A federal judge ruled Friday that the nation's first use of a "roving wiretap," which led to the indictment of San Diego businessman Richard T. Silberman, was legal.
U. S. District Judge J. Lawrence Irving, the first judge in the country to consider the legality of a new law under which FBI agents carried out the roving tap--which involves monitoring multiple phones--said defense contentions that the taps violated constitutional rights were without merit.
Instead, Irving said, the Constitution is a "living document" that enables police and prosecutors, through the roving-wiretap law, to keep pace with sophisticated criminals who might use various telephones to try to avoid detection.
The decision was a test case that experts in criminal law around the country had been awaiting. The ruling also ensures that months' worth of secretly taped phone calls will be admissible at Silberman's upcoming trial.
Silberman, a top aide to then-Gov. Edmund G. Brown Jr.; reputed mobster Chris Petti, and three other men are accused of laundering $300,000 in cash that an undercover agent allegedly characterized as proceeds from Colombian drug traffickers.
Silberman's defense attorneys had devoted considerable attention to the roving taps, hoping to have them ruled illegal and thereby preventing the government from using them as key evidence. At a Feb. 6 hearing, defense lawyers told Irving the 1986 law violates the constitutional bar against unreasonable searches and seizures.
The law allows authorities to bug the conversations of a criminal suspect regardless of what telephone or location a suspect might use. The roving taps, through which agents listened to Silberman, were initially aimed at Petti, and were carried out from July, 1987, through early 1989 at various pay phones in San Diego County.
A traditional wiretap requires police to obtain a warrant that "particularly describes" the phone to be tapped. Since that is impossible with a roving tap, the new law is fatally flawed, defense lawyers contended.
They also said that, if the law was illegal, any evidence gathered under it was tainted and could not be used at Silberman's trial.
Irving, however, said Silberman's lawyers read the Constitution too narrowly on the issue of search and seizure. If suspected criminals switch from pay phone to pay phone to avoid detection, there is no reason why Congress should not allow law enforcement officials to tap the phones the target is likely to use, Irving said.
The roving-wiretap law, which requires federal agents to stop listening to a conversation as soon as they determine that the target is not on the line, "properly balances" a person's privacy rights and law enforcement's interest in fighting crime, Irving said.
He referred in his ruling to the landmark 1967 U. S. Supreme Court case that first set forth the idea that police had to take the Constitution into account--and obtain a warrant--to bug a phone booth.
Much as the court recognized in that case the "vital role that the public telephone has come to play in private communication, (I) must also recognize the vital role that the public telephone has come to play in organized crime's attempted evasion of law enforcement surveillance," Irving said.
Silberman's lawyers tried two other tacks that Irving also rejected.
In order to obtain a search warrant authorizing a roving wiretap, prosecutors must convince a federal judge that there is probable cause--or a strong likelihood--that a particular person is committing a particular crime and that police will hear about it by secretly tapping into various phones they know the person is likely to use.
The taps in Silberman's case, directed against Petti, were issued by U. S. District Judge Gordon Thompson Jr., the chief judge of the San Diego district.
Allowing federal agents to listen to a phone call and only then decide whether the suspect is talking--and whether the conversation is relevant--gives "total discretion" to the agents, rather than the judge, to find probable cause, defense lawyers said.
Irving said that argument completely missed the point. Discretion to determine which conversations to monitor is a "distinct and separate issue from the probable-cause determination made by a judge," he said.
Finally, defense lawyers contended that, even if the law is legal, FBI agents applied it illegally. The problem with that broad claim, Irving said, was that, after making it, the defense team did not provide any facts explaining how or why the agents acted illegally, so it had to be denied.
Assistant U. S. Atty. Charles F. Gorder Jr., the lead prosecutor in the case, declined comment on the ruling, as did defense lawyer George Harris.
An FBI report released Feb. 16 alleges that Silberman confessed to the money-laundering scheme.
Silberman, 60, is scheduled to stand trial April 10. But, in the wake of his attempted suicide last month, it is not known whether the trial will begin as scheduled.
Silberman disappeared from San Diego on Feb. 15 and was found unconscious two days later in a Las Vegas hotel room. After writing a suicide note, he tried to kill himself with an overdose of sleeping pills, according to his wife, Susan Golding, a San Diego County supervisor.
Immediately after being released Feb. 19 from a Las Vegas hospital, Silberman checked into a San Francisco psychiatric hospital. He returned to San Diego this week.