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.
In 1982, the FBI was given collateral jurisdiction with DEA to conduct drug investigations. Up until then, the FBI had no drug jurisdiction. One of the primary reasons for giving the FBI drug jurisdiction was that the FBI had demonstrated success in investigating organized crime like the Mafia using elsur and other techniques.
The FBI hit the ground running. Soon after getting drug jurisdiction, there were numerous drug cases initiated by the FBI. The FBI not only had an advantage with the techniques it had mastered, but the FBI also had a physical presence all over the US not just in major urban areas. Because of that presence the FBI had developed a strong working relationship with local law enforcement.
What the FBI didn’t have was an intelligence base: who were possible drug dealers, and how their organizations were structured and operated. That intelligence could, to some extent, be provided by the local law enforcement. A symbiotic relationship developed. Local police intelligence could be used to develop sufficient probable cause for elsur. In Michigan the police didn’t have any authority to intercept oral or telephonic communications. The feds could provide that. We also integrated IRS and DEA into the investigations.
In Michigan in early 1982, there were several drug investigations initiated by the FBI working with local police. Based on source information, work of undercover police/federal agents and physical surveillance, probable cause was developed to pursue elsur coverage targeting upper echelon drug dealers. Many of the drug organizations were connected with other organizations. Investigations in Flint and Saginaw led to information about a large marijuana distribution operation in Ann Arbor. That operation turned out to be even bigger than we thought. Ultimately all the members of the organization were prosecuted. The leaders were brothers, Ned and Fred Shure, who the media dubbed the “Barons of Pot.” Ned, a successful business man exclusive of the marijuana business, and Fred, a professor of nuclear physics at the University of Michigan, made millions; tax free, from the sale of literally semi-truck loads of pot. The Shure brothers eschewed distribution of drugs other than marijuana, but not everyone in their organization did.
A Wiretap and Bug in Ann Arbor
In Ann Arbor the FBI had gone up on a wiretap and bug of Albert Papson Jr., a sub-dealer of the Shures. That led to overhearing a conversation between Papson and James Tanceusz. Tanceusz had stopped by Papson’s home, and he and Papson discussed Papson buying 8 oz. of cocaine from Tanceusz. The visit and conversation were a surprise. When the conversation was overheard, we didn’t know who Papson was talking to.
Fortunately there was a physical surveillance of Papson home at the time of Tanceusz’s visit. The surveillance team was able to identify Tansceusz and follow him home. Based on that encounter an investigation of Tansceusz was begun and assigned to me.
The Ann Arbor Police Department’s Special Investigations Unit had tracked Tansceuz and his associates since late 1978 through surveillance, debriefing confidential informants, and reviewing business, financial and telephone records. However, they were unable to infiltrate the organization or gather enough conspiracy evidence to justify prosecution (from my Tanceusz affidavit).
James Gregory Tanceusz (rhymes with Kansas) was an interesting character. He had graduated from the University of Michigan and had been on the Michigan football team in 1969 when Bo Schembechler arrived. Bo was daunting task master and laid down the challenge that those who stayed would be champions. Tansceusz didn’t stay.
Part of the expertise necessary in doing investigations using wiretaps and bugs is the actual installation of the devices. The FBI had established a relationship with the telephone company (In those days there was only one.); they were required by law to cooperate and the government compensated them for their services. The FBI had agents trained to know how to install wiretaps, and these “technical” or “tech” agents worked with certain telephone employees who were sworn to secrecy. The tech agents were also trained to do surreptitious entries, burglaries, in order to place the bugs. These entries were requested in the elsur affidavit and authorized by the US district Court Judge.
The entries had to be carefully choreographed to avoid detection. ideally when no one was there. Usually the occupants were surveilled after they left to make sure they didn’t unexpectedly return while the tech agents were inside.
The tech agents would do a survey of the target residence or business before making their entry. This would give them an opportunity to determine the best place to make an entry, what type of lock(s) had to be compromised, whether there were dogs and/or alarms, etc. All this had to be done in such a way that the subject drug dealer would not be aware that the entry had occurred.
With Tanceusz’s residence, some of these issues were easy to resolve. His house was in the country so there were no neighbors nearby. He didn’t have a dog or an alarm system. The house was single-story, ranch house. The bug was placed in the living room. It was sensitive enough to pick-up conversations in other parts of the house. This was both a benefit and a problem. If Tanceusz played music or had the TV on, it would tend to drown out the conversations. (There were ways to filter out the extraneous noise, but not completely.)
