge for warrant requests, rather than a federal judge.

Brad Heath and Brett Kelman have been relentless in pursuing this story. Two more recent developments seem to indicate Riverside, California, will no longer be the DEA's playground. To start with, another of the DEA's cases is being challenged… in Kentucky.

The Kentucky case is the first to challenge that surveillance in federal court, and could have implications for prosecutions across the United States in which police relied on Riverside County eavesdropping. The case may also force the Justice Department to take a position on whether the wiretaps were lawful, something it has not publicly done.

The new court filing challenges Riverside wiretaps on two fronts. First, it argues that Riverside prosecutors used wiretaps as an “initial step” in investigations, even though taps are supposed to be reserved as a tool of last resort. Second, the motion says that former District Attorney Paul Zellerbach, who led the Riverside DA’s office during an unprecedented rise in wiretaps, did not review each wiretap application personally, which was required by federal law.

In addition, the DEA's home field advantage is no longer. Zellerbach is no longer in office and his replacement -- Mike Hestrin -- is following through with his promise of cleaning this mess up. The DEA hit peak wiretap during Zellerbach's tenure. It's now experiencing a swift and dramatic decline.

Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County.

Taps have dwindled since then. So far this year, Hestrin has approved only 14. In the first two months of last year, his office approved 126.

There are still issues left to be addressed though. The Desert Sun, which has worked in conjunction with USA Today's Heath and Kelman to cover this story, notes that the DA's office has rejected FOIA requests for wiretap approval policies under Zellerbach and Hestrin. On top of that, oversight is still very limited. Wiretap warrants are routinely sealed and information about these warrants being withheld from some defendants.

But the good news is the DEA's wiretap pipeline -- DA Zellerbach and county judge Helios Hernandez (who signed off on 20 times as many warrants as his San Bernardino county counterpart) -- has been broken by the arrival of DA Hestrin. Zellerbach's "hands off" approach to wiretap warrant approvals means more than 700 warrants his office issued since 2013 could have their legality challenged in court.

Filed Under: 4th amendment, california, dea, mike hestrin, paul zellerbach, riverside county, warrantless wiretaps, warrants