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Bellingham Police lightly fined for sloppy surveillance
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Bellingham Police and drug agents kept inadequate records of their wires, but are not responsible for broader violations of civil rights laws, a Whatcom County judge finds.

Under Washington’s privacy laws, a law enforcement officer may wear a surveillance wire, allowing assisting officers to listen in when the safety of the officer may be at risk in a criminal investigation. But information gathered through safety surveillance may not be recorded or transmitted for use as evidence without a warrant detailing the cause for data collection. Violations of that second provision carry a considerable civil penalty.

Yet, without written records that distinguish the purpose of such wires, what assurance does the public have that civil rights are not being systematically violated by police; how can the courts know which civil penalties apply?, a Bellingham attorney questioned. The assurance, William Johnston argued, comes from the written record, the detailed reports of police investigations that distinguish the nature and purpose of a wire.

In an Aug. 9 hearing in Whatcom County Superior Court, Judge Deborra Garrett agreed aspects of Johnston’s arguments were compelling, even troubling, but the construction of the state’s privacy laws did not allow her to apply the sterner penalty without evidence the higher standard had been violated in a 2011 drug investigation conducted by Bellingham Police and the Northwest Regional Drug Task Force (NWRDTF). Officers in that investigation did not keep a written record of their surveillance, and certain evidence obtained in the investigation was excluded from a 2011 trial that ended in a plea agreement and sentence for Todd Newlun, a resident of Selma, Ore., on charges Newlun had attempted the sale of a controlled substance.

Without detailed records, “How do we know how many wires are out there?” Johnston argued. “We’ll never be sure. Without the transparency of the written record there will be no assurance to the public that their privacy guarantees are being enforced.”

Johnston asked for penalties of $25,000 from each agency involved in the more severe application of eavesdropping without a written authorization of cause and intent in the collection of that data. Garrett applied the lesser standard for the failure of police to maintain adequate records for an officer safety wire, which carries a penalty of $100 per day for each day of violation, not to exceed $1,000, and a reasonable attorney’s fee and other costs of litigation.

“I think Mr. Johnston points out very accurately the flaws in the statute,” Garrett noted. “Frankly, I am inclined to agree with many of his arguments and if I were in the state Legislature I would take this to heart. But I am constrained by the language of the statute, and the language is clear” that the higher standard can only apply if it can be determined the authorization for a police wire was made without probable cause or reasonable suspicion that the communication would involve unlawful acts. No evidence permitted that ruling.

“In some ways, it is even worse if the police do no application or no written authorization than if they process their applications in a flawed way,” Garrett admitted, “but—again—the court is constrained to follow the law.

“I just don’t see how you can get around that.”

In March of 2011, Newlun delivered more than three pounds of marijuana to Washington State Patrol Agent Brent Hanger, working undercover with NWRDTF. Hanger wore interception gear—a body transmission wire—for his safety in a transaction where a large sum of money and suspected firearms were involved. The wire was verbally authorized by his supervising officer, Bellingham Police Lt. Rick Succee, NWRDTF commander.

The transmission wire allowed other officers who were remotely positioned to hear the communication between Hanger and Newlun during the purchase of the drug, prosecutors noted in their brief.

“A transmitting wire was used for officer safety because the arranged location of the controlled substance did not allow for visual surveillance by other members of the NWRDTF and the circumstances presented numerous officer safety risks,” prosecutors explained. The transmission was not recorded; however, numerous officers were listening in to what was said during the drug deal, including Whatcom County Sheriff’s Deputy Richard Frakes and Bellingham Police Officer Craig Johnson.

Newlun was arrested in Sudden Valley at the conclusion of the sale. Agents recovered the money used to buy the drugs and found an additional $11,250, along with more marijuana, during their operation, according to Sheriff’s reports.

In pre-trial arguments in front of Whatcom County Superior Court Judge Charles Snyder in August, 2011, Newlun’s attorney argued that the failure to provide a written report required a “blanket suppression” of evidence obtained through the wire.

Under the laws of the United States, evidence that is obtained improperly or illegally is considered tainted and may be wholly suppressed, including information that arises from or is gained through that evidence. Such evidence is not generally admissible in court.

“It is uncontested that Deputy Frakes, Bellingham Police Officer Johnson, and Washington State Patrol Trooper Hanger were in favor of the activation of the transmission equipment and authorized the use of the equipment based only on verbal permission,” Johnston argued.

Snyder noted the safety of officers was reasonably in question during their investigation, necessitating the need for an officer safety wire, but agreed to suppress some evidence obtained in the arrest of Newlun, including the testimony of officers who were listening in as the drug sale unfolded.

“The ruling of Judge Snyder was to grant or deny a motion to suppress evidence acquired during the period of time when an undercover police officer was illegally intercepting Newlun’s conversation and transmitting it to others,” Johnston explained.

“When you have no written application and order” for a wire, Johnston maintained, “ there is nothing for the court to review” and hence no assurance the law was followed.

“The situation is the same, for example, as it would be in the case where the judge signs a search warrant with no testimony on the probable cause for such a warrant before the judge signs the warrant,” Johnston explained. “After the suspect’s residence is searched, the police do not get to present testimony after the fact to establish that probable cause existed to authorize the search. The same principle applies to the circumstance where the police intercept and did not complete a written authorization beforehand,” he said.

While Snyder considered the criminal case, Garrett was asked to consider the civil penalties that may arise as a consequence of that criminal proceeding. In effect, she was asked to consider the quality of the police investigation. She declined, noting such an investigation was beyond the narrow scope of the matter being heard in her court.

