March 7, 2007 5:45 AM PST

Police blotter: FBI's 'misleading' wiretap suppressed

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Police Blotter is a weekly 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.

See more CNET content tagged:
affidavit, surveillance, wiretap, informant, Police Blotter


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If this is true . . .
does it mean that someone in the FBI is going to jail? If not, do
they plan to apologize to Martha Stewart, Scooter Libby, Bill
Clinton, and everyone else that has been punished for lying under
Posted by rcrusoe (1305 comments )
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Surely the FBI would just end up shielding/cloaking themselves with the unconstitutional USA PATRIOT act...
Posted by aabcdefghij987654321 (1721 comments )
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New Mobile Phone Regulations
These regulations get crazy every day, I read about one such regulation in Europe on <a class="jive-link-external" href="" target="_newWindow"></a>
Some crazy "safety" laws
Posted by thymes (1 comment )
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Once upon a time, I lived in a sleepy little town. The government there seemed to me to be criminals, the good old boys circle. I by chance recorded an incident of police and F.B.I. misconduct with a man hands tied behind his back and dropped him head first into a well. The water wells there are mainly 30 inch bored holes 50 feet or more in the ground. I didn?t know at first what was going on, they moved very quickly, wasn?t more than a few seconds. I for many years, had bought 2 police scanners and at every chance I got recorded many incidences of police misconduct. Such as, stopping people without reason or a bogus reason, allot of the times it was pretty young girls. By remote control the police set traffic light to malfunction to make you have to behave in such a way to just run the light and then pull you over and ticket you. Which I told a news channel and it never happened at that light again. I got videos of a drug house that seemed to me to be protected. I found that only some, very few, of the people buying drugs would get pulled over and searched and arrested. I would hear on the scanner she just left the house. She has an ounce. The owner of the house was a police officer. It was his private residence. An investigator, from news channel said to me when I had found many types of surveillance equipment that I already knew was there in my electronics business, that I might be in danger. My wife had been pulled over by an unqualified police officer that was fired from his previous law enforcement employment for misconduct and shouldn?t have been hired as a police officer, he was later fired and arrested for squeezing the beasts of two female police dispatchers, she my wife was leaving our business She had been working late, pulled out to travel home, the police officer started his vehicle and pulled out a minute later at a very high rate of speed and came up on her bumper so fast it scared her. The officer came so close to her bumper she couldn?t see his head lights and she was traveling at the speed limit, 45 miles an hour on a steep curve going down hill, turned on his lights and siren, he said; she was weaving, asked for her license and insurance but if she found her insurance he would have to tow her car in and leave her there. Of course my wife had proof of insurance but if she would have produce the proof she thought her car would be towed and left to walk home. So she accepted a ticket for no proof of insurance in which a new law had been recently passed that if you didn?t have proof of insurance but did in fact have insurance their would still be a fine of $35.00. My wife and I filed official complains and sued all the way to the U.S Supreme Court and the Court said; Constitutional rights of citizens were in fact being violated. Before I purposely found the surveillance equipment in my business and home I didn?t let on for quite some time. I sent so much disinformation and lies they the F.B.I. must have thought I was quite a piece of work. I would say and do things I knew weren?t true or bogus. After the water well murder incident. I bough books on surveillance techniques of the F.B.I. and police, to say the least it was old news. My 10 year lease was soon to be up. So I revealed to the F.B.I. over the phone which I made believe to them it was the local police they had no idea I really knew it was them because my Attorney said early on that the local police didn?t have that type of equipment, and I said out loud in my business I knew I was under surveillance and that my conversations were in fact being surreptitiously recorded, plus video, they had replaced my phone and CCD monitor with the same type units, with covert RF transmitters in the circuits, yes they the F.B.I. entered my business while I was away. I removed the surveillance equipment and destroyed the units in a make believe fit of rage, I had shown the equipment to news channel and he said I shouldn?t have destroyed the units, but said yes and agreed the components in fact look like surveillance electronics. Squeeze crystal in the phone as a microphone and RF transmitters hidden inside of capacitors in the CCD monitor. I knew that they may have wanted me to maybe find their units NOT, they also had an angle hair wire microphone. Pin hole CCD