Cocaine/ticklethewire.com file photo

Webster Bivens may have been a drug dealer, but his place in law enforcement history is not proportional to his status as an alleged dealer.

In the fall of 1965, Federal Bureau of Narcotics agents raided Bivens’ Brooklyn apartment. The FBN agents had neither an arrest warrant nor a search warrant. The agents arrested Bivens and handcuffed him in front of his family. They also allegedly threatened his family and in the terminology of Bivens’ later law suit searched his apartment from “stem to stern.” No drugs were found, and the charges filed after Bivens’ arrest were dismissed.

Bivens apparently had a litigious streak and brought a civil action against the “six unknown agents” of the FBN based on the violation of his rights under the 4th Amendment: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Up until that time, a cause of action could not be brought against the US or its agents except as specifically authorized under certain statutes, and that was the ruling of the lower courts in Bivens’ action. But the Bivens case made it to the US Supreme Court, and in 1971, the Court decided that the US could be sued if the acts of its agents violated the Constitutional rights of a person. This not only created a cause of action, it fostered a perception that federal drug agents were running amok and were incapable of doing more than simple “buy-bust” investigations.

As the Bivens case worked its way through the courts, the whole approach to the federal war on drugs was being evaluated. The FBN agents who arrested Bivens were part of the Department of the Treasury. Presumably because drugs like alcohol were viewed as taxable commodities even though the principal drugs being targeted at that time were heroin, cocaine and marijuana, and were illegal per se.

Bureau of Narcotics and Dangerous Drugs Was Created

In order to unify the federal effort against illegal drugs, one agency was created in 1968, the Bureau of Narcotics and Dangerous Drugs (BNDD), and it would now be an investigative agency in the Department of Justice. Then in 1973 the BNDD was renamed the Drug Enforcement Administration, and it remained in the DOJ. Although the perception of drug agents out of control was mostly inaccurate, DEA did have limited resources and was under pressure to produce results in terms of arrests and drug seizures. This made it difficult to dedicate their limited resources to long-term investigations targeting the upper echelons of drug trafficking organizations.

In the meantime the FBI was learning to utilize tools provided by the Omnibus Crime Act of 1968. This lengthy act was intended to provide means for federal law enforcement to investigate organized crime. For the FBI that meant La Costa Nostra, the Mafia. One particular part of the act (Title III) prescribed the process to legally intercept wire, oral or electronic communications – electronic surveillance or elsur for short. It included telephone wiretaps and surreptitiously placed microphones or bugs – generally referred to as a “wire.”

The probable cause required to get judicial approval for elsur was by design a difficult standard to meet. The affidavit documenting this “special “ probable cause often ran well in excess of 100 pages. Among other things, there had to be a showing that other investigative techniques wouldn’t work. For example if a drug dealer would only deal with someone he has known for years, it would be very difficult to get him to deal with an undercover agent.

Once the affidavit & accompanying order are written, they have to be submitted to the Attorney General of the US or a specifically designated Assistant AG for approval. If they are approved, they then have to be authorized by a US District Court Judge in the district where the elsur is to be conducted. The elsurs are limited to 30 days, but can be renewed based on an updated affidavit.

Greg Stejskal

Webster Bivens may have been a drug dealer, but his place in law enforcement history is not proportional to his status as an alleged dealer.

In the fall of 1965, Federal Bureau of Narcotics agents raided Bivens’ Brooklyn apartment. The FBN agents had neither an arrest warrant nor a search warrant. The agents arrested Bivens and handcuffed him in front of his family. They also allegedly threatened his family and in the terminology of Bivens’ later law suit searched his apartment from “stem to stern.” No drugs were found, and the charges filed after Bivens’ arrest were dismissed.

Bivens apparently had a litigious streak and brought a civil action against the “six unknown agents” of the FBN based on the violation of his rights under the 4th Amendment: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Up until that time, a cause of action could not be brought against the US or its agents except as specifically authorized under certain statutes, and that was the ruling of the lower courts in Bivens’ action. But the Bivens case made it to the US Supreme Court, and in 1971, the Court decided that the US could be sued if the acts of its agents violated the Constitutional rights of a person. This not only created a cause of action, it fostered a perception that federal drug agents were running amok and were incapable of doing more than simple “buy-bust” investigations.

As the Bivens case worked its way through the courts, the whole approach to the federal war on drugs was being evaluated. The FBN agents who arrested Bivens were part of the Department of the Treasury. Presumably because drugs like alcohol were viewed as taxable commodities even though the principal drugs being targeted at that time were heroin, cocaine and marijuana, and were illegal per se.