Johnston believes the failure of police to keep adequate records of their surveillance, their inability to provide transparency to their actions, extends beyond two cases admitted to by county prosecutors, and represents a larger pattern of the unaccountability of police investigations coordinated under the regional drug task force.

The Northwest Regional Drug Task Force is a joint consortium of law enforcement agencies from Whatcom County including the Whatcom County Prosecuting Attorney’s Office, the Whatcom County Sheriff’s Office, the Bellingham Police Department, the Washington State Patrol, and the United States Department of Homeland Security, including Border Patrol investigations. The role of the prosecutors office in helping to establish NWRDTF policy and procedures creates a potential conflict in the independent investigation by that office of faulty procedures by the consortium, Johnston alleged.

Prosecutors representing Whatcom County and the City of Bellingham, along with the state Attorney General’s Office, found fault with the characterization and denied wider violations of the state’s privacy laws. Prosecutors admitted to two failures by police to obtain written authorization. However, testimony provided to the court suggested that signed authorizations and written reports were not common, and most authorizations were issued verbally.

In depositions to the court, Bellingham Police Officer Johnson noted authorizations were “always” verbal when asked whether a body wire was used on an undercover detective making a drug buy. Johnson identified several instances where conversations were transmitted to listening police without preparation of written authorization.

“You don’t need paperwork for those,” Deputy Prosecutor Craig Chambers interjected in his response to the court.

But, in fact, you do.

“The prerequisites were not obtained as the statute requires,” Garrett noted in her ruling. “No conversation may be recorded unless an exception applies, and here an exception doesn’t apply. I don’t think anyone seriously disputes that fact.”

“It’s not a matter of agreement that a crime was committed,”  Assistant Attorney General Joshua Choate noted on behalf of the Washington State Patrol. “None of the officers have admitted that. Certainly there was a violation of one of the provisions of the statute,” Choate clarified.

“The timing of this case is particularly poignant,” Johnston commented. “Recent revelations have informed the American public that our federal government has been seizing private information of citizens secretly. The federal government refuses to disclose the criteria for examining this seized information.

“In Washington, our courts have frequently commented that Washington has one of the strictest privacy statutes in the country,” Johnston said. “It is the law in this state that no one can have his or her conversation intercepted unless a judge authorizes it. A police agency can only intercept, transmit or record a conversation if, before interception, a written authorization addressing the criteria has been completed and signed off on by a supervisory police officer above the rank of first line supervisor. That legal framework has broken down.”

For more than 100 years, state law has rigorously attempted to protect the constitutional rights of citizens to be secure in their papers and conversation. RCW 9.73, the Washington State Privacy Act, provides that it is unlawful for any private individual or governmental agency to intercept or record by any electronic device any private conversations, or any private communications, transmitted by telephone or radio, without first obtaining the consent of all participants in the communication.

In 1967, the legislature amended the act in order to keep pace with the changing nature of electronic communications and in recognition of the fact that there was no law that prevented eavesdropping. In doing so, Washington’s privacy statute became “one of the most restrictive in the nation,” according to the state Supreme Court, which reviewed the law.

The federal government and 49 states have enacted privacy or eavesdropping statutes. Washington, however, is among only 11 states that require that all parties to a private communication must consent to its disclosure. The so-called “all-party consent” rule adds an additional layer of protection to the private conversations of this state’s residents.

In balancing the legitimate needs of law enforcement to obtain information in criminal investigations against the privacy interests of individuals, the Washington statute, unlike similar statutes in 38 other states, tips the balance in favor of individual privacy at the expense of law enforcement’s ability to gather evidence without a warrant.

In 1989, the Legislature again amended the act, easing a requirement that a judge must issue the warrant, allowing supervisory police officers to authorize surveillance measures to protect the lives of officers the field. Covered under RCW 9.73.210, an officer safety wire may be issued under controlled circumstances, with the provision that the authorizing agency must destroy any written, transcribed, or recorded information obtained from an interception, transmission, or recording after the safety of the officer is assured.

“RCW 9.73.210, commonly known as ‘the officer safety wire,’ authorizes an intercept, transmission or recording when the police commander has reasonable suspicion that the safety of a consenting party is at risk and the device is for the sole purpose of protecting the safety of the consenting party,” prosecutors argued in defense of NWRDTF officers.

“By contrast, RCW 9.73.230 addresses a different type of intercept, transmission or recording, which is not utilized for safety, but instead to gather substantive evidence” in an investigation, they noted. “Both statutes require that, before a device can be used, a commanding officer must give authorization and prepare a written report.”

“The number one priority of the 1989 legislation was to allow the police, not judges, to decide who is to be recorded,” Johnston said, “but this is all predicated on transparency—a written report and reporting requirements to the Washington State Court administrator’s office.

“The elevation of criminal penalties to a felony for police violation of the statute was to ensure strict compliance” with the intent of the law and to limit police abuse of unlimited surveillance powers, he said.

“It is against the public interest not to thoroughly investigate the extent to which the police are illegally intercepting and transmitting conversations without written authorization to do so,” Johnston said. “The prosecutors and attorney general ought to be expanding the inquiry into this problem. Instead, they are urging the courts to enter judgement for $100.

“If a policeman intercepts a conversation without a warrant and transmits it to other police officers to listen in, this—the police argue—is a 210 wire and police are only liable for a slap on the wrist,” Johnston argued. “This turns the logic of the statue on its head. This convenient opt-out option fosters a police policy where officers may routinely wear a wire and transmit conversations to everyone the officer is in contact with and suffer only a slap on the wrist. The risk of sanction is virtually non-existent.”

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