cameras and power line microphones that pick up audio through fluorescent lights, it makes a very good microphone as your voice vibrates the gas, which makes a difference in conductivity although very small with the right equipment it works just fine. Also one of there informants, which I thought was my friend NOT, gave me a stud finder you know the apparatus that finds studs in a wall, now there was a gift that keeps on giving. I took it apart and found an amazing discovery the crystal speaker was used to generate a small but efficient power supply 3,4,5, volts of electricity from your voice vibrating the crystal speaker and with no battery installed it will still transmit a short distance. I laid on the disinformation thick; I was being a jerk deliberately, thinking they would believe I had ruined their surveillance. There?s nothing you can do to keep the F.B.I. from listening. Once under investigation, that?s it, they listen and follow you everywhere in your car on foot, home or work, every second of your life will be recorded, even having sex! Do you think the F.B.I. would conspire to commit murder? No the F.B.I. wouldn?t shoot a women in the face while holding her baby? They wouldn?t set children on fire would they? I told my wife to leave town. The heat was on and I didn?t want her to get injured, we were having marital problems to say the least. Interferences from the F.B.I. were profound. I was now in the, everyone you meet is an F.B.I. agent or informant. My new friends used drugs meth but used fake straws to snort and so on. So I pretended to be able to make meth it?s very easy if you really want to. I made a small amount of hydrogen instead. They knew I was playing with then because I wasn?t arrested. I left a small blue office type trashcan outside for the rain to clean off the stains from the bogus chemicals, that I through in there, and it was sparking clean the next day. The only thing, it would have been impossible to come clean they had replaced the trashcan with a brand new one. Probably sent mine to a lab and found they had no evidence or overt act of a crime, they were probably saying that smart ass or that dumb-ass he hasn?t figured how to make it, which I assure you I do and did know, I?ve read just about every banned book published. They tried to get me to buy large quantities of meth an once at a gas station with my so-called friend. I seen their surveillance teams one was parked two blocks up just sitting in the right hand lane it was a 4 lane hwy with their lights off. I knew they were there before I drove down to say hello and ask if they needed any help. They the F.B.I. said no and turn on there emergency blinkers. I saw one duck down in the gas stations store and drove over to an apartment building next door to find one sitting trying to duck but it was to late. My so-called friend called a couple of times to the drug connection the second time was to tell them that I was on to them as I pulled away, a car full of FEDS pulled up and all of them couldn?t help but look at me. I will never forget the look on their faces. They were pisssst off! I knew what was up the very second my so-called friend tried to initiate the deal, but I played along. The F.B.I. were truly aggravated with my knowledge of surveillance. Another one of my new so-called friends plans was to **** me off to make me forget about my surveillance. I let them think it worked. The Judge had ensemble a hand picked team of federal Marshall?s to investigate sense the F.B.I. were involved in conspiracy to commit murder and murder. As I was ranting and raving, playing to be mad. I stomped out alone from a motel room we were at. She called me on the phone many times only to have me hang up on her but she finally told me yes it was in fact the F.B.I.! The F.B.I. were all over me 200 + units. That?s right 200. I bet right now your thinking now do you know there were 200 because there all around me at 5:00 am theirs no one in front of us as far as my eyes could see and NO one I mean NO one behind us for as far as I could see! Plus I slowed down from 60 to 50 miles an hour and guess what everyone is right there with me and no brake lights go on in the F.B.I vehicles in front of me!! Also I had been writing down license plate numbers in the past and every license plate lights were off on every vehicle in front of me. I tried to stop for gas for my jeep. I already knew there was surveillance electronics in my jeep. I tried to stop for gas and was told my credit card would need to be used inside instead of at the pump. What! I wasn?t going to leave my car alone at that time. The F.B.I. were pulling off 5 or 6 units at every exit in front of me and got to the station before me? I drove to the next exit to try again, same thing at the new gas station. I got to tell you I was a little scared at that point. I tried to go to the next exit but finally ran out of gas on the interstate. I pulled coasting off the road. The next exit was far away. At the last gas station I destroyed the cell phone that I was allowed to use from another so-called friend that I knew had surveillance electronics installed. I wasn?t playing them, I was mad! I busted that phone up real good and found out latter that it was very expensive. I was trying to call my attorney and news channel it wouldn?t connect my calls. As soon as I seen him again latter in the day the first thing out of his mouth was where?s my