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

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

DEA Finally Decides To Do Something About Its Wiretap Warrant Abuses

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

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

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