Court Ruling Creates New Hurdle for Undercover Officers

By Dan Testa, 9-24-08

	Caption: Seized money and 4.5 pounds of cocaine from 2006. - Photo courtesy of Northwest Drug Task Force

It’s been a typically busy year for the Northwest Montana Drug Task Force, which, in September, busted marijuana growing operations in Lake, Lincoln and Flathead counties with an estimated worth of $84,000. So far this year, the task force reports it has made 166 arrests, 144 searches, seized two meth labs, located seven marijuana grow operations and taken a half-million dollars in drugs off the streets.

But those accomplishments come at a time when Montana’s seven drug task forces face significant setbacks. Earlier this year, the Bush Administration slashed funding to the main federal grant that pays for drug enforcement in nearly every state in the country. The result has been a shrinking of the Northwest Task Force, with officers from some jurisdictions having to temporarily back out of the force until – and if – a new Congress and president restore funding.

On top of the funding cuts, last month the state Supreme Court issued a ruling that has drastically increased the frequency with which law enforcement must obtain a warrant in order to use one of their key investigative tools: the wire. The court’s August ruling said that wiring informants and recording suspects’ conversations without a warrant violated the privacy rights of those suspects, as guaranteed by the Montana Constitution.

“What we’re having to do here is get a lot more search warrants to do drug buys,” said Russ Papke, the commander of the Northwest Drug Task Force who took over in August. “That’s been one of my bigger challenges.”

And the change in procedure is not just limited to law-enforcement officers, but also to the county attorneys and judges who must draw up and sign off on the newly increased number of warrants.

“It’s just an additional step that is going to eat up a lot of man hours,” said Flathead County Attorney Ed Corrigan. “We’ll grit our teeth and abide by them.”

The main difficulty the change presents for prosecutors, according to Corrigan, is the uncertainty over drug cases investigated with wires prior to the state Supreme Court decision, which may now rely on recorded conversations that no longer hold up in court. Law enforcement was following the rules at the time, but now, he estimates about a 100 cases may be in that situation in the Flathead, and hundreds of drug cases across the state exist where recorded evidence is no longer valid.

“Now we’ve got issues as to whether evidence can be admissible at trial,” Corrigan said. “When the recording is no longer admissible, the first thing a defendant is going to say is ‘I never said that.’”

“It’s license for drug dealers to come into court and call police liars,” he added.

Leo Gallagher, Lewis and Clark County attorney, estimates his department helps Missouri River Drug Task Force officers draw up a warrant every day. The result is that many drug enforcement officers spend greater amounts of time “just standing around in the courtroom a lot more and getting their warrants,” Gallagher said.

Many counties are using, or plan to draw up, a template for the warrants, which expedites the bureaucratic process, but does not allow county attorneys to spend as much time on each individual search warrant application, because there are so many.

“In the past we’ve been much more hands on in terms of doing our search warrant applications,” Gallagher said. “We don’t have time to do that as we used to do, because it’s just so frequent.”

The court ruling that set these changes in motion is known as the “Goetz/Hamper Decision,” and was handed down in late August. The court ruled on two separate cases as one because both dealt with the same issue: a man pleaded guilty to dealing relatively small amounts of drugs, (meth in one case, marijuana in the other), to an informant wearing a wire.

“The electronic monitoring and recording of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the Defendants’ rights under” the state Constitution, Chief Justice Karla Gray wrote in the Aug. 20 majority decision. Two justices dissented.

The attorneys for the defendants hailed the ruling as a victory that reinforced the strength of Montanans’ right to privacy, while the prosecutors acknowledged that by requiring a warrant for electronic monitoring and recording of suspects’ conversations, the court’s decision overturned what had been a standard practice of law enforcement for decades.

“This is a shift in the law,” Gallagher said. “An agent who goes out and decides he’s not going to comply with the state Constitution clearly proceeds at his peril.”

Marty Lambert, Gallatin County attorney, explained that drug deals don’t occur on a fixed schedule. Working on a drug task force involves long hours of surveillance in order to break up, not small-time transactions, but the larger drug distribution networks. When an informant notifies a drug enforcement officer of a narcotics shipment, it’s often on very short notice, and investigation delays allow time for the larger shipment to be divvied up and distributed. Monitoring small exchanges of money for drugs, what officers call “hand-to-hand” often serve as stepping-stones to bigger drug operations.

“That basic face-to-face encounter is critical to the investigation of the distribution of dangerous drugs,” Lambert said.

Corrigan is also concerned that should an undercover officer or informant end up in a dangerous situation, without a wire they may not be able to call for help.

“A body wire is critical to maintain the safety of the informant or officer who is making the buy,” Corrigan said. “You don’t want to send anybody into that sort of situation where you don’t know what you’re dealing with – you’ve always got to have a method by which the informant or officer has a way to summon for help.”

In all of these situations, law enforcement and county prosecutors must now adapt by issuing warrants quickly, so as not to miss valuable information that could lead to an arrest.

“Now you’ve got the added situation of making certain that you can establish probable cause with regard to your witness,” Lambert said. “We have a whole different level at which you have to look at making sure the seizure of the evidence is lawful.”

“From a practical standpoint, that’s going to create issues,” he added. “We’re just beginning to work through these issues.”

With the court decision in place for only a month, drug enforcement officers and prosecutors around the state are all adapting in different ways to the procedural change and doing their best to insure they investigate in accordance with state law. Corrigan said the U.S. Attorney’s office has indicated it would take on the prosecution of significant drug cases, since body wires are still admissible under federal law. So far, there have been few problems. But until one of these warrants is challenged in court, it remains to be seen whether they will hold up. [End of article]