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Wiretap Operation Sheds Light on LAPD Tactics

If it is Monday, December 7, 1998, you can go to
http://www.latimes.com/HOME/NEWS/STATE/topstory.html and read about how
Los Angeles police wiretapped a small cellular phone service provider
because his policies were too helpful for drug dealers.  He didn't try
hard enough to verify customer names, he sold cell phones with built in
scramblers, he allowed customers to change phones and numbers easily.
After years of investigation the company owners were never charged,
but a number of their customers were convicted as drug dealers, in many
cases never being told about the phone taps.

It's an ominous account of how privacy-friendly policies can be used by
the police to justify an investigation.

If it's after December 7, read the story here:

:      Los Angeles narcotics officers spent a lot of time spying on John
: Lopez and his small storefront telephone company--Atel Cellular
:      Convinced he was in cahoots with drug dealers by selling secure,
: cop-proof phone service--no questions asked--they staked out his
: Downey office, tailed his customers and finally wiretapped the
: customers' and Atel's phones.
:      Starting with just his business lines and a handful of customers,
: the operation spread like kudzu, eventually covering hundreds of
: phones and thousands of conversations and becoming the largest wiretap
: operation in the history of Los Angeles County.
:      When the three-year probe ended in March, police had arrested
: dozens of Atel's customers, but not Lopez or any of his employees.
:      The Atel taps are at the center of the nine-month legal
: controversy over whether prosecutors have been improperly concealing
: their wiretapping operation and the information derived from it. Also
: at issue are charges by defense lawyers representing Atel customers
: that the allegations against Atel Cellular are a sham created to win
: court orders permitting an electronic fishing expedition against their
: clients.
:      Manager Lopez and Atel's owner, Atil Nath, refused to
: comment. Their lawyers say the two men are not involved in drugs.
:      "The whole concept [of the police wiretap operation] was
: preposterous," said Dale Hardeman, a Downey attorney. "How are we
: supposed to know if customers are involved in criminal activity?"
:      Details of the probe--revealed through interviews, police
: affidavits, wire monitor logs and volumes of court records--provide a
: fascinating inside look at how detectives can mold the legal actions
: of a suspect into criminal scenarios and persuade judges to authorize
: snooping on people's private conversations.
:      The probe also raises broader questions, such as whether many of
: the reasons given for tapping Atel could just as easily be applied to
: other phone companies, and whether wiretaps should be allowed to
: continue indefinitely, even when police work for months without
: finding enough evidence to arrest the target.
:      The 4th Amendment protects phone privacy.
:      Need for Probable Cause
:      To tap a phone, prosecutors have to get a court order by showing
: they have sufficient reason, known as probable cause, to believe the
: phone subscriber is committing crimes. Even if a subscriber's actions
: are legal when considered individually, those actions can amount to
: probable cause when viewed as part of a larger picture.
:      If a tap provides a lead or evidence, prosecutors must reveal the
: tap and give transcripts to the defendant before trial.
:      Though the Atel investigation established strong suspicion among
: investigators that Lopez knew he was dealing with drug traffickers, it
: fell far short of proving it.  But police were getting a steady supply
: of leads against his customers as well as new phone numbers of people
: they considered suspicious. So they kept going back to court for
: extensions and new taps.
:      Police referred all questions about the case to prosecutors, who
: defend the wiretap practice, saying they had sufficient evidence to
: suspect Lopez of wrongdoing.
:      Dist. Atty. Gil Garcetti noted in a prepared statement that the
: operation had court approval. He said police targeted Atel because
: they believed most of its business was providing phones to drug
: dealers without requiring them to provide any personal information.
:      Superior Court Judge John Ouderkirk, who approved most of the
: orders, said he could not discuss pending cases.
:      Not much is known about Lopez and Nath. Nath lives in a two-story
: home in a neat, well-kept neighborhood in Downey. Lopez lives in Pico
: Rivera with his wife, Maria, and their children. Both have said in
: court papers that they have no criminal record. Their company is one
: of about three dozen small phone companies in Los Angeles County that
: resell or sublease service and equipment.
:      Police say the closest they came to showing a direct connection
: between Lopez and drugs was during a stakeout at his home when they
: saw a man arrive in a pickup truck registered to a member of what they
: say is a drug gang.
:      The investigation grew out of, and, in many ways, was modeled
: after a 1994 wiretap of Downey Communications, another small retailer
: of phone services. As in the Atel probe, police staked out the
: business and collected information for wiretap orders.
:      During hours of surveillance, they watched customers arrive and
: leave. They noticed the types of vehicles they drove. They even took
: notes on their manner of dress, eventually deciding that silk floral
: shirts, pressed denim, hand-stitched leather belts and expensive
: cowboys boots were haute couture on the L.A. drug scene.
:      Police claimed that Downey leased to drug dealers and was
: "heavily involved in the sale and transportation of narcotics."
: Officers would later use the same language in Atel affidavits.
:      The Downey wiretaps lasted a year. They ended in drug and cash
: seizures and 12 indictments, including one against the brother of
: Downey's owner. But the owners and employees of Downey were not
: arrested. The owner said in court papers he was never interviewed by
: police, was not aware of the investigation and has never been charged
: with a crime.
:      Police used the Downey Communications probe as a springboard to
: Atel.
:      The connection was tenuous.  Downey and Atel customers shared the
: same taste in cars and fashion.  Downey employees were seen paying
: short visits to Delta Tri-Telesis, a now-defunct cellular phone
: business owned by Nath and operated by Lopez.
