Silberman Case to Forge New Ground : Law: A San Diego federal judge must decide whether roving wiretaps, even on public pay phones, are constitutional. Prosecutors say the wiretaps were vital in the money- laundering investigation.

TIMES STAFF WRITER

From a phone at a hotel in San Diego's Mission Valley, reputed mobster Chris Petti reached out on Dec. 5, 1988, and touched prominent San Diego businessman Richard T. Silberman. Though the telephone was a public pay phone, it had been tapped--by FBI agents.

In the phone conversation, Petti and Silberman chatted about laundering money they believed came from Colombian drug lords, federal prosecutors say.

"The thing that was bad about the deal is it was too small. . . . I mean, I'm just doing this to prove to him I can do it, you understand?" Silberman told Petti, allegedly referring to the laundering of $100,000 the week before.

As the phone call went on, Silberman and Petti agreed that plans were uncertain because the man who had delivered the money, whom they both knew as Peter Carmassi--actually an undercover FBI agent--had been vague with both of them. Petti said, "He hates to talk on these things, you know; I'm at a phone booth, so I mean, it's uh, that's the reason I'm talking this much on it."

And that, federal prosecutors said, is precisely the reason why they had to make use of a new law that authorizes law enforcement officials to bug the conversations of a criminal suspect regardless of what telephone or location the suspect might use.

Based largely on leads obtained from those taps, prosecutors last year indicted Silberman, Petti and three other men on federal money-laundering charges.

Their case involves the nation's first use of the "roving wiretap," as it is known by police and lawyers. Because it's the first, no judge has ever had to decide whether the law authorizing roving taps is constitutional.

At a hearing Tuesday at the federal courthouse in downtown San Diego, U.S. District Judge J. Lawrence Irving will become that first judge. Though it's not often that a federal trial court judge makes constitutional history, particularly in high-profile cases, the lawyers in the case say that Irving will do just that when he decides whether the roving taps violate the guarantee against "unreasonable searches and seizures."

Irving will also take up a variety of other challenges to the evidence FBI agents gathered in a 2 1/2-year investigation and hope to use in a trial beginning in April. A key decision will be whether prosecutors may use an FBI report of Silberman's behavior immediately after his arrest last April in a Mission Bay hotel room.

The roving taps, however, led to much of the other information FBI agents eventually learned. If Irving invalidates the law, all the evidence gathered as a result of the taps will be barred from the trial of the five men under a legal doctrine known as "fruit of a poisonous tree."

Because of the opportunity to knock out crucial evidence, because the use of the wiretaps marks a first and because the novelty affords lawyers the unusual opportunity to pontificate upon matters of pure legal theory, the issue has drawn considerable attention from both government prosecutors and the high-powered defense attorneys in the case.

Defense lawyers contend that the roving taps violate the Fourth Amendment's constitutional guarantee against unreasonable searches and seizures, and that everything the FBI learned that can be traced back to the taps must be thrown out.

Silberman's San Francisco lawyer, James Brosnahan, said in his legal papers that the law summoned visions of British redcoats pillaging Colonial dwellings. He said in a recent phone call that the law threatens everyone's privacy, not just that of FBI targets.

"I suspect that, upon being fully informed, most of the citizenry would find this (law) intolerable and a direct threat to their own privacy," Brosnahan said. "Forget about defendants in criminal cases. I'm talking about FBI agents listening to the good folks in San Diego when those people have no idea that's going on."

Prosecutors said that Brosnahan's faintly Orwellian suggestion is far-fetched. The law strikes a balance between the public's "reasonable expectations of privacy" and "law enforcement's duty to detect and prosecute crime," Assistant U.S. Atty. Charles F. Gorder Jr. said in his legal papers.

The Constitution is a living document that sensibly allows police to keep pace with technological change and sophisticated criminal behavior, meaning the leads the FBI developed through the taps were gathered legally, Gorder said in his brief.

"Without the ability to do a roving wiretap, this case would not be here at this point," Gorder said in a recent interview. "It would not have been possible to investigate comprehensively."

The law authorizing standard wiretaps, written by Congress in 1968 and upheld by the federal courts, allows police and prosecutors to bug a particular phone at a particular place.

To obtain a standard wiretap, the law requires prosecutors to obtain a search warrant by proving to a judge that there is probable cause--in essence, a strong likelihood--that a particular person is committing a particular crime and that police will hear about it by secretly listening to a particular phone.

Prosecutors also have to follow all those steps to obtain a roving wiretap, except for the focus on the particular phone, said Clifford S. Fishman, a law professor at Catholic University in Washington.

The law on roving wiretaps came about after it became apparent by the mid-1980s that "sophisticated criminals" avoided one phone, usually a home phone, and used various other lines, especially public pay phones, Fishman said.

In response, Congress in 1986 authorized roving wiretaps, said Fishman, one of a handful of experts on the law.

Gorder said neither he nor FBI agents are allowed to talk about the logistics of how a roving tap works.

It's no secret, though, that modern telephone technology that consolidated call-switching equipment at central locations, developed over the past 10 or 15 years, enabled law enforcement officers to tap even pay phones from the phone company facility, Fishman said.

Barring "exceptional circumstances," the central facility is where the tapping actually is done, Fishman said.

As agents follow a suspect about, they can record conversations from any number of phones that the suspect is likely to use that have already been tapped, Fishman said.

