Attorney warns of wiretap abuses

Tuesday, April 3, 2001 | 11:05 a.m.

Nevada must do a better job informing the public about wiretaps performed by state and local law enforcement agencies to guard against potential abuses, a Las Vegas attorney says.

A 1973 state law requires prosecutors and judges to file wiretap reports that are compiled annually by the Nevada Division of Investigations. But attorney Dominic Gentile said the state summaries, which are made available to the public by April for the prior calendar year, are vague and exclude pertinent information such as convictions that resulted from the wiretaps.

"The public needs to be made aware of whether these wiretaps are being used to gather information that leads to prosecution or whether they are just being used to gather intelligence," said Gentile, who represents the Sun on matters concerning First Amendment issues.

"If the cases do not result in prosecution, the identities of the persons who were wiretapped don't come to light. This allows the law enforcement agencies that use wiretaps to gather information for intelligence purposes."

Gentile said that if wiretaps are executed for intelligence gathering rather than for prosecution, individuals could be used as informants without their knowledge.

David Hosmer, acting chief of the state investigations division, said he agreed that the statute is vague and would take the matter up with the Nevada Attorney General's office to determine whether the reports ought to be clarified.

"The way the Nevada Revised Statute is written I don't even know that there is a requirement for that much detail," Hosmer said. "The statute says we're to prepare a report, but it doesn't say what is supposed to be in the report."

But Clark County Assistant District Attorney J. Charles Thompson, who reviews local wiretap requests, said he did not necessarily believe more information needed to be reported.

"If the Legislature wants to change the law, we will do the best to comply with it," Thompson said. "But will they give us the manpower to trace all of these cases, assuming we can trace them?"

An examination of the annual summaries filed from 1990 through last year shows that there were 102 applications for state or local wiretaps, including 80 from the Clark County District Attorney's office. Wiretaps are usually approved by judges only when all other means of investigation have been exhausted.

The alleged offenses were murder (45 applications), drug-related (33), kidnapping and bribery (five each), robbery (four), child abuse and extortion (two each), and unlawful use of computer and resisting officer with deadly force (one each). Only one application was denied and in eight cases the alleged crime was not reported. Six applications contained multiple alleged offenses.

But the reports are spotty in other categories, such as cost to taxpayers and arrests.

"Other than basic information they don't serve a lot of purpose," Hosmer said of the reports. "The way the Nevada Revised Statute is written it doesn't mandate in the law exactly what they have to report. The report tells you the duration of the (wiretap) intercept, how long it was supposed to be. But under the category 'termination date of intercept,' that is not reported to us every time."

In roughly one-fourth of all wiretaps approved for state and local law enforcement agencies since 1990, there was no indication in the state summaries that the interception was ever terminated. State law requires people whose conversations have been intercepted to be notified within 90 days following termination of the wiretap.

"You will find there are many people who have never been notified," Gentile said.

Similarly, one quarter of the wiretap requests made since 1990 failed to include the cost. Where that information was provided the total taxpayer bill was $1.64 million.

Of the 102 applications, arrests were reported in only 17 of those cases. There were 59 to 60 total arrests (one wiretap was reported netting 17-18 arrests).

There were no arrests in 29 wiretap cases. But in 53 other cases, arrest information was not reported to the state. In 23 of those cases arrest information was not provided because the case was listed as "pending."

One issue that troubles Gentile is that wiretap applicants are not required to file supplemental reports with the state to update cases previously listed as pending. All but one of the nine wiretap applications included in the 1999 summary, for instance, were listed as pending in terms of arrests. None of those cases were ever updated in last year's summary, so the outcomes remain unknown to the public.

"If it takes three to four years to bring a case in which there was a wiretap, there was never a case to begin with," Gentile said. "The law enforcement agencies may never have intended the wiretap to be used in a prosecution. But a wiretap should only be used as a last resort. It should either cause a prosecution to take place or law enforcement should come to grips that they're going after the wrong guys."

The state reports also fail to indicate whether any of the arrested individuals were ever convicted. There is also no way to trace wirertaps to specific court cases because that information also is not reported.

But Thompson said there are legitimate explanations for some of the shortcomings in the state reports. He said some pending cases involve murder investigations that drag on for years without arrests, making supplemental reports in those instances virtually meaningless.

He also said a high percentage of wiretaps performed by local law enforcement agencies end up being used in cases prosecuted at the federal level. In many instances, offices such as the district attorney are not even informed of the federal case numbers that involve the local wiretaps, Thompson said. That is one reason why he said it would be time-consuming for his office to trace all local wiretaps to specific court cases to be included in the state report.