Stanislaus County DA candidate raises questions about court-approved wiretaps

kcarlson@modbee.comJanuary 30, 2014 

— Defense Attorney Frank Carson, who plans to run for district attorney, is raising questions about a jump in court-approved wiretaps for crime investigations in Stanislaus County and why no convictions have resulted.

At Tuesday’s Board of Supervisors meeting, Carson called attention to the 25 electronic interceptions requested by District Attorney Birgit Fladager in 2012, which was five times the number of court-approved wiretaps in the previous year.

Speaking during the time for public comment, Carson said the latest state report on wiretaps showed that 1,086 individuals had their cellphone chatter intercepted by investigators that year in Stanislaus County. Authorities eavesdropped on more than 25,000 conversations or text messages.

“There is a lot of listening, but I don’t see them getting anything from those wiretaps,” Carson said Wednesday. “They are not making good arrests or the case falls apart, or they could be dismissing the case.”

The defense attorney noted that Alameda County had just three wiretap orders in 2012. Sacramento County had four, resulting in three convictions for narcotics offenses.

Those numbers come from the attorney general’s annual “Electronic Interceptions Report,” which compiled information on wiretaps that county district attorneys reported to the state. Riverside County, with 305 wiretap orders, had the most, and reported 423 arrests.

Carson suggested that Fladager and district attorney investigators did extensive wiretapping in 2012. But Fladager’s office said Carson is misinterpreting the report.

Kevin Bertalotto, who supervises DA investigators, said no convictions were reported because it can take two to four years before criminal cases are heard in court. He added that the annual state reports do not show any convictions for cases moved to federal court.

According to the report for 2012, wiretaps resulted in six arrests in homicide cases and 13 arrests on narcotics charges in Stanislaus County. Even though the report said Fladager requested the surveillance orders from Superior Court judges, all of the requests originated from law enforcement agencies, Bertalotto said.

It’s the district attorney’s role to review wiretap proposals and then submit approved requests to the court. Police include the circumstances to justify the wiretap and are expected to show that other investigative techniques failed. Under the Penal Code, judges may approve orders on probable cause the subject was involved with murder, gang felonies or threats to use weapons of mass destruction.

Judges approved all of Fladager’s requests in 2012.

Bertalotto said the increased surveillance was driven by violent crime, gangs and narcotics investigations. The county had 47 homicides that year. Because cases are pending in court, he declined to give specifics on wiretap orders, but noted, “We had a triple homicide. It just fluctuates depending on crime and resources.”

Stanislaus County had five court-approved orders for electronic interceptions in 2011, with no convictions reported. It’s too early for the 2013 report, but about half as many wiretaps were done last year than in 2012, Bertalotto said. There were 11 orders in 2010 and five in 2009. The county reported 15 convictions from seven wiretap orders in 2008.

Under a column with sketchy comments on the usefulness of each wiretap, the 2012 state report doesn’t appear to mention the triple homicide that occurred in east Modesto. The comments for two orders refer to a double homicide, and other comments said the intercepts enabled detectives to arrest offenders in a slaying.

For 14 of the wiretap orders, the comments read: “The intercept was obtained to stop gang violence and assisted in solving a murder.” Another wiretap resulted in nine arrests and seizure of 44 pounds of methamphetamine. In Modesto, a listening device was deployed during the April 12, 2012, police standoff with a barricaded man suspected in the shooting deaths of sheriff’s deputy Bob Paris and locksmith Glendon Engert, but no calls were intercepted, the report said.

Fladager said it appeared the 25 applications were for four investigations. “At least three have resulted in a number of arrests or indictments,” she wrote in an email, without giving specifics. “Convictions in these types of cases can take several years.”

She wrote that wiretaps can be beneficial in solving crimes and proving guilt, and “therefore, criminal defense attorneys are not particularly fond of them.” Fladager faces a challenge from Carson in the June election.

The wiretaps occurred over 367 days, an average of 15 days per order. Asked how the surveillance took in more than 1,000 individuals, Bertalotto explained that one gang member might call or exchange texts with 30 or 40 people in a day. The number includes the people whose phones were tapped and everyone with whom they communicated.

Carson noted that almost $270,000 was spent for personnel and other costs of conducting the wiretaps. One surveillance operation cost $170,000 for eight monitors, four typists and installations. “That money could be given to the Sheriff’s Department or rehabilitation programs,” Carson said. “I want to start a task force on the epidemic of burglary and car theft.”

County supervisors said nothing in response to Carson’s comments Tuesday. “I don’t know if 25 wiretaps is a lot,” Board Chairman Jim DeMartini said Thursday. “More people than Mr. Carson would have to complain about this before we would do anything. This is an election year.”

Sheriff Adam Christianson said the wiretap costs are borne by the agency that requests them, not the district attorney. Most requests he reviews are for drug-trafficking investigations, he said.

“Given the sensitivity of wiretaps and the protections built in by the law, they get a more thorough review than (for a regular) search warrant,” the sheriff said.

Bee staff writer Ken Carlson can be reached at kcarlson@modbee.com or (209) 578-2321.

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