Wiretap Ruling Rocks L.A. Legal, Police Circles

In the abstract, there are few civil liberties the average person holds as dear as the constitutional protection against unlawful searches and seizures. But that affection is often tested when the 4th Amendment, like a bolted front door, is all that stands between police and the arrest of someone who officers say is a criminal.

That is precisely the issue in what many legal observers are calling a groundbreaking case now before Los Angeles Superior Court Judge Gregory Alarcon.

Last month, Alarcon rocked Los Angeles’ legal and law enforcement circles when, after months of legal wrangling, he ordered the district attorney’s office to turn over a wiretap application that--through a backdoor police procedure known as a “handoff”--led to the 1996 arrests of three men and seizure of about $20 million worth of cocaine.

At the heart of the case, and debate, is how Los Angeles Police Department narcotics detectives--with the guidance of the district attorney’s office--put together drug cases originating in wiretap information passed from one group of investigators to another.

As outlined in court documents, when LAPD detectives on surveillance glean information about a possible new suspect, they sometimes “hand off” the tip to another set of detectives in the department without identifying its source--in this case, the wiretap.

The second group of detectives can then launch an investigation that, if it results in arrests, would not expose the ongoing wiretap--or allow attorneys representing the accused to challenge the legality of the electronic search, because they would not be made aware of its existence.

Now the question is whether Alarcon’s ruling, if applied in other cases, will affect only a few proceedings or undermine hundreds of prosecutions--and convictions--dating back a decade.

“It is a non-issue,” said prosecutor Jason Lustig, echoing the comments of others in the district attorney’s office and LAPD.

But others, including defense attorneys assigned to the cocaine case, say that Alarcon’s ruling could have far-reaching consequences.

“Who knows the extent of this?” asked attorney Roger Rosen, who represents one of the three defendants in the case. “It could potentially affect every major narcotics case in which a search warrant begins with a surveillance.”

Law professor and former federal prosecutor Laurie Levenson said: “In terms of whether it will open the jail doors for a lot of these defendants, I don’t think we can say that yet . . . [but] I think it is a big deal [for] prosecutions and the Police Department in terms of a questionable practice.”

Documents and interviews suggest that the handoff approach was developed more than a decade ago by detectives and the district attorney’s office and that neither has plans to discontinue it, notwithstanding the recent court ruling.

“The district attorney’s office would never sanction a procedure that we felt was improper. We think we are on firm legal ground here,” said Deputy Dist. Atty. David Demerjian, who directed the office’s narcotics operation until recently.

‘Idea Is to Keep Your Source Confidential’

Capt. Ron Seban, who oversees the LAPD’s narcotics bureau, said: “We apprehend. We don’t make laws. So until we are directed otherwise, we will continue using the wire intercept when legal.”

The LAPD, Seban said, has only used two wiretap operations since they were permitted by state law in 1989. And in this case, he said, detectives are willing to turn over the wiretap application at a court hearing a week from today because they no longer worry that it will expose an ongoing investigation.

“We are more than willing to give it up,” Seban said. “There is a time and place where every wiretap has run its natural course, and in this case, we feel that it has.”

As for past or future wiretaps, he added: “The whole idea is to keep your source or your informant confidential. The source could be the wiretap or the individual . . . [and] every time that handoff process has been used, it has been approved by the district attorney’s office. We don’t keep any secrets from them.”

‘It Is Horrible What They Tried to Do’

The real issue, defense attorneys counter, is that authorities should not be allowed to keep such matters secret from individuals accused of crimes.

“It is horrible what they tried to do,” said defense attorney Rosen. “At the very least it was disingenuous, and at the very most it was unethical. They were trying to get these defendants to take a deal and were not telling the defendants what they had [in evidence].”

Court records show that in May 1996, Los Angeles police arrested Antonio Gastelum, Carlos Lobo and Lauro Gaxiola allegedly for attempting to sell cocaine--investigators put the amount at 193 kilograms--from a Hacienda Heights residence.

During the subsequent court proceedings, as they were attempting to get the defendants to agree to a plea bargain, authorities showed some reluctance to reveal how they learned of the alleged drug sales. And, in an unusual but not extraordinary move, prosecutors asked to meet several times with Judge Alarcon alone in his chambers.

Transcripts of those 1997 court proceedings underscore why.

With defense attorneys pressing for discovery documents from the prosecution, Deputy Dist. Atty. Lustig and, later, a supervising prosecutor in the narcotics office urged Alarcon not to order disclosure of the government’s source--in part, because it should be kept secret and in part because it undermined their case, they argued.

