Little Use Made of State Wiretap Law Police Clamored for : Drug war: Officers say legal restrictions are too numerous. But factors such as staff shortages and late-night surveillance hours play a part.
After 20 years of legislative wrangling, California police finally persuaded lawmakers in 1988 that, to be effective, they needed to be allowed to tap the telephones of suspected major drug dealers.
More than 200 California law enforcement officers have been taught how to wiretap since then. But there have been practically no wiretaps. During 1989, not a single wiretap was recorded under state law; 1990, for which no firm figures are yet available, has seen perhaps just one.
California authorities explain the meager use of their new authority in part by saying they have wanted to allay legislators’ fears that such wiretapping might lead to unjustified invasions of privacy. They say they want to be careful so that they can get the law expanded when the current version expires in 1994. Meanwhile, they say, they have been looking for a good test case to show how effective wiretapping can be.
“So that, unlike my 2-year-old son who got a new fire truck and has been running around the house with it wildly and out of control, law enforcement has said, ‘Let’s use this . . . well,’ ” said Deputy Atty. Gen. John Vance, who coordinates training of police officers in the law.
Authorities also cite a host of restrictive provisions in the California law that have made it unappealing. The most discouraging is a requirement that a tape be recorded in such a way that its authenticity can be “immediately verified” and alterations “immediately detected.”
It took more than a year to design and manufacture wiretapping equipment that would meet such foolproof standards, said San Diego County Deputy Dist. Atty. Hugh McManus, who also helps teach police officers how to use the law. “We’re spinning our wheels having classes,” McManus recalled. “All of these cops are telling us, ‘Why are you telling us all this if we don’t have a machine to do it?’ ”
The law’s legislative sponsor, State Sen. Robert Presley (D-Riverside) said he is not surprised at the dearth of wiretaps. “I didn’t expect widespread use, but I was hoping that it would be helpful in the major narcotics smuggling cases,” he said.
He said that the only reason the measure passed was that a group of conservative Democratic senators known as the Gang of Five used it as a part of their revolt against liberal Assembly Speaker Willie Brown (D-San Francisco). For years, Presley said, no wiretap bill had emerged from the Assembly committee where it was assigned. But the Gang of Five forced a floor vote, making many compromises that placed restrictions on police.
Notre Dame University law professor Robert Blakey, author of the more expansive 1968 federal wiretapping statute and a campaigner for a similar law in California, said the law here is so restrictive that he believes it was intended to fail. “It was designed, wittingly or unwittingly, so that (wiretapping opponents) could say, ‘See, I told you it wouldn’t turn out to be effective,’ ” he said.
But lack of use is not solely attributable to the law’s restrictions, which include getting authorization from the courts, completing a three-day course in how to run a wiretap and targeting only certain types of narcotics transactions.
Court-authorized wiretaps by law enforcement are not commonplace in many jurisdictions in the United States. Nationwide, there are about 700 taps a year--about half under the federal law. In California in 1989, there were 31 federal taps.
The rest of the wiretaps are divided among the 31 states that have their own wiretapping statutes. Most of these states have laws that are copies of the broad federal statute, which allows authorities to tap phones as a last-resort investigative measure for scores of crimes in addition to narcotics offenses. Still, only two states, New York and New Jersey, reported 100 or more taps in 1989, the last year for which reports are available. Florida, which competes with Southern California as one of the leading drug entry points, was next with 65. Then came Pennsylvania with 55 and Maryland with 23. Almost all the other states reported wiretaps in single-digit numbers. Texas, for example, had two.
Police reluctance to commit the manpower necessary to sustain wiretaps may be as important a factor as restrictions in discouraging use.
For a police agency, Blakey said, “It’s easier not to do wiretapping. You don’t have to work as hard.”
It is expensive to staff a wiretap and maintain surveillance to monitor subsequent drug deals, he said, and the hours are inconvenient. “Most people like to work 8 to 5,” said Blakey. “You put in a wire and you are keeping drug-dealer hours. They get up 1 o’clock in the afternoon and . . . they’re up all night. . . . How are you supposed to go to the kid’s school play? How are you supposed to watch Monday Night Football?”
In addition, in many cases the payoff may be marginal. Other investigative methods--such as persuading an informer to wear a tape recorder--may be about as effective in cracking most criminal conspiracies, experts said. California law requires that police exhaust these less intrusive methods before they apply for court permission to tap phones.
Wiretaps under state law may be conducted only in cases where heroin, cocaine, PCP or methamphetamine are being dealt in quantities greater than three pounds or 10 gallons in liquid form. Wiretap applications must be approved by the state attorney general or one of his top aides, or by a county district attorney, and by the presiding judge of the Superior Court. Law officers have to report to the judge who issued the authorization every 72 hours, showing what progress they have made.
Law enforcement has much more flexibility under the federal statute. Of the federal wiretaps in California in 1989, 15 involved narcotics, 10 racketeering, two kidnaping, two wire fraud, one bribery and one extortion. All told, the federal statute allows wiretapping in pursuit of about 200 crimes. For example, if a federal agent on a bribery wiretap picks up evidence of murder, he can use it in court. But California law officers note with scorn that if they picked up evidence of murder or any other non-drug crime, they could use their knowledge in general only to prevent, rather than prosecute, the offense.
Determining for certain how many state wiretaps have been used in California is not yet possible. The official report on the first full year of wiretaps, released last spring, showed there were none in 1989.
The report for 1990 is not due until April and court records on wiretaps are, by law, secret until charges are filed. No official in a position to give authoritative numbers for the use of state wiretaps in 1990 would do so, perhaps because of a desire to maintain secrecy in an ongoing investigation.
John Gordnier, the senior assistant state attorney general with responsibility for wiretapping, said: “The only comment we can offer is that at the present time we simply can’t discuss the number--if any--of authorized surveillances that have occurred. By stating it that way I don’t mean to imply that any have occurred.”
Curtis Hazell, the Los Angeles County prosecutor who heads the district attorney’s major narcotics section, said there has only been one wiretap he knows about--and it was not in Los Angeles County. He declined to say where it was. Another official indicated, hypothetically and off the record, that there may have been three or four. “I wouldn’t write a story that says it hasn’t been used,” said still another official, San Diego’s McManus.
Hazell said: “We do want to do them. We are very interested.” But he said that many drug dealers thwart the law by relying on cellular phones, beepers and pay phones. Federal agents are permitted to plant eavesdroping devices in rooms or cars and to direct surveillance microphones at pay phones. State agents are not.
Gordnier of the state attorney general’s office said there has been a large increase in the use of devices called “pen registers” by police, which he characterized as “an incredibly valuable investigative tool.”
Pen registers are devices that, when attached to phone company equipment, record every phone number dialed. They have been approved for law enforcement use in California since 1985 but were rarely used until the wiretap classes for police officers began to teach their use.