Pubdate: Thu, 03 Jan 2002
Source: Baltimore Sun (MD)
Copyright: 2002 The Baltimore Sun, a Times Mirror Newspaper.
Contact:  http://www.sunspot.net/
Details: http://www.mapinc.org/media/37
Author: Sarah Koenig

MD. AUTHORITIES SEEK TO STREAMLINE PROCESS OF APPROVING WIRETAPS

Use Of Technology By Criminals Outruns Current Authority

Aware that police might be eavesdropping, drug dealers not only watch what 
they say on their cell phones. They "burn" their phones and "bust" them. 
They create phantom phone numbers and treat a handset the way a tourist 
might treat a disposable camera, discarding it after a few good shots.

As prosecutors and detectives in Baltimore increase the use of wiretaps 
against major drug organizations, they have discovered that their targets' 
phone capabilities outpace their own.

To catch up, law enforcement officials from across Maryland are proposing 
legislative changes that would expand and simplify the use of wiretaps.

A principal objective is to be able to quickly switch a wiretap from phone 
to phone, mirroring a suspect's maneuvers.

"Over the last couple of years, as we've been doing more of these wiretap 
investigations, we've come face to face with what the shortcomings are," 
said city State's Attorney Patricia C. Jessamy, who will hold a news 
conference on the issue today.

But efforts to streamline the wiretap application process, which is now 
closely reviewed by a judge, are sure to meet some opposition in the 
General Assembly from the American Civil Liberties Union, among others.

"There is reason to be concerned that the police will become Big Brother," 
said Maryland ACLU spokesman Dwight Sullivan. "We want police to be 
aggressive in fighting crime, but we also need to have the barrier between 
the aggressiveness and the public, and that barrier is the judge."

Wiretapping is the most intrusive and sophisticated investigative tool 
police have, to be used only when more conventional methods are exhausted. 
Maryland's wiretap laws, which require more judicial oversight and offer 
less flexibility than those of most other states, were last updated in 
1988, back when having a pager was cool.

Since then, investigators say, technology and sophistication have shot 
ahead. It's not unusual for drug organizations to buy cell phones in bulk, 
making sure not to use one line for more than a few days. In one Baltimore 
case, a suspect owned about 50 cell phones.

Warrant for each phone

Current law is geared more toward the phone than the suspect, requiring 
investigators to reapply for a new warrant each time they want to listen to 
a new line - a process that means writing about 100 pages of affidavits 
explaining to a judge why the wiretap is crucial to a case.

Rewriting the warrant application also slows down an investigation, 
sometimes at a crucial moment.

In July, for instance, Eric L. Buckson, 31, a now-convicted drug dealer 
serving a 40-year prison sentence, had just met with a cocaine source when 
he noticed someone following his car.

He hit a parked vehicle, then another. His car burst into flames and he ran 
away, leaving the drugs and his tapped cell phone to get drowned by 
firefighters.

To Buckson, the incident was probably a scare and a nuisance. To 
investigators it represented a significant obstacle: Within hours, Buckson 
was using a new phone, but it would take prosecutors much longer to apply 
for a new wiretap. By the end of the investigation, prosecutors would tap 
15 different phones, creating 22,000 pages of evidence.

Criminals have advantage

Maj. Anthony G. Cannavale, commander of the Baltimore Police Department's 
drug enforcement unit, said changes to the law would help reduce the 
criminals' advantage.

"It's always a game of wits with the drug dealers," he said. "We're really 
at a breakwater point, where if we don't get a handle on the technology, 
we're going to be out of business."

In the past couple of years, Baltimore has greatly expanded its use of 
wiretaps in an effort to move from street arrests of low-level drug pushers 
to kingpins with international narcotics connections. The city Police 
Department and State's Attorney's Office have created special "technology" 
units, and they perform more wiretap investigations than any other 
jurisdiction in Maryland.

Though wiretaps consume enormous amounts of time and money, their success 
is undeniable, as compiled in a recent report prepared by Jessamy's office: 
In the past two years, wiretaps have led to the dismantling of nine drug 
organizations - a total of 118 defendants with links to Colombia and the 
Dominican Republic, and the seizure of nearly $800,000, 66 cars, 84 guns, 
14 kilos of heroin and 10.5 kilos of cocaine.

But criminals are becoming more savvy about wiretaps, thanks in part to the 
recent investigations.

Tipped by attorneys

Cannavale said his officers have found wiretap affidavits, which include 
extensive surveillance details, when searching drug dealers' houses - 
documents probably provided by their lawyers.

