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

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

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'

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

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

DEA Running Massive Wiretap Program Almost Entirely Through A Single California County Courthouse

from the behold,-the-Machine! dept

The DOJ has been instrumental in curbing abuse and misconduct by local law enforcement agencies around the nation. Its own backyard, however, remains a complete mess.

The FBI and DEA have been obstructing investigations by the DOJ's Inspector General for several years now. The DOJ only just recently got around to addressing the widespread warrantless use of Stingray devices by both of these agencies. DEA agents are hooking up with prostitutes at "sex parties" while on the clock and receiving bonuses rather than suspensions or pink slips. The US Marshals Service has been acting as a law unto itself, confiscating cell site simulator records to keep them out of the hands of FOIA requesters, flying its own airborne cell tower spoofers and blowing asset forfeiture funds on $10,000 conference room tables.

Now this, as uncovered by Brad Heath and Brett Kelman of USA Today:

Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans' phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal.

The chain of command for the DEA runs UP to the DOJ, not vice versa, as would be suggested from this paragraph. The DEA apparently isn't too concerned its parent agency's own lawyers find its actions potentially illegal. It's going to do what it's going to do because drug wars don't fight themselves.

The DEA is getting away with it because it has its own "connect" in Riverside County. There's no telling how much venue shopping resulted in this bit of serendipity. All that matters are the results.

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. The judge's orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.

This massive amount of surveillance -- stemming almost entirely from a single judge and his presumably overactive wrist/writs -- is problematic. More so are the numerous explanations offered up by officials for this gaping surveillance portal d/b/a Judge Helios Hernandez's courtroom. Hernandez's enthusiasm for issuing wiretap warrants to the DEA may have something to do with his history as a narcotics prosecutor. But for the record, he's offering the following justification for his actions.

Hernandez declined to comment through a spokesman.

The DEA offered this clarification.

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

More details were provided by Deena Bennett, who heads the DEA's wiretap unit.

Bennett, a one-time contestant on the reality show Survivor, rebuffed attempts to contact her, telling a reporter that "the fact that you have my cellphone number is really harassment, and I'm going to report it."

The DOJ's lawyers, however, have more to say on the issue. For one, the DOJ believes these warrant requests should be routed through federal courts, rather than state courts, considering they cover violations of federal law and, more importantly, the standards the DEA needs to meet to obtain warrants are higher.

The DEA has used warrants issued by a California county judge to chase down suspects as far away as Virginia and New York. It's also engaged in parallel construction to cover its tracks, something the DOJ is now investigating. What little the DEA had to say in its defense was that it preferred to seek warrants in areas where it feels more intercession is needed and, most tellingly, where it can perform "most effectively."

Because it has cut federal courts out of the warrant process, the DEA is likely not showing it has exhausted other investigatory options before asking for intrusive wiretaps. The DOJ's displeasure with the DEA's actions means the resulting prosecutions will almost never make their way into federal courts.

"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.

Or more succinctly:

"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.

The troubling implication of these statements is that while the DOJ's legal counsel may have expressed its displeasure at the DEA's surveillance overreach, it apparently never stepped in to fix the issue. It simply told the DEA to take its tainted cases elsewhere.

On top of that, the DEA seemed far more interested in simply taking stuff from suspects rather than locking them up.

[D]EA agents and local detectives in South Gate, Calif., near Los Angeles, used a state-court wiretap to target a man named Omar Salazar, who the DEA suspected was tied to a Mexican drug trafficking group. Between searches of Salazar's car and his house, officers seized $76,869.94, a gun and a cache of illegal drugs, including 36 pounds of methamphetamine and 5 pounds of heroin. Investigators found some of the drugs in a safe in Salazar's garage, along with a box of ammunition and probation paperwork from one of his previous arrests.

That should have been enough to build a significant federal case with a long mandatory prison sentence, but that was not what happened. Court records show the Justice Department prosecuted the $76,869.94 in a civil asset seizure case. But it did not prosecute Salazar.

The DOJ and local prosecutors probably had nearly 77,000 reasons for abandoning Salazar's prosecution. Here are none of them.

Neither the DEA nor prosecutors would explain why.

Sounds about right. They probably weren't expecting to ever answer questions about their actions… at least not questions posed by journalists. As for the DOJ, it make be making angry noises about its troublesome drug enforcement child but it has not shown any willingness to rein the agency in. The problem isn't going to fix itself and it appears the DEA's perfectly fine with running its prosecutions through state courts and using warrants from local courts to pursue suspects all over the nation. The DOJ needs to flex a bigger muscle than its tongue if anything's going to change.

Filed Under: 4th amendment, dea, doj, helio hernandez, riverside, wiretapping