Bureau of Narcotics and Dangerous Drugs Was Created

In order to unify the federal effort against illegal drugs, one agency was created in 1968, the Bureau of Narcotics and Dangerous Drugs (BNDD), and it would now be an investigative agency in the Department of Justice. Then in 1973 the BNDD was renamed the Drug Enforcement Administration, and it remained in the DOJ. Although the perception of drug agents out of control was mostly inaccurate, DEA did have limited resources and was under pressure to produce results in terms of arrests and drug seizures. This made it difficult to dedicate their limited resources to long-term investigations targeting the upper echelons of drug trafficking organizations.

In the meantime the FBI was learning to utilize tools provided by the Omnibus Crime Act of 1968. This lengthy act was intended to provide means for federal law enforcement to investigate organized crime. For the FBI that meant La Costa Nostra, the Mafia. One particular part of the act (Title III) prescribed the process to legally intercept wire, oral or electronic communications – electronic surveillance or elsur for short. It included telephone wiretaps and surreptitiously placed microphones or bugs – generally referred to as a “wire.”

The probable cause required to get judicial approval for elsur was by design a difficult standard to meet. The affidavit documenting this “special “ probable cause often ran well in excess of 100 pages. Among other things, there had to be a showing that other investigative techniques wouldn’t work. For example if a drug dealer would only deal with someone he has known for years, it would be very difficult to get him to deal with an undercover agent.

Once the affidavit & accompanying order are written, they have to be submitted to the Attorney General of the US or a specifically designated Assistant AG for approval. If they are approved, they then have to be authorized by a US District Court Judge in the district where the elsur is to be conducted. The elsurs are limited to 30 days, but can be renewed based on an updated affidavit.

By Steve Neavling

A former FBI agent accused of killing his wife is expected to stand trial for the second time beginning today, the Associated Press reports. 

Arthur B. Gonzalez, 43, is charged in Stafford County, Va.,  with second-degree murder and using a firearm in the commission of a felony

It’s his second trial after the first one ended without jurors reaching a unanimous verdict. The second trial will be in Stafford County Circuit Court.

Gonzalez claims he shot his wife in self-defense following an argument in which she attacked him.

Gonzalez is on unpaid administrative leave.

By Steve Neavling

Authorities are searching for a convicted drug lord who was released from prison after killing a DEA agent following a recent decision by a Mexican court, the Associated Press reports.

The Mexican Supreme Court pressured a lower court to reverse the decision to release Rafael Caro Quintero in August 2013 after serving just 28 years in prison.

Quintero has been missing since.

The U.S. expressed outrage after Quintero, who was convicted in the 1985 kidnapping, torture and murder of DEA Agent Enrique “Kiki” Camarena, was released early.

Quintero is considered the grandfather of Mexican drug trafficking.

By Steve Neavling

In a rare show of force, Border Patrol agents fired warning shots from a Blackhawk helicopter to stop a panga boat that authorities suspected was smuggling drugs off the San Diego coast, the Associated Press reports.

The boat was spotted by the Coast Guard, and men were spotted throwing what authorities believe were bales of marijuana overboard.

Two Border Patrol boats also became involved in the pursuit.

Agents fired several warning shots after the boat refused to stop.

The warning shots worked: The three men on the boat surrendered and stopped the boat.

Border Patrol said it has never used such a tactic on the West Coast.

By Steve Neavling

The Secret Service is trying to determine who fired shots outside Vice President Joe Biden’s home in Delaware on Saturday night, the Washington Post reports. 

The Secret Service said a vehicle fled the area after firing the shots at the home in the small, wealthy suburb of Wilmington.

Neither Biden nor his family were home at the time.

About 35 minutes after the shots fired at 8:25 p.m., federal authorities arrested a driver who refused to yield to secure perimeter.

It wasn’t clear this morning whether that person was involved in the shooting.

“The Secret Service is working closely with the New Castle County Police on investigating this incident,” according to a statement released by the Secret Service.

Biden’s office declined to comment, referring questions to Homeland Security.

Stories of Other Interest

• Portland City Council Revisits FBI Task Force Issue
• FBI Cracks Down on Human Trafficking in Houston
• New York Man Arrested for Impersonating Federal Agent
• House Homeland Security Committee to Take Up Border Bill
• Secret Service Combs Taj Mahal Ahead of Obama Trip