Proposed Wiretap Law May Have Limited Usefulness, Officials Say

Police manpower problems and the toughest legal restrictions in the nation may limit the impact of a proposed new California wiretap law to a handful of major drug cases a year, according to law enforcement officials and wiretap experts.

While civil liberties groups oppose adoption of any wiretap law as a menace to privacy rights, police and prosecutors call California’s compromise wiretap legislation--expected to pass the State Legislature in the next two weeks--the “most restrictive” in the nation.

One key provision in the proposed law is that police, in justifying the need for a wiretap on home or business telephones, must first demonstrate to the courts that they cannot conduct a successful investigation by traditional means such as surveillance or use of informants.

The effect of similar restrictions at the federal level and the 30 states that already have wiretap laws has been that police and prosecutors, fearful of seeing convictions reversed, usually have used wiretaps only as a last resort.

Although the FBI and the U.S. Drug Enforcement Administration have had the power to use court-ordered wiretaps for the last 20 years, there recently have been only about 250 criminal federal wiretaps a year at an average cost of $63,000--roughly half of those aimed at narcotics dealers.

Another 500 criminal wiretaps--46% related to drugs--are authorized annually by the states. Because state criminal investigations are often not as wide-ranging or as time-consuming as federal probes, the average state wiretap cost is much lower--about $19,000.

“The biggest cost factor is manpower,” said John Gordnier, senior assistant state attorney general. “If you put a wire up, you are going to have to run three eight-hour shifts sitting on that wire. Let’s say you have a 10-man police department. You could easily tie up your entire force.”

Citing the history of the use of wiretaps elsewhere in the country, law enforcement officials and wiretap experts agree that probably no more than 75 to 100 wiretaps a year will be authorized in California if wiretap legislation receives final approval from the state Legislature.

Even that figure, more than the annual number of narcotics wiretaps in New York or any other state, is probably on the high side, most experts said.

U.S. Atty. Robert C. Bonner emphasized that wiretaps will enable local law enforcement agencies to investigate larger and more sophisticated drug organizations. But he said the same factors that limit federal wiretaps will apply in California.

“There are certain narcotics cases that could never be made without electronic surveillance, but it is not a panacea,” Bonner said. “To get at the major players, very often you need a wiretap. It definitely will be of assistance to local police, and they have been handicapped without it. But there are built-in limitations. You can’t just put taps on everybody. You have to exhaust other investigative techniques first.”

In discussing the use of wiretaps, some local law enforcement officials were openly critical of California’s proposed wiretap law as too weak, while others seemed uncertain how useful the legislation will be.

“Wiretaps will probably be used quite infrequently for a number of reasons,” said Los Angeles Dist. Atty. Ira Reiner. “One, they are not used that extensively anywhere in the country. Secondly, it is an emasculated bill, of very, very limited value. The biggest problem is that the bill applies to wiretaps only in fixed locations. It doesn’t recognize the sophistication in the way drug dealers work today, with beepers and multiple phones.”

Al Cooper, legislative advocate for the California Peace Officers, Police Chiefs and State Sheriff’s Assn. and chief lobbyist for the bill in Sacramento, conceded that there were major compromises made to secure passage.

“We will have the most restrictive wiretap law in the nation,” Cooper said. “No other state limits wiretaps just to narcotics; most are modeled after the federal law, which allows taps in 26 different crime categories.”

Among others who are uncertain how effective the bill will be is Cmdr. William Booth, chief spokesman for the Los Angeles Police Department, who said it remains to be seen whether the law will be a major help in drug enforcement.

“My guess is it’s so restrictive it’s not going to lend itself to very frequent use,” Booth said. “It’s something we haven’t had to work with previously. It does open the door.”

The proposed California law, sponsored by Sen. Robert Presley (D-Riverside), would permit police to obtain 30-day wiretap authorization from presiding Superior Court judges or judges designated by them upon the earlier approval of either the state attorney general or a local district attorney.

One provision more restrictive than either federal law or wiretap statutes in other states requires that wiretaps be limited to investigations involving either three pounds or more of heroin, cocaine and methamphetamine, or 10 gallons or more of liquefied PCP. Another section requires police to report the progress to the courts every 72 hours.

When first introduced in 1985, Presley’s legislation gave police broader wiretap powers, extending authorization to organized crime and murder cases and permitting the use of eavesdropping devices, or “bugs,” on the walls of houses or hotel rooms to listen to conversations inside. Those measures were cut, however, as the bill moved through the legislative process.

Despite the cuts, civil liberties groups led by the American Civil Liberties Union continue to oppose Presley’s bill. They conceded that there have been no public scandals involving criminal wiretaps at the federal or state level since passage of the 1968 federal wiretap legislation, but they object that any wiretap bill is a threat to privacy rights.