The advance installation of wiretapping equipment at the phone company does not raise any constitutional concerns, Fishman said. To actually be able to listen on the tap, however, requires prosecutors to show probable cause to a judge and get a warrant, because a wiretap is in essence a special kind of search, he said.

The Constitution demands that a valid warrant must "particularly describe" the place to be searched, Fishman said.

A standard wiretap request "particularly describes" the phone investigators' plan to tap, Fishman said. Once granted, any conversation on that line that is crime-related may be intercepted, even if agents don't know who is talking, he said.

Under the roving wiretap law, the "particularity" is supplied a different way, through the identity of the person agents want to intercept, Fishman said. After telling a judge who it is that agents want to listen in on, the law allows agents to tap any phone the target uses.

"The main limitation" is that, unlike a standard wiretap, a roving tap "only permits (agents) to tap this phone while (the target) himself uses it," Fishman said. "Not while his wife uses it. Not while his son, cousins, brothers and friends from the social club are using it."

The roving taps that led to the indictment of Silberman were actually aimed initially at Petti. Beginning in July, 1987, and continuing for 30 days at a time until early 1989, U.S. District Judge Gordon Thompson Jr. authorized agents to tap Petti's calls, wherever he might be.

Thompson approved the roving taps at "various and changing pay phones in San Diego County" after prosecutors told him that Petti tried to avoid the interception of his phone conversations by using scattered pay phones, prosecutors said in a recently filed brief.

To know which phone to tap, of course, FBI agents had to keep a close watch on Petti. For instance, agents recorded the Dec. 5 phone call, made at 2:31 p.m., after they saw Petti enter the Mission Valley hotel at 1:56 p.m., according to court records.

The amount of what investigators called "pertinent" information yielded from the roving taps, especially when contrasted with that gleaned from taps on other phones, was remarkable, according to an FBI agent's affidavit filed with a prosecution brief.

Of the 424 "completed intercepts" acquired from roving taps, 296, or 70%, were pertinent, said Arthur R. Pfizenmayer, the case agent. The other 30% were either too short to categorize or did not involve relevant conversation and were not monitored.

On Petti's home phone, however, the figures were reversed. Of the 5,709 "completed intercepts," 1,729, or 30%, were pertinent, Pfizenmayer said. The remaining 70% were either short or irrelevant calls, he said.

In their legal papers urging Irving to uphold the taps, prosecutors conceded that the judge is not likely to find a system legal just because it worked well. But, they contended, there is no reason to think the taps could be anything but legal.

The Constitution is not a literal document, Gorder said. If it was, there could be no way for a judge to even use it as a guide when deciding an issue on a modern technique, such as a wiretap, since the document mentions the right to be secure in "papers" and "effects," not from wiretaps.

Because the Constitution is interpreted "in light of changing and contemporary conditions," laws that carefully respond to that change should be upheld, Gorder said.

For instance, more than 60 years ago, when cars were relatively new, the U.S. Supreme Court validated warrantless vehicle searches, he said. The court found that a "roving" car was not a fixed house and that to require a warrant to search a car about to leave the jurisdiction could prevent any search at all, Gorder said.

"Just like the situation with cars, the requirements of (the Constitution) are flexible enough to deal with this modern-day situation," the "mobile criminal who moves from place to place," Gorder said.

Fishman, the law professor, said he agrees with that view, and stressed that "flexibility in interpreting the Constitution should not be one-sided.

"If (the Constitution) is flexible enough to protect privacy against technological developments far beyond the contemplation of the Founding Fathers, as it should be, then it also must be flexible enough to permit investigators to preserve the basic mandate of (the Fourth Amendment's requirements) in novel ways," he said.

Defense lawyers said they found those arguments ironic, since they are often the ones urging flexible constitutional interpretation. They argue that a law responding to change must be carefully drawn, and the law allowing roving taps is not careful enough.

"It's too loose and unfettered," said Petti's Las Vegas lawyer, Oscar Goodman.

The main flaw with the law, Brosnahan said in a brief he filed on behalf of all five defendants, is that it fails to satisfy the requirement to "particularly describe" the place to be searched.

Substituting the identity of the target for the location of the phone, though clever, misses the mark, Brosnahan said. That just isn't specific enough, and it gives FBI agents a license to listen to everything a suspect says--and lets them wait until after a conversation ends to decide whether it's relevant, he said.

That's just like British soldiers deciding after they barge into a colonist's house that the muskets aren't to be found there, Brosnahan said. And that sort of unjustified intrusion is the reason for the Fourth Amendment in the first place, he said.

Brosnahan said he recognizes that, in the conservative climate created by the current U.S. Supreme Court, which has made it easier for prosecutors to use evidence gathered under warrantless or flawed searches, he faces an uphill battle in arguing that roving taps are not legal.

He said he expects a "fair hearing" from Irving and declined to discuss any plans to appeal if he is turned down. "We're proceeding one step at a time," he said.

But, Brosnahan said, "If (law enforcement officials) can do this, they can be authorized to search 20 houses looking for one person.

"There might be a few people in the country that say, 'That's great. They ought to go through every house in some city.' But most of us don't feel that way. And, when most of us get on the phone and talk about business matters, personal matters, family matters, things we care about, we don't want the FBI listening to us. Especially at a pay phone."

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