By Mike
McPhee
Denver Post Staff Writer
Nov. 24 - A federal judge on Monday dealt a severe blow to a two-year FBI drug investigation, ruling that evidence the agency gathered by wiretap can't be used in court.
U.S. District Judge Walker Miller ruled that the FBI had not shown the legal "necessity'' of the wiretaps and ruled the evidence gathered by the wiretaps was inadmissible. Attorneys representing the eight defendants, all of whom are from Denver except one resident of Mississippi, expect the ruling to be appealed by the U.S. Attorney's office.
"What I heard the judge to say is that citizens shouldn't be treated this way,'' said attorney David Japha, who represents a defendant in the case. "The FBI had an agenda in this case. They figured they would get a tap up and running right away. But the judge said they jumped too soon.''The FBI has been conducting the investigation since January 1998. It focuses on an alleged ring of cocaine dealers operating out of northeast Denver.
If Miller's ruling stands, the evidence obtained by the wiretaps will not be allowed in court.
"The case against these people effectively was gutted,'' said defense attorney Stan Marks. "All the evidence, at least against my client, was obtained by the wiretap or after the wiretap.
Calls to the U.S. Attorney's office, which has been prosecuting the case, were not returned.
A wiretap is considered the most intrusive of all investigative tools and is granted only after all other routine or normal investigative techniques have been exhausted.
To obtain a wiretap, the investigative agency must prove to a judge that it has exhausted all normal investigative techniques, such as surveillance, using informants and undercover agents, making controlled buys of drugs, tailing suspects and even going through someone's trash. If those techniques yield nothing, or very little, then law enforcement may ask for permission to listening in on someone's telephone conversations.
"The FBI just decided that these were bad guys and said, "Let's go tap their phones,'- '' said defense attorney Jeffrey Pagliuca. "Wiretaps are extraordinarily intrusive and are meant to be only a last resort. The judges said it was too soon.''
Attorney Gary Lozow added that wiretaps are not granted very often and that it is exceedingly rare when one is thrown out of court.
Japha said the ruling has ramifications for the public.
"I think it's the right decision. When it comes to the war on drugs, citizens need to know if the government is cutting corners to catch the bad guys,'' he said. "No one, especially lawyers, think the bad guys should go unpunished. But there is a process that must be done right and you can't start every case thinking you can run a wiretap.''
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