Ruling Gives Leeway in Use of Foreign Wiretaps : Courts: Federal judges say phone evidence collected abroad need not adhere to strict constitutional standards. The decision stems from 1990 L.A. drug case.

A sharply divided federal appeals court in San Francisco ruled Monday that evidence from wiretaps conducted within a foreign country can be used in courts in the United States, even if the taps were conducted without adherence to traditional U.S. constitutional standards.

Although American citizens are entitled to some constitutional protection from U.S. surveillance abroad, the degree of that protection is delineated by the law of the country in question, not by the rigorous standards of the Constitution’s 4th Amendment, the U.S. 9th Circuit Court of Appeals held in a 2-1 decision.

Moreover, even if it turned out that the wiretaps violated foreign law, the evidence from them would be admissible if U.S. agents had relied on assurances by foreign officials that the taps had been conducted legally, according to the decision authored by J. Clifford Wallace, the circuit’s chief judge.

Wallace’s opinion stressed that past rulings limit how closely courts need to scrutinize foreign searches, including wiretaps, before admitting evidence derived from them. He said there are only two reasons not to admit evidence from such searches: If tactics used were so gross that they “shock the conscience,” or if U.S. officials initiated a search that violated foreign law. U.S. District Judge Jack Tanner of Seattle, sitting by special assignment, concurred.

Circuit Judge Stephen Reinhardt issued a ringing dissent, maintaining: “Once again, in our zeal to conduct a war on drugs, the Constitution is the principal victim. . . . This time, the majority holds for all practical purposes the 4th Amendment’s protections do not extend beyond our borders, and that the only limitations on searches of Americans abroad are those imposed by foreign governments, even when our government initiates and participates in the search.”

As a consequence, Reinhardt wrote, if the U.S. government lacks evidence to conduct a domestic wiretap or other search, “it can simply wait until a suspect goes abroad and then instruct a friendly or submissive government to conduct the search on its behalf.”

The majority upheld U.S. District Judge William J. Rea’s decision to admit five foreign wiretaps in a major drug prosecution known as Operation Pisces. It was one of the first cases in Los Angeles where cocaine traffickers in South-Central Los Angeles were linked to a Colombian drug cartel. After a lengthy trial in 1990, four men and two women were convicted of conspiring to possess about 1 1/2 tons of cocaine with the intent to distribute it, and of money-laundering.

During the trial, prosecutors played tapes of telephone calls made by Mario Villabona Alvarado, one of the leaders of the drug ring who was a U.S. resident alien, from Denmark and Italy. The tapes were relied on in part to convict Villabona, Brian (Bo) Bennett, the co-leader of the ring, and four others.

The appeals court majority emphasized that Danish authorities, adhered to their country’s law in tapping Villabona and Bennett. Danish law permits wiretapping if “weighty reasons” exist to believe electronic surveillance will yield evidence of criminal activity.

That standard is less rigorous than wiretapping requirements for government agents in this country. The government has to demonstrate probable cause that illegal activity is likely to be discussed on the telephone and that a wiretap is indispensable to ferret it out.

Former Assistant U.S. Atty. Dean G. Dunlavey, one of the prosecutors in the Villabona case, said he was pleased by the decision but maintained that the majority opinion and the dissent overstate the U.S. government’s role in instigating the taps. Assistant U.S. Atty. John S. Gordon, who heads the Los Angeles office’s narcotics unit, said that even though the office has pursued a number of major traffickers with ties to foreign cartels “it’s an extremely rare occurrence for us to have any foreign wiretap evidence we want to introduce.”

Villabona’s attorney, Donald M. Re, said he was troubled by the decision and would ask for a rehearing. “This comes in an era when a lot of people distrust government agencies,” Re said. “I don’t think you leave your constitutional rights at home.”

On the other hand, Re said he was pleased by the other section of the decision, in which the court overturned one of the convictions and the life-without-possibility-of-parole sentences meted out to Villabona and Bennett for running a “continuing criminal enterprise.” The appeals court said Rea had erred in instructing the jury on what constitutes running such an enterprise. That decision leaves the two men with 30-year prison terms and creates the possibility that they will eventually be released, Re said.