phone? What? I had it for two months so far and was even paying the bill! What do you mean where is it? I told him, which I thought he was a cop or informant, I had lost it! I?m not really sure about what happened at the gas stations but running out of gas it reveal to me a very dark side of law enforcement. I?m setting there out of gas and out of town on an interstate for 30 seconds and guess what? A marked county cop pulls in behind me. I thought I was going to be murdered! I was moving to write on my seat with a pen the cops killed me. The cop has his weapon, gun out and pointing it at me. I?ve never I my life had a cop point his weapon at me. He said; get out of your jeep. I asked what?s up. He said to get in the back of his patrol car. I followed his command holding my hand in front of my face thinking he might just shoot and murder me right here! I told him this is way to strange and may I ask what your name is, he wouldn?t answer me and was just fiddling with a note pad not writing or calling in on the radio about routine warrants check or anything. We?re just sitting there for about 5 minutes. I was looking real hard for a nametag or badge number and asked if I could have his card he said he didn?t have one. Suddenly I heard a load sound as if somebody was beating on a railroad track with a hammer. I looked out the window for a railroad track I didn?t see one anywhere or anything that could even make a sound; the closes thing was over 1000 feet away. As I was looking around I noticed what looked like two faint black poles protruding out of the top of my jeep. I ask the cop what in the world are those two black faint looking poles about the same height as my jeep. He turned to the back seat to look at me and said not a word, looking over the top of the glasses that appeared to me to have no prescription in them. I was trying to be as observant as I could. I said I guess I?m seeing things! I didn?t make an issue of what I had seen! Soon the cop, F.B.I. agent dresses as a cop? said I could leave and should go home which was about 75 miles away on the interstate and that he called a tow truck for me. I was thinking to myself how did he do that already? He hadn?t said but a few sentences and nothing over the radio. I guess he will? I returned to my jeep. I was waiting to try and see his plate number as he passed by me and the damnest thing happened there were now two cops in the patrol vehicle. Where in hell did he come from the trunk? The one that wasn?t him had a cop hat on and adjusting himself in his seat moving almost all the way to the windshield and I didn?t get the plate number. I couldn?t see it. There wasn?t one? I was thinking what in the hell is going on! The tow truck arrived minutes later. He put my jeep on a flatbed and dropped me at a gas station at the next exit; ask for no money or thanks. No one has ever been that nice to me in my entire life. It was better than triple A. My credit card worked at the pump there and I never entered the gas stations store. Instead of going home I traveled back to the last exit, to question the attendant at the last place as why he would make me come into the store and not pay at the pump as I was turning and exiting the interstate my front end was banging. I?m a very good mechanic. My jeep was old but in tiptop shape mechanically. I had just put 4 brand new tires on it about a month earlier. I stop down the street from the gas station in a residential area. I got out of my jeep to see what?s up. I was pulling my left front tire back and forth to see if maybe a tie rod was broke and heard rattling in my hubcap. I removed the hubcap and couldn?t believe what I saw. Four of my lug nuts had been beaten off with a chisel their were fresh chisel marks on my lug nuts and all four lug nuts were loose and not holding the tire on at all. Their was just one lug nut holding my tire on, so I removed one lug nut from each of my other wheels and ended up with four lug nuts on each wheel, which is safe as long as you don?t overload the vehicle. The F.B.I. had used secret military optical camouflage. They failed to at a minimum to seriously injure me. Just imagine your rim with tire falling off at 60 miles an hour. As soon as that front hub would hit the ground at 60 miles an hour you would flip around backwards and you?re in serious trouble, even death and or the death of other people around you, maybe even flip over and cross the median into on coming traffic and hit a school bus and kill them all. Why in the hell would the F.B.I. conspire do something so stupid like that? How could the F.B.I. do such a terrible dirty deed? With no regard for public safety! I want tell you straight up, it?s all-true. It was blatant attempted murder!! No dilutions. No mistake on my part! I know what happened to my lug nuts! My lug nuts were analyzed and confirmed the chisel was made especially to bust the lug nuts off my jeep! <a class="jive-link-external" href=";file=article&#38;sid=850" target="_newWindow">;file=article&#38;sid=850</a> I told my wife to call the news channel investigator and he said; he had his suspicions that what had happened to me was true he had investigated a similar case where someone the police had under surveillance tire and rim fell off and his vehicle flipped over causing a five car pile up. It put him and others in the hospital with very serious injuries!!
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