Police blotter: FBI's 'misleading' wiretap suppressed

Appeals court upholds ruling against FBI's mobile phone wiretap of an alleged drug dealer because it was based on a deceptive affidavit.
Written by Declan McCullagh, Contributor
Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Alleged drug dealers seek to have mobile phone wiretap suppressed so the evidence can't be used in court against them.

When: 6th Circuit Court of Appeals rules on March 2.

Outcome: Appeals court upholds a ruling that the FBI's mobile phone wiretap was "illegal" because it was based on a "misleading" affidavit.

What happened, according to court documents:
Wiretaps are a uniquely invasive form of surveillance, in part because the targets may never know the eavesdropping occurred.

That's why a 1968 law created what sometimes is called a "super-warrant," meaning that electronic surveillance must be used as a last resort only after alternative investigative techniques have been tried.

Police are required to include in their wiretap requests a "full and complete statement as to whether or not other investigative procedures have been tried and failed." The U.S. Supreme Court has said that wiretaps should not be "routinely employed as the initial step in criminal investigation."

That's the theory. In reality, FBI agents have become addicted to the ease of snooping on people through wiretaps--as opposed to more traditional and difficult police procedures such as cultivating informants, following a suspect around, and conducting physical searches of homes or offices.

Sometimes the FBI's institutional addiction comes to light. It happened most recently in a case involving a man named Reginald Rice and other alleged drug dealers in Louisville, Ky., who are charged with a variety of federal crimes including conspiracy to distribute a controlled substance and conspiracy to possess cocaine.

In mid-2004, based on information from a confidential informant, FBI agent Scott Wenther submitted a 42-page sworn affidavit asking a federal magistrate judge for a wiretap of Rice's mobile phone. Wenther's request was approved.

There was just one problem with some of the information in Wenther's affidavit: it was not true.

Spurred by repeated requests by the defense attorneys, U.S. District Judge Thomas Russell eventually took a critical look at Wenther's claims. Russell ruled:

• Wenther claimed that "physical investigation of the subjects of this investigation has been conducted." But Wenther later acknowledged in a subsequent hearing that Rice had never been the subject of physical surveillance and they didn't even know where he was.

• Wenther claimed that "members of this criminal organization with known violent histories routinely carry firearms and wear bullet-resistant vests." But in reality, the FBI did not know whether Rice carried a gun.

• Wenther claimed that "physical surveillance has also corroborated information provided by" an FBI informant. But that was a misleading reference to an entirely different suspect, not Rice himself.

The sworn affidavit submitted by the FBI, in other words, was designed to fool the courts into approving surveillance of Rice based in part on misdirection and fabrications.

Russell, the judge, took a dim view of Wenther's creativity. The judge wrote in an October 2005 opinion: "The assertions about physical surveillance are the most troubling because they are, simply put, misleading. They give the issuing judge the impression that surveillance was performed on Mr. Rice; Agent Wenther's testimony at the hearing, however, was that Mr. Rice himself was never under surveillance…At the hearing of June 20, 2005, Agent Wenther explained that no surveillance was done, and that the reason no surveillance was done was that they did not believe they had current, reliable information about Mr. Rice's whereabouts. Even if this is true, (it does not) excuse the misleading language in the Wenther affidavit."

Russell ruled that the result was an "illegal wiretap" and prohibited prosecutors from using the intercepted conversations in court. An article in Kentucky's Courier-Journal speculated that wiretap's illegality might let a dozen alleged drug dealers go free (because so much of the incriminating evidence came from the wiretaps).

The U.S. Department of Justice defended Wenther's inventiveness. Assistant U.S. Attorney Philip Chance said in a brief that the FBI agent's affidavit "amply supports" the wiretap order. After losing before the district judge, Chance appealed.

He had no better luck before the 6th Circuit Court of Appeals. By a 2-1 margin, the judges ruled on March 2 that they had reviewed Wenther's affidavit and concluded that "we cannot say that the district court committed clear error in determining (that it) was misleading." The 6th Circuit affirmed Russell's ruling.

Excerpts from the majority opinion by the 6th Circuit Court of Appeals:
The district court closely examined each part of the Wenther affidavit and compared it to the testimony at the suppression hearing. After discovering that no physical surveillance had actually been conducted on Rice, the district court found that the Wenther affidavit would erroneously lead an issuing judge to believe that such surveillance had been conducted. The district court concluded that the statement about surveillance was made recklessly. After reviewing the Wenther affidavit, we cannot say that the district court committed clear error in determining that this part of the Wenther affidavit was misleading to the issuing judge.

After determining that it could not consider the misleading information, the district judge examined what was left of the Wenther affidavit to determine whether the necessity requirement was fulfilled. What remained in the Wenther Affidavit was the following: (1) that the (confidential source) used in the investigation of (another person) was not able to make contact with Rice and, therefore, would not be of use; and (2) that pen registers and telephone tolls revealed possible connections to other people with histories of drug-related arrests. Beyond that, the district court found that the Wenther affidavit contained generalized and uncorroborated information about why grand jury subpoenas, witness interviewing and search warrants, and trash pulls would not be useful.

After reviewing the record, we find that the district court was not in error in concluding that what was left of the Wenther affidavit did not provide "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Thus, we affirm the district court's decision to suppress the fruits of the wiretap.

In its order denying the government's motion for reconsideration, the district court rejected the government's argument that the warrant was valid under the good-faith exception to the warrant requirement. Because we have not previously made clear whether the good-faith exception applies to warrants improperly issued under Title III, the district court addressed the government's good-faith argument "out of an abundance of caution." We hold that the government's good-faith argument is without merit, because the good-faith exception to the warrant requirement is not applicable to warrants obtained pursuant to Title III.

The language and legislative history of Title III strongly militate against engrafting the good-faith exception into Title III warrants. First, the language in Title III provides that exclusion is the exclusive remedy for an illegally obtained warrant. In contrast to the law governing probable cause under the Fourth Amendment, the law governing electronic surveillance via wiretap is codified in a comprehensive statutory scheme providing explicit requirements, procedures, and protections.

Section 2515 of Title III provides that "(w)henever any wire... communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial...." The statute is clear on its face and does not provide for any exception. Courts must suppress illegally obtained wire communications.

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