WIRETAP RULING ROCKS LA LEGAL, POLICE CIRCLES

Law: All sides are watching whether judge's order to reveal phone
surveillance information will affect other cases. Some see a threat to the
practice of concealing informants.

In the abstract, there are few civil liberties the average person holds as
dear as the constitutional protection against unlawful searches and
seizures. But that affection is often tested when the 4th Amendment, like a
bolted front door, is all that stands between police and the arrest of
someone who officers say is a criminal.

That is precisely the issue in what many legal observers are calling a
groundbreaking case now before Los Angeles Superior Court Judge Gregory
Alarcon.

Last month, Alarcon rocked Los Angeles' legal and law enforcement circles
when, after months of legal wrangling, he ordered the district attorney's
office to turn over a wiretap application that - through a backdoor police
procedure known as a "handoff" - led to the 1996 arrests of three men and
seizure of about $20 million worth of cocaine.

At the heart of the case, and debate, is how Los Angeles Police Department
narcotics detectives - with the guidance of the district attorney's office
- - put together drug cases originating in wiretap information passed from
one group of investigators to another.

As outlined in court documents, when LAPD detectives on surveillance glean
information about a possible new suspect, they sometimes "hand off" the tip
to another set of detectives in the department without identifying its
source - in this case, the wiretap.

The second group of detectives can then launch an investigation that, if it
results in arrests, would not expose the ongoing wiretap - or allow
attorneys representing the accused to challenge the legality of the
electronic search, because they would not be made aware of its existence.

Now the question is whether Alarcon's ruling, if applied in other cases,
will affect only a few proceedings or undermine hundreds of prosecutions -
and convictions - dating back a decade.

"It is a non-issue," said prosecutor Jason Lustig, echoing the comments of
others in the district attorney's office and LAPD.

But others, including defense attorneys assigned to the cocaine case, say
that Alarcon's ruling could have far-reaching consequences.

"Who knows the extent of this?" asked attorney Roger Rosen, who represents
one of the three defendants in the case. "It could potentially affect every
major narcotics case in which a search warrant begins with a surveillance."

Law professor and former federal prosecutor Laurie Levenson said: "In terms
of whether it will open the jail doors for a lot of these defendants, I
don't think we can say that yet . . . [but] I think it is a big deal [for]
prosecutions and the Police Department in terms of a questionable practice."

Documents and interviews suggest that the handoff approach was developed
more than a decade ago by detectives and the district attorney's office and
that neither has plans to discontinue it, notwithstanding the recent court
ruling.

"The district attorney's office would never sanction a procedure that we
felt was improper. We think we are on firm legal ground here," said Deputy
Dist. Atty. David Demerjian, who directed the office's narcotics operation
until recently.

'Idea Is to Keep Your Source Confidential'

Capt. Ron Seban, who oversees the LAPD's narcotics bureau, said: "We
apprehend. We don't make laws. So until we are directed otherwise, we will
continue using the wire intercept when legal."

The LAPD, Seban said, has only used two wiretap operations since they were
permitted by state law in 1989. And in this case, he said, detectives are
willing to turn over the wiretap application at a court hearing a week from
today because they no longer worry that it will expose an ongoing
investigation. "We are more than willing to give it up," Seban said. "There
is a time and place where every wiretap has run its natural course, and in
this case, we feel that it has."

As for past or future wiretaps, he added: "The whole idea is to keep your
source or your informant confidential. The source could be the wiretap or
the individual . . . [and] every time that handoff process has been used,
it has been approved by the district attorney's office. We don't keep any
secrets from them."

'It Is Horrible What They Tried to Do'

The real issue, defense attorneys counter, is that authorities should not
be allowed to keep such matters secret from individuals accused of crimes.

"It is horrible what they tried to do," said defense attorney Rosen. "At
the very least it was disingenuous, and at the very most it was unethical.
They were trying to get these defendants to take a deal and were not
telling the defendants what they had [in evidence]."

Court records show that in May 1996, Los Angeles police arrested Antonio
Gastelum, Carlos Lobo and Lauro Gaxiola allegedly for attempting to sell
cocaine - investigators put the amount at 193 kilograms - from a Hacienda
Heights residence.

During the subsequent court proceedings, as they were attempting to get the
defendants to agree to a plea bargain, authorities showed some reluctance
to reveal how they learned of the alleged drug sales. And, in an unusual
but not extraordinary move, prosecutors asked to meet several times with
Judge Alarcon alone in his chambers.

Transcripts of those 1997 court proceedings underscore why.

