Friday, January 26, 2007
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S.C. Upholds Wiretaps in Investigation of Large-Scale Drug Ring
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday unanimously upheld the convictions of two men arrested as part of an investigation into the Tijuana-based Arellano-Felix cartel, long identified by law enforcement as one of the most violent of the drug trafficking organizations operating across the U.S.-Mexican border.
In an opinion by Justice Marvin Baxter, the court rejected claims that the evidence used to convict Avelino Leon and Victor Aceves came from illegal wiretaps. The justices said the eavesdropping was properly ordered by Los Angeles Superior Court Judge Larry Fidler because other methods of investigation would have been futile.
The panel upheld the pair’s convictions for possession of narcotics for sale, in the case of Leon, and conspiracy to sell cocaine and use of a false compartment to hide drugs, in the case of Aceves. Leon was sentenced to 17 years, and Aceves to 15 years, 8 months, in state prison by Los Angeles Superior Court Judge Robert Perry after each pled no contest and reserved the right to appeal.
Phones Rented
The convictions were previously upheld by Div. Eight of this district’s Court of Appeal, which agreed that Leon had a reasonable expectation of privacy in a cellular telephone rented under an assumed name, but upheld the interception of his conversations under the state wiretap law, Penal Code Sec. 629.72, and the Fourth Amendment.
Leon rented the phone under the name “Guillermo Rodriguez” using a non-existent Lawndale address. A multiagency task force investigating the Arellano-Felix gang—the probe eventually yielded 23 arrests, along with the seizure of more than $1 million in cash, more than 200 kilos of cocaine, and over 1,000 pounds of marijuana—sought a wiretap order after overhearing a man later identified as Leon on a previous wiretap.
The man overheard on “Target Telephone#1,” they alleged, was in contact with Los Angeles-based distributors for the Arellano-Felix cartel. This person, they said, was suspected of being a high-ranking member of the organization because of the high volume of calls, suggesting he was a “”high level narcotics trafficker and money launderer who must communicate with his superiors in Mexico on a regular basis.”
Deferential Review
A wiretap order was necessary, they said, because they knew of no locations to search, and had no way of infiltrating the organization, which they said was likely made up of persons who dealt only with trusted associates and family members, thus limited potential sources for investigators.
After identifying Leon as “Rodriguez,” officers requested an order to tap four more telephones, including one used by Aceves, and two pagers. The application was based on information obtained by intercepting calls under the first order, which police said led them to believe that Aceves worked for Leon and controlled Leon’s stash locations.
The four telephones, the officers said, were being used to communicate with Leon.
Presiding Justice Candace Cooper, writing for the Court of Appeal, agreed with the trial judge that the wiretap orders were valid and the evidence obtained as a result admissible. She rejected the defense argument that the evidence could have been obtained by surveillance, calling it speculative.
Baxter yesterday agreed.
“As numerous courts have explained...it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap,” the justice wrote. The appellate court, he explained, does not second-guess law enforcement or the judge who ordered the wiretaps, but rather conducts a deferential review of the judge’s findings of necessity.
In this case, Baxter wrote, those findings are supported by the facts presented in the police affidavits.
The justice agreed with defense counsel that “boilerplate” allegations regarding the nature of drug trafficking organizations will not, in and of themselves, support a wiretap order. But those allegations, in combination with facts specific to the Arellano-Felix investigation as it related to Aceves and Leon, established that alternative methods of investigation were not likely to have produced the evidence the agents were looking for, Baxter wrote.
Among the arguments he rejected was the claim that the authorities, having identified co-conspirators, could have offered them immunity, along with witness protection for themselves and their families.
Baxter agreed with the trial and appellate courts that offers of immunity or leniency would most likely have exposed the investigation rather than gain cooperation. And such offers would have had the undesirable effect of enabling the co-conspirators to avoid punishment for their crimes, the justice said.
“As to placing cooperating high-level members of the organization into a witness relocation program, defendants have made no showing that any such person had wanted not only to withdraw from the conspiracy but also to relocate with his or her loved ones under a new identity,” the justice wrote. “...Accordingly, approaching a member of the organization with an offer to enter a relocation program posed the same risk of compromising the investigation as did approaching a member of the organization with an offer of immunity.”
Kenneth H. Lewis of Los Angeles argued for the defense. Deputy Attorney General Mary Sanchez put the case for the prosecution.
The case is People v. Leon, S137137.
Copyright 2007, Metropolitan News Company