Eavesdropping 101: Wiretaps, Controlled Phone Calls, and the Use and Misuse of Information
By: Dana M. Grimes, Esq.
Hollywood on the Line
The investigation of Anthony Pellicano began where Luca Brasi’s ended: with a dead fish. The F.B.I. believe Pellicano, former private investigator to the stars, placed a dead fish on the cracked windshield of the The Los Angeles Times reporter Anita Busch’s car, along with a sign reading “Stop.” (Among other Hollywood investigative reports, Busch was rumored to be working on a story alleging that Mob money might have financed a Steven Seagal movie.) Five months after the dead fish warning, the F.B.I. executed search warrants at Pellicano’s office, where agents found explosives, loaded guns, and about $200,000 in cash. In 2004, Pellicano pleaded guilty to illegal weapons possession and was sentenced to 30 months in prison.
However, perhaps the most interesting discovery in Pellicano’s office was hundreds of hours of wiretapped conversations. It is illegal for a private citizen – even a licensed private investigator – to wiretap conversations, but Pellicano had found that there was a tremendous market for the information on ex-spouses, former business associates and other parties to Hollywood litigation. At his subsequent trial in the Central District of Los Angeles, the U.S. Attorney’s office proved that he was obtaining a lot of this information through illegal wiretaps, as well as bribing law enforcement officers to provide him information from their confidential databases. In December of 2008, he was sentenced to 15 years in prison. Prominent Los Angeles attorney Terry Christensen was convicted of conspiring with him on a small portion of this activity and was sentenced to three years in federal prison.
The Federal Wiretap Act
In Berger v. New York (1967) 388 U.S. 41, the United States Supreme Court struck down the eavesdropping statutory scheme of New York for its failure to comply with the Fourth Amendment. A year later, Congress passed the Federal Wiretap Act as part of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), which enacted the statutory wiretapping scheme found in 18 U.S.C. §§ 2510 et seq., largely in response to the Fourth Amendment requirements that had recently been announced in Berger.
Title III prohibits the intentional interception of wire, oral or electronic communications, unless specifically provided for in the statute. Interception occurs by the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” A wire communication includes “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other connection.” Congress amended the Wiretap Act with the Electronic Communications and Privacy Act of 1986 to keep up with developing technology and prohibit the intentional interception of cellular and electronic communications. The vast majority of states have laws criminalizing wiretapping as well.
Use of Wiretaps by Federal Law Enforcement (for Domestic Offenses)
Federal law enforcement uses wiretaps in major investigations, usually involving suspected organized crime. Most wiretaps obtained these days are used to monitor cell phone calls between suspected drug traffickers. (Drug cartels use wiretaps to monitor rival cartels as well as law enforcement. U.S. authorities take measures to protect sensitive communication from this reverse-monitoring.) Wiretaps have the benefit of providing evidence against high level members of criminal organizations who give instructions, but who have lower level co-conspirators take the risks of carrying out the criminal activities.
The legal requirements for obtaining a wiretap are strict. Because of the Fourth Amendment requirement that no warrant shall issue but upon probable cause, supported by oath or affirmation, the wiretap procedure is similar to search warrant procedure. There must be a sworn application for this type of warrant, based upon which the court issues an order for interception.
Unlike a search warrant for a house, however, a wiretap cannot be authorized by a magistrate; it must be authorized by a circuit or district court judge and must be renewed periodically. There is a requirement for minimization, meaning that the monitoring and recording of calls must cease if they are not related to criminal activity. Given the intrusive nature of a wiretap, the Wiretap Act incorporates a number of provisions which limit the scope of the warrant and guard against law enforcement officers generally rummaging through phone calls. Because of the legal requirements and the fact that they require a great deal of time from the agents, their use is limited.
Pretext Phone Calls
A pretext phone call is much more common than a wiretap. In a pretext phone call, the government (with the use of a cooperating party) is actively calling the suspect, not just listening in. This law enforcement tool is legally and technically simple, takes little time, and can provide powerful evidence. It is used every day, by state and federal authorities. The restrictive wiretap laws apply only to interception of communications in which neither party consents to the interception. When one party consents, the police can listen to and tape any call they want to. The consenting party is generally either a victim, informant, or a cooperating co-defendant, or some combination thereof. Pretext recorded calls placed by a cooperating co-defendant to a target individual are used often in white collar cases. For instance, in a federal mortgage fraud investigation, the F.B.I. will sit down with a cooperating individual, connect a tape recorder to their phone and dial a suspect. The agents will give the cooperator a script of what questions to ask, such as “Do you remember the good old days when we just made up loan applicants’ jobs and incomes?” In some cases the agents are present for the calls; in other cases, the cooperator is given the recording device and script to use whenever they get a call from a target of the investigation.
