Law enforcement officers looking to install wiretaps and eavesdrop on phone calls are supposed to seek judicial approval first. Wiretaps are regulated by federal statutes, and officers have to establish probable cause for a federal judge to approve a wiretap. However, just because a wiretap is approved by a judge does not mean that the evidence can be used in court. Now a number of federal drug cases may be at risk due to an overreaching DEA wiretapping program.
The Drug Enforcement Agency (DEA) was under increased scrutiny after they more than tripled their use of wiretaps over the past decade. In 2015, the DEA conducted over 11,000 electronic intercepts, compared to only about 3,000 in 2005. Although the DEA is a federal agency, they did not get approval for most of these wiretaps from federal judges. Instead, they went to local prosecutor and judges, for faster and easier approval.
Privacy advocates say agents are simply trying to get around the stricter standards of federal courts. However, a spokesman with the DEA, Joseph Moses, said agents were “making no attempt to circumvent federal legal standards and protections by instead pursuing state wiretap authorizations.” They claim the steep increase is due to “the proliferation of communication devices and methods.”
Curiously, the nationwide spread of local courts approving DEA wiretaps appeared to be concentrated in a few specific areas. In 2013, many of the DEA's nationwide wiretap approvals came out Riverside, California. In fact, one judge, Helios Hernandez, signed off on five times more wiretapping warrants than any other judge in the country. Even federal prosecutors were getting nervous, warning the DEA that the wiretaps may be illegal, putting criminal convictions at risk.
Now that some of these drug cases are coming to trial, it appears that the massive DEA wiretapping program succeeded in gathering evidence that will turn out to be unusable. In a case involving an alleged San Bernardino money laundering ring, after wiretap evidence was thrown out, prosecutors have dismissed the case. Now the DEA and prosecutors are rethinking the scope of their wiretapping program.
In a marijuana trafficking case in Kentucky, defense attorneys are challenging wiretap evidence that was approved through the Riverside courts. The defense attorney argued, “Riverside County made a mockery of individual privacy rights, ignored federal requirements limiting the use of wiretaps and permitted law enforcement to intercept telephone calls at their whim and caprice.”
In the wiretapping hotbed of Riverside, prosecutors appear to be scaling back on the number of wiretap warrants. Mike Hestrin, the district attorney for Riverside, said he has reformed the way federal wiretaps are sought and approved in local courts. Hestrin said the new standard would limit their use to cases that were closely tied to the county.
“I definitely don't apologize for using this tool to hit the cartels in Riverside County,” said Hestrin, but reforms were necessary. “This is still a tool that I believe in. It needs to be used cautiously, but it should be available when necessary.”
18 U.S. Code § 2518 provides for the procedures for interception of wire, oral, or electronic communications. Under this statute, applications for wiretaps shall be made to a judge of competent jurisdiction, and include a statement of facts and circumstances to justify the belief that an order should be issued. The judge is only supposed to enter an order approving a wiretap if there is probable cause to believe that an individual is committing a particular crime, and that particular communications will be obtained through a wiretap. Wiretaps are generally approved for a limited scope of time, as well.