“There’s nothing in those statements that I could find that would in any way help [the defendants’] case here. All they could do is hurt [the] case,” Lustig said at one of the closed-door hearings with the judge a year ago.

Two days later, prosecutor Nancy Lidamore joined Lustig in asking the judge not to allow release of the information.

“If we were required to reveal all defendants’ statements, there would never be an informant in any case that wasn’t revealed because by its very nature, informants speak to defendants. That’s how they get the incriminating information they pass on to police,” Lidamore said. “And if the rules were such that we had to pass over every defendant’s statement, there would never be an informant that was kept confidential.”

But the judge disagreed.

“I have to tell you that I’ve spoken to virtually every judge in this building and had a unanimous response with respect to this issue,” Alarcon, a former federal and county prosecutor, told the deputy district attorneys at a hearing last April.

“The court finds, based upon the review of the information, that the privilege [to withhold] must give way to the due process rights of the defendants to have the statements that they are entitled to for trial,” Alarcon said.

In that ruling and later court hearings, including the pivotal decision last month, the judge rejected authorities’ claim that there was probable cause--apart from the wiretap--for their case. As such, he left them the option of turning the information over to the defense or of risking a dismissal of the charges.

As Alarcon said during one of the court proceedings last year: “Well, let me put it this way. I used to be in the drug unit in the U.S. attorney’s office, and our office would have to make a decision if we were going to prosecute or not prosecute based on the fact that those statements would have to be turned over.”

‘Fruit of the Poisonous Tree’

Without commenting on the facts in the case before Alarcon, John Gordon, chief of the U.S. attorney’s narcotics section in Los Angeles, said the office does not hand off information culled from a wiretap to another agency with the understanding that a defendant will never be informed.

“If we intercept someone on a wiretap and use the information as the basis for investigating someone, we have taken the position that if we initiate a prosecution, we would reveal the fact that we learned about the person’s activities because of the wiretap,” Gordon said.

And that, historically, is how many law enforcement agencies and courts have viewed the law, interviews show.

“The courts apply a ‘but for’ kind of test that says . . . ‘but for’ the wiretap, the investigation would never have been conducted,” said law professor and constitutional scholar Gerald Uelmen.

As such, he said, defendants are “certainly entitled” to know about the wiretap and litigate the issue of whether the probable cause for their arrest is tainted evidence--known in legal parlance as “fruit of the poisonous tree.”

Otherwise, said prominent defense attorney Harland Braun, “the real vice . . . is that a defendant never knows there is a wiretap that he could have challenged.”

Years ago, Braun said, he represented a defendant who was wrongly accused in a narcotics deal solely because a courier--being followed by police--mistakenly gave the man a cache of drugs. Only by determining that the arrest followed a vague tip by an anonymous informant, Braun said, was he able to prove that detectives unwittingly arrested the wrong man.

“[Determining] the source of the information . . . may be the only hint that you have gotten the wrong guy,” said Braun, a former county prosecutor. “And that is the worst thing that can happen.”

But, the LAPD’s Seban argues, wiretaps are not routinely handed out by judges.

“Before a law enforcement agency can listen to any type of electronic communication, an affidavit has to be prepared which delineates the probable cause for doing so,” he said. And in addition to 72-hour progress reports on the wiretap, Seban said, authorities must renew their affidavits every 30 days by showing a judge there is sound reason to continue the tap.

‘4th Amendment Is Not a Technicality’

Seban also insists that the handoff procedure used in this case by detectives is anything but unusual in law enforcement circles--a contention supported by others in the district attorney’s office and other police agencies.

“Is it better to listen to the telephone and apprehend the people who are introducing narcotics into our country . . . or do we allow them to continue corrupting our society?” Seban asked. “In my estimation, that is what the reviewer of facts has to weigh in making [the] determination of whether or not to institute a wiretap.”

But defense attorneys, including those involved in this case, say that the issue--and case--is not that simple.

“This doesn’t just go to drug trafficking. They are using this [technique] on many investigations to protect the source of information . . . and a person who may be wrongly charged will never get to the true source of the information,” said attorney Philip DeMassa, who represents Gaxiola.

“I think the public has a right to know whether law enforcement is doing its job correctly, because in the end, if you don’t do it the right way, all you are doing is creating more litigation in a system that is already overburdened.

“And the 4th Amendment is not a technicality,” DeMassa said. “It is an amendment to the Constitution.”