In wiretap transcripts, defendants routinely talk about ditching phones and 
getting new ones. They give out numbers of unregistered phones, and even 
discuss the possibility their phones are tapped.

Cannavale described the ingenious ways criminals avoid surveillance. They 
get friends to set up phony companies, ordering a block of cell phones with 
similar numbers. They pay the first bill, then run up the next bill to 
thousands of dollars before tossing out the phones - a practice called 
"busting."

They also buy what they call "burners," phones with prepaid minutes that 
anyone can buy cheaply, without credit, at a Kmart or 7-Eleven. When the 
minutes are up, they throw away the phone and buy another.

Drug dealers can even create phantom phones, Cannavale said. Someone 
working inside a wireless company will digitally program a phone on the 
company network without registering the number, making it impossible to track.

These methods are so common, said Frank C. Meyer, chief of investigations 
for the Baltimore County State's Attorney's Office, that "if they're not 
doing it, they're not worth looking at."

And then there's the technology that's difficult to tap, such as the 
"walkie-talkie" feature on Nextel phones, and E-pagers, which allow people 
to send text messages between pagers.

"It's almost like how having a car revolutionized the way people got 
around," Cannavale said, sighing at the possibility that satellite phones 
would be next.

Changes to the law proposed by Jill Myers, chief of the wiretap unit in 
Jessamy's office, would allow investigators to apply for a "roving" wiretap 
for suspects they know will use more than one phone - a practice allowed 
federally and in some states.

Sullivan said he was "almost sure" the ACLU would fight such a change in 
Annapolis. He worries about potential police abuses, and that more innocent 
conversations will be recorded than necessary.

If a suspect has 50 cell phones, "then get 50 search warrants," Sullivan 
said. "We're familiar with 'mission creep' in the military. Well, there's a 
bit of this 'technology creep' in the law enforcement context."

Notification time

Other proposed changes include extending the deadline for when 
investigators have to tell a person that he or she has been the subject of 
a wiretap. Current law allows a maximum of 180 days, but Myers says that's 
often not enough time to complete a case, because surveillance ends once a 
suspect is notified.

Myers also wants to allow a single judge to have jurisdiction over all the 
wiretaps in a case, regardless of where the suspect goes within the state. 
Existing law gives circuit judges control over wiretaps only in their counties.

Sullivan said the latter proposal could encourage "judge shopping." M. 
Albert Figinski, a defense attorney and lobbyist who helped write the 
federal and state wiretap laws, agreed. He called the notification and 
jurisdiction suggestions "absolutely repulsive."

"That's way beyond what they need," he shouted, adding that he would 
personally testify against those ideas.

Baltimore Circuit Judge John N. Prevas, who has handled many wiretap cases, 
also opposes extending deadlines for when investigators must notify 
suspects. Although some cases might be hurt by the limits, he said, "giving 
the power to hide things for too long is not healthy."

Other suggested changes are more technical, such as giving detectives the 
authority to order computer companies to preserve e-mails as evidence. 
America Online, for instance, deletes e-mails from its servers two days 
after they are read, and preserves them for 28 days if unread.

Added offenses

In addition, Myers seeks to expand the list of 17 crimes, from murder to 
gambling, for which a wiretap can be granted, to include terrorism, 
harboring terrorism, and money laundering of narcotics proceeds and 
terrorist-related activities. Separate legislation already has been 
proposed to add offenses committed by "an international terrorist 
organization" to the state wiretap law.

Jessamy and other Maryland prosecutors say whatever wiretap legislation 
they end up backing during the legislative session will not be as invasive 
as the new, expanded federal law regarding wiretap use, which was aimed at 
terrorists.

Dubbed the "Patriot Act," it allows investigators to track e-mails and 
Internet connections without a warrant. That legislation passed in October 
amid protest from civil liberties groups.

"We are in the business of attempting to dismantle major drug 
organizations," Jessamy said. "We value civil liberties. We will do 
everything by the book."

Some defense attorneys said the proposed changes, which do not drastically 
reduce the court's control of wiretaps, sound reasonable.

Robert C. Bonsib, a private defense attorney and former prosecutor in 
Prince George's County who helped write the current wiretap law and has 
lectured about it, said only the addition of "terrorism" worried him 
because the definition of such activity is unclear.

As for the "roving" wiretap provision, he said, as long as it's used 
carefully, "That by itself doesn't give me any great heartburn."
- ---
MAP posted-by: Jay Bergstrom