WIRETAP OPERATION SHEDS LIGHT ON LAPD TACTICS

Drugs: Critics say police abused power by targeting phone firm, arresting
dozens of clients but no employees.

Los Angeles narcotics officers spent a lot of time spying on John Lopez and
his small storefront telephone company--Atel Cellular and Paging. 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.

Checked-by: Don Beck