• Federal investigators’ use of wiretaps such as those that allegedly ensnared Fresno Police Deputy Chief Keith Foster nearly tripled in 10 years.
• Most nowadays are for mobile phones.
• Wiretaps are often challenged in court, but in a noteworthy case, a judge OK’d evidence gained from a wiretap of California agribusinessman Frederick Scott Salyer.
Federal investigators increasingly rely on wiretaps like those that allegedly ensnared Fresno Police Deputy Chief Keith Foster in a drug investigation.
With portable phones proliferating, the number of court-authorized federal wiretaps nearly tripled over the past decade, Justice Department records show. California-based narcotics cases, in particular, have been fueled by the dialing up of electronic intercepts.
“Drug offenses were the most prevalent type of criminal offense investigated using wiretaps,” the Justice Department reported.
In 2013, records show, judges authorized 1,476 federal intercepts nationwide. This marked a huge increase over the 578 federal intercepts authorized in 2003. Roughly 97% of the intercept orders covered portable phones, far more than those covering home or business land-lines.
The wiretaps aren’t cheap. On average, they cost $41,119 each in 2013. In trials, they can also be imperfect, as defense attorneys can move to suppress the evidence collected.
But they can also be effective, scooping up vast amounts of information. Each authorized intercept captured an average of 4,558 “communications” in 2013, the Justice Department reported; these messages included an average of 811 “incriminating” communications.
Sometimes, what seems incriminating to law enforcement may seem only cryptic to civilians.
“What’s the ticket?” Foster said in one intercepted call last December, according to a law enforcement affidavit.
At another point, according to the affidavit, Foster asked an alleged co-conspirator about trying to get “the black.”
“Black tar heroin is often referred to as ‘black’ by drug users and drug dealers,” Sherri L. Reynolds, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, wrote in her affidavit, adding that “’ticket is a term often used to reference a price.”
In a similarly cloaked vein, an intercepted January telephone call in which Foster was allegedly overheard saying he had “100 of those things” was interpreted by Reynolds as coded reference to 100 oxycodone pills.
The use of wiretaps in the Foster investigation was revealed in the criminal complaint made public following his March 26 arrest on charges of conspiracy to distribute or possess marijuana, heroin and the powerful anti-pain medication oxycodone. Five other individuals have been charged as a result of the year-long federal investigation.
Foster, 51, has pleaded not guilty.
In her affidavit, Reynolds recounted that a “Title III investigation into the Foster drug trafficking organization” was initiated Nov. 20, 2014.
Title III refers to the part of the 1968 Omnibus Crime Control and Safe Streets Act that regulates electronic intercepts. The law, for instance, permits federal wiretaps to last for only 30 days before they must be reauthorized by a federal judge.
In 2013, the most recent year for which records are available, federal wiretaps provided evidence used in 632 arrests nationwide. These included 15 arrests made in the Eastern District of California, which spans the Central Valley from Redding to Bakersfield.
In 2013, 10 federal wiretaps were authorized in the Eastern District, while a whopping 124 were authorized in the San Diego-centered Southern District of California, more than any other judicial district in the country
To secure the necessary court order for a wiretap, federal prosecutors present information on the target and details about the alleged crime, among other elements.
The judge, in turn, must conclude that investigators have demonstrated “probable cause” that standard investigative procedures are insufficient, among other criteria.
State and federal investigators, combined, made 3,577 requests for wiretaps in 2013, the Justice Department reported. Only one request was denied.
While judges frequently authorize wiretaps, “The judge’s analysis must be penetrating and is not a rubber stamp for law enforcement,” Fresno-based attorney Oliver Wanger, a former federal judge, said Tuesday. “The judge questions and challenges the basis for recourse to the need for a wiretap and only if convinced that conventional investigative methods have failed or are futile will this authority be granted.”
Defense attorneys can challenge the evidence collected from wiretaps, as happened following the arrest of prominent California agribusinessman Frederick Scott Salyer on racketeering and price-rigging charges. The Sacramento-based federal judge, though, rejected the challenge in early 2012, and two months later Salyer pleaded guilty.
“The government was clear about what it was seeking,” U.S. District Judge Lawrence Karlton noted in the Salyer case, adding that “the government could not reasonably have based its case” solely on an unsavory informant’s testimony.