Pubdate: Sat, 01 Sep 2001
Source: Advocate, The (LA)
Copyright: 2001 The Advocate, Capital City Press
Contact:  http://www.theadvocate.com/
Details: http://www.mapinc.org/media/2
Author: Brett Barrouquere

AGENTS OPEN EARS, FIND EVIDENCE

Alvin "Bones" Green picked up his cellphone and told an unidentified man 
that he sold only larger quantities of marijuana.

"Break the weed up. I ain't got time to break the weed," Green said on June 
24, 1999. "I sell pounds. You know what I'm saying?"

Two FBI agents in Baton Rouge knew exactly what Green was saying because 
they were listening to the entire conversation.

Green, a Baton Rouge man convicted in April of drug trafficking, got caught 
on the latest tool of choice for law enforcement - the wiretap.

The use of wiretaps in drug cases, in which federal agents plant a 
listening device into a phone or home and record the conversations, has 
doubled in the last 10 years, with prosecutors saying they need to use more 
sophisticated investigative methods to keep up with more sophisticated 
criminals.

But, the increased use has a flip side, too. People not involved in 
criminal activity also are being caught on tape - and they shouldn't be, 
said Karl Koch, a former prosecutor and current defense attorney in Baton 
Rouge.

"Unfortunately, it's a common phenomenon these days," Koch said. "They're 
basically out there fishing with a gill net."

The majority of wiretaps involve a listening device placed on a cellphone 
in a drug investigation.

About 60 percent, or 715, of all wiretaps nationally were placed on 
cellphones. Drug cases make up more than 75 percent, or 894, of all cases 
where investigators use the listening devices. Both numbers are nearly 
double the figures from 1990, according to a report on wiretaps from the 
Administrative Office of U.S. Courts.

That rise made its way to Baton Rouge in the cases of Green and fellow 
convicted drug trafficker Cedrick Dwayne Hargrave, who pleaded guilty Aug. 
16, 2000 - the first drug cases involving wiretaps brought to federal court 
by federal authorities here.

Much of the country's wiretap laws came through prosecuting large, 
secretive criminal enterprises, like the Mafia.

"The law is designed for things like that," Koch said. "Most of the wiretap 
law has been made on the backs of horrible, grizzly crimes."

Getting authorization to wiretap people like Green and Hargrave isn't easy, 
said U.S. Attorney Brian Jackson of Baton Rouge.

The request is run through the Department of Justice hierarchy, then taken 
to a federal judge for approval, Jackson said.

The warrant has to be specific about what investigators are listening for 
and must seek authorization for a limited amount of time, Jackson said.

Once the devices are in place, prosecutors must show a judge that 
incriminating conversations are being recorded for the wiretap to be 
reapproved every 30 days, Acting U.S. Attorney Jim Letten of New Orleans said.

"You can't just walk in and start taping someone's conversations," Letten said.

Placing wiretaps on cellphones is fairly simple, said Larry Preston 
Williams, a former New Orleans police officer who now works in private 
security.

A wiretap from the central station is, basically, an extension of the 
person's phone line, leaving little or no trace that a call was secretly 
listened to, Williams said.

That's true for both traditional home phones and cellphones, Williams said.

"The tap can be in place, and nobody has any idea," Williams said.

Congress, which passed the wiretapping laws three decades ago, and judges, 
who have since interpreted those statutes, have had privacy in mind.

Law enforcement agents are supposed to stop listening to the recordings of 
conversations not related to the alleged crime under investigation - a 
process called minimizing.

"Even bank robbers talk about sports," Koch said. "That doesn't have 
anything to do with a crime."

During a minimized conversation, though, the investigators can briefly 
listen in to see if the conversation has turned back toward criminal activity.

"That's where the mischief starts," Koch said.

In some cases, agents will minimize for a few seconds, then listen for 
several minutes to a non-incriminating conversation before stopping the 
recording again, Koch said. The practice borders on illegal but is rarely 
punished, he said.

"The judges don't enforce the law," Koch said.

The Administrative Office of U.S. Courts report backs up Koch's assertion, 
citing almost no instances where a judge threw out evidence garnered 
through a wiretap.

Although, when law enforcement goes too far, a judge will occasionally 
dismiss the evidence, Williams said.

In February, U.S. Magistrate Judge Mark A. Pizzo of Tampa, Fla., threw out 
tapes - and eventually the criminal case - against Steve and Marlene 
Aisenberg, a Florida couple accused of lying to federal authorities about 
the disappearance of their baby daughter, Sabrina, in 1997.

Pizzo said the detectives' implications in the applications for the warrant 
"are pure fiction" and described the detectives' allegations as bizarre, 
baseless, distorted and careless.

After listening to the tapes, Pizzo and U.S. District Judge Steven Merryday 
also found little or no incriminating evidence.

Koch, who was caught on tape speaking with former state Sen. Larry 
Bankston, D-Port Hudson, during an investigation that led to Bankston's 
conviction, said actions like Pizzo's are few and far between.

Too often, in the pursuit of drug dealers and other criminals, innocent 
people are caught on tape, Koch said.

"Anybody that's not afraid for their privacy is not paying attention," Koch 
said. "If you're talking, they are listening."

But, Williams and Letten said, investigators from the FBI and other federal 
agencies do a good job of writing the applications to wiretap and of 
minimizing.

"They don't want to catch anything on tape they shouldn't," Williams said.
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MAP posted-by: Terry Liittschwager