In rapid response to a recent Georgia Supreme Court decision that suppressed wiretap evidence in three drug cases, the state House Judiciary Non-Civil Committee has approved a bill that would allow superior court judges to issue wiretap warrants that are applicable statewide, not just in the judges’ circuits.
Committee Chairman Rich Golick, R-Smyrna, who is also the bill’s sponsor, said he hopes to secure the governor’s signature on the bill within 30 days.
Golick is pushing for quick passage of House Bill 55, with backing from the District Attorneys’ Association of Georgia and no opposition from its counterpart group for criminal defense lawyers, because the high court decision will hamper pending drug investigations.
“The authority of a judge to issue a warrant for a wiretap must have statewide enforcement,” Golick said during the committee meeting Friday at the Capitol. Monitoring electronic communications between drug suppliers and dealers is essential to “combat the scourge,” he said.
The state Supreme Court decision at issue is its Jan. 7 ruling in three consolidated appellate cases (Luangkhot v. State, Phommachanh v. State, Saleumsky v. State) that wiretap orders must be issued by judges with jurisdiction over where listening posts are located. Indictments in those cases resulted from a multijurisdictional state and federal investigation in which Gwinnett County prosecutors obtained warrants from a Gwinnett County Superior Court judge to intercept conversations from 18 telephone lines. Although Gwinnett County has a local wiretap room, the listening post in these cases was the High Intensity Drug Trafficking Area task force’s room in Fulton County.
In declaring that judges could issue wiretap warrants only if the listening posts were in their circuits, the justices unanimously overturned the state Court of Appeals and the trial court judge. Chief Justice Carol Hunstein wrote for the court that federal law says a wiretap may be authorized within the territorial jurisdiction of a judge and that Georgia law defined territorial jurisdiction as the judge’s judicial circuit. She added that the state Legislature can create exceptions to that rules, but it must do so explicitly.
House Bill 55 would change the law to say “Upon written application … made before a judge of superior court having jurisdiction over the crime under investigation, such court may issue an investigation warrant permitting the use of a device for the surveillance of a person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by 18 U.S.C. Chapter 119. Such warrant shall have statewide application and interception of communications shall be permitted in any location in this state.”
The bill also would allow judges to authorize the use of a pen register or trap-and-trace device statewide. These devices are used to track the pattern, though not the substance, of calls in real time. Often law enforcement use them to trace calling patterns in order to establish the need for a wiretap.
Douglas County District Attorney David McDade, who is head of the DAs’ association, said prosecutors can’t argue with the state Supreme Court’s decision because it was based on statutory construction. But prosecutors strongly back a legislative fix so that cases, such as those against Mexican cartels and other drug syndicates, can move forward.
“We need to have this [wiretap] tool available to fight crime,” he said. “This bill would allow us to continue doing what we’re doing.”
Most district attorney’s offices don’t have the money, equipment and staff to set up listening posts and thus rely on wiretap rooms like the one in Fulton County, he added.
Dan Mayfield, chief assistant district attorney in Gwinnett, told the judiciary panel that establishing a wiretap room would cost $16,000 to $20,000 a month, not including interpreters.
“You don’t have a county in the state that can afford that,” he said.
Georgia Bureau of Investigation spokesman John Bankhead said his agency also supports the bill, though he did not address the committee.
The bill passed the House Judiciary Non-Civil Committee on Friday via unanimous vote and will head to the House Rules Committee, which will decide when the bill comes before the full chamber for a vote. If the bill does garner approval from both chambers and is signed into law by the governor, it would not apply retroactively.
“We will have to look at each case that was pending at the time of the Supreme Court decision and determine whether there is sufficient evidence beyond what we derived from wiretaps to see if it is possible to continue with the prosecution of those cases,” McDade said after the committee hearing. “It is highly likely that many of them will not be prosecutable.”
No one spoke in opposition to the bill during the committee meeting. The Georgia Association of Criminal Defense Lawyers does not oppose the bill, its lobbyist and lawyer Sandra Michaels later told the Daily Report.