Brett Kelman and Brad Heath

The Desert Sun and USA TODAY

A Kentucky attorney has challenged Riverside County's massive wiretap operation in federal court

A single Riverside judge approved 624 wiretaps in 2014, far more than any other in the U.S.

New court filing may force the Justice Department to take a stance on the questionable wiretaps

PALM SPRINGS, Calif. – A massive eavesdropping operation that federal drug agents ran out of Riverside County is facing its first significant legal challenge, with defense attorneys charging in a new court filing that authorities here approved "illegal wiretaps with astounding frequency.”

The defense lawyers have asked a federal judge in Kentucky to throw out wiretaps used to catch an accused marijuana trafficker. The request follows an investigation last year by USA TODAY and The Desert Sun that exposed how the U.S. Drug Enforcement Administration had quietly turned the county into the nation’s wiretap capital, using legally questionable wiretaps to make hundreds of arrests.

The Kentucky case is the first to challenge that surveillance in federal court, and could have implications for prosecutions across the United States in which police relied on Riverside County eavesdropping. The case may also force the Justice Department to take a position on whether the wiretaps were lawful, something it has not publicly done.

The new court filing challenges Riverside wiretaps on two fronts. First, it argues that Riverside prosecutors used wiretaps as an “initial step” in investigations, even though taps are supposed to be reserved as a tool of last resort. Second, the motion says that former District Attorney Paul Zellerbach, who led the Riverside DA’s office during an unprecedented rise in wiretaps, did not review each wiretap application personally, which was required by federal law.

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“In sum, Riverside County made a mockery of individual privacy rights, ignored federal requirements limiting the use of wiretaps and permitted law enforcement to intercept telephone calls at their whim and caprice,” defense lawyer Brian Butler wrote in the motion, filed last week in a federal court in Louisville.

More challenges could be coming soon.

Another attorney, Kevin McDermott, said he also plans to challenge Riverside’s wiretaps in the case of Ernesto Sanchez, who was arrested in a drug case after eavesdropping led the DEA to his house in Mira Loma, Calif. Police monitored the home and eventually seized 20 kg of cocaine and $15,000.

In Kentucky, Butler is defending Chris Mattingly, who is accused of trafficking marijuana from California. Mattingly was arrested last year after he was caught talking to suspected drug couriers on a Riverside County wiretap. Butler argues that the wiretap – and all the evidence that came from it – should be thrown out.

A similar argument has already been successful in a San Bernardino County, where a drug case fell apart after prosecutors decided a Riverside wire was illegal. The case never reached a point where a judge had to decide that question because prosecutors declined to defend the wiretap. Four drug suspects walked free.

And there are almost certainly more cases like these, Butler said.

“The legal issues in our case would very likely be the exact same legal issue in every case,” Butler said.

The U.S. Attorneys’ Office in Louisville has not yet responded to Butler’s filing, and a spokeswoman declined to comment. The DEA and Justice Department officials in Washington also declined to comment on the case.

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Wiretaps, which allow the police to secretly monitor phone calls and text messages, are among the most intrusive types of searches the police can conduct, so federal law imposes strict limits on when and how they can be used. The law requires that police use wiretaps only after they have run out of other tools – like informants and surveillance – and only with the permission of the district’s top prosecutor.

The Desert Sun/USA TODAY investigation, published in a series of stories late last year, revealed that Riversied County wiretaps had quadrupled in four years and that a single county judge, Helios Hernandez, had approved 624 wiretaps in 2014. Hernandez’s taps had allowed investigators, usually from the DEA, to intercept more than 2 million conversations involving 44,000 people.

However, federal prosecutors said they were unwilling to use the wiretaps in court because they did not think the surveillance would survive a legal challenge.

The investigation also uncovered a different, more systematic problem: Zellerbach admitted that he delegated approval of all wiretap applications to an assistant, despite federal law requiring he review the applications himself.

Congress added this requirement in the 1960s, after the FBI eavesdropped on civil rights leaders, to ensure that such wiretaps would not be abused.

“What they feared is what Paul Zellerbach created by his dereliction of duty,” Butler said in the court filing. “A rogue district attorney’s office that applied for 20% of the wiretaps in the United States with no oversight by an elected official and no concern for privacy rights.”

Police used apparently illegal wiretaps to make hundreds of arrests

According to a 2013 decision by the federal 9th Circuit Court of Appeals, the only exception to the requirement that a top prosecutor personally approve the wiretap is when that lawyer is “absent” and authorizes someone else to act in his place. In other words, the only way Riverside County wiretaps signed by someone other than the district attorney would be valid is if the DA was away from the office on the day they were approved.

In total, Butler hopes to suppress five Riverside wiretaps, all of which were approved by assistant district attorneys instead of the elected DA.

Four of those taps occurred under Zellerbach, who did not respond to requests for comment.

The fifth was approved on Feb. 19, 2015, after the current district attorney, Mike Hestrin, took office.

Hestrin has since amended the DA’s wiretap policy, requiring that every wiretap application have a “strong investigative nexus" to Riverside County. He also evaluates wiretap application personally, but conceded that some applications were signed by lower-level attorneys before his reforms were enacted.

“There was a period of about a month to six weeks when we were following the old protocol and my assistant was signing the wires,” Hestrin said. “But we changed that.”

In court, however, the DA’s Office has told a different story.

Deputy District Attorney Deena Bennett, who runs Riverside’s wiretap unit, filed a sworn declaration saying that Hestrin reformed wiretap policies “immediately” after he took office on Jan. 5. Bennett also said Hestrin delegated approval of the February wiretap because he was in a satellite office on the day it needed to be signed. On that day, Hestrin was working out of the DA’s Office in Indio instead of his normal office in Riverside.

Bennett, however, was unable to make the same defense for Zellerbach. The DA’s Office has no idea where he was on any given day, she said.

“Mr. Zellerbach did not keep records or a calendar that consistently, regularly or accurately reflected his day-to-day business,” Bennett said in the declaration.

Brad Heath reported from McLean, Va. Brett Kelman reports for The (Palm Springs, Calif.) Desert Sun.