:      So in September 1995, officers turned their binoculars on Atel,
: which had taken Delta's customers.  They often saw customers in cars
: registered to targets of previous drug probes going to houses once
: used as drug "stash" sites and employing what police considered
: "counter-surveillance" driving.
:      Reports on Surveillance
:      Investigators say they saw Lopez use such techniques when they
: were tailing him in May 1996, shortly before they started tapping his
: business phones. They said they saw him on the freeway changing lanes
: erratically and driving "at a high rate of speed in excess of 70 miles
: per hour," later making a U-turn on Arrington Avenue and lingering too
: long--three minutes--at an intersection.
:      Police also noted in affidavits that Lopez sold money counters
: and phone scramblers; that he apparently didn't care if customers gave
: him fictitious names; that he let customers change numbers quickly and
: easily.
:      Drug suspects were frequently found with Atel phones.
:      Police saw what they considered suspicious calling patterns--too
: many calls in a short period of time--among groups of Atel customers.
:      Although such evidence was far from enough to file charges
: against Lopez and Nath, legal experts say it was sufficient as
: probable cause for a court order, which was granted in May 1996 for 30
: days.
:      After a month of wiretapping, Garcetti's prosecutors--armed with
: transcripts of tapped phone conversations--were back in court asking
: for the first extension of the court order and for permission to tap
: new telephone numbers. From then on, requests for extensions built on
: previous ones. Police eventually received 19 extensions.
:      Although the taps provided a mother lode of leads against drug
: dealers, they seldom offered much evidence against Atel. There was one
: conversation that police described in an affidavit as particularly
: damning for Lopez. It was on June 25, 1996, from "Oscar," who had been
: under police surveillance.
:      "Hey John, this number is no good," Oscar tells Lopez.
:      Lopez: Not good?
:      Oscar: They're on me again!  Right behind.
:      Lopez: OK, bring it in now!
:      But most of Lopez's conversations in the affidavits simply
: confirmed what police already knew: that customers dealt directly with
: Lopez, that Lopez based billing records on phone numbers instead of
: names and that he handled billing arrangements by phone.
:      In contrast, the conversations among customers were
: fruitful. Most were cryptic discussions about drug deals, pickup
: locations, delivery times, police said. According to investigators,
: they never mentioned drugs, using words such as "ladies," "stuff" or
: simply a number understood to be an amount of drugs.
:      For example, in June 1996, police overheard this exchange:
:      Receiver: How do they look?
:      Caller: Real good. How many do you have?
:      Receiver: 40 plus 5 out, plus some lying around.
:      Caller: OK. I'll hold whatever else I have.
:      Without interpretation by detectives, there is little indication
: that that conversation is about drugs.
:      By the time the operation ended in March, police had tapped close
: to 400 Atel phones.
:      The wiretap controversy erupted that month because San Diego
: attorney Philip DeMassa and two other lawyers discovered that the case
: against their clients sprang from information garnered from the Atel
: taps and handed off to other officers who were not told of the taps so
: they would not have to reveal them to defense lawyers.  Later, Deputy
: Public Defender Kathy Quant went to court for indigent defendants.
:      Garcetti acknowledged in June that he withheld tap information in
: 58 cases and he agreed to notify defendants about future taps.
: Although a judge upheld the wiretap handoff practice last month, with
: some qualifications, Quant is considering an appeal. Other defense
: lawyers are challenging whether Garcetti has revealed all tap cases.
:      Whatever the outcome, the probe clearly helped police arrest some
: of Atel's customers. It netted large amounts of narcotics, about $8
: million in drug proceeds and dozens of arrests.
:      Lawyers base their doubts about the investigation of Nath and
: Lopez partially on the fact that it lasted three years and police
: never tried to interview them. In fact, DeMassa alleges in court
: papers that Lopez and Nath are actually police informants or are
: perhaps cooperating through a grant of immunity from prosecution, an
: assertion prosecutors call absurd.
:      DeMassa is hoping to show that police misled the courts when they
: said they were investigating Lopez and Nath.
:      If Nath and Lopez were such an integral part of a gigantic drug
: trafficking operation, the police should be trying to protect the
: public from them, he said.
:      "Why isn't anything happening to these guys?" he said.
:      Acts Were Not Illegal, Critics Say
:      None of Atel's acts described in the affidavits was illegal,
: Quant and other critics say.  Well-known phone companies engage in
: many of the same practices, Quant said. If police use the same
: standards elsewhere, any companies, especially small retailers, may be
: vulnerable to taps.
:      Many of the actions cited in Atel affidavits are suspicious only
: in the eyes of police, Quant said.  Money counters are legitimate, and
: other firms advertise "no eavesdropping" cell phones because
: legitimate businesses need secure communications, she said.
:      There is nothing suspicious, for example, about high usage of
: cell phones, particularly among real estate agents, salespeople, even
: news reporters, Quant said.  And other small retailers allow people to
: change numbers frequently.
:      Regardless of Atel's guilt or innocence, what police did to Atel
: could be done to any legitimate businesses, she said.
:      Deputy Dist. Atty. Robert Schirn dismissed that notion.
:      "That's quite a stretch," he said.
:      "Atel was a facilitator and made it possible for drug dealers to
: break the law," he said.
:      Yet Schirn acknowledged that he could not point to any conclusive
: evidence that Nath and Lopez knew that some of their customers were
: drug dealers.
:      He said he didn't know if police tried to persuade defendants to
: testify against Nath or Lopez.  Even if they did, prosecutors would
: need more evidence than the tainted testimony of accomplices to make
: an arrest, he said.
:      As for Atel, Hardeman said his clients had no idea some of their
: customers were criminals.
:      "This investigation has virtually destroyed them," he said.