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News

Panopticon II

City attempts to settle wire complaint

Wednesday, August 20, 2014

Police broke the law. It may take a jury to determine how badly police broke it.

Prosecutors and drug task force officers readily admit inadequate records were maintained for an electronic surveillance that was part of a 2011 drug arrest. In March of that year, Bellingham resident Todd Newlun delivered more than three pounds of marijuana to Washington State Patrol Agent Brent Hanger, working undercover with Northwest Regional Drug Task Force (NWRDTF). 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.
While working undercover, 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 the supervising officer, Bellingham Police Lt. Rick Succee, NWRDTF commander; however, written authorization for the wire was not maintained.
Newlun was convicted of the crime, but his defense attorneys maintain his rights may have been violated.

Under Washington 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.

In Aug. 2013, Whatcom County Superior Court Judge Debra Garrett agreed police had kept inadequate written records for the operation but could not agree police were responsible for broader violations of civil rights laws.

Officers deposed for Newlun’s trial indicated that such verbal authorization for surveillance wires were routine in NWRDTF, suggesting similar violations were widespread in their operations, alleges William Johnston, an attorney for Newlun. The assurance that wires are not being misused by police arrives from the written record of how and why such wires are applied, he said.

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.”

The absence of paperwork describing the intent of the wire was troubling, Garrett agreed in her decision, but noted 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. Without the paperwork, no evidence permitted that ruling, she said.

Police and prosecutors deny broader abuse. Representing the multi-jurisdictional NWRDTF, city and county prosecutors—along with the state Attorney General’s Office—offered to settle the matter with Newlun. Bellingham City Council were apprised of the settlement offer during an executive session of their July 27 council session.

“We are willing to offer Mr. Newlun $30,000 total damages, inclusive of reasonable attorneys’ fees and costs, to resolve this matter,” prosecutors noted in a July 30 settlement offer to Newlun’s attorneys. “This figure is significantly more than he could win at trial” and would resolve all issues and end litigation of the case, including appeals, they said.

The offer was rejected by Newlun’s attorneys, perhaps triggering a jury trial as early as this fall.

“The reality is that where the police get caught wiring someone without any paperwork, then the police agency pays $25,000 if the supervisors are on board, as they were in this case” Johnston noted in his reply to the offer. The penalty is applied to each agency supervising and operating through the multi-jurisdictional NWRDTF, “a $75,000 mistake,” Johnston claimed.

“There is obviously a public interest in the control of wires,” Johnston noted, “particularly when the statute gives the police internal control and responsibility for the decision to intercept a citizen’s speech,” Johnston noted. There should be proper concern for prosecutors who “have a duty under RCW 9.73.240 to investigate and vindicate proper objections made to parties whose rights under the Washington Privacy Act have been violated.”

“The officers made a genuine mistake regarding the need for paperwork in this rare circumstance of officer safety,” prosecutors maintained in their offer. “The officers never intended to intercept or transmit Newlun.

“If the jury agrees with our position that expecting privacy during a drug sale was unreasonable, the case is dismissed without damages, fees or costs,” they noted.

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.

SVCR Don McLean
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