Wiretap use expands in fight against drug lords

2010-12-14T14:00:00Z 2010-12-14T21:25:40Z Wiretap use expands in fight against drug lordsBrady McCombs Arizona Daily Star Arizona Daily Star
December 14, 2010 2:00 pm  • 

Editor's note: This story first appeared Sunday as an exclusive for our print readers.

Prosecutors had plenty of evidence against two members of the Dominguez drug smuggling organization, but it was a recording of the defendants arranging a cocaine deal that nailed the conviction.

"Tell him to get me the job, the other kind, the Guero," said Ricardo Varela, using the slang term for cocaine in an exchange with Maria Isabel Dominguez.

"I'm going to tell him," she said.

"I need one or two there," Varela said. "I'll go over and buy it from him."

The conversation was one of hundreds recorded in the summer of 2004 in a wiretap investigation by the Counter Narcotics Alliance that led to the 2008 conviction of Varela and 35 others from the organization. Dominguez pleaded guilty before trial.

Though expensive and time-consuming, wiretap investigations are on the rise in Arizona and across the nation because they help investigators catch high-ranking targets and because, most importantly, the live recordings pack a punch in the courtroom that can't be matched by regular testimony.

"You see the lights come on and the jury realizing, 'Holy moly, these guys were going to keep doing this until they got stopped,'" said Richard Wintory, who now heads the Arizona Attorney General's border crime enforcement team but was the prosecutor in the Dominguez case as a deputy Pima County attorney.

That wiretap was one of only 29 in Arizona in 2004. Since then, the number of wiretaps authorized by judges has nearly doubled to 55 in 2009, records from the Office of United States Courts show. This year's total is expected to match or exceed last year's.

Nationally, wiretaps have doubled since 2000 and are up one third in the last five years.

"Wiretaps are devastatingly effective for law enforcement," said Tucson defense attorney Walter Nash, who is considered one of the foremost experts on litigating against them. "Nobody will dispute that. It gives them real-time evidence that can be the ball game."

In Arizona, three-fourths are used to investigate drug cases and all tap into cell phones.

Critics of wiretapping say law-enforcement agencies seem to be rushing to use them when traditional law-enforcement tactics would suffice. That should worry everyone, defense attorney Nash said, considering it's so intrusive.

"I don't break any laws but - I don't know about you - I would be mighty uncomfortable knowing somebody is listening to my conversation," Nash said.

Nothing like Hollywood

Real wiretap investigations don't resemble the ones you see in the movies - they are expensive, time-consuming and strenuous.

"It's not at all like the movies, where you see these knuckleheads in a van with headphones on and cheeseburgers being eaten," Wintory said. "There is so much involved in these investigations."

The work begins long before investigators ever listen to a phone conversation. To get permission from a judge, they must show:

• That the person they want to investigate is committing or about to commit a serious crime.

• That he or she is using phones to commit the crime, which requires showing a pattern of phones being used repeatedly by suspected criminals.

• That authorities have exhausted traditional methods and cannot further the investigation without a wiretap.

Police often come to Wintory's office wide-eyed about potential wiretap cases only to leave frowning when they realize they haven't used all the traditional methods, which include surveillance, record checks, trash pickups and informants or undercover officers.

This high standard is why the American Civil Liberties Union isn't concerned about the increase in wiretaps, said the organization's legislative counsel, Chris Calabrese.

Once a wiretap application is sent to a judge, it's hardly ever rejected. Only two applications have been denied since 2000, compared with 17,278 approved, show records from the Office of United States Courts.

Critics call this proof that getting wiretaps is no more than a rubber-stamp process, but Wintory said hundreds of wiretap applications never reach a judge; they fizzle in internal reviews by committees that meticulously inspect them, he said.

Once a judge approves a wiretap, suppressing the evidence it gathers is difficult, time-consuming and expensive for a defense attorney. For instance, Nash has to contract investigators to prove the agency could have used tactics it said it couldn't, such as surveillance.

Deciphering codes

Once a wiretap has been approved, the long hours begin.

"It's not just somebody flipping a switch somewhere and listening in a room," said Glenn McCormick, deputy criminal chief in charge of the U.S. Attorney Office's organized crime and drug enforcement task force section.

Monitors, usually Spanish speakers, listen to phone conversations, trying to make sense of what amounts to code language. Agents go to locations mentioned in the calls to watch houses or talk with people discreetly to connect the dots between what they are hearing and what is actually happening.

"Stops are made, people are arrested and what do you know, they find 20 pounds of meth in the car and the phone conversation was talking about, 'You taking those 20 windows?' 'Yeah, we've got those 20 windows,'" McCormick said.

Each wiretap authorization is good for 30 days, with extensions available for 30 additional days at a time. Investigators sometimes get approvals to tap new phones they discover during an investigation.

In 2009 in Arizona, wiretap cases lasted an average of 71 days. Agents made an average of 145 intercepts per day.

Arizona wiretap cases cost an average of $203,800 in 2009, including four cases that exceeded $800,000. A federal drug investigation that began in May 2008 and led to the arrest of 169 people cost $821,067. A state case out of Maricopa County that began in October 2008 and hasn't yielded any arrests cost $978,720.

The manpower - paying people to listen, translate and transcribe the conversations and agents to conduct surveillance and make stops - accounted for 87 percent of the costs in Arizona cases in 2009.

Agencies are able to do more of them because they have more staff and funds. The U.S. Attorney's Office in Arizona has added 42 assistant U.S. attorneys since 2006, bringing the total to 152. State agencies tap into federal grants for border security and forfeiture money.

Drug cartels are well aware of the increase in wiretaps and try to thwart them by frequently changing cell phone numbers, said Anthony Coulson, a recently retired assistant special agent in charge of the Drug Enforcement Administration's Tucson office.

For a while, cartels would only use a phone up to 20 times, knowing the Department of Justice required investigators to show the use of a phone number 21 times in applications for wiretaps, Coulson said. That requirement has since changed.

Drug smuggling organizations also try to use other means of communication or cut down on phone calls, but cell phones are vital to their operations, Coulson said.

"There is no other way to do it," he said. "You can't do it through telepathy."

No independent monitoring

During a wiretap investigation, agents are to make reasonable attempts not to listen to conversations unrelated to the criminal activity being investigated.

That doesn't always happen, defense attorney Nash said. Sometimes authorities listen in on privileged conversations between a lawyer and client, or to irrelevant banter such as two teenagers chatting, he said.

But Wintory says officers get so many warnings about the law that they've missed out on key conversations when an overly careful officer switched off a recording because he thought he wasn't allowed to listen in.

The wiretap model "is the most scrupulously respectful process of civil liberties that has ever been created" Wintory said.

Wiretaps are an important tool in the difficult fight against powerful drug-trafficking organizations, he said:

"They give us the opportunity to reach out through those phone lines, jerk them up by the nape of their necks and drag them back to Tucson to face justice."

On StarNet: View slide shows of the FBI's and Arizona's most wanted criminals, listen to police radio scanners and read the Police Beat blog at azstarnet.com/crime

Contact reporter Brady McCombs at 573-4213 or bmccombs@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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