Was Wiretapping Used in “Operation Dead End”?

by | Feb 14, 2014 | Blog, Criminal Law, Legal Procedures, Warrants

Phone receiverThe recent articles regarding the arrest of 31 individuals in the culmination of “Operation Dead End” in Monmouth County highlights the importance of choosing an attorney with experience in successfully  handling wiretap cases.

This statement may be puzzling given that nowhere in the article or the forty minute press conference does anyone mention wiretapping. However, an attorney with significant wiretap experience can recognize the telltale signs. More importantly, an attorney with significant wiretap experience can get a head start on preparing a defense before the prosecution discloses that an arrest is based on evidence gathered through wiretaps.

Note that the existence of wiretaps is typically  not disclosed until three months or more after arrest.  Such is the case with the press conference and Monmouth County Prosecutor Christopher Gramiccioni repeatedly telling reporters who want details about the investigation, that the details will be revealed in time.

Notwithstanding the refusal to confirm the investigative methods that were used in the 31 arrests allegedly related to drug dealing and shoplifting, the trained eye can see the telltale signs of wiretaps.  First and foremost is the sheer number of co-defendants, 31, and the fact that they are charged in an overarching vast conspiracy. A conspiracy, and usually a broad one, is part and parcel to every wiretap. That is to say that the goal of a wiretap is to intercept calls and text messages between two parties discussing a criminal objective, i.e. a conspiracy.

Did Investigators Resort to Wiretapping?

Next are the statements from Prosecutor Gramaccioni and Chief Investigator Pasterchick indicating that the investigation began last summer, but “innovative investigative techniques” have been used during the past two and one half months. This is an enormous red flag for anyone with significant wiretap experience. By law, police are required to attempt traditional investigative techniques against their targets before resorting to wiretapping. The principal reason for this is that wiretapping will inevitably invade the privacy of innocent callers, as well as those discussing criminal activities. Therefore, police are only supposed to resort to wiretapping when their targets make it necessary to do so.

Thus, with “Operation Dead End”, before a specially-designated wiretap judge gives law enforcement a wiretap warrant, a lead detective is required to provide the judge with a sworn statement. This statement must indicate, among many other things, that traditional investigative techniques such as physical surveillance or stake-outs were either attempted without success, or were determined to be too dangerous or futile to attempt.

Hence, the written applications for the wiretaps presumably used in “Operation Dead End” would detail the traditional investigative techniques that were attempted, or at least considered, dating back to last summer. The application, provided in the form of a written sworn statement or affidavit, can reach lengths of over 100 single-spaced pages. The affidavit will go on to describe the traditional investigative techniques that were attempted and/or considered from last summer until the date that the request to use wiretaps is made. Here, it is a safe bet that the wiretapping occurred during the last two and one half months, wherein the prosecutor cryptically alluded to using “innovative investigative techniques.”

Automobile Seizures Offset the Expense of Wiretapping

Automobile seizures are another hallmark of wiretap investigations. Typically, the prosecution will attempt to demonstrate that a given automobile was used in furtherance of illegal activities. A common example is a car used to deliver drugs. It is usually a combination of wiretap and traditional surveillance that provides the necessary evidence to seize and forfeit a car. A common scenario being that a police officer assigned to the wire room where wiretap calls are monitored in real time, will hear a conversation discussing the imminent delivery of drugs. If the identity and whereabouts of the party delivering the drugs is known to law enforcement, then the deliverer will be followed by the police to the buyer’s locations.

The recorded conversations and report of the officer conducting physical surveillance typically provides strong circumstantial evidence that the car was used to deliver drugs and thus is subject to forfeiture. Note that a criminal enterprise with any sophistication would be using rental cars to make these deliveries since those cars are not subject to seizure. This is because the owner, Hertz for example, is not the one responsible for the illegal activity. Note further that aside from the cost of the necessary technology, the cost in manpower in conducting these investigations is significant. Imagine the overtime alone that is involved in staffing the wire room and conducting the related surveillance on the streets for 2 1/2 months, typically 18 to 24 hours a day. The seizure of cars and other property helps to offset these costs.

Multiple Police Forces Involved Split Forfeited Property

The next giveaway that this is a wire case comes from the fact that so many different police forces were involved. As noted, it takes a lot of manpower to conduct around-the-clock surveillance of multiple targets who are often using multiple phones. Moreover, because the proceeds of forfeited property are split amongst all participating agencies, it is every bit as desirable for local departments to staff these investigations, as it is necessary for the county prosecutor’s office to find the manpower.

Wiretapping Technical Jargon Repeatedly Used

Additional clues were revealed by the technical jargon that was used by the Prosecutor. One phrase, “criminal enterprise”, was repeatedly used. This same phrase shows up in most every wiretap affidavit in Monmouth County. It is a phrase used to describe allegations of racketeering. Racketeering is one of three offenses that can be a basis to extend the length of a wiretap for up to six months. Without probable cause to suspect racketeering, a wiretap may not exceed 40 days (20 days with up to two 10 day extensions). The longer the wiretap continues, the more evidence will be gathered. Here, we can presume that it lasted approximately two and one half months or 70 days.

More telltale jargon came in the form of the term “counter surveillance.” This is another phrase that’s commonly included in wiretap affidavits. The reason for its inclusion relates back to the earlier point about police being required to demonstrate that traditional investigative techniques have been exhausted before they can resort to wiretapping. A common claim is that physical surveillance or stakeouts are not effective against the wiretap targets because the targets are conducting counter surveillance “to thwart law enforcement efforts”, another wiretap catch phrase that was used at the press conference.

All 31 of the “Operation Dead End” Defendants Need an Attorney with Real Experience in Wiretap Cases

Note that there are very few attorneys, both criminal defense or prosecutor, that are familiar with all the ins and outs of defending and prosecuting wiretap cases.

Defending these cases successfully takes a great deal of time, patience, and above all imagination. Imagination is key because wiretapping is an area of the law where the New Jersey Courts have not provided much guidance as far as what the police can and cannot do.

Because the wiretap statute is so voluminous and technical, very few criminal defense attorneys and prosecutors are even aware of the “inventory” issue, let alone the scores of other issues that are ripe for litigation. Anyone of these issues could be the difference between someone serving a life sentence and having their case thrown out of court. Thus, anyone charged with co-defendants in a conspiracy case would be wise to immediately seek the assistance of one of the very few New Jersey criminal defense attorneys who has real experience in defending wiretap cases.

I say “real experience” because while all 31 of these “Operation Dead End” defendants will ultimately end up with an attorney, it is typically one or two attorneys who will take the lead in meaningfully challenging the State’s investigation. The vast majority of the other attorneys simply go along for the ride, without even attempting to tailor any legal arguments to their clients’ specific circumstances.

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