Before 1968, federal wiretaps were authorized simply by consent of the U.S. attorney general, and there were times when the FBI did not even bother with that. The 1968 law toughened penalties for illegal wiretapping and forced the FBI and other law enforcement bodies to obtain permission from federal judges.

To the ACLU and other civil liberties groups, highly publicized incidents such as J. Edgar Hoover’s use of wiretaps in investigating Martin Luther King Jr. prior to the 1968 legislation illustrate the dangers of electronic eavesdropping despite the shift to a court-ordered system.

“There is so much potential for abuse. It’s the cases we don’t know about. It’s very hard to uncover these abuses,” said Marjorie Swartz, legislative director for the ACLU in Sacramento. “We’re opposed to wiretapping because we think it’s an inappropriate invasion of privacy. Yes, the drug problem is enormous, but we don’t believe this is the way to stop it. The risk is too great.”

Notre Dame University law professor G. Robert Blakey, who wrote the federal wiretap law of 1968 and helped polish Presley’s bill, disputed objections to court-ordered wiretap systems as well as arguments that wiretap laws are of minimal use and can be neutralized by drug dealers simply by avoiding use of the telephone.

“There simply hasn’t been any substantiated allegation or proof of abuse of the court-order system anywhere,” Blakey said. “There have been police scandals over illegal wiretapping. You had a narcotics unit in New York in the 1970s doing illegal surveillance for purposes of extortion. Houston had a police wiretap scandal before Texas adopted a lawful system. There was another in Connecticut. But those were all outside the lawful system.”

Of the 30 states that have wiretap laws, Blakey said, New Jersey, New York. Pennsylvania and Florida use wiretaps most frequently. According to the Administrative Office of the U.S. Courts, which is required by Congress to monitor and annually publish a report on all criminal wiretapping, New Jersey had 144 in 1986 and New York had 137, while Pennsylvania and Florida had 48 each. About half were for narcotics.

“My guess is that California will be somewhere near New Jersey and New York, about 75 to 100 narcotics wiretaps a year,” Blakey said. “Use of wiretaps will be significant in terms of the quality of the cases made, not the quantity. Nobody should oversell wiretapping in the narcotics area. It’s one more tool for law enforcement. But as long as the American people insist on paying good money for drugs, they’re going to be around.”

The major difference between wiretap procedures today and in the past, Blakey said, is that the involvement of the courts in approving wiretaps has put an effective check on potential abuses by law enforcement.

In many wiretap cases, defendants automatically plead guilty, then promptly appeal their convictions on the ground that police failed to use other investigative tools--usually an informant. Routinely, Blakey said, the courts have rejected such argument and found the wiretaps to be both legal and justifiable.

“The issue has been thoroughly vented at the national level for 20 years now,” Blakey said. “There are no serious constitutional questions. The only real issue is policy: When should you use it and how often?”

The number of annual federal wiretaps doubled to more than 200 in the early years of the Reagan Administration, and has stayed at about 250 for the last four years. Justice Department officials said that figure could increase significantly this year, to about 400.

Despite that projected increase, if the overall federal experience is any indicator, use of wiretaps in California is likely to be confined to major drug investigations of considerable complexity.

Two federal prosecutions in the Los Angeles area that produced virtually air-tight cases against multiple defendants dramatize the appeal of a successful wiretap investigation to police and prosecutors.

- In Orange County in 1984, local police turned a major drug investigation into the Alan Mobley cocaine ring over to the FBI because of lack of resources. The result was a six-month wiretap probe that netted the FBI and DEA more than 30 indictments.

Mobley, a 24-year-old who had married the daughter of a major Colombian cocaine dealer, did not even bother with a trial. Like a dozen other key defendants in the case, he pleaded guilty because of the wiretap evidence and was sentenced to 45 years in prison.

- More recently, the reputed head of the Mafia in Los Angeles and six other alleged mobsters pleaded guilty in Los Angeles federal court to loan-sharking, bookmaking and narcotics charges after another FBI wiretap investigation.

Again, according to federal prosecutors, the guilty pleas were linked directly to the wiretap evidence against San Fernando Valley businessman and alleged crime boss Peter Milano and the others.

“We indicted what we believe to be the hierarchy of the La Cosa Nostra family in Los Angeles, and we have effectively put them out of business,” said prosecutor Richard Small.

In the Los Angeles area, there are only about half a dozen federal criminal wiretaps a year, partly because of the manpower drain involved in monitoring telephone lines on a 24-hour basis.

“The manpower drain limits wiretaps more than any other factor,” said Richard T. Bretzing, special agent in charge of the FBI’s Los Angeles office. “I can’t remember the last time a wiretap request was turned down here by a judge in a dope case or any other case.”