The San Diego Police Department and the San Diego Sheriff’s Department also use pretext calls on a daily basis, particularly in investigating sex crimes. The alleged victim’s call to the suspect can result in detailed admissions which turn what would otherwise be a “he said/she said” case into a strong case for the District Attorney or United States Attorney. The suspect is not in custody at the time of the call, so there is no need for Miranda rights. The suspect is unaware that the call is part of an investigation, as the scripts given to the victims vary depending on the type of relationship being investigated, and can include information that is not true. The cooperating caller may say that she is pregnant, or has transmitted an STD to the suspect, or that her psychologist tells her it would be beneficial to her if the suspect told her he was sorry.
Wearing a wire is very similar to a pretext call, but without the telephone. The cooperator is given a recording device or a transmitter sending a signal to an officer with a recording device. This practice can also result in powerful evidence, but the quality of the recording is sometimes much inferior to recordings of telephone conversations. When there is a dispute over what is said on the tapes, experts may be hired to enhance the tapes and reduce static and other interference. Anthony Pellicano was once one of the leading experts on enhancement of tape recorded conversations (he was frequently retained by the prosecution in these cases), but as noted above, he is no longer available.
Recorded Calls Between Private Individuals
Federal law does not prevent one party to a confidential communication from recording it (whether it is a phone call or a recorded personal meeting), but most states do prohibit such conduct. Linda Tripp recorded the colorful phone calls in which Monica Lewinsky told her of her relationship with President Clinton (including one in which Tripp famously told Lewinsky to put her blue dress in her personal evidence locker). Tripp gave these recordings to the Office of the Independent Counsel investigating Clinton. With the approval of Kenneth Star and Attorney General Janet Reno, she was given immunity for her criminal conduct in exchange for her testimony in the investigation by Independent Counsel.
In California, “every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, expect a radio” violates Penal Code § 632(a), a felony.
Penal Code § 633 exempts law enforcement pretext calls, as described above, from this prohibition. Penal Code § 633.5 allows recording confidential communications for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Penal Code § 653m (harassing phone calls). Penal Code § 632(c) defines confidential communication to include any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to remain confined to the parties thereto, and excludes communications made in public gatherings.
Maryland has a statute similar to California Penal Code § 632, and Linda Tripp was prosecuted in state court for recording her conversations with Monica Lewinsky. Fortunately for Linda Tripp, the Maryland courts held that the grant of immunity she received from the Office of Independent Counsel made much of the prosecution’s evidence in the Maryland case inadmissible and the Maryland charges against her were dismissed in 2000.
Wiretaps and pretext consensual phone calls are usually admissible at trial, and they can provide powerful prosecution evidence. However, caution should be taken to make sure that the transcript of the recording is accurate, as the audio quality sometimes is not good. With pretext calls, the responses of the subject sometimes sound more incriminating than they were intended to be, and unless there is a video, we do not have the benefit of the body language that is such an important part of communication. The conversation is being controlled by a script prepared by the law enforcement agency. When defending a case where pretext calls are going to be introduced into evidence against the defendant, it is important to get the tapes of all calls that were taped, not just the ones that the prosecution intends to enter. It is also important to find out as much as possible about all conversations between the defendant and the cooperating individual as possible, to help put the conversations in the pretext calls into proper context. Sometimes the prosecutor will offer only the most damaging portions of the recorded calls, arguing that the rest of the statements of the defendant are self-serving hearsay. You must bring pretrial motions to persuade the trial judge that the rule of completeness requires that the jury hear all of the tapes. An exception to this might occur if there are discussions on the tape of criminal or otherwise improper behavior that is not relevant to the charges against the defendant.
Conclusion: Is Big Brother Listening?
The state and federal governments have been given narrowly confined authority to engage in electronic surveillance. Over the years, Congress has amended 18 U.S.C. §§ 2510 et seq., sometimes narrowing it in the interests of greater personal privacy and more often broadening it for law enforcement intelligence gathering. But at the end of the day, it may alleviate some paranoia to inform clients that, in all probability, their phones are not tapped. On the other hand, if the government is listening, it is likely because someone they know is cooperating against them and is calling them from a phone that is being recorded by law enforcement. This is a common, and legal, law enforcement tactic. (in the state of California, it is a criminal violation of Penal Code § 631 et seq for a private citizen to record a confidential communication of another person without law enforcement authorization)
PARALLEL CONSTRUCTION- Some law enforcement agencies, including the Special Operations Division of the DEA, have access to vast amounts of information from informants, foreign law enforcement agency, and data from banks and NSA. At times, when sensitive information leads to an arrest, and the arresting agency wishes to conceal the source of that information, the arrest reports will be prepared in a way that misleads the reader into believing that the arrest was the result of an entirely different reason, such as a traffic violation.
In 2017, federal and local law enforcement agents continue to get wire taps for big criminal conspiracy cases including narcotics dealing, human trafficking, and gang related murder cases. Some of these cases result in prosecution of high level criminals who try to stay insulated from the street level criminal activity.