For the bug the tech agents installed a separate phone line. The bug in effect was an open phone line. An observant person might have noticed an extra line running from the house to the pole. Tansceusz did have the house painted while the wire was up, and we were concerned that the painter would notice the extra line – he didn’t. It would have been possible to use a radio transmitter instead of a hard wire, but transmitters had distance limitations and emanated a signal which could be detected or might interfere with other devices. (This was the state of the art over 30 years ago.)
Requirement of Minimization
After the installation, the wiretap/bug had to be monitored and recorded by an agent, and it had to be done according to strict rules. All those involved in the monitoring had to be briefed as to the case and who could be listened to. There is a requirement of “minimization,” that is, only the persons who had been identified as subjects of the elsur could be monitored. If someone is heard who has not been identified as part of the conspiracy and is not conversing with a known member of the conspiracy, they can’t be monitored. The monitoring/recording machines were wired in such a way that if an agent could hear the conversation then it was recorded.
For each telephone line or bug there were two recorders: one was the “original” and the tape was maintained as evidence; the other was a working copy. The working copy was used for review and some “violation” conversations were transcribed.
Logs were kept by the monitoring agents that showed: on/off times, incoming/outgoing calls, summaries of conversations and “foot marks” so anyone reviewing the tape could easily locate specific calls. A “five day” report was usually required to be provided to the authorizing judge. The judge was then generally made aware of the status of the elsur and what evidence if any was being developed. In Tansceusz’ case, the violation conversations, those that related to drug trafficking, were used to help justify a 30 day extension of the wire.
Tansceuz’ wire ran for a total of 60 days. Tansceusz, as is often the case with a wire, became the best witness for the prosecution. Tansceusz was careful when talking on the phone and was cryptic when discussing drugs, but he was candid in the “privacy” of his home. On several occasions he said that he received and distributed 40 lbs. of cocaine of pure cocaine per year.
More specifically Tansceusz told Rick Schrope, a friend and sub-dealer, that he would be getting 6-7 lbs. of “extra high quality coke” and would be charging more than his customary price of “19” (price per oz. in 100s of dollars or $1,900). Shrope said he would take a pound.
Less than a week after intercepting this conversation on June 2, 1982, the FBI, DEA, IRS and police raided Tansceusz’ home pursuant to a search warrant. The affidavit for the search warrant cited conversations from the wire, but the affidavit was sealed. Tanceausz was still unaware of the wire. 1.6 lbs. of pure cocaine was found in a “secret’ compartment behind Tanceusz’ medicine cabinet.
When the search was completed, Tanceusz was left with a copy of just the search warrant (not the affidavit) and an inventory of what was taken. The elsur coverage continued. The search, in effect, acted to “tickle the wire” – it caused Tansceuz to make incriminating telephone calls and statements overheard on the bug. Those conversations would help identify and strengthen the cases against Tansceuz’ co-conspirators.
After the search and the termination of the wire, all the information gleaned from the wire was analyzed and members of the conspiracy and other potential witnesses were interviewed. (Anyone recorded during the elsur who could be identified had to be given notice that they were intercepted.) The IRS began a “net worth” investigation of Tansceusz. He had no legitimate source of income, and from the wire, we learned that Tansceuz would buy uncut jewels like rubies and emeralds from Southeast Asia. Then he would try to appear to sell them for a profit to launder his drug profits.
Ultimately Tansceuz was indicted along with members of his conspiracy. He was charged with operating a “Continuing Criminal Enterprise”, the severest federal drug trafficking statute. Conviction would have meant a mandatory minimum 10 year prison term, but could have resulted in a life sentence.
On several occasions while his conversations were being intercepted, Tansceusz had railed about drug dealers who had cut deals and testified against other dealers. He said he would never do that.
Rather than go to trial, Tansceusz pleaded to lesser charges. He anticipated that he would be sentenced to less than five years. The judge sentenced him to ten years for cocaine distribution. (There is no parole in the federal system so ten years pretty much means ten years.)
The last time I saw him he was in a minimum-security federal correctional facility in Ft. Worth, Texas. It wasn’t hard time, but Tansceusz wasn’t adapting well to prison. He had called and asked me to visit him as he had information for me. He provided me with information about other drug dealers and said he would be willing to testify. Unfortunately, it was information we already had and his testimony was of no value. Timing is everything – information is like groceries, it has a shelf life, and it was past the expiration date.
After the search of Tansceuz’ home, he had complained in an interview with the media, that federal investigators had blatantly violated his 4th Amendment rights. But this was no redux of the Webster Bivens’ case. Tansceusz learned that the game had changed, but we had followed the rules.