A year of infiltration by a Drug Enforcement Administration undercover agent and a month of wiretapping were enough to unravel a nine-person organization attempting to traffic marijuana into Oklahoma from Colorado, court records show.
A wiretap, which requires a specialized form of search warrant, allows for the recording of a conversation without any of the parties’ consent at the same time it is occurring.
Terry Hardin Wilkerson, 71, William Jesse Hoge, 53, and Crystal Adams, 45, all of Oklahoma City, were charged in April with conspiring to possess with intent to distribute 100 or more kilograms of pot.
Also charged in the two federal complaints were Curtis Frank Wagner, 49, David Geubelle, 45, Marty Shellabarger, 67, Skylar J. Freeman, 25, Shawn N. Maminakis, 34, and David Lincoln Steele, 48.
Wilkerson endeavored to bring the marijuana into the state through Hoge, who was going to join an American Indian tribe and church in Colorado that was growing the marijuana, according to the complaint.
The undercover agent, who is not identified in the complaint, met Wilkerson through a confidential informant in April 2013. Over the course of a year, the agent witnessed a number of criminal dealings involving marijuana, cocaine, methamphetamine, prescription drugs and firearms, the complaint states.
Because the interactions with Wilkerson, the confidential source and the agent often occurred via cellphone, U.S. District Judge Robin J. Cauthron authorized the order for Interception of Wire Communication for both of Wilkerson’s cellphones beginning March 6.
The plans to purchase and transport the cultivated marijuana were recorded in these intercepted communications, the complaint shows.
“The bad guys still communicate. It’s still necessary, if we’re going to protect the American people, that we be able to intercept those communications lawfully,” FBI Director James Comey said during a February visit to Oklahoma City.
“We go to a court and make a showing that there’s probable cause to believe that the bad guys are using this device and be able to collect that information. We’ve got to be able to do that,” Comey said.
One party’s consent
In Oklahoma, and the majority of other states, only one party to the conversation need consent to it being recorded for that recording to be lawful.
Undercover police officers and confidential informants are used for surveillance and gathering evidence in the majority of criminal investigations, but a wiretap may be authorized when other means are exhausted or impossible, Oklahoma County First Assistant District Attorney Scott Rowland said.
Rowland spent 10 years in a wiretap unit with the Oklahoma Bureau of Narcotics. From 1996 to 2006, he participated in investigations that used more than 100 wiretap orders to bring down Mexican cartel-associated drug trafficking groups.
“Sometimes you have cultural insulation, particularly Mexican drug organizations. It’s difficult to infiltrate them. They know each other,” Rowland said.
“A lot of time they're family relationships, and if you’re not in that familial relationship, you’re not going to be able to crack that organization.”
“Here’s the bottom line: to conduct a criminal organization, the conspirators have to communicate. Period,” Rowland said.
In order to get a wiretap order, a district attorney has to request that the state attorney general ask the presiding judge of the court of criminal appeals for one.
Only a handful of wiretap orders are issued a year in Oklahoma. In 2013, 10 wiretap issues were ordered. So far this year, only one has been issued, according to Oklahoma Supreme Court Clerk Michael Richie.
In comparison, 1,236 search warrants were filed in Oklahoma County alone last year.
“Whereas a search warrant affidavit is typically two or three pages long, a wiretap affidavit is very often 50 pages long and I’ve seen them 130 pages long before,” Rowland said.
“There is this kind of myth out there that peoples’ privacy isn't guarded at all anymore by the laws, and that’s just not the case in Oklahoma,” he said.
Getting a wiretapping order is just the first stage of the process.
“These are very complicated cases to do. It takes a minimum of 20 people to do one of these investigations. You have got a mammoth investigation on your hands to manage,” Rowland said.
“You have to have people to monitor that wiretap room 24-7. You can’t just leave the equipment on and come back later and listen to them,” he said.
“You also have to have people out in the field to do surveillance because whenever you intercept evidence of crimes in progress, you’re going to want people in the field to watch the movements of these people and videotape it, photograph it, document it,” Rowland said.
Use in 3 crime types
By state statute, wiretapping can only be used to investigate three types of crimes, or the conspiracy to commit them. Those crimes are drug trafficking, murder and acts of terrorism.
“Kidnapping? Nope. Human trafficking? Nope. Any of those other very serious crimes, you cannot use wiretapping to investigate those,” Rowland said.
“We put an exception in the law a few years ago. Under emergency circumstances where lives are at danger, a district judge can do it for a short temporary time,” Rowland said.
An example of such an emergency would be tapping a phone in a house where there are hostages, he said. Until just after the turn of the century, evidence of crimes outside of the investigation’s scope could not be disclosed to law enforcement.
“In the late 1990s, I was involved in a big drug investigation. We intercepted evidence of what appeared to be child sexual abuse by one of the conspirators. The law at the time forbade us from calling DHS or calling the Oklahoma City Police Department and reporting it. At the same time, the law made it a misdemeanor not to report suspected child abuse,” Rowland said.
“We decided to monitor it, listen closely and we had already determined that if it turned out that this little girl was being abused, they’d just have to prosecute us.”
“We were going to call the police, and we were going to protect her. And if somebody saw fit to put us in jail for violating the wiretap statute, they’d just have to do that,” he said.
Rowland said that he and the director of the Oklahoma Bureau of Narcotics at that time worked to change that law. Now, evidence of violent crimes intercepted during wiretap investigations can be reported to police.
But using embarrassing information, including that of adultery or other sexual behavior, is off limits.
“If you simply intercept embarrassing evidence about someone that doesn’t have to do with a criminal activity ... it's against the law for officers to disclose that to anybody,” Rowland said.
Wiretapping can be conducted on land lines, cordless and cellular phones. The law does not distinguish between types of phones, Rowland said, but temporary phones can often provide another hurdle for law enforcement attempting to intercept crime-related communications.
“If you are developing probable cause to tap a certain phone and the criminals change that phone either before you actually get monitoring commenced on it or in the middle of the wiretap, that’s a wrench in the works and you have to go back and ascertain what phone they are using now,” Rowland said.
Once the phone number is targeted and the wiretap order issued, the law is very specific about what types of phone calls can be monitored for prosecution.
“While you’re monitoring the calls, somebody has to be on the switch and determine whether or not this is a crime-related call or not. If it’s not, they have to turn it off,” Rowland said.
If they continue to listen too many times when it’s a noncrime-related call, you risk getting the evidence suppressed later,” he said.
Though wiretapping is used more frequently than when the statute was instituted in the 1980s, the age of the cellphone has made gathering evidence easier.
“Ten or 15 years ago, there was certain evidence that you could only get through some sophisticated technique like wiretapping. Nowadays, a lot of good evidence comes off the cellphone itself,” Rowland said.
“Regardless of how sophisticated they are, regardless of how widespread they are, criminal organizations have to communicate to carry out their crimes. That’s where they’re vulnerable,” Rowland said.
All nine people involved in the marijuana operation have been arrested and made their initial appearance in federal court. If convicted, they each face between five and 40 years in federal prison and a $5 million fine.