With defense attorneys pressing for discovery documents from the
prosecution, Deputy Dist. Atty. Lustig and, later, a supervising prosecutor
in the narcotics office urged Alarcon not to order disclosure of the
government's source - in part, because it should be kept secret and in part
because it undermined their case, they argued.

"There's nothing in those statements that I could find that would in any
way help [the defendants'] case here. All they could do is hurt [the]
case," Lustig said at one of the closed-door hearings with the judge a year
ago.

Two days later, prosecutor Nancy Lidamore joined Lustig in asking the judge
not to allow release of the information.

"If we were required to reveal all defendants' statements, there would
never be an informant in any case that wasn't revealed because by its very
nature, informants speak to defendants. That's how they get the
incriminating information they pass on to police," Lidamore said. "And if
the rules were such that we had to pass over every defendant's statement,
there would never be an informant that was kept confidential."

But the judge disagreed.

"I have to tell you that I've spoken to virtually every judge in this
building and had a unanimous response with respect to this issue," Alarcon,
a former federal and county prosecutor, told the deputy district attorneys
at a hearing last April.

"The court finds, based upon the review of the information, that the
privilege [to withhold] must give way to the due process rights of the
defendants to have the statements that they are entitled to for trial,"
Alarcon said.

In that ruling and later court hearings, including the pivotal decision
last month, the judge rejected authorities' claim that there was probable
cause - apart from the wiretap - for their case. As such, he left them the
option of turning the information over to the defense or of risking a
dismissal of the charges.

As Alarcon said during one of the court proceedings last year: "Well, let
me put it this way. I used to be in the drug unit in the U.S. attorney's
office, and our office would have to make a decision if we were going to
prosecute or not prosecute based on the fact that those statements would
have to be turned over."

'Fruit of the Poisonous Tree'

Without commenting on the facts in the case before Alarcon, John Gordon,
chief of the U.S. attorney's narcotics section in Los Angeles, said the
office does not hand off information culled from a wiretap to another
agency with the understanding that a defendant will never be informed.

"If we intercept someone on a wiretap and use the information as the basis
for investigating someone, we have taken the position that if we initiate a
prosecution, we would reveal the fact that we learned about the person's
activities because of the wiretap," Gordon said.

And that, historically, is how many law enforcement agencies and courts
have viewed the law, interviews show.

"The courts apply a 'but for' kind of test that says . . . 'but for' the
wiretap, the investigation would never have been conducted," said law
professor and constitutional scholar Gerald Uelmen.

As such, he said, defendants are "certainly entitled" to know about the
wiretap and litigate the issue of whether the probable cause for their
arrest is tainted evidence - known in legal parlance as "fruit of the
poisonous tree."

Otherwise, said prominent defense attorney Harland Braun, "the real vice .
. . is that a defendant never knows there is a wiretap that he could have
challenged."

Years ago, Braun said, he represented a defendant who was wrongly accused
in a narcotics deal solely because a courier - being followed by police -
mistakenly gave the man a cache of drugs. Only by determining that the
arrest followed a vague tip by an anonymous informant, Braun said, was he
able to prove that detectives unwittingly arrested the wrong man.

"[Determining] the source of the information . . . may be the only hint
that you have gotten the wrong guy," said Braun, a former county
prosecutor. "And that is the worst thing that can happen."

But, the LAPD's Seban argues, wiretaps are not routinely handed out by
judges.

"Before a law enforcement agency can listen to any type of electronic
communication, an affidavit has to be prepared which delineates the
probable cause for doing so," he said. And in addition to 72-hour progress
reports on the wiretap, Seban said, authorities must renew their affidavits
every 30 days by showing a judge there is sound reason to continue the tap.

'4th Amendment Is Not a Technicality'

Seban also insists that the handoff procedure used in this case by
detectives is anything but unusual in law enforcement circles - a
contention supported by others in the district attorney's office and other
police agencies.

"Is it better to listen to the telephone and apprehend the people who are
introducing narcotics into our country . . . or do we allow them to
continue corrupting our society?" Seban asked. "In my estimation, that is
what the reviewer of facts has to weigh in making [the] determination of
whether or not to institute a wiretap."

But defense attorneys, including those involved in this case, say that the
issue - and case - is not that simple.

"This doesn't just go to drug trafficking. They are using this [technique]
on many investigations to protect the source of information . . and a
person who may be wrongly charged will never get to the true source of the
information," said attorney Philip DeMassa, who represents Gaxiola.

"I think the public has a right to know whether law enforcement is doing
its job correctly, because in the end, if you don't do it the right way,
all you are doing is creating more litigation in a system that is already
overburdened.

"And the 4th Amendment is not a technicality," DeMassa said. "It is an
amendment to the Constitution."

Copyright 1998 Los Angeles Times